People ex rel. Eagan v. York

65 N.Y.S. 696 | N.Y. App. Div. | 1900

Jenks, J.:

Several charges were preferred against the relator. One, of March 28,1898, is a violation of rule 21, that .prescribes “ No member of the force shall be guilty of any of the following offenses, and for a violation hereof the commissioner may, in his discretion, punish the offender in the manner prescribed by law. * * * F.

Absence without leave.” The specification is “ That at the borougli of Brooklyn, commencing at 10 o’clock p. m. on the 12th day of March, 1898, the said patrolman, Andrew C. Eagan, was absent from duty without leave, and continued such absence until 11 o’clock a. m. on the 14th day of March, 1898. Time of absence, 37 hours. Witness, Sergeant John Mara, Sergeant Henry Metcalf.”

The return shows a written admission by the relator of “ due personal service” of the complaint, charges, specifications and notice, of examination on March 18, 1898, with the following statement: “ 1 hereby admit the foregoing charge as specified, and waive examination thereon.” The return further shows “March 22d, 1898, ■complaint vs. patrolman Andrew C. Eagan. Tried before Com. York. The. defendant appears in person and by his counsel. The •charge is read, and the defendant pleads guilty thereto. See testimony with complaint No. 1, tried same date. (Decision reserved.) ”

The relator contends that the judgment of dismissal fails to show upon which charge he was dismissed, and that such judgment, in the concrete, is insufficient to show what particular complaint moved the minds of his judges. The judgment of dismissal, after the formal recitals, reads: “ It is resolved in the matter of the trial of charges against Patrolman Andrew C. Eagan, the said patrolman having been tried before Commissioner York on the •charge of being absent without leave on the 14th day of March, 1898, for the time of 37 hours, and the determination of the said •charges having been referred to the Board for its decision, the same having come on before the Boaid, after due consideration thereof, the Board do adjudge the said defendant to be guilty of the said charges and do convict him thereof. * * * ” Then follow decisions of convictipn upon two other charges, and the judgment ■concludes : “And the Board do adjudge and determine that the said Patrolman Andrew C. Eagan, for the conviction of the charges before stated, be dismissed from the Police Force of the Police Department of the city of New York.” Independent of the other charges, here was a conviction of a serious offense against the discipline of the department, based upon a plea of guilty. We have held that in such proceedings the charge need not have the technical accuracy of an indictment, and that the trial need not show the formality of a criminal prosecution. (People ex rel. Powers v„ Welles, 18 App. Div. 132.) And for similar reasons it is not necessary that the judgment should have the exact accuracy of the record of a criminal court. I know of no rule or no reason that requires that there should he separate judgments upon each charge. The finding of guilt upon this one charge was sufficient to warrant punishment irrespective of the other charges. The degree of punishment is not-our concern. (People ex rel. McAleer v. French, 119 N. Y. 502.)

But the relator contends that there was no evidence to warrant a dismissal upon this charge. There is no need of evidence where there is a plea of guilt. This is not a criminal proceeding. (People ex rel. Powers v. Welles, supra.) And even in a criminal proceeding conviction follows upon such a plea unless the punishment may be death. (Code Grim. Proc. § 332. See, too, People ex rel. Sinnott v. Trustees, 28 N. Y. St. Repr. 397.) The.statement of thereto rn (“ See testimony with complaint No. 1 ”) was not necessary to supplement the force of the plea and cannot palliate it. The reference, however, points to admissions, in open court, of the. absence upon which this charge is based. The relator’s plea of guilt is isolated from explanation or from excuse. People ex rel. Jordan v. Martin (152 N. Y. 311) is not in point. There the notice of trial was defective in form and insufficient in service. The request for an adjournment was disregarded and the relator was sworn, and thereupon said that he was guilty. The court held that there was no-right to put the relator on trial, and that as he was not represented by counsel, was ignorant of his rights, and his confession made under oath was not voluntary, it could not be considered, and, in fact, was-not considered, as a plea. Here there was due notice properly-served, with personal service admitted under the relator’s hand, an appearance for trial attended hy counsel and a plea of guilty entered, upon the record after a reading of the charge.

The relator also urges that he did not have a fair trial because of the interest and prejudice of one of the commissioners who sat in judgment. The specifications of one of the charges were that relator, in the presence of the said commissioner, was disrespectful in word and in manner to Sergeant Thomas M. Hughes,, and that he was grossly impertinent to the commissioner. The learned counsel for relator states in his brief that the commissioner was the actual complainant, but his statement is not made good by the record, which further shows that the complainant is the captain of the precinct, and the witnesses named are three officers of the force. The cases cited by the appellant are not in point. In People ex rel. McMorrow v. Roosevelt (23 App. Div. 533) the relator was tried upon a charge that directly concerned one of the commissioners who was called to contradict the relator upon the trial, and yet such commissioner also sat in judgment; and, in that case, the court recognizes the principle that of necessity a witness sometimes may or must act judicially, and notices the discussion of that principle in Matter ofRyers (72 N. Y. 1), and in People v. Dohring (59 id. 374). People ex rel. Doherty v. Commissioners (84 Hun, 66), so far as the subject now under discussion is concerned, seems to be authority for the proposition that a commissioner could not 231’operly sit in judgment if it were shown that he had a direct interest in the controversy in “ a disqualifying sense,” or was prohibited by statutory disability, and, therefore, has no application here. In People ex rel. Deloughry v. Welles (5 App. Div. 523) the relator did not plead guilty, but stood his trial, and gave an explanation that the court held consistent with the proper discharge of his duty.

The proceedings should be confirmed, with costs.

All concurred.

Proceedings confirmed, with costs.