Lead Opinion
Petitioner challenges the determination of the Waterfront Commission of New York Harbor which denied his application to be included in the longshoremen’s register. In 1954 petitioner, who had been working on the docks as a longshoreman, was denied registration as a longshoreman. The reason was that for a nine-year period he had been repeatedly arrested and convicted for various forms of larceny. Upon this refusal he obtained work as a cooper on the docks, which lasted until 1958 when coopers became subject to respondent’s jurisdiction and he was again excluded. In this period he was arrested for knowingly receiving goods stolen in interstate commerce, and subsequently convicted. Since his release, from 1961 he has not been on the docks.
His application is based on the contention that since this last conviction he has been free of all criminal activity and has been entirely rehabilitated. He claims that the respondent offered no evidence to refute this contention and, hence, the denial of his application was arbitrary. We do not so regard it. The particular crimes for which petitioner was convicted all involved thefts of goods to which longshoremen have access by virtue of the nature of their work. It is well known that the incidence of such larcenies is great and is one of the most serious conditions with which respondent has to contend.
The Waterfront 'Commission is given complete discretionary power to reject any applicant who has been convicted of a felony in the United States courts^ (which this applicant has been) (Waterfront Commission Compact, article VIII, § 3, stibd. [a] ; L. 1953, ch. 882, Part I, art. VIII, § 3, subd. [a]). Granting that an arbitrary determination would not be an exercise of discretion, we do not believe that the failure to introduce evidence to refute petitioner’s claim of rehabilitation demonstrates arbitrariness. Respondent was not required to accept at face value the self-serving declarations of petitioner or the conelusory allegations of the supporting affidavits. At best these represented qualitative appraisals of future conduct. It is the commission’s responsibility to formulate a judgment, as it is likewise its responsibility to contain crime on the docks.
The judgment (Starke, J.) entered January 7, 1970, should be affirmed, without costs and without disbursements.
Dissenting Opinion
I feel that since the Legislature gave the commission the discretionary power to recognize rehabilitation, it should have done so here, at least to the extent of giving the petitioner a probationary status. His last criminal offense was over 15 years ago. Actually, he worked on the docks, as a cooper, until 1960, without incident; and had worked as a longshoreman until 1958, having started at the age of 17 years. It was the only way of life he knew and loved. Said he: Ci Well, I have been down here most of my life. I was contented with the work. It’s a good income for my family. It’s my whole life since I have been a kid ”.
It thus seems particularly poignant to me, and a social and an economic waste, to deny this able-bodied veteran an opportunity now to do hard labor because of some misdeeds done in the long ago under the stress of temptations about which we know not. He petitions us now not to work in Tiffany’s, nor at Fort Knox, nor as a cashier in a bank. He begs the privilege of wielding a bale hook on the open piers, in the cold of winter and the heat of summer, in order to put bread oh the family table. I vote to give him a chance.
When a lawyer falls from grace, if not disbarred, he is suspended for a period, and then readmitted to a position of trust in an honored fellowship. Nay, and which is more, he may be disbarred. There is still provision he may be readmitted on evidence of rehabilitation, even though convicted of a crime.
We. have before us a family man, 45 years of age, whose only work skills are attuned to the waterfront. For 10 years he has been forced to scrounge around, unsuccessfully, for odd jobs as a janitor, trucker, bartender, to support an ailing wife and a child, getting by only by help from veterans welfare. He has stayed straight and clean for 15 years. He comes supported by attestations by professionals in social work, by the family physician, and by neighbors. And there is nothing in this record to controvert these representations that the applicant is completely rehabilitated. Society cannot possibly suffer from an extension of mercy by permitting this man to do hard work, on the unrefuted evidence of his rehabilitation. Quite the reverse.
These views are not of novel import. In the Matter of Papoutsis v. State Liq. Auth. (32 A D 2d 284) a license of a bar and grill was restored, even though the licensee had been convicted of a serious crime. In the Matter of La Greca Rest. v. New York State Liq. Auth. (33 A D 2d 537) this court noted that the discretion vested in an administrative agency to grant a license must be “ consonant with the policy of the State to assist in the rehabilitation of persons convicted of crime ”. ('See, also, Matter of Nalore v. Baker,
Accordingly, I find the refusal to include petitioner in the longshoremen’s register an arbitrary and capricious abuse of discretion, and I would remand for the purpose of issuing a temporary registration as a longshoreman to the applicant, provisional on his continued good behavior.
Eager, J. P., and Tilzer, J., concur with Steuer, J.; McGtvern, J., dissents in an opinion in which Capozzoli, J., concurs.
Judgment, Supreme Court, New York County, entered on January 7, 1970, affirmed, without costs and without disbursements.