96 A.D.2d 976 | N.Y. App. Div. | 1983
Lead Opinion
— Appeal from a judgment of the Supreme Court at Special Term (Kahn, J.), entered November 30, 1982 in Albany County, which, inter alia, granted petitioners’ application pursuant to CPLR 7510 to confirm an arbitration award. Petitioner Local 775, AFSCME, AFL-CIO, of petitioner Security and Law Enforcement Employees, District Council 82, AFSCME, AFL-CIO, and respondents County of Albany and Albany County Sheriff were parties to a collective bargaining agreement for the period January 1, 1981 through December 31, 1982, which agreement covered, inter alia, correction officers. The individual petitioners herein, Robert Schwartz, Eugene C. Gardy and William Maxwell, were formerly employed as correction officers at the Albany County Jail and consequently were covered by the subject agreement. On February 19, 1982, these individual petitioners were indicted by an Albany County Grand Jury on four counts of official misconduct (Penal Law, § 195.00, subds 1, 2), two counts of assault in the third degree (Penal Law, § 120.00, subd 1) and two counts of falsifying business records in the first degree (Penal Law, § 175.10). The charges arose out of an incident which involved an inmate at the jail and allegedly occurred on or about January 17, 1982 while the individual petitioners were on duty at the jail. As a result of the incident, petitioner Maxwell was suspended without pay from his position by respondent Sheriff on January 19, 1982 and petitioners Schwartz and Gardy were similarly suspended on February 19, 1982. The matter subsequently proceeded to trial and, on April 30, 1982, petitioners Schwartz and Gardy were acquitted on all but three counts, which were dismissed, while petitioner Maxwell was convicted on two counts of assault in the third degree and resigned his position. At the direction of the Trial Judge, the Grand Jury examined the testimony of petitioners Schwartz and Gardy at the trial for possible perjury with the result that these two petitioners were later indicted for perjury on June 22, 1982. The Sheriff continued their suspensions without pay pending the outcome of the perjury indictment and, ultimately, following a jury trial, these petitioners were convicted of the crime of perjury in the third degree (Penal Law, § 210.05) on November 19,1982 and resigned their positions on December 10, 1982. Against this factual background the two employee grievances at issue on this appeal must be considered. One of the subject grievances, which was filed by petitioners Schwartz and Gardy, alleged that each was suspended without pay in violation of section 1 of article VI of the collective bargaining agreement which reads as follows: “It is understood and agreed that no member of the bargaining unit shall be removed or otherwise subjected to any disciplinary penalty except for incompetency or misconduct. Where the Sheriff or his designee seeks the imposition of a loss of leave credits or other privilege, written reprimand, fine, suspension without pay or dismissal from service, notice of such discipline shall be made in writing and served in person or by registered or certified mail upon the employee. The employee shall be provided with two (2) copies of any notice of
. No payment is sought from Albany County by petitioners Schwartz and Gardy for the legal expenses of their defense against the later perjury indictment.
. Though, as respondents point out, Coming v Village of Laurel Hollow (48 NY2d 348) involved payment of counsel fees for a civil defense, the same principle is applicable to payment of counsel fees for a criminal defense (see, e.g., Matter of Kane v McClellan, 110 App Div 44).
Concurrence in Part
concur in part and dissent in part in the following memorandum by Weiss, J. Weiss, J. (concurring in part and dissenting in part). While we agree with the arbitrator’s award of back pay to petitioners because their suspension was in violation of section 1 of article VI of the collective bargaining agreement, we are unable to accept any rationale which would require respondents to pay petitioners’ counsel fees for defense of the criminal charges against them. It is clear that correction officers are local public officers (Public Officers Law, § 2; see Matter of Winkler v Sheriff of Queens County, 256 App Div 770; see, also, Whitmore v State of New York, .55 AD2d 745, 746, mot for lv to app den 42 NY2d 810) and bound by the obligations imposed under law. The collective bargaining agreement recognizes that petitioners are correction officers (art I, recognition), and when discharging criminal duties they are in the service of the public (see Isereau v Stone, 3 AD2d 243, 246). “‘It has been held repeatedly that there is no constitutional power to reimburse a public officer for expenses incurred in defending criminal prosecutions for official acts or omissions, unless a statute provides therefor in advance.’ ” (Comins v County of Delaware, 66 AD2d 931, 932, quoting from Schieffelin v Henry, 123 Misc 792, 795, affd 211 App Div 850.) There is no statute in existence covering the instant situation. Section 409 of the County Law was enacted to provide indemnification of damages, costs and expenses incurred by a county level officer as the result of a civil suit against him in his official capacity. No such statute exists for criminal prosecutions. Nor can it be logically said that the collective bargaining agreement intended to cover criminal acts committed by those covered. No one can dispute the obvious intent of section 1 (false arrest claims) of article XXVIII (indemnification), which was to provide and pay the cost of defense for a covered person against whom a claim of false arrest or abuse of power in the performance of job-related duties was made by an inmate. It would extend logic ad absurdum to hold that the parties intended that petitioners be paid counsel fees to defend themselves against prosecution for acts not in performance of their duties, but crimes they themselves had committed. In this context, examination of the indictment shows eight separate counts which include assaults upon an inmate, official misconduct in taking an inmate to a prohibited area for the express purpose of assaulting him, and falsifying the jail