(concurring):
I concur.
*36I would readily agree with my brethren were the officers’ convictions reversed on technical grounds, say for erroneous jury instructions, or admission of improper evidence. I am reluctant to agree, however, where, as here, the convictions were reversed for insufficient evidence.
Section 60.22(1) of the New York Criminal Procedure Law requires corroboration of accomplices’ testimony. Because there was no corroboration at the criminal trial, the evidence against Greene and Callis was held insufficient, just as if no evidence at all had been presented against them. That this lack of corroboration goes to the sufficiency of the evidence is provided quite specifically by New York law:
The following definitions are applicable to this chapter:
1. “Legally sufficient evidence” means competent evidence which, if accepted as true, would establish every element of an offense charged and the defendant’s commission- thereof; except that such evidence is not legally sufficient when corroboration required by law is absent.
N.Y.Crim.Proc.Law § 70.10(1) (emphasis added). We too have so held. See, e.g., United States v. Freedman, 445 F.2d 1220, 1225-26 (2d Cir. 1971) (perjury case). Rules requiring independent corroboration are quantitative as well as qualitative. Weiler v. United States, 323 U.S. 606, 608, 65 S.Ct. 548, 549, 89 L.Ed. 495 (1945). What was once a practice of admitting an accomplice’s testimony with a cautionary instruction became in many places, including New York, a rule of law barring convictions founded solely upon the uncorroborated testimony of an accomplice. See 7 Wigmore, Evidence § 2056 (3d ed. 1940). Although the policy underlying that rule is not immune to criticism, id. § 2057, where the rule is accepted, it clearly goes to the sufficiency of the evidence.
Because Greene’s and Callis’s felony convictions were reversed because of a lack of sufficient evidence to prove the criminal charges, I am unconvinced by the Police Department’s argument that a hearing at this point would serve no purpose. A disciplinary proceeding, were it required, might not be governed by the same rules of evidence that governed the criminal proceeding. But that does not mean that the fact-finder at such a proceeding would necessarily believe the uncorroborated testimony of the accomplice(s). It is particularly likely that the disciplinary factfinder would reject the accomplice’s testimony in this case, since the accomplice witness could not identify the officers in court. People v. Cona, 60 A.D.2d 318, 401 N.Y.S.2d 239, 245-46 (2d Dep’t 1978), aff’d, 49 N.Y.2d 26, 399 N.E.2d 1167, 424 N.Y.S.2d 146 (1979).
Although I am convinced that a post-termination departmental hearing would be salutary in this case, I am constrained by the Supreme Court’s holding that whether there is a property interest in municipal employment that is entitled to federal due process protection must be determined solely by reference to state law. Bishop v. Wood, 426 U.S. 341, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976); see id. at 353-54, 96 S.Ct. at 2081-82 (Brennan, J., dissenting). The New York statute, N.Y.Pub.Off.Law § 30(1)(e), provides that a police officer’s office is vacated upon his conviction for a felony. As construed by a 5-2 majority of the New York State Court of Appeals, an officer’s dismissal is not affected by reversal of his conviction for insufficiency of the evidence. Accordingly, a police officer is not entitled to back pay if he is voluntarily reinstated. Toro v. Malcolm, 44 N.Y.2d 146, 375 N.E.2d 739, 404 N.Y.S.2d 558 (1978). The Toro decision did not address directly the question of an officer’s entitlement to a post-termination hearing to determine whether reinstatement without back pay should follow a reversed conviction. In concluding that there is no automatic right to reinstatement under such circumstances, however, the court in Toro noted that “[continued performance of governmental functions necessitates the existence of a point in time at which the affected office may be filled without concern for the possibility that at some future date a former officer’s conviction may be reversed,” 44 N.Y.2d at 150, 375 N.Y.2d at 742, 404 N.Y. *37S.2d at 561. Thus the Department is free to grant reinstatement, as it did in Toro, or to provide a hearing on whether reinstatement is appropriate, as the discharged officer reasonably might expect it in fairness to do. But the Toro decision strongly indicates that. New York law recognizes no entitlement to reinstatement or to a hearing. Because Bishop v. Wood holds that there can be no constitutionally protected “property” interest in the absence of such a state entitlement, I am forced to conclude that a hearing cannot be required as a matter of due process.
I am uneasy with this conclusion. It is hard to understand why “liberty” or “property” interests for federal constitutional purposes must be so narrowly circumscribed. The Fourteenth Amendment, if nothing else, was aimed at protecting the rights of individuals against states. If the states can so facilely and conclusively define those rights out. of existence, the Fourteenth Amendment becomes, to a great extent, a dead letter: a State may extinguish the possibility of due process safeguards simply by labeling an interest as nonproprietary.
The conclusion of the Toro case that no right to reinstatement remains after a police officer’s felony conviction was hardly required under state law. See Toro v. Malcolm, 44 N.Y.2d at 154, 375 N.E.2d at 744, 404 N.Y.S.2d at 564 (Fuchsberg, J., dissenting) (“Is it not a fundamental precept of justice that, once it is finally decided that an accused has been falsely charged and, on this basis, has been proved guiltless, he is, so far as reasonably possible, to be treated as though he had never been accused at all?”). The New York Court of Appeals has held that permanent civil service employees have a “property” or “liberty” interest in their employment requiring that any dismissal from the police force satisfy due process. See Economico v. Village of Pelham, 50 N.Y.2d 120, 405 N.E.2d 694, 428 N.Y.S.2d 213 (1980); N.Y.Civ.Serv.Law §§ 58, 63, 75. That is to say, the officers have a property interest in their civil employment at the time of their conviction and dismissal. The right to post-termination proceedings, in other contexts, has been considered an aspect of that property interest under New York law. See id. at 128, 405 N.E.2d at 698, 428 N.Y.S.2d at 217. The Toro court could have held that police officers’ employment interest at the time of dismissal because of a felony conviction, absent a departmental hearing, includes the right to reinstatement upon reversal of the conviction for insufficiency of the evidence, if they remain otherwise qualified to serve as police officers and positions are available. Cf. Matter of Barash, 20 N.Y.2d 154, 228 N.E.2d 896, 281 N.Y.S.2d 997 (1967) (upon reversal of a conviction, a disbarred attorney is entitled to a hearing on his motion for reinstatement and must be reinstated unless the charges and proof would justify disbarment).- A post-termination hearing on the officers’ qualifications, such as is now required for removal, N.Y.Civ. Serv.Law § 75, would then be an aspect of the process due at the time of the discharge, when appellees undeniably had a property interest. Cf. Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) (due process does not require an evidentiary hearing prior to termination of disability benefits, but availability of benefits to satisfy due process); Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974) (Civil Service Commission and Office of Economic Opportunity post-termination hearing procedures adequately protect the liberty interest of federal employees). See also Parratt v. Taylor, 451 U.S. 527, 538-43, 101 S.Ct. 1908, 1914-16, 68 L.Ed.2d 420 (1981).
Having rejected the possibility that a police officer’s property interest includes a qualified right to reinstatement upon reversal of his or her felony conviction, however, the only constitutional limit on a municipality’s termination of its employee is a slight one: whether as a matter of equal protection, the condition — here, a conviction subject to reversal — may be made the basis of an irreversible deprivation of government employment. The standard by which to resolve this question is not totally clear. If the standard is one of “mere rationality,” *38that standard would seem satisfied by section 30(l)(e), for as the district court found, “[Requiring that public officers convicted of a felony must forfeit all entitlement to an office of public trust is one way of” “ensuring the honesty and integrity of persons vested with public authority.” See, e.g., Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 96 S.Ct. 2562, 49 L.Ed.2d 520 (1976) (mandatory retirement of uniformed state police officers at age 50 does not deny equal protection under the applicable rationality standard). There is no showing that section 30(l)(e) excludes from service so many officers whose convictions are ultimately reversed as to render the criterion wholly unrelated to the objectives of the statute. See id. at 314-17, 96 S.Ct. at 2567-68.
It could be argued that “mére rationality” is too loose a standard of review, in light of the compelling interest in continued government employment. Utilizing that standard, the State equally could justify dismissing, without a hearing with respect to the underlying merits, police officers who are under indictment or even those who are merely under suspicion of misconduct, rather than suspending them as is presently the practice. See N.Y.C.Adm.Code § 435a-20.-0. Under a stricter standard the reinstatement of qualified officers to available positions might well be required. But again the public employment context of this case gives me pause. While the case might have been governed by the stricter standard of such decisions as Schware v. Board of Bar Examiners, 353 U.S. 232, 77 S.Ct. 752, 1 L.Ed.2d 796 (1957) (qualifications for admission to the bar must have a rational connection with the applicant’s fitness or capacity to practice; membership in Communist Party is not substitute for finding that applicant participated in illegal activity or did anything morally reprehensible), there still looms Bishop v. Wood, 426 U.S. at 349-50, 96 S.Ct. at 2079-80 (the Constitution does not address every individual mistake in personnel decisions by public agencies).
Having traveled perhaps a less direct route than the majority, my final destination, charted as it is by Higher Authority, must be the same.