20 N.Y.2d 205 | NY | 1967
The Trial Commissioner cleared appellant of each of the charges against him. The only one which remains for our consideration is Specification 7, of which he was acquitted by the Trial Commissioner but found guilty by the Police Commissioner, which is that, without corrupt motive, Lieutenant Kelly “ off duty and in civilian clothes, acting in concert with Patrolman Flynn mentioned in Specification 1, at or about 9:45 a.m., February 23, 1962 at 68th Street and Fourth Avenue, Brooklyn, did without just cause solicit and advise Patrolman Terrance W. McPhillips, Shield 21842, 5th Precinct, also off duty and in civilian clothes, to make a false statement if and when questioned by a superior officer or other proper authority regarding the presence of the said Ralph Cozzino mentioned in Specification 1, in the 5th Precinct Station House on February 23, 1962 at about 3:30 a.m.” It is sufficiently established for the purposes of a departmental trial that Byrne and Flynn sought to obtain $500 from Cozzino in exchange for agreeing not to prefer charges against him when he was arrested under suspicious circumstances on the early morning of February 23, 1962. It is also established for this proceeding that Patrolman McPhillips, against whom neither criminal nor departmental charges appear to have been made, was aware of what Byrne and Flynn were doing and became a party to their attempted extortion of money from Cozzino, although he declined an offer by Flynn to split with him the $500 to be obtained from Cozzino and cut Byrne out of the deal. Actually no money was obtained and Byrne, Flynn and McPhillips had their early morning hours’
There is no circumstantial or other evidence corroborating or lending credence to McPhillips ’ testimony. In Matter of Evans v. Monaghan (306 N. Y. 312, 319-320) we said that “ 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.) * * * The requirement of ‘ some corroboration in order to command the judicial confidence ’ laid down in civil actions such as Moller v. Moller (115 N. Y. 466), and McCarthy v. McCarthy (143 N. Y. 235), was said in Winston v. Winston (165 N. Y. 553, 556-557) to be not a rule of evidence, but one for the guidance of the judicial conscience. * * * The corroboration which such evidence should receive must, simply, be such as to justify a belief that the incriminating testimony given is true.’ ”
In the Evans case the circumstances lending credence to the testimony of the complaining witness were held to consist in the proven accuracy of much of his testimony regarding details that were not, in themselves, incriminating, and in the magnitude of his gambling operations within the areas of command of the police officers combined with the almost complete absence of action taken by them to enforce the gambling laws against him.
No such corroborating circumstances ■ exist here.
Although it is true that the police are sometimes described as a semimilitary organization subject to stricter discipline than most other administrative organizations, it is a career service, the stability of which is recognized to be due in considerable part to their tenure of office, from which they cannot be removed for political reasons or at the whim or caprice of superior officers or of the municipal administration but only on evidence after a hearing on charges. Substantial evidence in such instances requires more than merely some evidence from unreliable sources. The defects and remedial steps in the substantial evidence rule are related in the interesting opinion by Justice
The Few York State rule has long been that whether evidence is substantial is to be determined “ in the light of the record as a whole ” (Matter of McCormack v. National City Bank, 303 N. Y. 5, 9, citing Universal Camera Corp. v. Labor Bd., 340 U. S. 474, 487, supra; Matter of Riehl v. Town of Amherst, 308 N. Y. 212, 215).
It is of significance that in the appeal at bar the Trial Commissioner exonerated appellant. In the Universal Camera case it was said (p. 493) that “ surely an examiner’s report is as much a part of the record as the complaint or the testimony ’ ’, and that, although it is not conclusive against being overruled
In National Labor Relations Bd. v. Local 160, Int. Hod Carriers Union (268 F. 2d 185, 187), it was said: “ A resolution of the issue by the Trial Examiner depended upon his appraisement of the credibility of the witnesses. He saw and heard them testify, including their explanations as to any inconsistent statements contained in the affidavits. * * * There being nothing involved other than an issue of credibility, we think the Board went too far in its refusal to accept the Trial Examiner’s resolution of the issue as to when the agreement was executed ”, citing Universal Camera Corp. and other cases.
To the same effect are National Labor Relations Bd. v. Thompson & Co. (208 F. 2d 743 [L. Hand, J.]); United States v. Holton (222 F. 2d 840); Dobbs Houses, Inc. v. National Labor Relations Bd. (325 F. 2d 531).
In the case at bar McPhillips, on whose testimony alone depends the sustaining of this charge, admitted that he never reported Cozzino’s offer of a bribe, and that he never made an . entry in his memorandum book (which was completed by 8:00 a.m. on February 23) concerning any aspect of the arrest of Cozzino. Plainly, McPhillips ’ purpose to conceal his knowledge of or dealings with Cozzino preceded the alleged meeting
McPhillips’ pursuit of Flynn and Byrne outside of his territory without noting where he went or why, in violation of rules of the department, suggests some ulterior purpose. He admitted making false entries in his memorandum book, allowing Flynn to copy them, and his version of meeting Kelly later that morning at Bayridge and being told by him that it was best to say that Cozzino never came into the station house, which was denied by Kelly and Flynn, is impeached by his own earlier testimony that, when he was asked by the trial examiner about what the conversation on this occasion was, he replied: “ Your Honor, if I said anything I would be guessing.”
Under all of these circumstances, we consider that Specification No. 7 was not established against appellant by substantial evidence, and that the order appealed from should be reversed and the relief sought in the petition granted.
Judges Burke, Scileppi and Keating concur with Judge Van Voorhis; Chief Judge Fuld and Judges Bergan and Breitel dissent and vote to affirm on the ground that the determination of the Police Commissioner was .supported by substantial evidence and that the question of the credibility of the witness McPhillips was exclusively for the Police Commissioner to determine.
Order reversed, with costs in this court and in the Appellate Division, and matter remitted to Special Term for entry of judgment granting the relief prayed for in the petition.