People ex rel. Guiney v. Valentine

• Decision Date: 25 May 1937
• Citation: 274 N.Y. 331,8 N.E.2d 880
• Parties: PEOPLE ex rel. GUINEY v. VALENTINE, Police Com'r.
• Court: New York Court of Appeals Court of Appeals

274 N.Y. 331

8 N.E.2d 880

PEOPLE ex rel. GUINEY

v.VALENTINE, Police Com'r.

Court of Appeals of New York.

May 25, 1937.

Proceeding by the People on the relation of Daniel P. Guiney to review by certiorari the action of Lewis J. Valentine, Police Commissioner of the city of New York, in dismissing relator from the police department. From an order of the Appellate Division of the Supreme Court, Second judicial department, dated March 1, 1937 (-- App.Div. --, 293 N.Y.S. 807), annulling the determination of the Police Commissioner of the city of New York, and directing the reinstatement of the relator as a patrolman in the police department of the city, Lewis J. Valentine, as Police Commissioner of the city of New York, appeals.

Order of Appellate Division reversed, and application for order of certiorari denied. Appeal from Supreme Court, Appellate Division, Second department.

Paul Windels, Corp. Counsel, of New York City (Paxton Blair and Henry J. Shields, both of New York City, of counsel), for appellant.

Francis D. McGarey and John J. McMahon, Jr., both of New York City, and William S. Overend, of Brooklyn, for respondent.

CRANE, Chief Judge.

On the afternoon of September 22, 1935, Patrolman Guiney was off duty at 4 o'clock. That evening he spent at his sister's house playing cards and drinking whisky; at least he had four drinks, according to his own statement. At a little after midnight he came down Washington avenue toward Bergen street, Brooklyn, when he saw an automobile, in which one Salvatore Autorino was asleep while waiting for his father-in-law, who was ‘in the house.’ Guiney was off duty and in civilian clothes. Autorino testified: ‘He told me to get out of the car, and when I got out of the car he asked me for my license, see, so he was in civilian clothes, and I didn't know he was an officer, so I thought he was a hold-up-man, so I kicked him, and I ran up an alley-way, * * * he fired at me, * * * and I stayed there until I heard some people out in front of the door.’ Guiney proceeded to a nearby saloon where he was arrested, at the time having a pistol in his hand.

Sergeant Scott swore: ‘From my observation, it appeared to be as though Patrolman Guiney was intoxicated.’

Sergeant Motjenbacker testified: ‘I saw that Patrolman Guiney had been drinking.’ And further, that Guiney said to him, ‘Well I went over to some fellow sitting in an automobile and I told him to stick up his hands. He jumped out of the car and I fired two shots at him.’

The police surgeon, Henry Weinstein, who had been sent for to examine Guiney, said, ‘The odor of his breath was somewhat alcoholic, likewise aromatic. * * * He denied having been drinking.’ As before stated, Guiney in his testimony said he had had four drinks of whisky, so he did not tell the truth to the surgeon.

Autorino proceeded to the station house and made charges against the patrolman. Guiney told the officers that the man sitting in the car fired two shots at him. In his own behalf, he testified: ‘The next thing I knew I got a kick, and I fell kind of back to the car, and at the same time I heard a noise that sounded like the discharge of a revolver, so I jumped in back of the car to get out of the line of fire, and as I did I heard a second shot, it didn't sound as close as the first.’ Although Autorino came to the station house and identified Guiney as the man who shot at him, Guiney made no charge against him for illegally having a gun or for assaulting him with it. Besides, Autorino swore that he had no weapon or gun of any kind.

The police commissioner sustained the charge made against the patrolman, which was of conduct unbecoming an officer prejudical to good order and...