Tanico v. McGuire
| Citation | 438 N.Y.S.2d 791,80 A.D.2d 297 |
| Parties | In the Matter of the Application of John TANICO, Petitioner-Respondent, for an order pursuant to Article 78 of the Civil Practice Law and Rules, v. Robert McGUIRE, as Commissioner of the Police Department of the City of New York, Respondent-Appellant, reviewing the determination of the respondent in suspending petitioner from his position as a New York City Patrolman, etc. In the Matter of the Application of Anthony SALVATORE, Petitioner-Respondent, for an order pursuant to Article 78 of the Civil Practice Law and Rules, v. Robert McGUIRE, as Commissioner of the Police Department of the City of New York, Respondent-Appellant, reviewing the determination of the respondent in suspending petitioner from his position as a New York City Patrolman, etc. |
| Decision Date | 12 May 1981 |
| Court | New York Supreme Court — Appellate Division |
Marjorie E. Bornes, Flushing, of counsel (Ronald E. Sternberg, New York City, with her on the brief; Allen G. Schwartz, Corp. Counsel, New York City, attorney), for respondent-appellant.
Victor J. Herwitz, New York City, for petitioners-respondents.
Before KUPFERMAN, J. P., and SANDLER, SULLIVAN, MARKEWICH and FEIN, JJ.
The Commissioner of the Police Department of the City of New York (Commissioner) appeals from so much of an order and judgment, Supreme Court, New York County, entered May 8, 1980, as enjoined him from requiring petitioners-respondents John Tanico and Anthony Salvatore (Tanico and Salvatore) to submit to interrogation pursuant to Police Department Patrol Guide § 118-9.
Tanico, who initiated this proceeding, and Salvatore, who was permitted to intervene, are New York City police officers who were investigating and securing a front-break of a supermarket. They were allegedly observed removing two cases of beer from the store and placing them in their own cars. On the basis of a report of such activity they were suspended without pay for official misconduct. The Department scheduled interrogation of Tanico and Salvatore pursuant to Patrol Guide § 118-9 which requires an officer to answer questions "specifically directed and narrowly related to official duties."
On September 26, 1979 Tanico's attorney requested an adjournment of the scheduled interrogation in order to research the applicable law. The request was denied and the questioning began. Tanico refused to answer on advice of counsel pending a one-week adjournment to complete his research. It is disputed whether the interrogation was then adjourned for rescheduling or was deemed concluded.
On September 27, 1979 Tanico and Salvatore were served with charges and specifications that Tanico in concert with Salvatore "did wrongfully take and remove a quantity of merchandise from said premises (the supermarket) and appropriate same for his own use". They were also furnished with appropriate directives and advice concerning procedures.
On September 28, 1979 Tanico and Salvatore were arraigned at the Police Department Trial Room and pleaded not guilty. The proceedings were adjourned to October 18 for trial.
On October 18, counsel for Tanico and Salvatore were supplied with discovery material and the proceedings were adjourned to November 2. On November 2 and November 12, Tanico and Salvatore and their attorneys appeared ready for trial. On each date, the Police Department's prosecutor asked for an adjournment to afford Lieutenant Haggerty, the investigating officer, an opportunity to question Tanico and Salvatore as to the facts, pursuant to Patrol Guide § 118-9. Counsel for Tanico and Salvatore objected upon the ground that such an interrogation would be untimely in that the provisions of Patrol Guide § 118-9 did not authorize such an interrogation after charges had been served and filed. Counsel further objected that since Lieutenant Haggerty was the chief witness against Tanico and Salvatore, he should not, in any event, conduct the inquiry. The Hearing Officer reserved decision.
The matter was adjourned for further argument. Ultimately the Hearing Officer rendered a written opinion and decision directing Tanico and Salvatore to submit to further interrogation pursuant to Patrol Guide § 118-9 before proceeding with the trial. Tanico and Salvatore declined to do so and instituted this Article 78 proceeding. They assert that (1) a Patrol Guide § 118-9 interrogation is not authorized after charges have been preferred and a hearing is pending; (2) even if authorized, the right to interrogation was waived under the circumstances of these cases; and (3) in any event such interrogation should not be conducted by the complainant and chief investigating officer.
Special Term denied the application of Tanico and Salvatore for reinstatement with back pay but granted their application to enjoin further interrogation pursuant to Patrol Guide § 118-9, upon the ground that equitable considerations and the language of the Patrol Guide establish that such interrogation is only authorized prior to the service and filing of charges and specifications.
On the record before us we find that unless precluded by the filing and service of charges and specifications, there was no waiver of the right to conduct such interrogation prior to trial. Both the Department and counsel for Tanico and Salvatore were responsible for the delay in conducting the interrogation and bringing the proceeding on for a hearing. Although we believe that it would be more appropriate for the interrogation to be conducted by an officer other than the complainant, we find no legal impediment to such procedure.
Thus, the sole issue on this appeal is the power of the Commissioner to conduct a Patrol Guide § 118-9 interrogation before trial after charges and specifications have been served and filed.
The interrogation was part of a pending administrative procedure. The determination to proceed with the interrogation was not final in the sense intended by CPLR Article 78. The injunction sought by petitioners was for interlocutory relief during a pending administrative proceeding. The courts are not to interfere in such proceedings...
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