Farry v. Ward

• Decision Date: 24 February 1987
• Citation: 512 N.Y.S.2d 39,126 A.D.2d 7
• Parties: In the Matter of the Application of Richard FARRY, Petitioner, for a Judgment under Article 78 of the Civil Practice Law and Rules, v. Benjamin WARD, as Police Commissioner, Police Department of the City of New York, Bruce E. Fogarty, Assistant Deputy Commissioner of Trials, Police Department of the City of New York, Harrison I. Goldin, Comptroller, City of New York, and The City of New York, Respondents.
• Court: New York Supreme Court — Appellate Division

Page 39

512 N.Y.S.2d 39

126 A.D.2d 7

In the Matter of the Application of Richard FARRY, Petitioner for a Judgment under Article 78 of the Civil Practice Law and Rules, v.Benjamin WARD, as PoliceCommissioner, Police Department of the City of New York, Bruce E. Fogarty, AssistantDeputyCommissioner of Trials, Police Department of the City of New York, Harrison I. Goldin, Comptroller, City of New York, and The City of New York, Respondents.

Supreme Court, Appellate Division First Department.

Feb. 24, 1987.

Carol Mellor, of counsel(Joseph Fallek, P.C., attorney), for petitioner.

Paul Marks, of counsel(Larry A. Sonnenschein and Nicole A. Gordon with him on the brief; Frederick A.O. Schwarz, Jr., attorney), for respondents.

Before MURPHY, P.J., and SANDLER, KASSAL and WALLACH, JJ.

MURPHY, Presiding Justice.

After having been adjudged guilty in an administrative proceeding of possessing stolen property and of failing to take proper police action when he became aware that officers under his command had removed property from the scene of a past burglary, Sergeant Richard D. Farry, petitioner herein, was dismissed from the police force.We are now called upon to determine whether the administrative findings of guilt upon which petitioner's dismissal was based are supported by substantial evidence as they must be to pass judicial muster pursuant to CPLR § 7803(4).

The source of the allegations against petitioner, as well as the testimony implicating him in the charged misconduct, was an officer named Thomas Peteroy.Peteroy testified as follows: At 4:46 on the morning of January 24, 1981, he and his partner, Officer Gillott, received a radio transmission from Sergeant Grice.Grice requested that Sergeant 2 (Farry) provide him with backup at the scene of a burglary which had occurred at the Rosenstock Oldsmobile dealership garage, located at 440 West 19th Street in Manhattan.Peteroy and Gillott responded at once.They drove in their patrol car from 18th Street and 9th Avenue where they received the radio transmission, to the nearby garage in a matter of minutes, arriving no later than 4:50 a.m.There they found Sergeant Farry and his driver, Officer Pizzo, waiting for them.Sergeant Grice, whose request for backup prompted their presence at Rosenstock was not there, and he played no part in the ensuing events.The four officers, leaving their patrol cars unattended in the street, proceeded to search the Rosenstock premises for burglars, starting with the second floor.They found that it had been thoroughly ransacked; windshields of the cars parked there had been shattered, dashboards vandalized, and radios removed.After surveying the damage for about ten minutes, the officers went downstairs.On reaching the street, Peteroy and Pizzo encountered a man who reported that he resided nearby and had heard a disturbance coming from the roof of the Rosenstock premises at about 1:30 that morning.When their conversation with this man ended, Peteroy and Pizzo joined Farry and Gillott in the lower level service area and together, the officers resumed their search.Finding no burglars in the service area, they entered the cashier's office.Again, no burglars were found but evidence of their intrusion was not wanting.Drawers and file cabinets had been opened and their contents strewn everywhere.Papers and human excrement covered the floor.The officers then entered the parts department through an unlocked door connecting it with the office area.No burglars were found there either.Their search of the downstairs thus concluded after between ten and fifteen minutes, the officers, while still in the parts department, conferred as to which parts they could use.They then started moving the items they had decided to take from the parts department to the service area.Sometime during this process, petitioner telephoned the precinct but, nevertheless, had time to help his companions transport some batteries and cases of oil.Once the officers had stacked eight batteries, several cases of oil, and varying unspecified quantities of oil filters, air filters, anti-freeze, spark plugs and ratchets just outside the office in the service area, Peteroy and Gillott unlocked and opened the garage door and Pizzo backed Sergeant Farry's patrol car into the service area so that the merchandise could be loaded conveniently into its trunk.After the trunk was loaded, Peteroy and Gillott moved a car from the second floor and placed it up against a swinging garage door on the first floor to keep it closed securely.On their way back to the service area, Peteroy and Gillott encountered an employee of ADT Security Systems, who had just arrived on the scene.ADT installed, maintained and monitored the burglar alarms on the Rosenstock premises.The police left shortly after the ADT employee's arrival and went to a lot where the stolen merchandise was placed in Officer Gillott's van.Subsequently, the officers met, divided the items and transferred them to their private vehicles.Peteroy later sold a number of the stolen batteries to customers at the gas station where he moonlighted.He transferred the sale proceeds to his fellow officers, including petitioner.

The Assistant Commissioner of Trials (ACT) credited the foregoing account and on that basis, found petitioner guilty of the charged misconduct.Of course, as our dissenting colleague notes, it is the special province of the trier of fact to weigh a witness' testimony and determine whether it is to be credited.This is because the trial court is uniquely positioned to observe the witness and thereby to assess his or her capacity for truthtelling.There are cases, however, where the trier of fact is not free to base its ultimate determination solely on testimony it might find believable.Thus, in a criminal prosecution, the testimony of an accomplice is not a sufficient basis for a conviction; the accomplice's allegations of wrongdoing must be corroborated (Criminal Procedure Law § 60.22;People v. Hudson, 51 N.Y.2d 233, 238, 433 N.Y.S.2d 1004, 414 N.E.2d 385).As we have elsewhere noted (Matter of Berenhaus v. Ward, 118 A.D.2d 196, 504 N.Y.S.2d 412), although the corroboration requirement is not generally applicable in administrative proceedings which are deemed civil in nature, there are, nevertheless, circumstances where inculpatory testimony given in an administrative forum must be corroborated.(Id. at 201, 504 N.Y.S.2d 412;see alsoMatter of Evans v. Monaghan, 306 N.Y. 312, 319-320, 118 N.E.2d 452;Matter of Kelly v. Murphy, 20 N.Y.2d 205, 208, 282 N.Y.S.2d 254, 229 N.E.2d 40).The need for corroboration in such circumstances stems from the need for substantial evidence, aptly described as "proof sufficient to satisfy a reasonable man, of all the facts necessary to be proved in order to authorize the determination".(Matter of Weber v. Town of Cheektowaga, 284 N.Y. 377, 380, 31 N.E.2d 495).Put somewhat differently, the record as a whole must contain reliable evidence sufficient to warrant judicial confidence in the essential soundness of the administrative determination.(See, Matter of Evans v. Monaghan, supra, 306 N.Y. at 319-320, 118 N.E.2d 452;Matter of Kelly v. Murphy, supra, 20 N.Y.2d at 208, 282 N.Y.S.2d 254, 229 N.E.2d 40;Berenhaus v. Ward, supra, 118 A.D.2d at 201, 504 N.Y.S.2d 412).

We do not propose to delineate strictly those limited circumstances in which some measure of corroborative evidence must be adduced in administrative proceedings.Where, however, the charged misconduct is criminal in nature and the inculpatory testimony has as its source one who, in addition to holding himself out as an accomplice, possesses a clear motive to fabricate and a history of dishonest behavior raising the most serious questions as to his veracity or capacity therefor, the inherent danger of contrived testimony is too great to be countenanced.Exclusive reliance upon such testimony entails a risk of injustice which cannot be responsibly, or for that matter legally, entertained.

Our examination of the record in this matter persuades us that Officer Peteroy's substantially uncorroborated testimony did not provide a sufficient evidentiary basis for the determination under review.Moreover, considering the circumstances under which Peteroy's testimony came to be offered, a high degree of corroboration was necessary.We are not of the view, apparently held by the dissenter, that there is any evidence in the record corroborative of Peteroy's allegations as to petitioner's misconduct.But, assuming arguendo, that there is, it is not sufficient to command our confidence in the soundness of the determination at issue.

By all accounts, including his own, Peteroy was a "rogue cop".The following partial recapitulation of his all-encompassing dishonesty is uncontroverted in the record before us.Just two months after joining the police force in 1968, Peteroy began systematically to abuse his position of trust as a police officer to indulge in what can only be characterized as a career of thievery.On occasions too numerous to specify, but estimated by Peteroy at between two and three hundred, he stole money and property from the scenes of past burglaries to which he responded in his capacity as a police officer assigned to the 10th Precinct.During his testimony he noted but a few more recent examples of such conduct: in June 1979, Peteroy stole $1000 from a camera store; in December, 1980, he and his partner Gillott stole $1000 from a pizzeria; also in December, 1980, Peteroy burglarized a laundromat from which he took $200 and a private house from which he took silver coins whose worth he valued at $300; on January 31, 1981, Peteroy returned to the Rosenstock dealership (it will be recalled that the incident in connection with which petitioner is charged, allegedly occurred one week before on January 24, 1981) and stole automobile inspection stickers and stamps; in July, 1981,...