Opinion
February 11, 1975
Determination of respondent Police Commissioner, dated February 27, 1973, modified, on the law and in the exercise of discretion, to the extent of reducing the measure of discipline imposed to suspension for a period terminating 30 days after the date of the order entered hereon without pay; and otherwise affirmed, without costs or disbursements. Petitioner and another officer were charged, in substance, with soliciting and receiving a $10 bribe as consideration for their failure to take proper police action against a civilian found in possession of stolen license plates. In Matter of Gallagher v. Cawley ( 43 A.D.2d 931) we examined the evidence adduced and found it sufficient to support the finding of guilt. However, in reviewing the punishment imposed (dismissal from the police service), we gave consideration to Gallagher's co-operation with the Knapp Commission and the Kings County District Attorney's office. Respondent and our dissenting brother call attention to the absence of such mitigating factor in the instant case. Nevertheless, and in view of petitioner's otherwise unblemlished record, we believe the same sanction should be imposed on both participants.
Concur — Murphy, Lupiano and Tilzer, JJ.; Kupferman, J.P., dissents in the following memorandum: I would confirm the determination. ( Matter of Pell v. Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale Mamaroneck, 34 N.Y.2d 222. ) The distinguishing ameliorating factor in Matter of Gallagher v. Cawley ( 43 A.D.2d 931) was that the petitioner there co-operated with the Knapp Commission and the Kings County District Attorney's office. Here we have no such mitigating factor.