This is an article 78 proceeding, heard in the first instance by the Appellate Division, to review a determination of the respondent Monaghan as commissioner of the police department of the City of New York, dismissing each of the five petitioners from the police department. The Appellate Division confirmed the determination of the police commissioner.
On May 8, 1951, the Grand Jury of Kings County indicted certain members of the police department for conspiracy on charges of engaging in concerted action with one Harry Gross in promoting the systematic and continued business of bookmaking, horse rooms, wire rooms and other related conduct. Petitioners Thomas J. Evans, John E. McNamara, George M. Oest, Walter J. Sullivan and Eugene McGillicuddy were not named as defendants, but were alleged in these indictments to have received money from Gross or otherwise to have confederated with him in this enterprise. On May 9, 1951, the. members of the police force named as defendants, as well as those named as coconspirators (including these petitioners) were all suspended from duty. On May 15, 1951, departmental charges were filed against them of conduct unbecoming an officer. Former Federal District Judge Simon H. Rifkind was appointed third deputy police commissioner, and directed to hear these charges. Commissioner Rifkind found nine members of the police force guilty, and the rest (including each of the present petitioners) not guilty. The latter he recommended be restored to duty, which was done by order of the police commissioner.
Meanwhile the criminal indictment had been dismissed, due to refusal by Gross to testify in court to the substance of his testimony before the Grand Jury on which the defendants were indicted, and which evidently implicated these petitioners and others in the conspiracy. Commissioner Rifkind was obliged to conduct his investigation on behalf of the police commissioner without the aid of testimony by Gross, who was convicted on twelve separate counts of book-making on which he received consecutive sentences of one year each, and five years more for contempt of court for refusing to testify. Each of these peti
Gross changed his mind and decided to testify against these officers in a second departmental hearing. New departmental charges were preferred against petitioners, which were the same, in substance, as the original charges, except for the additional charge that they had perjured themselves beforez Commissioner Rifkind. Former Surrogate Delehanty was appointed third deputy police commissioner to hear the new charges on April 25, 1952. Notice of these charges was served on petitioners on various dates between April 23,1952, and April 28, 1952. These notices specified that the respective petitioner would be required to answer such charges at a hearing to be held on April 30, 1952.
After petitioners had been restored to duty on December 27, 1951, on recommendation of Commissioner Rifkind, and before the second set of charges had been preferred, each of them applied for retirement from the police department, each retirement to take effect on a date specified according to subdivision c of section B18-4.0 of the Administrative Code of the City of New York (as amd. by Local Laws, 1951, No. 44 of City of .New York), not less than thirty days subsquent to the execution and filing of the application for retirement. The dates thus specified by petitioners were: Thomas J. Evans, May 13, 1952, Walter J. Sullivan, May 16, 1952, George M. Oest, May 18, 1952, John E. McNamara, May 23, 1952, and Eugene McGillicuddy, May 23, 1952. Each retirement application was accompanied by a letter of transmittal reserving the right of the petitioner to retire forthwith, as thus stated in some of the applications and paraphrased in others, ‘ ‘ which I now desire to do and which, except for Local Law #44 of the City of New York for the year 1951, I would do ”. Each petitioner protested the constitutionality of that local law, preventing immediate retirement.
The alleged invalidity of the thirty-day requirement imposed by this local law is one of the grounds urged for reversal, but this point was adjudged adversely to petitioners in Gorman v. City of New York, (304 N. Y. 865, appeal dismissed 345 U. S. 962).
When the hearing convened at the Brooklyn Police Headquarters on April 30, 1952, Commissioner Delehanty called
Numerous questions have been raised by petitioners on appeal to this court on account of which it is contended that the order of the Appellate Division should be reversed, and the de
The last point depends upon the alleged invalidity of Local Law No. 44 of the City of New York for the year 1951, amending subdivision c of section B18-4.0 of the Administrative Code, preventing retirements from taking effect less than thirty days after the execution and filing of applications. This point was overruled, as has been stated, by the Gorman case (supra).
Concerning the point that the police commissioner’s determination is unsupported by substantial evidence for the reason that Gross’ testimony lacks corroboration, it must be noted that section 399 of the Code of Criminal Procedure does not apply to departmental trials such as this, which are civil in nature. Nevertheless, we have not lost sight of the statement made by the dissenting justices at the Appellate Division: “ While technically section 399 of the Code of Criminal Procedure may not be formally applicable, the basic reason for its salutary purpose should in fairness and justice be not lost sight of in police trials upon charges involving criminality.” (282 App. Div. 382, 396.) A thorough examination of the supporting evidence leads us to conclude, however, that although, strictly speaking, it may not amount to corroborative evidence of Gross to the extent required by section 399 in case of a criminal trial, it is more convincing than the supporting testimony in the other departmental trials cited in the dissenting opinion at the Appellate Division, such as
These circumstances would not be sufficient to implicate petitioners without the testimony of Gross, yet they lend credibility to his account of what occurred. Commissioner Delehanty, who had opportunity to observe this witness upon the stand, reported that his testimony seemed to be a recital in general of the actual occurrences as he recalled them. He added that “ The multiplicity of detail to which he testified and his restatement of detailed occurrences when he was required to make a statement negated the idea that the story told by him was a concocted tale in which he involved police officers maliciously. ’ ’ He regarded as significant the fact that the witness expressed resentment at the proceedings before the Grand Jury in Kings County, and later upon the trial of the indictment found by the Grand Jury, but that “ There was no evidence whatever of malice on the part of the witness toward any policeman named by him,” and that “ Nowhere is there made the suggestion that a story once told by him has been substantially changed.” If Gross’ testimony be false in its essentials, he must have harbored a steady vindictive purpose to ruin these police officers, and been possessed of a remarkably systematic mind to have been able to have invented such an elaborate fiction, and to have kept so many imaginary details in the same relationship and context. He evidently has a nimble and alert
This is, of course, a case of unusual importance to petitioners and to organized society. It merits and has received the careful study and sustained attention of the police department and of the courts. The attendant circumstances lend sufficient credibility to these departmental charges to justify a belief on the part of the commissioner that the charges were true. In conjunction with the testimony of Harry Gross, they were enough to constitute substantial evidence before the commissioner to sustain his determination. In saying this, we are not unmindful of the circumstance that Gross hoped to eliminate part of his sentence by altering his previous refusal to testify.
Concerning the contention that petitioners were not granted a fair trial, it is true that the time allotted by Commissioner Delehanty for preparaion for trial was brief. Nevertheless, Gross’ testimony was received on May 7th and 8th, after which an adjournment was taken until May 12th. That left time, it would seem, for petitioners to have communicated with at least some of the police officers who might have denied or disrupted the sequence of Gross’ story in some regard. The trial would have begun earlier, and Gross’ testimony would have been sooner available to petitioners, if they had not sought to enjoin the trial by applying for an injunction to the Supreme Court at Special Term. Moreover, Commissioner Delehanty plainly indicated that he would postpone the trial for a longer time if petitioners would withdraw their applications for retirement, in order that these issues might be decided prior to their pensions irrevocably taking effect. None of the petitioners was willing to postpone the effective date of his retirement. It was proper to conduct the trial with such expedition as was necessary in order to prevent their pensions from taking effect in
The further ground on which it is contended that petitioners were denied a fair trial before Commissioner Delehanty, namely, that he could not find that they testified falsely before Commissioner Rifkind, is likewise unfounded. The basis for this contention is that they were denied due process of law in being called as witnesses for the prosecution in the first departmental hearing. This contention was overruled in Matter of Delehanty (Sullivan-Goubeaud) (280 App. Div. 542, affd. 304 N. Y. 725, 727).
It remains to consider the principal point on account of which it has been argued in this court that the order appealed from should be reversed, which is that the outcome of the former disciplinary proceeding bars the maintenance of the second proceeding upon similar charges. __
In considering the question of res judicata, it is assumed that the charges are the same which formed the basis of both departmental hearings, and that this circumstance is not altered by the fact that additional charges were preferred at the second-trial that petitioners testified falsely at the first trial." Osterhoudt v. Rigney (98 N. Y. 222, 234) is cited to the effect that “ The rule which forbids the reopening of a matter once judicially determined by a competent jurisdiction, applies as well to the decisions of special and subordinate tribunals as to decisions of courts exercising general judicial powers ”. Other cases are cited to similar effect such as People ex rel. McCabe v. Matthies (179 N. Y. 242, 248); Matter of Hyland v. Waldo (158 App. Div. 654), and Matter of Stowell v. Santoro (256 App. Div. 934). Security of person and property requires that deter-ruinations in the field of administrative law should be given as much finality as is reasonably possible. The cases cited indicate that Jhe rule of res judicata is applicable to such determinations
Nevertheless, it would be beyond the spirit as well as beyond the letter of the doctrine of res judicata, as that doctrine is applied in court procedure, to bar'the second departmental trial of petitioners. The unsealing of Harry Gross’ lips after he had refused to testify at the first departmental trial, is tantamount to newly discovered evidence. The resulting situation is not unlike that where a witness is non compos mentis at the time of a trial but afterward regains his competency and ability to testify. It is true that Gross had testified before the Grand Jury, and that the Grand Jury’s minutes had been made available to the police department. Nevertheless, it remained sterile for so long as Gross elected to submit to punishment for contempt rather than to testify where the testimony would count for something.
If a successful defendant has been placed in jeopardy in a criminal trial, there can be no new trial on the ground of newly discovered evidence or upon any other ground. This is a civil proceeding, however, and there is no double jeopardy nor other bar to a second trial on these departmental charges if, by analogy, the principle of newly discovered evidence should apply. There is essentially no distinction, one may think, between a witness who recants his testimony given upon a former trial, and one who later testifies to material facts after refusing to testify before. Certainly, in the latter instance, evidence
In People v. Shilitano (218 N. Y. 161) a motion was denied in behalf of a convicted defendant in a criminal prosecution for a new trial on the ground of newly discovered evidence, which consisted in the recantation of testimony given at the trial. Although this motion was denied for the reason that it was held not to be an honest recantation, and the rule was stated that new trials should be granted on this ground only under unusual circumstances, and after careful scrutiny of the change in testimony, it was recognized to belong to the category of newly discovered evidence, and that new trials may be granted upon that ground. In the opinion by Judge Seabury at page 171 it is said: “ Nor can it properly be said that because the witness who now recants his testimony gave evidence upon the trial, the fact that he now repudiates his former testimony precludes proof of this fact from being regarded as newly-discovered evidence. It is not that the witness has been newly discovered, but the fact that he has recanted his testimony since the trial which makes that evidence newly discovered.” The same thing may be said of a witness who through contumaciousness has previously refused to testify, but subsequently alters his refusal and furnishes important material evidence. The concurring opinion by Judge Cardozo in the Shilitano case (supra) contains nothing to the contrary, but implies that such a motion should be granted on that ground if the court were dealing " with an honest recantation ” (p. 182). The dissenting judges considered that the motion should have been granted, saying that “ The application for a new trial in this case is out of the ordinary ’ ’ (p. 199). It is thus clear that in the Shilitano case this court
J~ The analogy which exists to a greater or less degree, depend- : ing upon the circumstances of the case, between administrative law and court procedure, calls for drawing parallels wherever possible without defeating the essential objects of the administrative law, and this rule calls for application of the law of newly discovered evidence to administrative determinations where that can be done in conformity with the limitations on the rule which the courts have imposed upon themselves. This tends to assimilate the practice and procedure of administrative bodies to that of the courts. The present situation falls within i the area in which new trials or hearings are granted by courts Lor by quasi-judicial or administrative officers or bodies. The cases of People ex rel. Cohen v. York (43 App. Div. 138), Ward v. Ward (67 App. Div. 121), and Jones v. Lustig (37 Misc. 834) involved situations where the alleged newly discovered evidence would not have changed the result and was adduced as a pretext to obtain a different ruling on the same facts, or where the evidence was .available at the first trial. In this instance, the witness was available but not his testimony which was sufficiently important to change the result. The previous inability to obtain his testimony could not have been avoided by anything which could have been done through the exercise of greater diligence or skill.
The order appealed from should be affirmed, with costs.
Lewis, Ch. J., Conway, Desmond, Dye, Fuld and Froessel. JJ., concur.
Order affirmed.