8 N.Y.S. 748 | N.Y. Sup. Ct. | 1890
There was a failure to prove the principal charge against the relator, but the proof that he failed to arrest one Skelly, and allowed him to escape, who committed an assault in relator’s presence, was clear and uneontradicted. This evidence sustained the charge of neglect of duty, and justified the defendant in finding Robinson guilty. While we think, under all the circumstances, that the punishment was severe, yet‘that was a matter resting in the discretion of the defendant. The authorities are abundant that, where punishment is discretionary, the determination of the court that fixes it is not the subject of review. The defendant was vested by statute with power to punish by dismissal, and, having properly found relator guilty, the power was vested in the defendant to inflict the exact punishment that he did inflict.
FTo error seems to have been committed in the conduct of the trial, and the only points raised are that the evidence fails to make out a case, and that the relator, being off duty, was under no obligation to.arrest Skelly. But the evidence was sufficient to sustain the charge of neglect of duty, unless the fact that relator was “off duty” excused him from making the arrest. We think that the fact that he was “off duty” furnishes no excuse. Taking off his uniform did not divest him of his powers as a police officer.
While we think the punishment was undue, it was clearly in the discretion of the commissioner, and this court is not at liberty to interfere. The judgment must be affirmed.
