IN RE: Philip R. BARRESI (1997)

Proceeding pursuant to CPLR article 78 to review a determination of the respondent Patrick A. Mahoney as Sheriff of Suffolk County, dated March 1, 1995, which, after a hearing, found the petitioner guilty of misconduct and dismissed him from his position as Deputy Sheriff II.

ADJUDGED that the petition is granted, on the law and as a matter of discretion in the interests of justice, to the extent that the penalty imposed is modified by reducing the punishment from dismissal to suspension without pay for a period of 18 months commencing March 1, 1995, and the determination is otherwise confirmed, without costs or disbursements.

The record contains substantial evidence to support the determination that the petitioner was guilty of the misconduct charged, namely, the failure to safeguard his privately-owned weapon.   In fact, the petitioner admitted at the hearing that the charges and specifications were correct.   However, we find the penalty of dismissal so disproportionate to the petitioner's offense as to be shocking to one's sense of fairness (see, Matter of Pell v. Board of Educ., 34 N.Y.2d 222, 356 N.Y.S.2d 833, 313 N.E.2d 321;  cf., Ryant v. Commissioner of Dept. of Correction of City of N.Y., 159 A.D.2d 224, 552 N.Y.S.2d 29).

The petitioner's claims for damages for alleged violations of his constitutional rights are not incidental to the primary relief sought, and, as such, are dismissed without prejudice (see generally, Matter of Schwab v. Bowen, 41 N.Y.2d 907, 394 N.Y.S.2d 616, 363 N.E.2d 341;  Matter of Leisner v. Bahou, 97 A.D.2d 860, 469 N.Y.S.2d 255).

MEMORANDUM BY THE COURT.