Buttacavoli v. Guido

Proceeding pursuant to CPLR article 78 to review a determination of the Commissioner of Police of the County of Nassau, which, after a hearing, found that the petitioner had violated specific rules and regulations of the Nassau County Police Department and dismissed him from his position with the department. Petition granted to the extent that the determination is modified, on the law, by annulling so much thereof as found that the charges as to Specification No. 7 were sustained, and the said charges are dismissed. As so modified, determination confirmed and proceeding otherwise dismissed on the merits, without costs or disbursements. The evidence in support of Specification No. 7, failure to promptly notify the police department of a change of status, was entirely inconclusive and therefore insufficient to support the determination sustaining the charge. However, substantial evidence was presented to support the more serious charges of conduct unbecoming an officer (see Matter of Collins v Codd, 38 NY2d 269). Nor was the petitioner denied a fair hearing by the admission, over, objection, of legally incompetent evidence (see Matter of Sowa v Looney, 23 NY2d 329). Finally, the punishment of dismissal, although harsh, is not shocking to one’s sense of fairness. The petitioner’s conduct, while perhaps understandable, was inconsistent with the overriding public interest of maintaining an efficient and honest police force deserving of the public’s trust and confidence (see Matter of Alñeri v Murphy, 47 AD2d 820, affd 38 NY2d 976; Matter of Steward v Leary, 57 Mise 2d 792). It is not necessary to remit the matter for reconsideration of the penalty since it is apparent from this record that the dismissal was based upon the more serious charges of misconduct. Damiani, J. P., Hawkins, Suozzi and O’Connor, JJ., concur.