
    In the Matter of Vincent J. Bovino, Respondent, v. Martin Scott, as Fire Commissioner of the Fire Department of the City of New York, Appellant.
    Argued April 2, 1968;
    decided June 5, 1968.
    
      
      J. Lee Rankin, Corporation Counsel (Stanley Buchsbaum and Jesse I. Levine of counsel), for appellant.
    I. There was more than ample justification for dismissing petitioner. The Fire Commissioner, in doing so, did not abuse his discretion. (Matter of McDermott v. Murphy, 15 A D 2d 479,12 N Y 2d 780; Matter of Payton v. New York City Tr. Auth., 8 A D 2d 602, 8 N Y 2d 737; Matter of Stolz v. Board of Regents, 4 A D 2d 361; Matter of Eisenstein v. Board of Regents, 26 A D 2d 971, 19 N Y 2d 581; Matter of Agency for Investigation & Detection v. Department of State, 25 A D 2d 738, 19 N Y 2d 764; People ex rel. Guiney v. Valentine, 274 N. Y. 331.) II. Since New York City firemen and policemen are subject to a different statutory punishment provision, and since these departments are subject to a form of military discipline, the holding in Matter of Mitthauer v. Patterson (8 N Y 2d 37) should not be extended to them. (Matter of Wiegmann v. Broderick, 27 A D 2d 734; Matter of Donohue v. New York State Police, 19 N Y 2d 954.)
    
      Michael I. Winter and Abraham H. Geffner for respondent.
    I. The statutory right to appeal at bar is neither a grant of right to nor an imposition of duty upon this court to re-examine facts reviewed by the Appellate Division and substitute its discretion for the discretion exercised by the Appellate Division in modifying the Fire Commissioner’s determination with respect to punishment imposed. (Matter of Donohue v. New York State Police, 19 N Y 2d 954; Matter of Bell v. Waterfront Comm. of N. Y. Harbor, 20 N Y 2d 54; Matter of Walker v. Murphy, 15 N Y 2d 650; Matter of Payton v. New York City Tr. Auth., 8 N Y 2d 737; Matter of Mitthauer v. Patterson, 8 N Y 2d 37; Matter of McDermott v. Murphy, 12 N Y 2d 780; Matter of McGinnis’ Broadway Rest. v. Rohan, 6 N Y 2d 770; Matter of Agency for Investigation & Detection v. Department of State, 25 A D 2d 738; Matter of Eisenstein v. Board of Regents, 26 A D 2d 971.) II. The proof adduced and the facts established therefrom as they appear in the record spell out existence of circumstances justifying the reduction of the penalty imposed from dismissal to a suspension for six months in the exercise of a sound discretion. (People v. McGuire, 5 N Y 2d 523; People v. Insetta, 19 A D 2d 702.) III. Due process was not observed and it was seriously prejudicial to petitioner-respondent to have subjected him, over his objections, to an administrative disciplinary hearing, at a time when criminal charges against petitioner-respondent were awaiting determination in the Criminal Court of the City of New York. (People ex rel. Young v. Skidmore, 243 App. Div. 611; Matter of White House Rest. v. Epstein, 19 A D 2d 719; Matter of Heaney v. McGoldrick, 286 N. Y. 38 ; Matter of Murray v. Murphy, 25 A D 2d 409.) IV. Petitioner-respondent was subjected to interrogation by a Fire Department official and evidence unlawfully obtained was used against him. (People v. Waterman, 9 N Y 2d 561; People v. Meyer, 11 N Y 2d 162; People v. Bodie, 16 N Y 2d 275; People v. Richardson, 25 A D 2d 221; Plymouth Sedan v. Pennsylvania, 380 U. S. 693; Boyd v. United States, 116 U. S. 616; Matter of Leogrande v. State Liq. Auth., 25 A D 2d 225; Village of Laurel Hollow v. Laverne Originals, 17 N Y 2d 900; Garrity v. New Jersey, 385 U. S. 493.) V. The drastic penalty of dismissal and loss of accrued pension rights, here by the Fire Commissioner imposed on one who had served the department for 26 years without ever any charges against him, under the circumstances here existent, was unreasonably harsh, excessively severe and a gross abuse of discretion. (Matter of Mitthauer v. Patterson, 8 N Y 2d 37; Matter of Pitt v. Town Bd. of Town of Ramapo, 10 A D 2d 958; People ex rel. Rigby v. Anderson, 198 App. Div. 283; Matter of Delventura v. Hayes, 8 A D 2d 730; Matter of McDonnell v. Kennedy, 5 A D 2d 971; Matter of Truckenbrodt v. Smith, 19 A D 2d 907; Matter of Handel v. Gabel, 22 A D 2d 654; Matter of Nimelman v. Kross, 5 A D 2d 984; Matter of Nagin v. Zurmuhlen, 6 A D 2d 677; Matter of Kane v. New York City Tr. Auth., 22 A D 2d 947; Matter of Stolz v. Board of Regents, 4 A D 2d 361.)
   Bergan, J.

Both the Appellate Division and this court are vested with power, pursuant to CPLB, 7803 (subd. 3), to deal as a matter of law with the measure of discipline imposed on a subordinate civil service employee (Matter of Bell v. Waterfront Comm., 20 N Y 2d 54, 63; Matter of Donohue v. New York State Police, 19 N Y 2d 954; Matter of Walker v. Murphy, 15 N Y 2d 650).

The provisions of the Administrative Code of the City of New York (§ 487a-12.0), stating the measure of discipline in alternative terms of dismissal or suspension for 10 days for each offense in the case of charges heard by the Fire Commissioner, yield to the inconsistent provisions of CPLB 7803 (subd. 3) establishing judicial power to review the “ measure ” of “discipline ”. The reduction by the Appellate Division of the punishment to a six months’ suspension is, however, too substantial a revision under the facts in this record.

The order should be modified by reducing the measure of discipline imposed by the respondent Fire Commissioner to a suspension of two years, and, as modified, affirmed, without costs.

Jasen, J. (dissenting).

The Fire Commissioner’s finding that petitioner was guilty of the charges herein is supported by substantial evidence. The findings of guilt, sustained by the Appellate Division and all the members of this court, relate to most flagrant wrongdoing. Perhaps the most serious offense was the unauthorized obtaining and selling, over a period of two and a half years, of police and fire badges without any concern for their ultimate use. The dangers to the public inherent in the unauthorized possession and use of police and fire badges are too obvious to require elucidation. Another activity of the petitioner is almost as serious. He was found guilty of being engaged in various extra-departmental employments and businesses without obtaining the necessary approval of the Fire Department, one of which involved the selling of fire extinguishers, an activity expressly prohibited by the department’s regulations. One may well imagine the persuasive effect a fireman, as a salesman, might have on a potential buyer of fire extinguishers. Lastly, the petitioner was found guilty of exhibiting pornographic films and snapshots, as well as possession of other objectional material.

To authorize a major offender, such as the petitioner, who has clearly demonstrated his lack of fitness to hold the position, to remain as a fireman, subject only to a suspension, and to permit him to retire after the expiration of the suspension period would go far towards destroying the Fire Commissioner’s ability to maintain appropriate discipline in his department. (People ex rel. Guiney v. Valentine, 274 N. Y. 331, 333-334.)

The test on review is whether the discipline 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.)

The court may by way of review determine only whether the Fire Commissioner has abused his discretion in imposing the measure of punishment. The penalty of dismissal was not an abuse of discretion under the circumstances. I find no sound basis for concluding that the dismissal of the petitioner was “ shocking to one’s sense of fairness.”

Finally, I find no authority for reducing the penalty imposed herein, unless there was an “ abuse of discretion as to the measure or mode of penalty or discipline imposed ”. (CPLR 7803, subd. 3.) Section 487a-12.0 of the Administrative Code of the City of New York provides for two kinds of punishment: forfeiture of pay for not more than ten days for each offense, or dismissal. Clearly, the minimal punishment was intended to cover minor infractions of the rules but, where, as here, there is evidence of substantial wrongdoing, the legislative authority has decreed that the offender cannot be retained on the rolls.

Here, we are concerned with a member of a uniformed force where discipline is essential to its function. It is much more reasonable to conclude that the legislators decided that, except for minor infractions, the punishment to he imposed for conduct involving moral turpitude was dismissal. Indeed, the courts should have no greater power, when it comes to the extent of punishment, than has the Fire Commissioner pursuant to statute. (Administrative Code of City of New York, § 487a-12.0.)

I would reverse the Appellate Division and confirm the Fire Commissioner’s determination in all respects.

Chief Judge Fuld and Judges Burke and Keating concur with Judge Bergan; Judge Jasen dissents and votes to reverse and reinstate the determination of the Fire Commissioner in a separate opinion in which Judges Scileppi and Breitel concur.

Order modified, without costs, in accordance with the opinion herein and, as so modified, affirmed.  