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COURT OF APPEALS OF NEW YORK 1969.NY.40712 <>; 247 N.E.2d 143; 24 N.Y.2d 150 decided: March 5, 1969. IN THE MATTER OF JOSEPH W. MURRAY ET AL., APPELLANTS,v.MICHAEL J. MURPHY, AS POLICE COMMISSIONER OF THE CITY OF NEW YORK, RESPONDENT Matter of Murray v. Murphy, 25 A.D.2d 409, reversed. Counsel Victor J. Herwitz and Oren C. Herwitz for appellants. J. Lee Rankin, Corporation Counsel (Eric J. Byrne and Stanley Buchsbaum of counsel), for respondent. Chief Judge Fuld and Judges Burke, Scileppi, Bergan and Breitel concur with Judge Keating; Judge Jasen dissents and votes to affirm on the opinion at the Appellate Division. Author: Keating

Matter of Murray v. Murphy, Chief Judge Fuld and Judges Burke, Scileppi, Bergan and Breitel concur with Judge Keating; Judge Jasen dissents and votes to affirm on the opinion at the Appellate Division.

Author: Keating

 Petitioners, Murray and Mullaney, were two detectives who were brought up on disciplinary charges by the Police Commissioner of the City of New York which ultimately resulted in a determination dismissing them from the department. The charges stemmed from their assignment to investigate a complaint filed by Seymour Tauss that certain merchandise and equipment had been feloniously taken by his two "partners", Forti and Lazarski, from their place of business. The detectives contacted the two partners -- actually they were equal shareholders of a corporation -- and told them to come down to the police station for a meeting.

When they arrived at the station house, Forti and Lazarski spoke with the two detectives and readily admitted taking the merchandise, but claimed they had done so because Tauss had threatened to seize and sell any disposable property in order to recoup his investment in the unsuccessful enterprise. The other two men had thereupon removed the property for safekeeping. Shortly after this discussion, Tauss appeared, accompanied by Alvin Rosen, whom Tauss introduced as a friend.

It is the events which then purportedly occurred which form the basis of the charges against petitioners. On the most important points, what transpired is disputed.

According to Forti, Rosen adamantly maintained that the partners had committed a crime and would be imprisoned unless they made good to Tauss and he suggested that they sell their interest in the company to Tauss at a price which was less than one third of the value of the merchandise removed. Petitioners were present throughout this meeting, did nothing to stop Rosen's assertions concerning the alleged crime which the two partners had committed, but on the contrary repeatedly suggested that the other two arrive at a settlement with Tauss. An agreement which Rosen had drawn up was signed. This, too, was in the officers' presence. The two partners claimed to have signed the agreement in order to avoid prosecution and in order to be permitted to leave the station. Also, Tauss and Rosen testified that later there were meetings between them and petitioners, at which money was paid to petitioners for their assistance in arranging the so-called settlement.

Petitioners claimed that they had informed the parties concerned that the complaint was unfounded but they permitted them to occupy the squad commander's office for a period of an hour, in order that the parties could settle their differences without a fight, which they had been warned would occur if the parties left the station house. They also denied all knowledge of what took place in the office during the period, and, although they admitted that the written agreement testified to by Forti could have been drawn up in their absence, they denied all knowledge of the agreement.

Three charges were brought against both petitioners. The first specification charged appellants with knowingly associating with one Alvin Rosen, a criminal; the second -- that they knowingly had "dealings with the said Alvin Rosen mentioned in Specification # 1", and the third -- that they had negligently conducted the investigation of the alleged crime.

The trial commissioner acquitted the petitioners of the first specification because there was no evidence that petitioners knew Rosen was a criminal. With respect to the second specification, he found that the petitioners did not "knowingly have dealings" with Rosen in several places in the Borough of Brooklyn between January 4, 1960 and January 11, 1960, alleged in specification No. 2, except for the meeting in the police precinct house on January 5. The trial commissioner specifically rejected any claim that there was any corruption or ulterior motive in the dealings which the petitioners had with Rosen at the station house, but found that the petitioners, by encouraging the parties to settle their dispute and in failing to prevent the coercive tactics of Rosen, which occurred in their presence, had tacitly permitted him to violate the law. The trial commissioner also recommended that petitioners be found to have violated the third specification in three minor respects. Because of their excellent records, a fine of 15 days' pay and probation for a year was recommended.

In making his findings, the trial commissioner rejected the testimony of Tauss and Rosen who were convicted criminals and who had an interest in bearing witness against the petitioners in order to receive consideration in pending cases against them. Their testimony, he found, was completely unreliable, contradictory, and inherently incredible. The fact that petitioners had been found not guilty (in a non-jury trial) of criminal charges growing out of the same transactions was also significant. While the trial commissioner recognized that the burden of proof in a criminal case is higher than in a disciplinary hearing, he also noted that the department had not brought charges of corruption against the petitioners.

The Police Commissioner disagreed with the conclusion of the trial commissioner that petitioners had no ulterior motive other than to quickly dispose of a bothersome complaint and to close out the case without fear of subsequent repercussions. He could not accept the conclusion that they were the mere instruments of a coercive technique of this nature. He stated that he came to the conclusion "without hesitation or reservation" that petitioners engaged in these dealings with a corrupt motive. He also found that they received sums of money in partial payment of the $2,000 agreed upon for their participation. It is clear that the action by the Commissioner in dismissing petitioner did not rest upon the conclusion that the trial commissioner's findings warranted the punishment of dismissal.

Petitioners then went to court seeking to overturn the Police Commissioner's determination. They contended that the Commissioner's finding of corruption was not supported by substantial evidence and, secondly, that the determination would have to be annulled because it was based on a specification not charged and, therefore, petitioners were deprived of a fair hearing since they had been led to believe that there was no charge of corruption pending in this proceeding. In the Appellate Division, by a closely divided court, the determination of the Police Commissioner was sustained (25 A.D.2d 409).

The first question is whether there is substantial evidence to support a finding of corruption. Conceding that the final determination is to be made by the Police Commissioner, appellants contend that, in the face of the trial commissioner's clear finding of no corruption, the Police Commissioner was bound to give heavier weight to the trial commissioner's findings than he did since the entire case depended on questions of credibility of witnesses. Reliance is placed upon our decision in Matter of Kelly v. Murphy (20 N.Y.2d 205, 209) where the trial commissioner had exonerated the petitioner, but was reversed by the Police Commissioner. In annulling that determination we relied heavily upon Justice Frankfurter's discussion of the substantial evidence rule in Universal Camera Corp. v. Labor Bd. (340 U.S. 474), and especially upon the statement that "surely an examiner's report is as much a part of the record as the complaint or the testimony" (p. 493).

Furthermore, argue the petitioners, where the witnesses against the police officers are disreputable, greater credence must be given to the police officers, especially where, as here, their records are exemplary (Matter of La Forge v. Kennedy, 7 N.Y.2d 973).

Despite the strong argument of petitioners, we cannot conclude that, as a matter of law, the finding of corruption must be overturned. Disregarding the testimony of Tauss and Rosen, Forti's testimony, which was fully credited by the trial commissioner, would justify a finding that petitioners had acted with a corrupt motive. The question remains, however, whether the petitioners received a fair hearing. It is the city's contention that such specification was not required and that the evidence of the corruption went solely to the motive with which the ...

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