Halloran v. Kirwan

• Decision Date: 03 March 1971
• Citation: 28 N.Y.2d 689,320 N.Y.S.2d 742,269 N.E.2d 403
• Parties: , 269 N.E.2d 403 In the Matter of John M. HALLORAN, Appellant, v. William E. KIRWAN, Jr., as Superintendent of State Police, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 742

320 N.Y.S.2d 742

28 N.Y.2d 689, 269 N.E.2d 403

In the Matter of John M. HALLORAN, Appellant, v. William E. KIRWAN, Jr., as Superintendent of State Police, Respondent.

Court of Appeals of New York.

March 3, 1971.

Seth Towse, Albany, for appellant.

Louis J. Lefkowitz, Atty. Gen. (John Q. Driscoll and Ruth Kessler Toch, Albany, of counsel), for respondent.

PER CURIAM.

Order, 34 A.D.2d 1072, 312 N.Y.S.2d 45, reversed, with costs, and determination of respondent annulled. Lacking in this case is definitive proof that petitioner intended to commit larceny and, accordingly, order appealed from should be reversed and respondent's determination annulled on the ground that there is no substantial evidence in the record to support it.

FULD, C.J., and BURKE, BERGAN and GIBSON, JJ., concur.

SCILEPPI, J., dissents and votes to modify by remitting matter to Superintendent of State Police for reconsideration and reduction of penalty of dismissal upon the ground that penalty imposed was grossly excessive.

BREITEL, J., dissents and votes to affirm in the following opinion in which JASEN, J., concurs.

BREITEL, Judge (dissenting).

There are two issues in the case. The first is whether there was substantial evidence to support an administrative finding that a police officer had intentionally filched cheese while shopping in a chain supermarket. The second is whether a police organization is arbitrary in dismissing an officer who has committed such an offense, petty or not.

Two employees testified unequivocally to observing the police officer who had pocketed two packaged cheeses while paying for other foods carried in a shopping cart. The police officer on several occasions before the hearing and in testimony on the hearing denied the larcenous taking but never contradicted the described observations ofthe employees, except to say that he would not have bought or taken one of the two cheeses; he did not even know what kind of cheese it was. He denied any intention to take merchandise without paying for it. That should really be the end of the matter. The inferences to be drawn from the observations and the assessment of credibility are matters of fact in the sole province of the fact-finder, the administrative agency.

Be that as it may, the testimony also shows that the police officer was known to employees of the store. What precipitated the complaint had been a prior incident, six days before, resulting in closer surveillance by the store's employees. Thus an employee testified: 'This time I seen (the petitioner, referred to by first name) come in the store because it possibly could have been a mistake the first time. So we watched him.' On the day in question the one employee had advised the other that 'he was again in the store and that he had some merchandise in his possession'. The other testified: 'I went down the aisle and in his pocket I saw the merchandise. As he checked out of the store I could still see very plainly in his pocket the merchandise and what it was.'

Much is made of the fact that unlike ordinary shoplifters, this police officer was not stopped after leaving the store and required to return. It hardly needs explanation why store clerks are not likely to take it upon themselves to stop police officers who appropriate petty items in a shop. But the implicit is made explicit in the record. The employee explained: 'In my opinion we didn't do it because I do know (the petitioner) vaguely from coming in the store and talking and I did know he was a New York State Trooper and I myself didn't know how (he) would take it.' A more tactful measure was adopted. An employee of the store who was also a deputy chief of the local city police force was advised, and that functionary took care of the matter, eventually resulting in the instant disciplinary proceeding.

Much is also made of the fact that one of the employees in his far past, 9 years before at age 18, had been subjected to a summary court-martial in the army, and the other had been adjudged a youthful offender (such a judgment being a matter which the statute says should be disregarded for all disqualifying and stigmatic purposes (Code Crim.Proc. § 913--n)). If properly in the record, these skeletons of their past may bear, of course, on their credibility, but that is also a matter of fact to be assessed exclusively by the administrative fact-finder, and not by the courts.

Without exception, whenever it is discussed, it is said that administrative determinations are reviewable only for errors of law, one of which is the presence of substantial evidence (e.g. 1 Benjamin, Administrative Adjudication in New York, pp. 328--340; Cohen and Karger, Powers of the New York Court of Appeals, p. 460; 1 N.Y.Jur., Administrative Law, §§ 177, 185, 192). It is also said, whenever it is discussed, that the credibility of witnesses is solely a question of fact for the administrative fact-finder (e.g. Matter of Avon Bar & Grill v. O'Connell, 301 N.Y. 150, 153, 93 N.E.2d 573, 574; Matter of Stork Restaurant, Inc. v. Boland, 282 N.Y. 256, 267, 26 N.E.2d 247, 252; cf. 4 Davis on Administrative Law (Treatise), § 29.06). Indeed, this court has often sustained dismissals based on less and more contradicted testimonial evidence than that in this case (see, e.g., Matter of Sowa v. Looney, 23 N.Y.2d 329, 336, 296 N.Y.S.2d 760, 244 N.E.2d 243, 247, testimony of a complainant against a police officer in the face of corroborated alibi testimony; Matter of Evans v. Monaghan, 306 N.Y. 312, 118 N.E.2d 452, dismissal based on testimony of convicted bookmaker; Matter of Burke v. Bromberger, 300 N.Y. 248, 249--250, 90 N.E.2d 61, 62, dismissal of a court clerk on the contradicted and confused testimony of complainant holding 'it was not impossible or incredible, and in refusing to give any effect to it, the Appellate Division was substituting its views, on a question of fact, for that of the Chief Magistrate who heard the witnesses. Nothing is better settled than that the court had no such power in such an article 78 proceeding'; People ex rel. Guiney v. Valentine, 274 N.Y. 331, 335,...