Truckenbrodt v. Smith

'Proceeding under article 78 of the former Civil Practice Act: (1) to annul a determination of the respondent Board of Trustees of the Village of Searsdale, made December 27, 1962 after a hearing, dismissing petitioner from his position as a police officer of said village, effective December 4, 1962; and (2) to restore him to said position. Determination modified on the facts and in the exercise of discretion by reducing the punishment imposed from a dismissal to a suspension without pay for a period of six months commencing as of November 27, 1962. As so modified, determination confirmed, without costs. Petitioner was charged with and found guilty of violating certain departmental regulations in that on two occasions he used an official police patrol car outside the village limits for unauthorized purposes. In the light of the express assignment to petitioner of the patrol car in question, its use by him was warranted for police duty but not for unofficial purposes. Irrespective of whether he ever received a copy of the rules and regulations, the fact remains that he had been a policeman for about 14 years; that he knew of the existence of regulations; and that he knew or should have known that his use of the patrol car for personal purposes while on active official duty and his conduct in driving the ear not only away from his post but outside the village limits, was a violation of his duty and of the regulations. Under all the pertinent circumstances, however, including the nature of the offense and the petitioner’s prior service record, it is our opinion that a dismissal was excessive punishment and that the penalty of suspension hereby imposed is adequate (CPLR, § 7803, subd. 3; former Civ. Prae. Act, § 1296, subd. 5-a). Ughetta, Acting P. J., Christ, Brennan, Hill and Rabin, JJ., concur.