
    In the Matter of Donald T. Short, Respondent, v. Francis B. Looney, as Commissioner of Police of the County of Nassau, et al., Appellants.
    Submitted May 27, 1971;
    decided July 6, 1971.
    
      Joseph Jaspan, County Attorney (Bonnie Singer of counsel), for appellants.
    
      Richard Hartman for respondent.
   Memorandum.

Petitioner, off duty and while operating a truck in the course of a private employment, asked two girls whether they would like to observe him indulge in an act which, at worst, and in context, could be termed indecent. Indeed, the District Attorney of the county found no facts warranting prosecution other than for harassment; but, in any event, the girls ’ parents declined to prosecute. Petitioner professed to have no recollection of his acts for the period in question and for some part of that afternoon.

After the hearing, but before the determination, respondent Commissioner, following an ‘ ‘ inconclusive ’ ’ psychiatric evaluation of petitioner, said that an application by petitioner for retirement on ordinary disability would not be opposed, but this, the petitioner declined. The Appellate Division modified the penalty of dismissal by directing suspension without pay for 15 months, for the reasons stated in its memorandum (34 A D 2d 676, 677). We find no reason to disturb this unanimous and considered conclusion.

Jasek, J. (dissenting).

Petitioner, a Nassau County Police Sergeant, without any provocation or discernible logic, blocked the path of two girls, 14 and 15 years of age, who were on their way home from school. The words he then uttered were much more than a mere “ uncalled for ” remark. If taken literally, there was solicitation by an adult of two minor girls well under the age of consent to join him in an immoral act.

The imposition of the punishment of dismissal from the service cannot be said, as a matter of law, to be inappropriate for the misconduct involved. The test on review is whether the punishment imposed is “ so disproportionate to the offense, in the light of all the circumstances, as to be shocking to one’s sense of fairness.’ ” (Matter of McDermott v. Murphy, 15 A D 2d 479, affd. 12 N Y 2d 780.)

We are concerned here with a police officer who had placed his moral character in question, not only in the eyes of the community, but also among his fellow officers. This glaring defect in character is certainly a sufficient basis for the Police Commissioner’s determination that he is unfit to perform the important and sensitive duties of a police officer. Dismissal is, indeed, reasonable, under the circumstances, in order to maintain efficient discipline and conduct of a well-regulated and respected police force.

Although much is made of the fact that petitioner’s disgraceful and unlawful conduct was not related to his official duties, such a distinction cannot be justified. This is so, because a police officer plays a unique role in our society. Being the guardian of the public safety, he must, at all times — on duty as well as off duty-—■ conduct himself in public in such a manner so as not to destroy the public confidence in his integrity.

I would reverse the order of the Appellate Division and reinstate the Police Commissioner’s determination in all respects.

Chief Judge Fuld and Judges Burke, Scileppi, Bergan, Breitel and Gibson concur in memorandum; Judge Jasen dissents and votes to reverse in a separate opinion.

Order affirmed, without costs, in a memorandum.  