117 N.Y.S. 429 | N.Y. App. Div. | 1909
Lead Opinion
I am of opinion that the relator cannot be reinstated without extending the grounds of review of the action of- the commissioner of police' on charges preferred against members of the department to an unwarranted extent, and establishing a precedent which will unnecessarily and improperly interfere with the disciplinary power of the-commissioner and will be very prejudicial to the interests of the municipality.
The grounds upon which the action of the police commissioner may be reviewed in a certiorari proceeding of this nature are those enumerated in section 2140 of the Code of Civil Procedure. It is therein expressly provided that they must involve the merits, and there are only five questions which may thus be reviewed. The first is, whether the commissioner had jurisdiction of the .subject-matter. That is not questioned. The fourth is, whether there was any competent proof of the facts necessary to be proved ; and the fifth is, whether upon all the evidence there was such a preponderance of proof against the existence of any material- fact that, a ver
Since a member of the uniformed force of the department of police is entitled to a hearing and to be represented by counsel, doubtless a record might be presented showing such an abuse of the discretionary power of the commissioner or of his representative in refusing to adjourn a hearing in a case' showing a meritorious defense to the charges, as would warrant the court in holding that the authority conferred upon the commissioner had not been pursued in the manner required by law; but it is manifest that the court should not interfere for such cause except in a very extreme case, and never, I think, without some evidence upon the record tending to show that the relator has a defense to the charges. The question is, whether the removal of the relator had been had by due process of law. He was entitled to be represented by counsel and to be given a reasonable opportunity of having counsel cross-examine the witnesses produced against him. This, of course, does not mean that the party proceeded against must in all cases and at ■all times be represented by counsel. No provision of law requires the people or the city to furnish counsel to a member of the police force against whom charges are presented. It is optional with himself whether or not he shall have counsel. It is evident that. his right in these circumstances to counsel involves only the right to have a reasonable opportunity to obtain counsel. If the record discloses that he has been afforded a reasonable opportunity to obtain
The proceeding should, therefore, be affirmed, and the writ dismissed, with costs.
Patterson, P. J., Ingraham and Clarke, JJ., concurred; Scott, J., dissented.
Dissenting Opinion
I regret that I am unable to concur in the dismissal of this writ. I fully recognize the rule that trials of police officers upon charges are disciplinary in their character, and that the strict rules which are applied in judicial proceedings are not always to be applied. For this reason I should be willing to overlook the instances of extremely unjudicial deportment upon the part of the deputy commissioner who conducted the trial. I am, however, forced to the conclusion that the constitutional right of the relator to ' be represented by counsel was distinctly and arbitrarily infringed upon. That an officer put upon trial on charges is entitled to be represented by counsel is admitted by the learned corporation counsel, and is established by ample .authority. (People ex rel. Mayor v. Nichols, 79 N. Y. 582; People ex rel. Ellett v. Flood, 64 App. Div. 209.) It follows, of course, that he is entitled to a reasonable opportunity to provide himself with counsel. Of this he was, in my opinion, deprived, The testimony returned by the police commissioner strongly suggests that the relator deserved the punishment which was inflicted upon him, and if his trial had been properly conducted it is probable that it would be our duty to affirm the action of the commissioner. But even a delinquent policeman has some rights which may not be arbitrarily and unreasonably denied him, and for that denial in the particular I have pointed out I find myself unable to vote for an affirmance of the dismissal.
. Writ dismissed and proceeding affirmed, with costs.