
    In the Matter of Roy La Mere, Petitioner, v. Ralph A. De Santis, as City Manager of the City of Troy, Respondent.
   Proceeding brought pursuant to CPLR article 78 (transferred to the Appellate Division of the -Supreme Court in the Third Judicial Department by order of the Supreme Court at Special Term, entered in Rensselaer County) to review -a determination of the City Manager of the City of Troy, New York, which dismissed petitioner from his employment with the City of Troy. We find no merit in petitioner’s contentions that there is no substantial evidence to support the finding that he was guilty of consuming one or more glasses of beer on August 8, 1970 while on duty as a garbage collector in direct violation of departmental rules of which petitioner was aware (see Matter of Stork Rest. v. Boland, 282 N. Y. 256) or that the hearing officer should have disqualified himself since he was qualified to serve in that capacity (Civil Service Law, § 75, subd. 2) and there is nothing in the record to indicate he possessed any prior knowledge of the event on which the charge was based or that the hearing was conducted unfairly. However, we hold that considering the nature of the offense, the attendant circumstances, especially the reason for petitioner’s presence in the particular bar, and petitioner’s previously unblemished record, the penalty of dismissal was excessive and must be modified (CPLR 7803, subd. 2; see Matter of Shander v. Allen, 28 A D 2d 1150, affd. 24 N Y 2d 974; Matter of Bovino v. Scott, 27 A D 2d 912, mod. 22 N Y 2d 214). Accordingly, while the determination is sustained insofar as the finding as to petitioner’s guilt, it is modified so as to reduce the penalty .imposed to suspension without pay for 90 days. Respondent is directed to reinstate petitioner pursuant ito subdivision 3 of section 76 of the Civil Service Law, and to compensate him in the amount he would have earned but for his dismissal from the time thereof ito the date of this decision less 90 days, and less such amounts as- petitioner may have otherwise earned in any other employment and any unemployment insurance benefits he may have received during such period, pursuant to section 77 of the Civil Service Law. Determination modified, on the law and the facts, so as to reduce the penalty to suspension without pay for 90 days in accordance "with this memorandum and, as so modified, confirmed, without costs. Reynolds, J. P., Staley, Jr., Cooke, Sweeney and Simons, JJ., concur.  