Roge v. Valentine
| Decision Date | 11 April 1939 |
| Citation | 20 N.E.2d 751,280 N.Y. 268 |
| Court | New York Court of Appeals Court of Appeals |
| Parties | ROGE v. VALENTINE, Com'r of Police Dept. |
Proceeding in the matter of the application of Frederick H. Roge, for an order pursuant to article 78 of the Civil Practice Act against Lewis J. Valentine, as commissioner of the police department of the city of New York, annulling the determination of the respondent in dismissing petitioner from the police department of the city of New York and directing that the petitioner be forthwith reinstated. From an order of the Supreme Court, Appellate Division, First Department 255 App.Div. 475, 7 N.Y.S.2d 2d 958, which annulled on the law and facts the determination of the police commissioner and granted a new trial, the commissioner appealed to the Court of Appeals after the allowance by the Supreme Court, Appellate Division, 256 App.Div. 817, 9 N.Y.S. 2d 900, of his motion for leave to appeal to the Court of Appeals. The Supreme Court, Appellate Division, certified five questions as follows:
I. Was the testimony given by the witnesses in the disciplinary proceedings against Scott Sanders competent as substantive proof, on the departmental trial, of the petitioner's guilt without being reaffirmed on such trial?
II. Was it proper to receive in evidence generally upon the departmental trial, over petitioner's objections, the exhibits consisting of check stubs and record cards made by Scott Sanders or his clerk?
III. Were such exhibits competent evidence as bearing upon the credibility of the testimony of the persons who made the entries?
IV. Was there sufficient competent evidence in the record to justify the finding by the trial commissioner that the petitioner was guilty as charged?
V. Was the order entered herein by the Appellate Division of the Supreme Court, First Department, annulling the determination of the police commissioner and granting a new trial, erroneous?
Certified questions 1 and 2 answered in the negative and questions 3, 4, and 5 in the affirmative, and order of the Appellate Division reversed, and determination of the police commissioner confirmed. Appeal from Supreme Court, Appellate Division, First department.
William C. Chanler, Corp. Counsel, of New York City (Paxton Blair and Charles C. Weinstein, both of New York City, of counsel), for appellant.
David Goldstein and Lawrence Kovalsky, both of New York City, for respondent.
The petitioner was appointed a patrolman in the Police Department of the city of New York in July 1928. In 1937 charges in writing were preferred against him of ‘conduct unbecoming an officer; conduct prejudicial to good order, efficiency and discipline; conduct prejudicial to public peace and welfare; neglect of duty’ and violations of the rules and regulations. The charges contain twelve specifications. After a trial he was found ‘guilty as charged’ and dismissed from the police force. Upon review of the determination of the Police Commissioner the Appellate Division annulled the determination ‘on questions of law and fact’ and granted a new trial. Leave to appeal to this court was granted by the Appellate Division and five questions were certified.
The charges arise out of financial transactions between the patrolman and one Scott Sanders. They became acquainted in 1931 while the patrolman was assigned to the 102d Precinct. Scott Sanders was, at that time, an attorney. He had offices opposite the Magistrates' Court in the precinct to which the petitioner was attached. The greater part of Sanders' practice was as attorney for defendants in that court. In proceedings subsequently brought for his disbarment, evidence was introduced which tended to show that he had paid to the petitioner a share of fees received by him in certain cases as attorney. The charges against the petitioner followed upon Sanders' disbarment.
As amplified by the specifications, the charges may be summarized or classified as follows: (1) That the petitioner recommended or suggested to Scott Sanders, as a prospective client, the name of a man who had been arrested on a charge of burglary where the petitioner was one of the arresting officers; (2) that the petitioner at times accepted and received from Scott Sanders sums of money for services rendered in connection with that case and divided these sums with another patrolman with whom he was acting in concert; (3) that on dates set forth in the specifications, the petitioner accepted and received from Scott Sanders checks for various amounts, as gratuities, without the consent or approval of the Police Commissioner and during the period of time when the petitioner ‘was representing the People of the State of New York in various courts in the Borough of Queens where the said attorney [Scott Sanders] practiced law.’
The sufficiency of the charges is challenged, and it is said that the petitioner was dismissed without a hearing as required by section 22, subdivision 1, of the Civil Service Law (Consol.Laws, ch. 7). We have considered the contentions of the petitioner on these points and have rejected them. They are ignored in the opinion of the Appellate Division, and extended discussion in this opinion would serve no useful purpose. The integrity of those charged with the duty of enforcing the law should be beyond suspicion. Rules of the Police Department provide that a police officer shall not accept gratuities for ‘police services without the consent of the Police Commissioner’ nor shall he ‘recommend or suggest to anyone the employment or name of any person, firm, or corporation, as attorney, counsel, or bondsman.’ We are told that the facts alleged in the specifications of the charges filed show no violation of these rules. Distinction is drawn between recommending to any one a person as attorney, which is prohibited by the rules of the department, and recommending or suggesting the name of a client to an attorney, which it is alleged the petitioner did. It is said too that it does not appear in the charges that the gratuities which it is alleged that the petitioner received and accepted were paid for ‘police services.’ The prohibitions contained in the rules are directed against acts which may be innocent, if done with innocent intent, but which tend to demoralize the police force, facilitating temptation and covering corruption. Such acts are stamped as wrongful at all times, regardless of whether in particular instance they may be innocent in purpose or in effect. The prohibition of the acts specified in the rules may not be regarded as a license or a grant of immunity for other acts where purpose or effect is not innocent. It is plain that any patrolman who receives and accepts from an attorney practicing in the police court in the precinct to which the patrolman is attached, money as a gratuity or in payment for services, past or future, rendered or hoped for, voluntarily places himself in an equivocal position, destroys his usefulness as a police officer and is guilty of misconduct which justifies, if, indeed, it does not dictate, dismissal from the force. The specifications gave notice to the relator of very serious charges of misconduct. He has been found guilty after a hearing conducted in conformity with due process of law and pursuant to statutory directions ‘in the mode required by law.’ The only questions which require serious consideration in this court are (1) whether in making the determination of guilt, any rule of law affecting the petitioner's rights has been violated to his prejudice; (2) whether there is any competent proof of guilt; and (3) if there was such proof, whether upon all the evidence there was such a preponderance of proof against the finding of guilt that if the finding had been made by a jury it could be set aside by the court as against the weight of evidence. Civil Practice Act, § 1296.
The petitioner admits that he received from Scott Sanders on or about August 31, 1936, a check for the sum of forty-three dollars and that at various times he received other checks or money in small amounts. They represented temporary loans, he testified, promptly repaid. He denies receipt of any moneys as gratuities or in payment of any services rendered or as reward in advance for anticipated favors. If his explanation is accepted as true, there was nothing sinister in the payments made and received; Scott Sanders and the petitioner were, it is said, friends, and temporary loans for small amounts made by one friend to another and promptly repaid would ordinarily raise no inference of wrong even where the loan is made to a police officer. The petitioner's story is not contradicted by any witness;...
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