Opinion
January 24, 1986
Appeal from the Supreme Court, Allegany County, Kelly, J.
Present — Dillon, P.J., Denman, Boomer, Green and O'Donnell, JJ.
Determination unanimously confirmed and petition dismissed, without costs. Memorandum: The record contains substantial evidence in support of the determination that petitioner, a police officer, was guilty of misconduct in twice issuing bad checks to local merchants and failing to make restitution until several weeks after each incident and only after repeated warnings by the police chief (see, Matter of Pell v Board of Educ., 34 N.Y.2d 222; Matter of Monroe v Board of Public Safety, 73 A.D.2d 996). The fact that petitioner's misconduct occurred while he was off duty does not mitigate the gravity of his errors (see, Matter of Zazycki v City of Albany, 94 A.D.2d 925, lv denied 60 N.Y.2d 558). The penalty of dismissal was not so disproportionate to the offense, in light of all the circumstances, as to be shocking to one's sense of fairness (see, Matter of Alfieri v Murphy, 38 N.Y.2d 976; Matter of Pell v Board of Educ., supra, at 233). There is no merit to petitioner's argument that the matter should be remitted because prior warnings in his employment record were considered in his punishment without his having an opportunity to respond (cf. Matter of Bigelow v Board of Trustees, 63 N.Y.2d 470). The penalty imposed was appropriate for the violations, considering the facts in the hearing record, regardless of the warnings. Thus, remittal would serve no purpose and is unnecessary (see, Matter of Kleinsmith v Connelie, 68 A.D.2d 271, 272-273). We have reviewed petitioner's remaining claims and find them without merit.