13 Misc. 21 | New York Court of Common Pleas | 1895
In compliance with a writ of certiorari out of this court, the respondents make return of their proceedings upon the trial and conviction of the relator of offenses, the commission of which, if legally ascertained, justifies his dismissal from the police force. The relator challenges the validity of the sentence of dismissal upon two grounds: First, that he was denied an opportunity of appearing and making defense to the charges of which he is found guilty; and, secondly, that the evidence, though uncontroverted, is insufficient to sustain the conviction.
The question to be determined by this court on. the return of the writ is whether the board of police commissioners, in the conviction and dismissal of the relator, violated any rule of law affecting his rights, to his prejudice. Code Civ. Proc. § 2140, subd. 3; People v. Hildreth, 126 N. Y. 360, 364, 27 N. E. 558. That the relator was entitled, of right, to make defense to the accusations upon which he was arraigned—involving his personal presence at the trial, the con
“It is a rule founded on the first principles of natural justice, older than written constitutions, that a citizen shall not be deprived of his liberty or property without an opportunity to be heard in defense of his rights, and the constitutional provision that no person shall be deprived of these without due process of law has its foundation in this rule. This provision is the most important guaranty of personal rights to be found in the federal or state constitution, and it extends to every case which may deprive a citizen of life, liberty, or property, whether the proceeding be judicial, administrative, or executive in its nature.” Stuart v. Palmer, 74 N. Y. 183, 190.
Hence, an assessment by commissioners was annulled, for want of opportunity to the property owner to be heard upon it Similarly, in People v. Gilon, 121 N. Y. 551, 558, 24 N. E. 944, where a board of assessors gave notice of an assessment upon the property benefited, but none as to a hearing in regard to damages, upon certiorari the court of appeals vacated the determination of the board for the reason that in making the award it “failed to observe an essential requirement in all judicial proceedings, namely, notice to the party interested in the determination, and an opportunity to be heard.” Independently, therefore, of statute, opportunity to be heard and make defense was the inviolable privilege of the relator. But, out of abundant caution, the legislature has expressly provided—
“That no member of the police force shall be removed or dismissed until written charges shall have been made and preferred against him, nor until such charges have been examined, heard, and investigated upon such reasonable notice to the member charged.”
Accordingly, in People v. French, 119 N. Y. 502, 23 N. E. 1058, the court of appeals held that:
“The members of the police force of the city of New York have a permanent tenure of office, and cannot be dismissed until after charges have been preferred, examined, heard and investigated, as provided by the statutes and the rules adopted by the board of police commissioners.”
Again, in People v. McClave, 123 N. Y. 512, 516, 25 N. E. 1047, the court say:
“The commissioners prescribe rules for the government of the force, and by which the personal and official conduct of its members shall be regulated. They are empowered to punish a member who is guilty of an offense, * * * and the only limitations upon their disciplinary powers is the express one: that a trial shall be had upon written charges, » * * and the implied one: that that trial shall be a proceeding fairly conducted; that the decision shall be based upon evidence of the truth of the charges, and that no immunity or privilege secured to the accused by the law of the land shall be violated.”
In the order adjudging the charges against the relator to be true, and! dismissing him from office, it is alleged that he “appeared and answered at the time and place required by said notice”; that the charges were “duly brought to a hearing, and duly tried, heard, publicly examined, and investigated in the manner required by law and the rules and regulations of the said board”; and that the relator was “afforded a full opportunity to be heard in his defense.” The statement that the relator “appeared and answered at the time required by said notice” is absolutely without foundation. In their return to the writ the respondents suppress the facts of the case.
The question is, had the relator opportunity to be heard and defend at the trial on the 35th of August? The respondents urge that we have no jurisdiction to review their decision in the refusal of an adjournment of the trial; and they cite People v. Board of Police Com’rs (Sup.) 32 N. Y. Supp. 18, in support of the contention. But the point there adjudged, on application for a suspension of the trial, was that:
“The question of the reasonableness of the time allowed for explanation and preparation to meet the charges rests, to a great extent, in the discretion of the board; and the manner in which the discretion is exercised will not furnish a ground for reversal of the decision, in the absence of proof that it was capriciously exercised, to the prejudice of the relator.”
In People v. Thompson, 94 N. Y. 452, the power of revision is conceded, where it appears “that the discretion has been abused.” Regarding the request of the relator as for an adjournment, merely, we should not hesitate to hold that, upon the evidence presently considered, the denial of the application was capriciously exercised, and the discretion of the board abused. But, while the application was in form for a postponement of the trial, it was in effect a demand for a trial in the legal sense; that is, for a trial in which the accused might be present and make defense. Prostrate and power
If, however, the relator was not ill and incompetent on the 15th of August; if, as the respondents insist, the illness and incompetency he affected was a sham and a fraud contrived only to defer the trial, while in fact he was able to attend and make defense,—then, in law, he has not been condemned unheard, and we must ratify his sentence of dismissal. And this question is open to our review, not only as involving a violation of right, but by subdivision 5, § 2140, of the Code, which authorizes us, on certiorari, to reverse a finding of fact because contrary to the preponderant proof. In the return these facts appear, without contradiction: That on the 27th of July, 1894, after official examination by a police surgeon, the relator was reported ill and unfit for duty; that he was thereupon excused from duty, and has not since been ordered on duty; that no inquiry was then made, as provided by the rules of the department, to ascertain whether his sickness was real or pretended; that, on a report by the surgeon of his illness to the board, his trial, set for the 9th of August, was indefinitely postponed. Thus was the illness of the relator accepted as a fact by the board, and deemed so serious as to excuse him from duty, and exempt him from trial. How happened it, then, that five days afterwards, on the 13th, he was suddenly summoned for trial on the 15th? It is said that the illness of the relator was feigned to avoid a trial of the charges against him. But he was ill on the 27th of July, and the charges were not served until the 6th of August; and, when served, he exclaimed, “My God! I did not expect this so soon.” This involuntary ejaculation, testified to by the man who made the service, is significant of the relator’s surprise at the imminency of his trial, and precludes the presumption that he was shamming sickness to elude it. Indeed, the same witness (he appeared for the prosecution) confessed that
It is urged that the refusal of Mrs. Devery to admit the inspector and strange medical men into the presence of the relator is a circumstance of sinister import. But had she not been admonished by the doctor of the imperative need of repose and tranquillity to the safety of her husband? How, consistently with conjugal duty and devotion, could she permit the intrusion of these persons into the sick room of her suffering husband? She knew his critical condition, and the voice of the true wife was heard in the exclamation that: “My husband’s life is worth more to me than all the rules of the department, or of the police, or anybody else.” But, whatever the construction of Mrs. Devery’s conduct, there is no proof in the record that the relator was aware of the presence of the party or privy to their exclusion. • Moreover, afterwards, on August 14th, two police surgeons examined him, and reported him still unable to attend the trial.
Another fact counsel for respondents urges upon attention, as of evil import against the relator, which is that he accompanied his motion for an adjournment with no affidavit of his innocence. How could he? The uncontradicted proof is that he did not know of the trial. Nor was he capable of instructing counsel.
"Upon a careful consideration of the case, we are of opinion that the denial of the motion for an adjournment of relator’s trial, was so clearly against the weight of evidence as to involve an abuse of discretion, and so opposed to the interests of justice as to require reparation. Notwithstanding relator’s creditable career in the police force,—rising from patrolman to captain, and each successive step of promotion attesting his fidelity and efficiency,—after all, he may be a guilty man. But the law knows no guilt, except as ascertained by legal means, and a conviction without trial is not a legal procedure. Assuming the guilt of the relator, still, better his escape than the overthrow of the only safeguard of innocence. Order of the board is reversed, and the relator reinstated, with costs. All concur.