Joanne Wilson is a victim of polio, scoliosis and arthritis. She walks haltingly and with the aid of a cane. Her disability is so marked that she has been granted a special parking permit by the Police Department.
*31Alana Shelare is a victim of cerebral palsy, has deformed hips and has difficulty keeping her balance. When she becomes nervous her muscles tighten up and she falls.
On the afternoon of May 11, 1971, Joanne and Alana went on a holiday with their teacher and their college class to Central Park. Due to their handicaps, they fell behind their fellow students while on their way to the Tavern on the Green, a restaurant located also in Central Park. Alana fell twice on that day. Her hand was bleeding. Both girls attempted to hail a taxicab in order to rejoin their fellow students at the tavern. Patrolman John Bal, Jr., in uniform and driving an unmarked police car, observed the two girls unsuccessfully attempting to flag down a taxi. Upon learning of their plight, he drove them to the Tavern on the Green.
And for this "compassionate gesture” to quote the Police Commissioner, Patrolman Bal has been dismissed from the force!
In his decision dismissing the patrolman, the Police Commissioner said: "Bal’s act in picking them [the two girls] up, while technically improper, could be viewed as a compassionate gesture. It is events that occurred after this act that lead me to consider this a serious case and to consider Patrolman Bal’s overall fitness to remain a member of this Department.” Let us consider what occurred: after taking the two girls to the Tavern on the Green, the patrolman left. Shortly thereafter he returned to use the facilities for a "personal” reason. While on his way out he was hailed to the table where the two girls were with other students. Their teacher thanked Bal for his kind gesture towards two of her students. While he sat at the table, he did not eat or drink anything. An employee of the restaurant informed Bal that they could not serve him (although no request to be served had been made). Bal said he would leave. It appears that there was a sergeant who had entered the restaurant through a back door and who was in the kitchen. This sergeant learned of Bal’s presence in the dining room while in full uniform. He approached Bal and requested that Bal follow him out into the lobby. In the lobby, the sergeant requested to see Bal’s memorandum book. Bal dutifully and properly obeyed the sergeant’s orders. But two of the specifications of which he has been found guilty are that he did not obey the sergeant’s requests promptly. And this in the face of Bal’s offer to the sergeant to apologize if he had offended him in any way!
*32And what about his "overall fitness” to remain in the department? He had been on the force for approximately three years, and while he had been found guilty of a substantial number of minor infractions, he had received three excellent and one meritorious citations.
One other factor disturbs me greatly. Detective John Serpico, of Knapp Commission fame, was called as a character witness by Bal. Serpico testified that he knew Bal well and that they had often met to discuss Police Department matters. We all know that Mr. Serpico publicly denounced corruption in the department. The sergeant testified that he had "heard” of Bal. The Police Commissioner said of Bal: "He believes that his intentions are basically good and that the Department is in need of reform. He should not be faulted for his intentions or his beliefs, which are not without merit. His personal integrity and sincerity are unquestioned.” Bal shared with Serpico a belief and concern for reform in the Police Department. I cannot help but wonder whether this was a factor in the sergeant’s aggressive attitude towards Bal and in his dismissal.
The Police Commissioner stated that he was dismissing Bal because he had regularly failed to live up to the requirements of discipline that police work demands and because Bal had shown a disdain for supervisory authority. But Bal was not so charged. Not a word in the accusations against him about lack of discipline or disdain for supervisory authority, except possibly the charge of not having promptly obeyed the sergeant’s orders to follow him into the lobby and to promptly show him the memorandum book.
Bal’s acts constituted violations, but they were technical in nature and were not acts of moral turpitude. Matter of Stolz v Board of Regents (4 AD2d 361, 364) held that under CPLR 7803 (subd 3), a court could "set aside a determination by an administrative agency[,] only if the measure of punishment or 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.” This position was approved in Matter of Pell v Board of Educ. (34 NY2d 222, 234) "a result is shocking to one’s sense of fairness if the sanction imposed is so grave in its impact on the individual subjected to it that it is disproportionate to the misconduct, incompetence, failure or turpitude of the individual, or to the harm or risk of harm to the agency or institution, or to the public generally visited or threatened *33by the derelictions of the individuals. Additional factors would be the prospect of deterrence of the individual or of others in like situations, and therefore a reasonable prospect of recurrence of derelictions by the individual or persons similarly employed. There is also the element that the sanctions reflect the standards of society to be applied to the offense involved.” The court in Pell continued by distinguishing instances of moral turpitude from those in which there is an absence of moral turpitude or grave injury to the agency or the public. In the latter situation, within which falls the case at bar, consideration of the length of employment, loss of retirement benefits, and the probability that the dismissal may leave the employee without any alternative livelihood play a role. Petitioner’s dismissal falls within the tests noted in Pell as evidencing discipline which shocks one’s sense of fairness. Dismissal is disproportionate to the misconduct and the harm it caused the department and the public; dismissal is not a proper method to deter recurrence of minor infractions.
While Pell allows, after a finding of guilt, consideration of the person’s prior record as an aid to determine the proper punishment, such consideration herein does not justify petitioner’s dismissal.
Mr. Bal’s dismissal for minor technical violations is apparently not shocking to my brethren’s sense of fairness but it is most shocking to mine. Under the Pell standards the dismissal should be annulled and the matter remanded to the Police Commissioner for imposition of less drastic punishment.
Lupiano, J. P., and Capozzoli, J., concur with Lane, J.; Birns, J., concurs in an opinion in which Lupiano, J. P., and Capozzoli, J., also concur; Nunez, J., dissents in an opinion.
Determination of the respondent dated February 2, 1972 confirmed, without costs and without disbursements, and the petition dismissed.