Schultz v. Waterfront Commission

Steuer, J.

Petitioner challenges the determination of the Waterfront Commission of New York Harbor which denied his application to be included in the longshoremen’s register. In 1954 petitioner, who had been working on the docks as a longshoreman, was denied registration as a longshoreman. The reason was that for a nine-year period he had been repeatedly arrested and convicted for various forms of larceny. Upon this refusal he obtained work as a cooper on the docks, which lasted until 1958 when coopers became subject to respondent’s jurisdiction and he was again excluded. In this period he was arrested for knowingly receiving goods stolen in interstate commerce, and subsequently convicted. Since his release, from 1961 he has not been on the docks.

His application is based on the contention that since this last conviction he has been free of all criminal activity and has been entirely rehabilitated. He claims that the respondent offered no evidence to refute this contention and, hence, the denial of his application was arbitrary. We do not so regard it. The particular crimes for which petitioner was convicted all involved thefts of goods to which longshoremen have access by virtue of the nature of their work. It is well known that the incidence of such larcenies is great and is one of the most serious conditions with which respondent has to contend.

The Waterfront 'Commission is given complete discretionary power to reject any applicant who has been convicted of a felony in the United States courts^ (which this applicant has been) (Waterfront Commission Compact, article VIII, § 3, stibd. [a] ; L. 1953, ch. 882, Part I, art. VIII, § 3, subd. [a]). Granting that an arbitrary determination would not be an exercise of discretion, we do not believe that the failure to introduce evidence to refute petitioner’s claim of rehabilitation demonstrates arbitrariness. Respondent was not required to accept at face value the self-serving declarations of petitioner or the conelusory allegations of the supporting affidavits. At best these represented qualitative appraisals of future conduct. It is the commission’s responsibility to formulate a judgment, as it is likewise its responsibility to contain crime on the docks. It is recognized that in such circumstances the relationship of the earlier crimes to the site and nature of the activities within the authority’s competence can be a greater factor than the age of the earlier conviction (Matter of Barton Trucking Corp. v. O’Connell, 7 N Y 2d 299, 313). The credit to be given evidence of rehabilitation is the responsibility of the commission (Matter of Falvey v. Hays, 205 Misc. 546, affd. 285 App. Div. 879). And the rule is that where a body is charged with responsibility in a highly sensitive area its determination in regard to one previously convicted of a serious crime is final, unless it is wholly lacking in rationality (Matter of Taurisano v. State Liq. Auth., 284 App. Div. 124, 126). The courts, not charged with the onus of maintaining orderly conditions, in this area, should not substitute their judgment for that of the responsible authority, nor seek to exercise a clement tenderness that is the prerogative of others.

The judgment (Starke, J.) entered January 7, 1970, should be affirmed, without costs and without disbursements.