Smith v. Murphy

Appellate Division of the Supreme Court of New York

Smith v. Murphy

38 A.D.2d 931, 330 N.Y.S.2d 146, 1972 N.Y. App. Div. LEXIS 5065

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 27, 1972

StatusPublished

This text of 38 A.D.2d 931 (Smith v. Murphy) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Smith v. Murphy, 38 A.D.2d 931, 330 N.Y.S.2d 146, 1972 N.Y. App. Div. LEXIS 5065 (N.Y. Ct. App. 1972).

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Opinion

Determination of the respondent, dated February 4, 1971, unanimously modified on the law, the facts and in the exercise of discretion, to the extent of suspending the petitioner for a period of two years from the date of the order hereon, and as so modified, confirmed, without costs and without disbursements. We believe the dismissal of petitioner and the forfeiture of his accrued pension rights constitute unreasonably harsh and excessive sanctions. We do not condone solicitation or acceptance of gratuities by police officers or for that matter any public official. Nevertheless, petitioner’s excellent service of 22 years within the department, 10 of which were as sergeant, prior to the events underlying the charges herein, indicate that the permissible aims of discipline can be achieved effectively by less severe punishment. In the circumstances, the forfeiture of pension rights based on prior satisfactory service is unwarranted. A two-year period of suspension would satisfy the ends of justice. Our courts have heretofore revoked sentences of dismissal of employees with records of prior good service and substituted suspension. (Matter of Bovino v. Scott, 22 N Y 2d 214; Matter of Mitthauer v. Patterson, 8 N Y 2d 37; Matter of Nagin v. Zurmuhlen, 6 A D 2d 677; Matter of Nimelman v. Kross, 5 A D 2d 984; Matter of McDonnell v. Kennedy, 5 A D 2d 971.) Concur—McGivern, J. P., Markewich, McNally, Tilzer and Capozzoli, JJ.

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Determination of the respondent, dated February 4, 1971, unanimously modified on the law, the facts and in the exercise of discretion, to the extent of suspending the petitioner for a period of two years from the date of the order hereon, and as so modified, confirmed, without costs and without disbursements. We believe the dismissal of petitioner and the forfeiture of his accrued pension rights constitute unreasonably harsh and excessive sanctions. We do not condone solicitation or acceptance of gratuities by police officers or for that matter any public official. Nevertheless, petitioner’s excellent service of 22 years within the department, 10 of which were as sergeant, prior to the events underlying the charges herein, indicate that the permissible aims of discipline can be achieved effectively by less severe punishment. In the circumstances, the forfeiture of pension rights based on prior satisfactory service is unwarranted. A two-year period of suspension would satisfy the ends of justice. Our courts have heretofore revoked sentences of dismissal of employees with records of prior good service and substituted suspension. (Matter of Bovino v. Scott, 22 N Y 2d 214; Matter of Mitthauer v. Patterson, 8 N Y 2d 37; Matter of Nagin v. Zurmuhlen, 6 A D 2d 677; Matter of Nimelman v. Kross, 5 A D 2d 984; Matter of McDonnell v. Kennedy, 5 A D 2d 971.) Concur—McGivern, J. P., Markewich, McNally, Tilzer and Capozzoli, JJ.

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Bluebook (online)

38 A.D.2d 931, 330 N.Y.S.2d 146, 1972 N.Y. App. Div. LEXIS 5065, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-murphy-nyappdiv-1972.