concurrence">Birns, J. (concurring).

If all that we had before us was a review of the "compassionate gesture” of Police Officer Bal, there might be unanimous support for the conclusions set forth with understandable sympathy by Justice Nunez.

The dismissal of Officer Bal, however, rested on broader grounds sketched in the majority’s opinion affirming the Police Commissioner’s order of dismissal.

In his determination, the Police Commissioner noted, in sequence, almost every act of affirmative and negative behavior encompassed in Bal’s history as a police officer from his entry into the department until the day of dismissal.

There is no question but that the Police Commissioner had the right to consider the history of the petitioner in arriving at his conclusion to dismiss (Matter of Pell v Board of Educ., 34 NY2d 222, 240; Matter of Slominski v Codd, 52 AD2d 762). The Police Commissioner summarized his view in the following words: "Patrolman Bal’s disciplinary record shows that he is, indeed, unwilling to accept the responsibilities required of a member of the force.”

Our dissenting brother refers to the testimony of Detective Serpico as a character witness in petitioner’s behalf; that the petitioner and Detective Serpico had met often to discuss Police Department matters, and "[w]e all know that Mr. Serpico publicly denounced corruption in the Department”. The necessity for this reference eludes me. In no way is it connected to the determination of the charges or punishment imposed by the Police Commissioner except by tenuous implication unsupported by the record.

In my view, it is unwarranted even to imply, that the discharge of petitioner was provoked by his friendship with Detective Serpico and their common denunciation of bribery, and any such implication should be rejected.

Unless the penalty imposed shocks the conscience so as to require judicial intervention (Matter of Pell v Board of Educ., supra, p 233; Matter of Stolz v Board of Regents, 4 AD2d 361, 364), we must remember that managerial responsibility in imposing appropriate punishment, as discipline requires, is that of the Police Commissioner and not that of the courts.

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