119 N.Y.S. 417 | N.Y. App. Div. | 1909
The relator was dismissed the police force upon conviction of neglect of duty and conduct unbecoming an officer. It was charged
Before the trial of these charges the relator was tried in the County Court of Queens county and acquitted upon an indictment for bribery resting upon this conduct. By consent the record of that trial was read in evidence before the deputy commissioner who tried these charges, and the point is now made that the same testimony if considered should have been conclusive upon the commissioner of police. There is no requirement of statute to that effect. The learned counsel for the relator calls our attention to section 302 of the charter (Laws of 1901, chap. 466), with the comment that if the relator had been convicted upon the indictment, the judgment would have operated as a dismissal from the police force, and thereupon asks why the con verse of the rule should not obtain. Even if it should, but does not, we cannot make it do so. But section 302 does not provide that such a conviction is ipso facto a dismissal, but merely that the 'police commissioner shall have power in his discretion on conviction by him or by any court or officer of competent jurisdiction to punish the offender in various ways, including dismissal. The point is also made that as the acquittal on the indictment was conclusive on the commissioner, the relator could not be put again in jeopardy for the same charge. But, as I have said, the acquittal was not conclusive. Moreover, I think that the indictment - and the charge before the commissioner are not to be regarded as the same offense within the principle invoked by the relator, but rather in the words of Harlan, J., in Grafton v. United States (206 U. S. 354), “ but only that by one act he has committed two offenses.” That is, the one act if committed could constitute a violation of the criminal law with the prescribed penalty of imprisonment, and also a neglect of duty and conduct unbecoming an officer of. the police force, with the prescribed penalty of reprimand or withholding pay, or suspension or dismissal. In order that the principle of jeopardy apply, it is well
In- my judgment the verdict of a jury in the Supreme Court would not have to be set aside even if the jury believed the testimony of the keeper and his other witnesses that the transaction took place as testified to by those witnesses to the disregard of the testimony for the relator as a defendant. Possibly a jury might have
I recommend that the determination be confirmed.
Woodward, Burr, Rich and Hiller, JJ., concurred.
Determination confirmed, with fifty dollars costs and disbursements.