Brown v. Ristich

Decision Date25 February 1975
Citation325 N.E.2d 533,366 N.Y.S.2d 116,36 N.Y.2d 183
Parties, 325 N.E.2d 533 In the Matter of Joan BROWN, Respondent, v. Miodrag RISTICH, as Director of Willowbrook State School, Appellant.
CourtNew York Court of Appeals Court of Appeals

Louis J. Lefkowitz, Atty. Gen. (Shirley Adelson Siegal and Samuel A. Hirshowitz, New York City, of counsel), for appellant.

William P. Volin, New York City, for respondent.

GABRIELLI, Judge.

The question presented is whether unsworn testimony may be received and given effect in an administrative disciplinary proceeding under section 75 of the Civil Service Law. The problem arises out of the dismissal of the petitioner, an attendant at Willowbrook State Hospital for the Mentally Retarded, found to have struck a patient. The evidence against petitioner consisted in large part of the eyewitness testimony of the victim and another patient, both of whom were found by the hearing examiner to be incapable of understanding the nature of the oath.

Petitioner, a ward attendant with 17 years experience at the Willowbrook facility, was charged with striking a 22-year-old female resident, Beverly Cash, 'with a scrub or broom handle while (the resident) was sitting in a chair in the dayroom of Ward 234 and caus(ing) her to have a laceration of the scalp and forehead necessitating 13 sutures.' At the hearing it was established that a group of patients, including Beverly Cash, were proceeding from the dayroom down the back stairs to the outdoors shortly after 9:30 A.M. An attendant at the back door testified that Beverly came out holding a towel on her head and went around to the front of the building. Another attendant testified to seeing Beverly pass by on her way around the building and that she had blood on her head. Beverly went to the supervising attendant in her office at the front of the building. The supervisor testified that Beverly had a bloody towel on her head and that she took her to the treatment room where a physician treated the wound and closed it with some 13 stitches. The physician described the wound and testified that it could easily have been made by the handle later found and identified as the weapon. The physician further testified that a patient, one Eileen Cassels, told him that morning that she had seen the incident and that petitioner had hit Beverly while Beverly was seated in a chair. This witness to the event, in fact, brought to the physician a broom handle three and a half to four feet long which she asserted was the weapon used by petitioner. Eileen Cassels was, however, unavailable to testify at the hearing. The physician's hearsay testimony as to what Eileen saw was buttressed by his observation that when she related these events to him she was in good form at the time and functioning at a high level.

There was further testimony to the effect that 10 minutes prior to the time Beverly emerged from the building she was seen sitting in the dayroom and that she was then perfectly all right. The supervisor and the physician both testified that when asked what happened Beverly said that petitioner had hit her in the head with a stick. These statements were made when Beverly came for help within minutes after the attack.

Preparatory to putting Beverly and the other patient eyewitness, Louise Gruzo, on the stand, the school psychologist testified that Beverly's I.Q. was 43, that she had a mental age of a four to six year old, and that she knew the difference between telling the truth and telling a lie. He stated that 'Beverly does relate to reality. She does know certain things. What is going on around her and she can relate to them. I didn't find her to be psychotic or irrational. On a very concrete level, she can explain to you she's at Willowbrook and she has been here for a long time. She is capable of knowing what is going on in a particular setting on a very minimum basis, and the same thing with Louise Gruzo.' Additionally, with respect to Louise Gruzo, 25 years of age, the psychologist testified that she had an I.Q. of 50, a mental age slightly higher than Beverly's, and that she knew what it was to tell a lie.

When Beverly was called to the stand the hearing examiner conducted a Voir dire and concluded that it would be 'senseless' to administer an oath. Over objection by petitioner's counsel, however, the hearing examiner allowed Beverly to testify unsworn. In response to direct questioning she stated that she remembered when she was hit on the head, where and how she was hurt, the object that caused her injury, and that petitioner was the person who struck her. When asked why petitioner struck her, she retorted, 'I cursed her out.' She further testified that an eyewitness was present at the time of the assault. Beverly's testimony remained unshaken after cross-examination.

The attendant at the rear door who testified to having seen Beverly emerge from the building holding a towel to her head also testified that at that time petitioner was upstairs sending the patients down to her and that petitioner's duties included getting the patients downstairs and to see that everyone got out. Petitioner testified in her own defense and said she did not know how Beverly was injured; and that she, petitioner, was in the bathroom trying to dress three other patients at the time of the injury. She asserted that she was unaware of Beverly's injury until Beverly had left the building, and denied that she had struck Beverly in response to being called a name.

The hearing examiner inferentially discredited petitioner's testimony in his findings where he stated: 'I am quite convinced after reading the testimony that both of these patients, one of whom is the patient who was assaulted, have full knowledge of what they were saying and what they saw, and they were able, satisfactorily to me, to indicate that the respondent did in fact strike this Beverly Cash child.' He went on to note the medical foundation as to the competency of these witnesses and concluded that the two patient witnesses had the mental ability to put into words what they saw.

The Appellate Division summarily annulled the determination dismissing petitioner and relied on the following passage from Matter of Sowa v. Looney, 23 N.Y.2d 329, 333, 296 N.Y.S.2d 760, 764, 244 N.E.2d 243, 245: 'Compliance with the technical rules of evidence is not required in disciplinary proceedings before a Police Commissioner or other administrative officer. (Civil Service Law, Consol.Laws, c. 7, § 75, subd. 2; Matter of Roge v. Valentine, 280 N.Y. 268, 278--280, 20 N.E.2d 751, 755; cf. 1 N.Y.Jur., Administrative Law, § 121.) Generally, all relevant, material and reliable evidence which will contribute to an informed result should be admissible in disciplinary proceedings for there is a public interest in ascertaining the truth of charges brought against public employees. (Cf. 1 Benjamin, Administrative Adjudication in the State of New York (1942), pp. 171--181; cf. 2 Davis, Administrative Law Treatise, §§ 14.01--14.07 (1958).) Nevertheless, no essential element of a fair trial can be dispensed with unless waived without rendering the administrative determination subject to reversal upon review.'

We think the Appellate Division misapplied those salutary rules to the facts in this case. Relying, apparently, on only the last sentence above quoted, the court held that reliance on the unsworn testimony of the two patient witnesses deprived petitioner of a fair hearing.

All adults are presumed competent to testify, and commitment to a mental institution does not automatically render a witness incompetent (People v. Rensing, 14 N.Y.2d 210, 213, 250 N.Y.S.2d 401, 403, 199 N.E.2d 489, 490; Barker v. Washburn, 200 N.Y. 280, 93 N.E. 958; Richardson, Evidence (10th ed.), § 389). Certainly, an adverse party may put competency in issue and in such a case the matter is addressed solely to the discretion of the hearing officer who may examine the witness about to testify and any other person who can establish the mental capacity of the witness (Aguilar v. State of New York, 279 App.Div. 103, 105, 108 N.Y.S.2d 456, 459; cf. District of Columbia v. Armes, 107 U.S. 519, 522, 2 S.Ct. 840, 27 L.Ed. 618). Petitioner argues that the inability of a witness to understand the nature of the oath goes to the essence of his competency to testify, thus rendering his testimony inherently unreliable. There is, however, a clear distinction between the formalistic oath, on the one hand, and the concept of testimonial capacity on the other. A witness is said to be capable when he has the ability to observe, recall and narrate, i.e., events that he sees must be impressed in his mind; they must be retained in his memory; and he must be able to recount them with sufficient ability such that the presiding official is satisfied that the witness understands the nature of the questions put to him and can respond accordingly, and that he understands his moral responsibility to speak the truth (2 Wigmore, Evidence (3d ed.), § 492 et seq.).

An oath, on the other hand, had to some,...

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