
    In the Matter of Kenneth Boss, Appellant, v Raymond W. Kelly, as Police Commissioner of the City of New York, et al., Respondents.
    [793 NYS2d 423]
   Order and judgment (one paper), Supreme Court, New York County (Michael D. Stallman, J.), entered May 3, 2004, which, to the extent appealed from, denied the petition to restore to full duty as a New York City police officer, unanimously affirmed, without costs.

Petitioner is one of four police officers involved in the 1999 fatal shooting of Amadou Diallo. Although cleared of all criminal and departmental charges related to the shooting, petitioner has been continued on “modified assignment,” and the Commissioner has refused his request to be restored to full duty armed status. In this CPLR article 78 proceeding, petitioner has successfully challenged his retention on modified assignment. As the IAS court found, the Police Department’s own Patrol Guide unambiguously provides that modified assignment may only be used as part of the disciplinary process. The Commissioner’s determination not to return petitioner to full duty status does not violate departmental rules, however, and the decision not to restore his weapon was within the Commissioner’s rationally exercised discretion (see McGuire v Krane, 48 NY2d 661 [1979]). The Commissioner’s stated reasons for denying restoration to full duty status are neither irrational nor arbitrary and capricious (Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222 [1974]). Concur—Tom, J.P., Mazzarelli, Marlow, Nardelli and Sweeny, JJ. [See 3 Misc 3d 936 (2004).]  