Opinion
March 11, 1921.
John J. Finn [ Daniel J. Cashin with him on the brief], for the appellant.
William A. Walsh, Corporation Counsel, for the respondent.
The courts are slow to interfere with the decision of police executive officers upon trial of members of the force for violation or neglect of duty. Not only because the determination of disputed questions of fact in such cases is for the commissioner or other officer presiding at the trial under the statute and who has the opportunity to observe and hear the witnesses, but also because the necessary discipline in such a department requires that the decision of the commissioner, who is familiar with the subject-matter and the management of the police force, should have great weight, and in the absence of obvious illegality, prejudice or ulterior motive, should be final. If review is sought, it should be had without delay. Indeed, in the case at bar the appeal taken on June 3, 1920, should have been brought on for hearing promptly, and there is no apparent excuse for delaying hearing or submission until March, 1921. This is not a certiorari proceeding and the statute authorizing the direct appeal (Second Class Cities Law, § 138, as amd. by Laws of 1910, chap. 266) provides that it shall be upon questions of law. The facts are not in dispute. We proceed, therefore, to examine the evidence to ascertain whether the appellant was justified in his refusal under advice of counsel to put on his uniform on the morning of his trial. It is not suggested that there was any general rule or regulation in force requiring policemen brought to trial before the commissioner to appear in uniform. When the appellant pleaded not guilty to the charge of bribery he was not in uniform and no exception was taken to it. He had been suspended from duty. His shield, revolver, club and report books had been taken from him. His uniform was at his home. He had received no previous intimation that he was to appear in uniform at the trial. Appearing with his counsel ready for trial after two adjournments had at the request of his captain, and after a delay of half an hour, he was directed to put on his uniform, which would have necessitated his leaving the trial room to go to his home, half a mile away, removing his civilian clothing and putting on the uniform of the police force from which he had been suspended. There is no explanation as to how he was to obtain his badge and other equipment, part of the uniform of the police force, if he was to be uniformed as other members of the force. There is no attempt made to cover the object of the order thus given to him, because it is frankly stated in the specifications attached to the charges of insubordination that the reason for the order was that the appellant "might appear before the witnesses at said trial in the same clothing which he wore on the day the alleged bribe was given and received," and it is also stated that "the question of identity of said Martin was a necessary part of the proof of the said charges against him." Aside from the violation of police rules, the offense with which the appellant was charged was felony, punishable by imprisonment for not more than ten years or by a fine of not more than $5,000 or both. (Penal Law, §§ 2, 372, 2183.) The respondent commissioner of public safety says in the order appealed from: "It is apparent from the testimony taken upon the trial that the defendant, who is alleged to have taken a bribe, had reasons other than the delay necessitated in going to his home to procure his uniform, or the fact of his suspension, or any other reasons stated by him, for not appearing in uniform worn when alleged bribing occurred. The testimony of his counsel clearly indicates that the defendant was advised to wear civilian clothes at all times when appearing for trial upon the charge of bribery and that at no future time would he appear in uniform for a hearing of the bribery charges, the most vital feature of which, would be the matter of identification. * * * It isn't a matter of merely not appearing in uniform, it is a matter of not being able to fairly conduct a hearing on the bribery charges with defendant appearing in civilian clothes." The commissioner is commendably frank in stating the reasons which actuated him in deciding the question of insubordination. But the serious question is whether he had any right to order this suspended policeman appearing before him for trial to go home and don a uniform, the right to use which had been taken from him within the law but without trial or hearing, and to appear in the commissioner's court shorn of his badge and club and other everyday indicia of the policeman's authority, it is said for the purpose of identification. If the respondent commissioner accorded to the policeman, as we must assume he did at any rate on the morning of the trial, the presumption of innocence of the serious charge of bribery, and if the identity of the policeman who was charged with taking the bribe was an element in the proof, he must perceive on reflection that to present the policeman marked by absence of badge and other paraphernalia would be hardly a fair way to obtain an identification. Sitting as a trial commissioner, he was performing a most important function not only for the public but for the man accused before him of a most serious crime. This court has said through Mr. Justice O'BRIEN writing for the unanimous Appellate Division in the First Department: "We think a distinction is to be made between the position occupied by a commissioner generally and when he is presiding as a judge at a trial. At such times the accused has been suspended from the force, and the commissioner is acting not as his superior officer but as his judge upon the charges preferred. The rules governing judicial tribunals, therefore, and not the rules of the police department would seemingly apply. In People ex rel. Miller v. Elmendorf ( 42 App. Div. 309) it was said: `As the proceedings are quasi criminal in their nature, and valuable rights of the accused official are at stake, as well as his good name, the same safeguards that are used to protect good name, fame, property or person in courts of justice should in substance be observed in these proceedings.'" ( People ex rel. Schauwecker v. Greene, 96 App. Div. 249, 254.) The Second Class Cities Law (§ 133) authorizes the commissioner of public safety to "make, adopt and enforce such reasonable rules, orders and regulations, not inconsistent with law, as may be reasonably necessary to effect a prompt and efficient exercise of all the powers conferred and the performance of all duties imposed by law upon him or the department under his jurisdiction." But was the order to the accused policeman on the morning of the trial, to go home and put on a uniform or rather an incomplete uniform for purposes of identification which would mark him out from all other members of the police force, a reasonable rule? I have serious doubts about it. This charge of bribery has never been tried by the respondent police commissioner or any other tribunal. Having dismissed the appellant from the police force on a charge of insubordination, the felony appears to be forgotten. But surely the guilt or innocence of the police officer on the charge of receiving a bribe was of more importance to the community, to the police force and the appellant, than the refusal of the officer to go home and put on his uniform. It cannot be that the only object was to get rid of him. If that were so, the language of Judge HISCOCK writing for the Court of Appeals in Matter of Griffin v. Thompson ( 202 N.Y. 104, 111) would be directly applicable: "Assuming, as the appellant did, that the order given to him was the first step towards getting rid of him, I do not see how he could safely do less or otherwise than he did. The right of self-defense against unlawful attack is universally conceded whether exercised in behalf of person or property and it almost savors of unintentional humor, this serious contention that the appellant was guilty of insubordination and insulting conduct because he did not in a spirit of cordial receptivity accept complainant's invitation to assist in preparing for his own official decapitation. It is true that it is now argued that appellant quite misconceived his superior's order and that it did not contemplate his removal. I am inclined to think, however, that subsequent events are the best answer to this argument and indicate that the appellant diagnosed the situation with entire accuracy." When a police officer is charged with a breach of the police rules and regulations which is in fact a most serious felony, it would seem that all purposes of police discipline are accomplished by his prompt suspension from performance of his duties. The felony overshadows the violation of the rule and should be at once referred to the district attorney who has in charge the prosecution of crime. If this accused policeman is convicted, there is no necessity for trial for violation of the rules of the department. There is grave doubt whether in a case such as this, where appellant was accused of crime, he could be compelled to furnish evidence against himself in the manner here proposed. The Legislature in investing the commissioner with power to try the accused expressly provides that he shall have the right to be heard in person and by counsel. (Second Class Cities Law, § 137, as amd. by Laws of 1910, chap. 266.) In the case at bar it is conceded that the refusal of the appellant to leave the place fixed for his trial and to go home and array himself in such part of his uniform as was left to him, was based upon the advice of counsel given in a proper way and not criticised as disrespectful to the captain or the commissioner. If the right to counsel secured to the accused by the statute means anything, the action of the suspended police officer in following that advice cannot be made the basis of a charge of insubordination. I think the order of the police captain and the commissioner was unreasonable as matter of law, and that the order finding the appellant guilty of insubordination and the other charges growing out of the occurrence referred to and dismissing him from the police force should be reversed.
I recommend: Determination of commissioner of public safety of the city of Yonkers, convicting appellant of insubordination and dismissing him from the police force, reversed, and appellant reinstated, with costs to appellant.
MILLS, RICH, BLACKMAR and JAYCOX, JJ., concur.
Determination of commissioner of public safety of the city of Yonkers convicting appellant of insubordination, and dismissing him from the police force, reversed, and appellant reinstated, with costs to appellant.