Berenhaus v. Ward

• Decision Date: 17 November 1987
• Citation: 522 N.Y.S.2d 478,517 N.E.2d 193,70 N.Y.2d 436
• Parties: , 517 N.E.2d 193 In the Matter of Steven M. BERENHAUS, Respondent, v. Benjamin WARD, as Police Commissioner of the City of New York, et al., Appellants. In the Matter of Richard FARRY, Respondent, v. Benjamin WARD, as Police Commissioner of the City of New York, et al., Appellants.
• Court: New York Court of Appeals Court of Appeals

Page 478

522 N.Y.S.2d 478

70 N.Y.2d 436, 517 N.E.2d 193

In the Matter of Steven M. BERENHAUS, Respondent, v.Benjamin WARD, as PoliceCommissioner of the City of New

York, et al., Appellants.

In the Matter of Richard FARRY, Respondent, v.Benjamin WARD, as PoliceCommissioner of the City of New

York, et al., Appellants.

Court of Appeals of New York.

Nov. 17, 1987.

Peter L. Zimroth, Corp. Counsel (Susan R. Elsen and Leonard Koerner, New York City, of counsel), for appellants in the first above-entitled proceeding.

Raymond E. Kerno, New York City, for respondent in the first above-entitled proceeding.

Peter L. Zimroth, Corp. Counsel (Paul Marks and Leonard Koerner, of counsel), for appellants in the second above-entitled proceeding.

Carol Mellor, New York City, and Joseph Fallek, Brooklyn, for respondent in the second above-entitled proceeding.

OPINION OF THE COURT

WACHTLER, Chief Judge.

Petitioners in these article 78 proceedings, both members of the New York City Police Department, were dismissed from the force following separate departmental disciplinary hearings.In each case, the findings of misconduct rested on the testimony of Thomas Peteroy, a fellow police officer who, all involved agree, was a "rogue cop" with a sordid history of thievery and extortion, and who claimed to have been an accomplice in the corrupt acts which led to the charges against the petitioners.

In separate opinions, the Appellate Division granted the petitions challenging the determinations, finding that the determinations of guilt were not supported by substantial evidence because Peteroy's testimony was uncorroborated (Matter of Farry v. Ward, 126 A.D.2d 7, 512 N.Y.S.2d 39;Matter of Berenhaus v. Ward, 118 A.D.2d 196, 504 N.Y.S.2d 412).We granted leave in both cases(Matter of Farry v. Ward, 69 N.Y.2d 612, 517 N.Y.S.2d 1028, 511 N.E.2d 87;Matter of Berenhaus v. Ward, 69 N.Y.2d 603, 512 N.Y.S.2d 1026, 504 N.E.2d 396) to consider the extent to which the rule requiring corroboration of accomplice testimony in criminal proceedings (see, CPL 60.22) applies in administrative hearings--specifically police disciplinary matters--involving charges of misconduct of a criminal nature.We conclude that corroboration is not required in such proceedings, and accordingly, the judgments of the Appellate Division should be reversed and the petitions dismissed.

It is unnecessary to repeat the detailed recital of the facts contained in the opinions below.It is sufficient to note that Officer Berenhaus was accused by Officer Peteroy of having solicited and accepted from Peteroy a quantity of marihuana from a large inventory of the substance that had been seized as evidence.Peteroy's testimony, if true, established that, as charged, Officer Berenhaus had appropriated evidence for his own use and possessed a quantity of a controlled substance.Officer Berenhaus denied the charges and sought to establish that he and Peteroy were not on good terms, having argued and exchanged insults several times during the 10 years that they both worked at the 10th Precinct.During his more than 15 years on the force, Berenhaus had earned an unblemished disciplinary record and numerous awards and commendations.

Sergeant Farry was accused by Peteroy of having stolen auto parts during an investigation of a burglary at an automobile dealership.Peteroy testified that he also participated in the theft and later arranged for Farry to sell the stolen items.If true, Peteroy's testimony established that, as charged, Sergeant Farry possessed stolen property and, being aware that other police officers removed property from the burglary scene, failed to take proper police action.Sergeant Farry acknowledged his participation in the burglary investigation but denied that he had stolen any property.At the time of the hearing, Sergeant Farry had served on the force for approximately 15 years with only one minor mark on his disciplinary record and, like Berenhaus, had earned several awards and commendations.

Officer Peteroy demonstrated by his own admissions at the hearings that he was an unsavory character who capitalized on every opportunity to benefit himself through corruption.The litany of misdeeds he acknowledged included the practice of taking protection money from after-hours clubs in the precinct, which resulted in 1982, in his indictment for violations of the Hobbs Act(see, 18 U.S.C. § 1951).Peteroy agreed to cooperate with the Federal authorities in exchange for the opportunity to plead to a lesser offense.Despite his eventual guilty plea to a Federal felony charge, he was retained on the police force on "modified assignment" in the Internal Affairs Division, where he acted as an informant.His accusations against Officer Berenhaus came to light as Berenhaus was about to testify on behalf of another police officer who was being prosecuted by the United States Attorney.The prosecutor asked Peteroy for information about Berenhaus that could be used to impeach his testimony, and Peteroy obliged by telling the prosecutor about the alleged marihuana transaction.Although Berenhaus denied the charges when questioned by the prosecutor, the departmental charges now under review were subsequently filed and tried.

Peteroy's accusations against Sergeant Farry were first made to a detective in the Internal Affairs Division when Peteroy was asked by the detective whether he had any knowledge of misconduct by officers in the 10th Precinct.Peteroy's story prompted the charges filed against Farry.

After separate hearings, at which Peteroy was the chief departmental witness, the Assistant Commissioner of Trials (ACT) recommended that both officers be found guilty as charged and dismissed from the Department.In both caseshe concluded that the determination of guilt depended squarely on whether Peteroy or the accused officers had told the truth at the hearings.While acknowledging that "Peteroy can only be characterized as a 'rogue cop', who long ago gave up any intention to honor his duty to enforce the law", the ACT nevertheless found Peteroy's testimony credible.In making this assessment, the ACT considered Peteroy's demeanor, whether his cooperation with Federal authorities may have motivated him to fabricate the charges, his history of corruption, and whether he may have been motivated by animosity toward the officers he accused.In addition, in the case of Farry, he found that Peteroy's testimony was corroborated by evidence that the items described by Peteroy were, in fact, missing from the car dealership and evidence that a burglar alarm had been tripped in the parts department at the time the officers were allegedly in that part of the car dealership premises.

With respect to the penalty to be imposed, the ACT noted the exemplary service records of both officers, but recommended dismissal because of the serious nature of the misconduct proved.

The Police Commissioner approved the ACT's findings and recommendations and dismissed both Berenhaus and Farry.The officers then commenced these separate article 78 proceedings seeking to annul the Commissioner's determinations on the grounds that the findings of guilt were not supported by substantial evidence (see, CPLR 7803[4] ) or, in the alternative, that the penalties imposed were excessive (see, CPLR 7803[3] ).Upon transfer from Supreme Court(CPLR 7804[g] ), the Appellate Division granted both petitions and annulled the determinations.The court found no basis in either case for the ACT's decision to credit Peteroy's testimony and held that, in cases such as these, involving charges of criminal conduct leveled by an accomplice with a past as riddled with dishonesty as Peteroy's, there must be corroboration of the accomplice's testimony, along the lines of that required by CPL 60.22.¹Finding no such corroboration and disagreeing with the ACT's assessment of the factors informing his credibility determinations, the court held that the Commissioner's determinations were not supported by substantial evidence.In addition, in the Berenhaus case, the court opined that, even if the charges had been substantiated, the penalty of dismissal was excessive in light of Officer Berenhaus's fine record.

We begin our analysis by accepting, for purposes of the discussion, that Peteroy was an accomplice as that term is defined in CPL 60.22 and that his testimony was not corroborated in either case.²In addition, we agree with the Appellate Division that Peteroy's testimony presented the kinds of dangers that the accomplice corroboration rule recognizes and seeks to avoid.The rationale underlying the rule is that "accomplices may themselves be persons of disrepute, lacking the normal indicia of reliability" and, having participated in the criminal conduct, "may have purchased a...