Pietranico v. Ambach ( 1981 )

Herlihy, J. (concurring in part and dissenting in part).

Although we have no controversy with the majority’s finding with respect to professional misconduct, we dissent because we consider the respondents’ decision concerning punishment to be an aberration and shocking to one’s sense of fair play. It is seldom that punishment imposed by respondents requires the intervention of the court on the theory that the decision is arbitrary, capricious and lacks a rational basis, but this is not a perfect world and misjudgments and errors are committed by the best of authority. Such is the punishment under review which we consider to be arbitrary, capricious and without a rational basis as a matter of law. (See Matter of Donohue v New York State Police, 19 NY2d 954.)

The record establishes without dispute that petitioner was arrested for the mere fact that she was in the apartment at the time of a raid even though she gave a reasonable excuse for being there. It appears to us that, acting as a “Good Samaritan”, she was in the wrong place at the wrong time. It is apparent that after spending a night in the “Tombs” she was poorly advised by counsel, not of her own choice, that she pleaded guilty and this should have been taken into consideration by respondents.

The State Board for Nursing, Committee on Professional Conduct, recommended that petitioner be censured and she could then have had her license reissued. The Regents Review Committee recommended a three-year suspension of her license with execution stayed for the last two years during which time she would be on probation and respondents adopted this recommendation.

Respondents rely upon our recent decisions in Matter of Durante v Board of Regents of State Univ. of N.Y. (70 AD2d 692, app dsmd 48 NY2d 654) and Matter ofMosner v Ambach (66 AD2d 912) which are not precedents or controlling. In those cases the punishment imposed was proportionate to the offenses charged.

In our opinion, the recommendation of censure by the Committee on Professional Conduct was proportionate to the charges, but in any event it would be necessary that the matter be remitted to respondents for further review, taking into consideration in this particular proceeding that there was no relationship between the offense involved and petitioner’s professional ability or capacity and that the offense in no way inhibited her from the proper pursuit of her profession.

Kane, J. P., and Mikoll, J., concur with Weiss, J.; Main and Herlihy, JJ., concur in part and dissent in part in an opinion by Herlihy, J.

Determination confirmed, and petition dismissed, without costs.