Opinion
July 13, 1970
Proceeding under article 78 of the CPLR to review and annul a determination of the Commissioner of Police of the County of Nassau dismissing petitioner from his position of patrolman, effective January 6, 1966, upon a charge that on December 2, 1965 he had misappropriated departmental property by converting approximately two gallons of gasoline to his personal use and possession. Determination modified, on the law, by striking out the penalty of dismissal and by substituting therefor a provision that the penalty be suspension for a period terminating on the date of entry of the order hereon and that petitioner be reinstated to his position at that time. As so modified, determination confirmed, without costs. In our opinion, the penalty of dismissal was excessive and an abuse of discretion to the extent indicated herein (CPLR 7803, subd. 3; Matter of Donohue v. New York State Police, 19 N.Y.2d 954). Rabin, Acting P.J., Hopkins, Munder, Martuscello and Benjamin, JJ., concur.