Evans v. Monaghan

Dore, J. P., and Callahan, J.

(dissenting). The petitioners have been tried twice in disciplinary proceedings on charges of misconduct as police officers. The first trial resulted in a dismissal of the charges after a full hearing, in which the petitioners were compelled to take the stand as witnesses.

*391Upon the decision of an earlier appeal in an action to restrain defendants from proceeding with the trial, we affirmed an order denying a motion for a tempor ary injunction and pointed out that injunctive relief would be improper because a complete and adequate remedy at law was available in the form of a review of the commissioner’s determination (see 280 App. Div. 144). We refrained from passing on the merits of a proposed defense of res judicata at that time. Our prior decision, however, in no way precludes us from considering the merits of such defense at this time. When the injunction was sought, it was found necessary to have developed whether there was identity in the charges involved upon the two trials. Such identity is now conceded.

It is our view that the rule of res judicata that forbids the reopening of a matter once judicially determined should preclude the commissioner from trying the petitioners again. That rule applies as well to decisions of special and subordinate tribunals acting judicially as to decisions of courts exercising general judicial powers (Osterhoudt v. Rigney, 98 N. Y. 222, 224).

Nor does the application of this rule depend solely upon the authority of Osterhoudt v. Rigney (supra). It is a generally accepted principle of law (Johnson v. Towsley, 13 Wall. [80 U. S.] 72, 83; People ex rel. McCabe v. Matthies, 179 N. Y. 242, 248).

In 2 Freeman on Judgments (§ 633) it is said: “ Nevertheless, the principle of the conclusiveness of prior adjudications is not confined in its operation to the judgments of what are ordinarily known as courts, but it extends to all bodies upon whom judicial powers have been conferred. Whenever any board, tribunal or person is by law vested with authority to judicially determine a question, such determination, when it has become final, is as conclusive as though the adjudication had been made by a court of general jurisdiction.”

The power and duty to try and judicially determine the question of guilt or innocence of the charges of misconduct in office of a police officer as it relates to his tenure of office have been delegated by law to the police commissioner (N. Y. City Charter, § 434; Administrative Code, § 434a-14.0). Although Judge Rifkind in the prior proceeding acting as deputy police commissioner found some of the respondents before him guilty, he expressly stated with respect to all petitioners herein: “ With respect to the following respondents there is no evidence of guilt or complicity in the illegal activities of Harry Cross. I find each of them not guilty,” His adjudication is as eon-*392elusive as would be a determination by any court given plenary power to determine like issues.

We have already said with respect to another branch of the proceedings that they were judicial in nature (Matter of Delehanty [Sullivan-Goubeaud], 280 App. Div. 542).

The rule of res judicata has been applied to the departmental trials of police officers in the past (Matter of Hyland v. Waldo, 158 App. Div. 654; Matter of Stowell v. Santoro, 256 App. Div. 934).

The only occasion for a second trial in this case is the fact that one Harry Gross, whose connections with the alleged dereliction in duty involved in the first proceeding was fully known at the time of the first trial, apparently refused to testify on the first trial, but indicated a willingness to do so after the petitioners had b<?en acquitted, and after he had later learned at his sentence in the criminal trial that he could get ‘ ‘ consideration ’ ’ if he testified in the police trials. Thus, in the present case we do not have a state of facts involving newly discovered evidence. This court has heretofore held on two occasions, even though newly discovered evidence was available to the police commissioner, that no power existed to grant a new trial (People ex rel. Cohen v. York, 43 App. Div. 138; People ex rel. Padian v. McAdoo, 114 App. Div. 100). In the Cohen case (supra) this court indicated that it found considerable merit in the new evidence offered by the police officer, but still denied him the power to order a new hearing. It would seem elemental justice to afford protection against repeated trials in the event of acquittal.

In deciding the present charges the trial commissioner suggested, and the majority of this court are apparently agreeing with his view, that there is a public policy against affording the benefit of this rule of res judicata to police officers guilty of serious acts of misconduct.

The public policy basis of the rule of res judicata is set forth by 2 Freeman on Judgments (§ 626), in the following language: “ A judgment is a bar, not because a party has done some act which precludes him from asserting a right or title; it is properly a bar on principles of public policy, because the peace and order of society, the structure of our judicial system, and the principles of our government require that a matter once litigated should not again be drawn in question between the same parties or their privies. The doctrine of res judicata rests on the two maxims that 1 A man should not be twice vexed for the same cause, ’ and that it is for the public good that there be an end *393to litigation.’ A party whose interests are placed in jeopardy by a trial has a right to judicial immunity from the consequences of further trials involving the same issues. * * * £ The rule of res judicata does not rest wholly on the narrow ground of technical estoppel nor on the presumption that former judgment was right and just, but on the broad ground of public policy that requires a limit to litigation, * ® * Like the statute of limitations, it is a rule of rest. ’ ’ ’

In our earlier decision in the Sullivan case (supra) we noted that the charges involved allegations of criminal misconduct by the police officers. While the present proceedings are not criminal actions in form, they involve charges of the commission of crimes and entail results that are disastrous to the persons so charged. The rule of res judicata should afford protection of the same nature as that afforded against double jeopardy. „ _

In his report to the police commissioner, the deputy trial commissioner, in the present appeal, with regard to the rule of res judicata, stated: ££ In substantial degree the rule has been applied to administrative procedures ”. However, he placed his denial of the applicability of that rule to the case before him on the ground that the public policyc £ which decrees an end to relitigation of an issue once decided ” should yield to “ the public policy which requires elimination from the ranks of the protectors of public order of those who in fact are violators of the law.” Accordingly, while he could find'no controlling authority which fits the facts of this case ”, he, nevertheless, held that because of the above considerations, it was his ££ view that the Police Department may revive charges against its members though once tried when even the defects in earlier proof were substantial and have now been overcome.” If we confirm this determination, we affirm a doctrine for which no authority other than the trial commissioner’s ££ view ” is adduced. Consider the consequences of confirming this ££view”. If the police department may revive charges against its members after being ££ once tried ” and again try the same charges between the same parties on the same issues, not on newly discovered evidence but on evidence that was fully known at the time of the first trial, why in reason and logic may not the department on this theory revive charges a third, fourth or a fifth time after they have been previously tried? The effects of the application of such a doctrine on the security, tenure and morale of the personnel of the police department can easily be foreseen. We think this wholly novel and wholly unsupported view of the trial commis*394sioner is opposed to the firmly settled public policy of the State. That public policy is rooted in a principle tested by experience in the application of the law in the civilized countries of the West for centuries, viz., that in the long run “ the community ” to which the trial commissioner so frequently referred, and all its members are best protected and best served by denying relitigation of issues once decided. Only thus can we avoid judicial or administrative oppression. From ancient Roman law itself our jurisprudence has accepted the maxim. “ Interest rei publicae ut sit finis litium.” The public interest would be no more affected by granting this protection than it is by afford-g one charged with crime from repeated jeopardy.

2 Freeman on Judgments (§ 628), states: “There is no logical or legal basis, either on grounds of public policy or otherwise, for the claim that the nature of the matter determined may be such that a judgment adjudicating it will not be treated as conclusive though contrary to the law and the facts. This is true even in cases involving the public rights * *

We have not attempted to discuss separately the added specifications for perjury and fraud in the charges made upon the second trial, because the majority concede that they would not uphold these charges, unless they were sustaining the underlying charges and overruling the defense of res judicata.

It is apparent that the majority has been impressed by Gross’ statements as to the claimed enormity of his gambling enterprises and the belief that such widespread gambling could not prevail without police connivance. But the majority also must depend on Gross’ testimony alone as to the size as well as the existence of his gambling enterprises. To permit him thus to obtain credit by this method is to yield to the familiar pattern of the “ big lie ” when used by a criminal instead of by a propagandist. Such methods should be rejected by a court of law where guilt must be established by credible proof.

It is conceded that the only proof offered to sustain the serious charges made against all these petitioners was the uncorroborated oral testimony of one Harry Gross, a claimed alleged accomplice, who by his own admission is a man whose sole activity for many years was widespread commission of crimes; one who confessedly made crime his business and lived on its proceeds by, he claims, widespread bribery and corruption on his part of public officials. He had no memoranda or records; he said he always destroyed his records shortly after they were made; he used no notes and his testimony involved not only the present petitioners but many others in the police department *395against whom no charges appear. A reading of the record indicates that he did not testify ‘ forthrightly ’ ’ as the Trial Commissioner found, but glibly and apparently even boastfully enjoying the important position that he conceived himself to occupy from which, merely by his oral say-so, he could strike down any policeman against whom he saw fit to make charges of taking bribes from him. Thus he testified to bribery of patrolmen, captains, lieutenants, inspectors and “ divisions ”. Not as a penitent criminal seeking sincerely to make amends for a confessed life of crime did he appear before the Trial Commissioner. The reason that he first gave for refusing previously to testify, namely, regard for the families of the accused, was destroyed by his own later admissions. When asked to tell why he.had repeatedly refused to testify before Judge Riekind and at the request of the Corporation Counsel, he answered as follows: A. Counselor, I was never talked to; I was — nobody come to see me. Nobody said a word. I was taken out of Rikers Island; I was put in a van; I was brought down here; my name was called out; I took the stand, and in my own knowledge I thought I was doing what I — I was protecting myself for. Whatever plan the District Attorney might have had, or the Corporation Counsel, I didn’t know. It wasn’t discussed with me. Nobody told me what could be done for me or what — how I could help myself or anything else.” He then added that the only time he found out he ‘6 could help myself ’ ’ was at his sentencing when he was assured that he would get “ consideration ” if he testified in these police trials ”. In answer to a question as to whether he was told a recommendation would be made for leniency for him if he did so testify, he answered that the Corporation Counsel would make the recommendation and go along with the District Attorney’s recommendation “ which he had said at my sentencing.” He was then asked and answered as follows: “ Q. What prompted your talking now? A. That, yes, I hope to get consideration.”

For his book-making activities he had received a twelve-year jail sentence and in addition five years for contempt of court. After having tested for some time the actual effect of jail including, he claims, five months in solitary confinement, the motives of his testifying in these police trials should be obvious. What is implicit in many cases is admitted explicitly here: G-ross is trying to help Gross to reduce his own jail sentence.

In a similar case in which a police commissioner of the city of New York had removed police officers on the sole testimony *396of a witness who was a self-confessed criminal and “ an unsavory character ” this court annulled the determination of the police commissioner and held that it was “ unsupported by any credible evidence.” (Matter of Reger v. Mulrooney, 241 App. Div. 38, 44). The question then presented to this court is essentially the same issue as is now presented. The majority of this court in its present opinion admits: “In the end all the specifications of the charges depend on whether Gross is believed. It makes a hard case to take the word of a bookmaker heavily pressed for official favor against the word of police officers.” On us, therefore, rests the serious obligation to determine whether members of the police force of long and honorable service (here upwards of twenty to thirty-two years), of unblemished reputation, may be struck down and dismissed on the unsupported and wholly uncorroborated testimony of a witness such as the sole witness on which the prosecution and the trial commissioner relied. Especially heavy is that burden when the self-seeking motives of such a witness are patent and confessed. On the state of facts presented, we think we should say as this court said in the Reger case (supra, p. 44): “ This court will not permit a finding of guilt and dismissal of the petitioners to stand upon the testimony given before the police commissioner.”

In People ex rel. Kelly v. Waldo (161 App. Div.. 731, 732) in reversing the dismissal of a policeman from the force on the uncorroborated testimony of one person, against the denial of the police officer of the receipt of an alleged bribe, the Second Department, annulling the police commissioner’s determination and reinstating the relator, said: “ The relator denies absolutely his receipt of any money. The alleged act was a misdemeanor (Penal Law, § 855), and the relator was entitled to ‘ the presumption that he was innocent of the charge * * * so that even if the proof was otherwise evenly balanced, this presumption might properly prevail with the police commissioner in favor of the complainant. ’ ” In the Kelly case as in the case before us, the charge involved criminality. While technically section 399 of the Code of Criminal Procedure may not be formally applicable, the basic reason for its salutary purpose should in fairness and justice be not lost sight of in police trials upon charges involving criminality.

The falsity of Gross’ testimony with respect to Inspector McGillicuddy’s claimed arrangement with Gross to let him “ finish the day ” and “ to put a stiff in there the following day ” was demonstrated by documentary evidence, the police *397department records which showed that the arrest in question was made the same day the report was received.

In People ex rel. Hussey v. Woods (169 App. Div. 146) in annulling dismissal of a police officer, the Second Department said at page 148: “ Who then, should be believed, the criminal accuser, or the man of good repute and character, apparently good? I do not need to use the expression presumption of innocence,’ which is associated so intimately with criminal trials, although there is full authority for employing it. (People ex rel. Kelly v. Waldo, 161 App. Div. 731.) But there is at least the presumption that Hussey was an honest man. As such, his testimony must be preferred to that of a dishonest man — a criminal, who could only escape by accusing another.”

In a very recent case in which this court reversed the police commissioner’s dismissal of a police officer on most serious charges supported, however, only by the uncorroborated testimony of one witness, this court said (Matter of Di Nardo v. Monaghan, 282 App. Div. 5): “ Indeed, in the circumstances of the present case, the absence of any evidence to support the charge except the testimony of the prosecutrix and the total absence of any corroborative proof are the omission of a vital safeguard against the likelihood of manifest and gross injustice and irreparable damage, and amount to dispensing with an essential element of a fair trial.”

While the majority must and does recognize that ordinarily the rule of res judicata applies to administrative quasi-judicial proceedings especially where, as here, alleged criminality is involved, nevertheless the majority opinion seems to make an exception of this case on the ground that “ re-examination may appear to the officer to be proper and be regarded by a court as reasonable.” On the above facts and authorities above cited, we think there is no reasonable basis for such exception.

The determination should be annulled, the proceedings dismissed and petitioners reinstated.

Cohn and Breitel, JJ., concur with Bergan, J.; Dore, J. P., and Callahan, J., dissent and vote to annul the determination, dismiss the proceedings and reinstate petitioners, in opinion.

Determination confirmed, with $20 costs and disbursements to the respondents.