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MATTER PHILIP SHERMAN v. RUSSELL G. OSWALD AS CHAIRMAN (11/07/68)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT


November 7, 1968

IN THE MATTER OF PHILIP SHERMAN, PETITIONER,
v.
RUSSELL G. OSWALD AS CHAIRMAN, BOARD OF PAROLE, RESPONDENT

Concur -- Stevens, J. P., Steuer, Capozzoli, Tilzer and McNally, JJ.

Direct referral of an article 78 proceeding to review determination of respondent dismissing petitioner from his position as a Parole Officer (CPLR 7804). Determination of respondent unanimously modified, on the facts and in the exercise of discretion, without costs or disbursements, by reducing the punishment imposed from dismissal to suspension for a total period of two years (CPLR 7803, subd. 3). Petitioner was suspended, without pay, on or about November 17, 1966, and dismissed effective May 1, 1967. The modification herein is intended to include and date back from the original suspension. The charges were sustained by substantial evidence. However, under the circumstances and the facts as revealed by the record we deem the punishment of dismissal excessive (Matter of Bovino v. Scott, 22 N.Y.2d 214; Matter of Mitthauer v. Patterson, 8 N.Y.2d 37; Matter of Gaines v. Allen, 20 A.D.2d 598; Matter of Koppel v. Hults, 20 A.D.2d 669).

19681107

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