Savello v. Frank

48 A.D.2d 699, 368 N.Y.S.2d 51, 1975 N.Y. App. Div. LEXIS 9747

Opinion

Proceeding by a Nassau County police officer, pursuant to CPLR article 78, to review respondent’s determination, dated July 1, 1974, which, after a hearing, found petitioner guilty of two specifications of misconduct and fined him seven days’ pay on one specification and three days’ pay on the other, for a total fine of 10 days’ pay. Petition granted to the extent that the determination is modified, on the law, by reducing the fine to a total of seven days’ pay. As so modified, determination confirmed and petition otherwise dismissed on the merits, without costs. There was ample and substantial evidence to support the finding that petitioner was guilty of the underlying violation for which he was charged, viz., failure to obey the lawful order of a superior officer. However, although two different departmental rules were cited, they covered the identical conduct and, under the facts of this case, were merely duplicative. Petitioner should not receive two punishments for the one offense. Rabin, Acting P. J., Hopkins, Martuscello, Cohalan and Munder, JJ., concur.