Gaglia v. Walsh

43 A.D.2d 544, 350 N.Y.S.2d 348, 1973 N.Y. App. Div. LEXIS 3061

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 27, 1973
• Status: Published

Opinion

Determination of respondent Administrator of the Housing and Development Administration, dated July 20, 1972, dismissing petitioner from the position of construction inspector, unanimously annulled, on the law, without costs and without disbursements, and the pro- ° seeding remanded for rehearing. Petitioner was originally charged with six specified acts of misconduct involving attempted extortion in connection with a named restoration project. At the disciplinary hearing, the original charges were deleted, without prejudice, and a new specification added. This new (and now only) charge was predicated on petitioner having previously pleaded guilty (though disclaiming guilt [cf. North Carolina v. Alford, 400 U. S. 25]) to the crime of official misconduct; a Class A misdemeanor. Subsequently, petitioner withdrew his guilty plea and the indictment was restored. Since the factual support for respondent’s determination has dissolved, a new hearing is required; and we find it unnecessary to reach the question of whether petitioner’s removal may be based on a plea prior to judgment. (Cf. Matter of Keogh v. Wagner, 20 A D 2d 380, affd. 15 N Y 2d 569.) Concur — Nunez, J. P., Murphy, Lane, Tilzer and Capozzoli, JJ.