Hopkins v. Smith

Order, Supreme Court, New York County, entered December 9, 1977, granting the petition to the extent of remanding to respondents for consideration and imposition of a penalty less than dismissal, unanimously modified, on the law, to the extent of reducing the penalty imposed to suspension for three years, without pay, nunc pro tunc, to January 9, 1976, and otherwise affirmed, without costs or disbursements. A Justice of this court has granted leave, nunc pro tunc, to take an appeal from the order entered December 9, 1977 (CPLR 5701, subd [b], par 1; subd [c]; Matter of Glazer v Board of Trustees of Police Pension Fund, Art. IT, of Police Dept, of City of N. Y., 66 AD2d 759). Petitioner had been found guilty of certain charges and was dismissed from his position as supervising special officer of Human Resources Administration police operations. We have on a previous appeal reviewed and modified the findings of guilt of the charges leveled against the petitioner (Matter of Hopkins v Smith, 58 AD2d 325) and *743remanded the matter for imposition of an appropriate penalty in view of the modification. On remand, the respondents again imposed the penalty of dismissal. On this appeal, we are called upon to review the propriety of the sanction imposed. We have taken into consideration petitioner’s 19 years of satisfactory service and the loss of retirement benefits upon dismissal and weighed it against the offense committed; namely, failure to return a confidential report forthwith and "losing” the envelope which would contain information as to who sent the confidential report to the petitioner (Matter of Hopkins v Smith, 58 AD2d 325, 326, supra). We find that the punishment of dismissal, under these circumstances, was so disproportionate to the offense as to shock one’s sense of fairness (Matter of Pell v Board of Educ., 34 NY2d 222), and have accordingly modified the sanction imposed. Concur —Kupferman, J. P., Birns, Lane, Sandler and Sullivan, JJ.