Matter of Brian M. Kennedy v Wayne E. Bennett

Matter of Kennedy v Bennett 2006 NY Slip Op 01021 [26 AD3d 334] February 7, 2006 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, April 19, 2006

In the Matter of Brian M. Kennedy, Petitioner,
v
Wayne E. Bennett, Respondent.

—[*1]Proceeding pursuant to CPLR article 78 to review a determination of the respondent dated January 12, 2004, which, after a hearing, found the petitioner guilty of two of the three charges of misconduct filed against him and dismissed him from the New York State Police Department.

Adjudged that the petition is granted, on the law, without costs or disbursements, to the extent that the penalty is vacated, the petition is otherwise denied, the determination is otherwise confirmed, and the proceeding is otherwise dismissed on the merits, and the matter is remitted to the respondent for the imposition of a new penalty less severe than a dismissal.

The Hearing Officer's finding of guilt as to two charges is supported by substantial evidence (see CPLR 7803 [4]). However, the penalty imposed by the respondent was so disproportionate to the offenses as to be shocking to one's sense of fairness (see 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]; Matter of Lee v Board of Educ. of Pelham Union Free School Dist., 90 AD2d 775 [1982]). H. Miller, J.P., Crane, Skelos and Dillon, JJ., concur.