La Forge v. Kennedy

8 A.D.2d 143, 186 N.Y.S.2d 478, 1959 N.Y. App. Div. LEXIS 8420

Opinions

Breitel, J. P.

Arising from an alleged incident on October 13, 1954, two police officers, with excellent records in the department, were dismissed from the force, on the testimony of two civilians with police records. The nub of the charges was that the two officers, while on radio patrol, arrested the two civilians, Luis Pagan and Rafael Castejon, accused them of possession of contraband narcotics, and then proceeded to exact from them some $24 and an old watch, to secure their release. The charges were denied by the officers, and, following their dismissial, these proceedings under article 78 of the Civil Practice Act were brought September 1, 1955 to review the determinations dismissing them. The record does not indicate why this review by the courts has been delayed since 1955. Nor does it appear whether the police officers sought a reconsideration of the determinations from the Police Commissioner (Administrative Code of City of New York, § 434a-22.0) although there had been a change of Commissioner in the interim.

Footnotes

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Concurrently with this case, this court is deciding Matter of Phinn v. Kross (8 A D 2d 132), also a proceeding under article 78, in which the disciplinary dismissal of a correction officer has been reviewed and the determination annulled. The applicable rule has been clearly expressed in the opinion of Mr. Justice Valente in the Phinn case. As a consequence, repetition is not required; and the analysis in that case is accepted as the premise for this. Under the rule the determinations of the Police Commissioner dismissing the two police officers should be confirmed. This is required by the substantial evidence rule applied in the judicial review of disputed questions of fact, arising in administrative proceedings, under section 1296 of the Civil Practice Act. The rule prescribes that the evidence available to the fact-finder must be sufficient, as distinguished from a mere ‘ ‘ scintilla”, to account for the conclusions reached, but precludes the court from determining whether it would have pursued the same reasoning, that is, drawn the same inferences.

It should be readily apparent, especially if comparison is made with the Phinn case, that the application of this rule requires a somewhat detailed analysis of the facts. In both cases the civil servants under charges were members of uniformed, disciplined, quasi-military organizations. In both cases the witness or witnesses against the civil servants merit the closest scrutiny in ascertaining whether the accusations are entitled to any credit. For if the testimony is entitled to any credit the court’s function of review ceases.

Luis Pagan and Rafael Castejon live on the West Side of Manhattan in the precinct to which the two police officers in this case were attached. Both had had a number of contacts with the police in connection with thefts, possession of narcotics, and other charges. According to other police officers, whose testimony was offered by petitioners on the departmental hearing, they had bad reputations for veracity. They were, indeed, minor figures in the criminal underworld. Patrolman La Forge, by way of contrast, had been on the force some nine years and had received 19 citations, many of them for extraordinary bravery. Patrolman lx had been on the force eight years and had received four citations. Both officers have been responsible for many arrests. Neither had any blemish on his departmental record.

According to Pagan and Castejon, on the evening of October 13, 1954, some time between 8 and 9 o’clock, they met on the street outside a delicatessen on Columbus Avenue, near 89th Street. This was a short distance outside the sector to which the police officers had been assigned on radio patrol. Pagan and Castejon claimed that the officers arrested them, pretended to find a package near the radio patrol car, accused first one and then the other of the two civilians of having dropped the package, and then said that they were taking them in for possession of marijuana cigarettes. The civilians were placed in the rear of the automobile where they were required to kneel, because the rear was occupied by radio equipment. They were then driven to a point near and in view of the precinct station on 100th Street. In the course of conversations while they were still in the automobile, according to the civilians, there were threats of a beating up of the civilians at the police station and similar menaces with regard to prosecution. Then the officers asked first one and then the other of the civilians for money for their release. They asked for $100; but after the officers were told that neither had such sum, Patrolman La Forge accepted $24, of which Pagan supplied $20 and Castejon an additional $4.* Castejon also gave an old watch to Patrolman La Forge, which Castejon pointed out was no good. The patrolman said, however, that he would see them around and get more money from them. Thereupon the men were released. This was sometime between 9:30 and 10.00 p.m., the time being stated variously by the two civilians, when they first complained to the Police Department and when they testified at the departmental hearing.

According to Pagan and Castejon, shortly after they were released, Pagan telephoned the office of the Federal Bureau of Investigation in New York City to complain of what had happened. He was told to complain to the First Deputy Police Commissioner of the city department. The next morning he made such complaint, Pagan giving the shield number of Patrolman La Forge, which he had recalled or noted. The police officers were brought in, confronted by the civilians, and questioned. Statements, later transcribed, were taken from all. Pagan positively identified the two policemen and confirmed his earlier recollection of the shield number of Patrolman La Forge, as shield number 10726. Castejon identified Patrolman La Forge but was less certain of Patrolman ix. Both patrolmen unqualifiedly denied the occurrence of the incident, denied knowing the civilians, and denied knowledge of any similar or comparable incident. They also claimed that they had never left the assigned sector of the radio patrol during the previous evening.

While the appearance and complaints made by the civilians were completely recorded at police headquarters, their alleged telephone call to the Federal Bureau of Investigation lacks any confirmation. That office has no record of such a telephone call.

Between November 26, 1954 and December 10 of that year departmental hearings were conducted on charges placed against the police officers. Adjournments in the hearings were required by the difficulty in obtaining the presence of Castejon for whom an order to compel his appearance was eventually issued out of the Supreme Court.

The charges against the patrolmen were that they unlawfully released persons from police custody after arrest; that they had failed to report such arrests in the precinct station; that they had solicited money from the civilians; that they had taken money and property from the civilians; and that Patrolman La Forge had failed to report to Ms superior their absence from the assigned sector for radio patrol These charges were sustained following the hearing by the Hearing Commissioner, Deputy Police Commissioner Vincent L. Broderick, and confirmed by the then Police Commissioner, F. W. H. Adams. The patrolmen were thereupon dismissed from the police force.

On the departmental hearing, except as noted later, Pagan gave substantially the same testimony as he had the day after the incident before the First Deputy Police Commissioner. In addition, however, he added that, within a half hour after the incident, he had recorded the shield number of Patrolman La Forge on a fragment of a paper pie plate. He stated that he had not made mention of this before, or previously produced the fragment, because he recalled the shield number and because he could not then find the paper fragment. On the departmental hearing, at an adjourned session, however, the paper fragment was produced and identified. It not only contained a record of the shield number of Patrolman La Forge but there was also noted on it the time of the occurrence as being between 10:15 and 10:30 p.m. Castejon, whose presence had been obtained with some difficulty, testified substantially to the same effect as had Pagan, except as noted later, but his identification of the police officers was quite dubious. He denied that he had ever picked the police officers out of a group, which, of course, was true, the police officers never having been placed in any kind of line-up. He sustained his identification of Patrolman La Forge by saying that Pagan had told him that La Forge was the officer driving the car and who had taken the money. He said that La Forge had always looked like the one that arrested him that night, but that he was never sure about ix. The police officers testified and again denied any transaction with these two civilians or any similar incident and denied knowing them. A number of police officers, as observed before, were produced as witnesses by the patrolmen and they testified that Pagan and Castejon were well known to the precinct; that they had been suspects in many different criminal matters; that their reputation for veracity was bad; and they, the witnesses, would not believe what Pagan and Castejon said. It is of interest that Castejon’s watch was never found.

At the hearing before the Deputy Commissioner, Pagan stated that Castejon had given the money to ix. Later in the preliminary hearing he identified La Forge as the officer to whom Castejon paid the money. On the departmental hearing Pagan testified that Castejon had given the money to La Forge at a point across the street from where the patrol car was parked. Conversely, Castejon informed the First Deputy Police Commissioner that he had handed the money to La Forge, rather than to ix. On the departmental hearing he testified that he had given the money to La Forge’s partner while the latter was sitting in the patrol car. He denied making an earlier identification of La Forge as the officer to whom money was paid.

There were other variations between the testimony of Castejon and Pagan and some further variations between their testi-. many at the departmental hearings, other than those already mentioned, with the statements they had given the day after the alleged incident. These variations, however, are hardly greater than the variations usually found among persons who testify to their recollection of past events, and particularly of events with emotional involvement.

As already twice observed, Castejon had become a reluctant witness when this matter came up for departmental hearing. The hearings were adjourned in order to obtain a court order to compel his appearance. He then proceeded to maneuver evasively when questioned with regard to the police officers. Thus, it does not suffice to excise particular portions of his testimony where his evasion was boldest, but his entire testimony must be read as a whole. Quite significantly, he confirmed that Pagan had told him, on the night of the alleged incident, that Pagan had then obtained the shield number of one of the police officers. He also confirmed his earlier statements the day after the incident, after vainly trying to avoid implicating the officers at all. The record demonstrates that the Trial Commissioner was aware of these evasive maneuvers because he pressed Castejon repeatedly with respect to those answers which were given most reluctantly or evasively.

With regard to the obvious anti-police bias of Castejon and Pagan, the fact is that Castejon, whose testimony was less inculpating, was the one of the two who was in present difficulties with the authorities. Moreover, the difficulties of both with the police, particularly of the 24th Precinct, explains as much the hesitancy of the one as it explains the aggressiveness of the other in testifying against these policemen. Especially in the light of the fact that a substantial number of officers from the 24th Precinct denounced these witnesses, it calls for careful analysis of the testimony of persons of humble or vulnerable status who had previously made charges against members of this uniformed force with a high esprit de corps. The consciousness of that need for caution is demonstrated throughout the record by the probing questions of the Trial Commissioner, even with regard to the pie-plate fragment.

The foregoing, then, in substance, is the record upon which petitioners were dismissed. If it contained no more than the say-so of disreputable witnesses with police records pointing the finger at upstanding police officers, this case might be no different than that of Matter of Phinn v. Kross (supra) in which this Court is annulling the determination of dismissal. But the situation is otherwise here.

In this case there are two men, each of whom corroborates, substantially, the testimony of the other. The two officers were on radio patrol that night, and the situs of the arrest was but a few blocks from the perimeter of their assigned sector. There is not the slightest suggestion provided of any sinister motiva tian to explain the accusations against the police officers. Even if the alleged telephone call to the Federal Bureau is ignored, there is the fact of prompt complaint the very next morning to the office of the First Deputy Police Commissioner. There is the recording of their complaints in detail less than 24 hours after the occurrence. There is the reporting of the shield number of Patrolman La Forge by Pagan even before the police officers had been brought to Headquarters for the identification. There is the prompt identification, in varying degrees, of the two police officers involved. There is, for whatever it is worth (and that worth is a matter for the determination of the Police Commissioner) the production of the paper fragment on which the shield number of Patrolman La Forge was recorded.

Thus viewed, there is much more than the say-so of one who was a convict, a narcotics addict and a stool-pigeon, as in the Phinn case, to identify and inculpate the civil servants. In the Phinn case, the convict never disclosed to Detective Mclnerney who it was that was trafficking in narcotics and letters in the City Prison, and there was a long delay before the convict claimed to have effected any transaction with the correction officer. Moreover, when the Correction Department personnel endeavored to obtain confirmation of the transaction their efforts resulted in total failure. All that remained was the finger-pointing by the convict. And nothing in his conduct, or in the nature of the transaction, or in any of the background circumstances, made it any more or less likely that Phinn was the culprit rather than any other man on the correction force. There was only the convict’s word that Phinn was the culprit, and, if he had named any other correction officer in the prison, the proof would have been exactly the same. In that context, the naked word of a discreditable character — discreditable by objective standards — was entitled to no credit.

But, as has been seen, the record here supplied internal confirmatory facts, not unlike those, in principle, found in Matter of Evans v. Monaghan (306 N. Y. 312, 319-322). These, in addition to the testimony of Pagan and Castejon created an issue of fact because it created an issue of credibility. For a court then to substitute its evaluation for that of the administrator’s is not' permitted. And even in the situation where the courts exercise a broader scope of review, as in the case of a civil jury trial, it would hesitate to do so in the absence of having heard and seen the witnesses.

It is troublesome, of course, and there is some natural reluctance to accept the conclusion that two policemen with good records have indulged in so degraded a form of extortion. The pettiness of the amounts received by the officers is quite incongruous, although there is the suggestion that further sums might be taken and that Castejon’s watch was being held as some sort of security. The reluctance becomes the greater when the proof largely depends upon the testimony of persons like Pagan and Castejon. But all of this must have been evident to the experienced Trial Commissioner who heard the proof. And it also must have been evident to the then Police Commissioner, an experienced lawyer of standing in his own right, who reviewed the findings. While these additional circumstances may not be legally material, because, in any event, the scope of review by the court is so narrow, nevertheless they provide assurance for the conclusion this court must reach.

Petitioners rely on a number of cases in which the judicial review of administrative determinations under section 1296, particularly subdivisions 6 and 7 of the Civil Practice Act, has been held to be broad, almost as broad as the review which courts exercise in civil jury cases (e.g., People ex rel. Gilson v. Gibbons, 231 N. Y. 171; Matter of Mitchell v. Mulrooney, 242 App. Div. 48; Matter of Reger v. Mulrooney, 241 App. Div. 38, appeal dismissed 266 N. Y. 412). Those are cases of another period, when the doctrine of judicial review of disputed questions of fact in the administrative field had not yet been fully developed, and the statute was being literally applied. Even as long ago as in People ex rel. Guiney v. Valentine (274 N. Y. 331) it was quite evident that the rule was no longer as expressed in those cases, although they have never been expressly overruled. Indeed, in Matter of Weber v. Town of Cheektowaga (284 N. Y. 377) the Court of Appeals made it very clear that the rule in the Gilson case, if it were inconsistent with the more recent holdings of the Guiney case and of Matter of Roge v. Valentine (280 N. Y. 268), was not to be followed. (See, also, the analysis of the development of judicial review in 1 Benjamin, Administrative Adjudication, pp. 328-344.) Of course, there is little room left for controversy as to the scope of review in this particular area in the light of the even more recent decisions by the Court of Appeals. These are analyzed in detail by Mr. Justice Valente in Matter of Phinn v. Kross (supra) to which reference has been made.

Although it should hardly be necessary, it is good to recall, as did the Court of Appeals in the Guiney case (supra) the words of the Appellate Division for the Second Department, as far back as in 1905, in People ex rel. Brown v. Greene (106 App. Div. 230, 232, affd. 184 N. Y. 565) that: “ The holding of the appellate courts of this State has uniformly been that the good of the service requires that a wide discretion should be vested in police commissioners, and that their judgment and determination in a given case will not be disturbed unless there is an absence of evidence to sustain it. They being the statutory judges of offenses against the discipline and efficiency of the police force under their jurisdiction, their findings and determinations on the facts, when the evidence is conflicting and contradictory, should be regarded as conclusive, when there is, as in this case, sufficient evidence, if believed, to sustain their determinations ”. In applying this rule the test is not what the court believes, or what it thinks it would believe if it had seen and heard the witnesses, but whether the Police Commissioner or his Trial Commissioner could have reasonably believed the evidence supplied. (People ex rel. Guiney v. Valentine, supra, p. 335.)

Accordingly, the determinations of the Police Commissioner should be confirmed and the proceedings dismissed, with costs.

Petitioners were dismissed on May • 16, 1955. Commissioner Adams resigned August 2, 1955. On that same day Commissioner Kennedy was appointed, nine months short of a year in which application may be made for reconsideration.

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The fact is that Pagan had $50 on him, or, at least, he so advised the First Deputy Police Commissioner.