Scornavacca v. Leary — 38 N.Y.2d 583

Majority

p. 583

In the Matter of Donald J. Scornavacca, Respondent, v Howard R. Leary, as Commissioner of the Police Department of the City of New York, et al., Appellants. In the Matter of Barry D. Stein, Respondent, v Patrick V. Murphy, as Commissioner of the Police Department of the City of New York, et al., Appellants.

Argued January 5, 1976;

decided February 17, 1976

p. 584

W. Bernard RichlandCorporation Counsel (Nina G. Gold-stein, L. Kevin Sheridan and Bernard Abel of counsel), for appellants in the first and second above-entitled proceedings. Civil Service Law (§ 75, subd 3), and the cases decided thereunder, do not apply to petitioner, a member of the New York City police force.

His rights in this case are governed by the New York City Administrative Code (§ 434a-20.0) under which his suspension without pay for a period of more than 30 days, pending the trial of departmental charges against him, was authorized and legal. (Brenner v City of New York, 9 NY2d 447 ; Matter of Lo Bello v McLaughlin, 39 AD2d 404 , 33 NY2d 755 ; Foran v Murphy, 73 Misc 2d 486 ; Matter of Cugell v Monaghan, 201 Misc 607 ; Barker v Wingo, 407 US 514 ; Matter of Amkraut v Hults, 21 AD2d 260 , 15 NY2d 627 .)

Bernard G. Ehrlich for respondent in the first above-entitled proceeding.

The Civil Service Law of the State of New York is applicable and unilateral suspension by the police commissioner from the performance of duties of an officer should not result in a forfeiture of the right to salary during a lengthy period of suspension of 14 months. (Chittenden v Wurster, 152 NY 345 ; People ex rel. Kastor v Kearny, 164 NY 64 ; People v Del Gardo, 1 Misc 2d 821 ; Wholesale Laundry Bd. of Trade v City of New York, 17 AD2d 327 , 12 NY2d 998 ; People v Westchester County, 257 App Div 769 , 282 NY 224 ; Jewish Consumptives’ Relief Soc. v Town of Woodbury, 230 App Div 228 , 256 NY 619 ; People ex rel. Elkind v Rosenblum, 184 Misc 916 , 269 App Div 859 , 295 NY 929 ; Bareham v City of Rochester, 128 Misc 642 , 221 App Div 36 , 246 NY 140 ; Van Valkenburgh v Mayor of City of N. Y., 49 App Div 208 ; Waters v City of New York, 101 App Div 196 .)

Harvey L. Greenberg for respondent in the second above-entitled proceeding.

I. Petitioner is entitled to recover back pay for the period of the suspension from the police force for any amount of time beyond 30 days, provided that petitioner-

p. 585

respondent was not responsible for said delay. (O’Neill v City of New York, 13 Misc 2d 1008 , 9 AD2d 729 , 9 NY2d 447 ; Brenner v City of New York, 9 NY2d 447 ; McClendon v Rosetti, 460 F2d 111 .) II. The decision in Brenner v City of New York and O’Neill v City of New York has not been followed in later cases and should not be followed in the case at bar. (Moquin v Lowery, 35 AD2d 661 ; Matter of Gould v Looney, 60 Misc 2d 973 , 34 AD2d 807 .)

p. 586

the charges see Matter of O’Keefe v Murphy ( 38 NY2d 563 ).

Chief Judge Breitel and Judges Jasen, Gabrelli, Jones, Wachtler, Fuchsberg and Cooke concur in Per Curiam opinion.

In Matter of Scornavacca v Leary: Order reversed, with costs, and the petition dismissed. Question certified answered in the negative.

In Matter of Stein v Murphy: Order reversed, with costs, and the petition dismissed.

p. 587

Appellant was denied his constitutional and statutory rights to a speedy trial by the People’s unexplained and unjustified 51-month delay in bringing him to trial where appellant was, for three and one half years of that period, incarcerated in a foreign jurisdiction on an unrelated charge. (People v Bryant, 12 NY2d 719 ; People v Minicone, 28 NY2d 279 , 404 US 853 ; People v Simmons, 40 AD2d 563 ; People v White, 32 NY2d 393 ; Barker v Wingo, 407 US 514 ; People v Rodriguez, 45 AD2d 41 ; People v Blakley, 34 NY2d 311 ; People v Timothy, 34 NY2d 867 ; Dickey v Florida, 398 US 30 ; People v Winfrey, 20 NY2d 138 .)

The orders of the Appellate Division should be reversed and the petitions dismissed in these article 78 proceedings.

Both of these petitioners are New York City patrolmen who were suspended without pay pending the determination of departmental charges. Petitioner Scornavacca was criminally charged with assault and suspended on August 30, 1968. The criminal charges were dismissed on January 22, 1969 and the disciplinary proceeding, commenced the following day, was adjourned to March, 1969. In October, 1969 petitioner was found guilty.

Petitioner Stein was indicted and suspended on February 25, 1970. On January 28, 1971 he was acquitted of the criminal charges. The police department hearing was held in June of 1971 and in August, 1971 he was found guilty on several specifications.

Following conviction on the departmental charges each petitioner was disciplined and returned to duty. They then commenced these article 78 proceedings claiming, inter alia, that because of the delay in finally determining the charges they are entitled to back pay for all or most of the period of suspension. In both cases the courts below directed a hearing to determine the reasonableness of the delay.

In our view the delay has no effect on the petitioners’ right to back pay. The police commissioner’s power to suspend a patrolman pending the determination of departmental charges is governed by section 434a-20.0 of the Administrative Code of the City of New York, not by section 75 of the Civil Service Law. Under the Administrative Code, the suspended officer is only entitled to back pay when he is not convicted of the departmental charges (Brenner v City of New York, 9 NY2d 447 ). Since the petitioners here were, in fact, convicted of the charges they are not entitled to recover back pay.

With respect to the effect of the delay in finally determining

Cases cited

Brenner v. City of New York 9 NY2d 447 N.Y. 1961-03-30 p. 584, p. 585, p. 587
Lo Bello v. McLaughlin 39 AD2d 404 N.Y. App. Div. 1972-07-13 p. 584
Lo Bello v. McLaughlin 33 NY2d 755 N.Y. 1973-11-14 p. 584
Foran v. Murphy 73 Misc 2d 486 N.Y. Sup. Ct. 1973-02-26 p. 584
Cugell v. Monaghan 201 Misc 607 N.Y. Sup. Ct. 1951-09-06 p. 584
Barker v. Wingo 407 US 514 SCOTUS 1972-06-22 p. 584, p. 587
Amkraut v. Hults 21 AD2d 260 N.Y. App. Div. 1964-06-02 p. 584
Amkraut v. Hults 15 NY2d 627 N.Y. 1964-11-25 p. 584
Chittenden v. Wurster 152 NY 345 N.Y. 1897-04-20 p. 584
People ex rel. Kastor v. Kearny 164 NY 64 N.Y. 1900-10-02 p. 584
People v. Del Gardo 1 Misc 2d 821 N.Y. Magis. Ct. 1955-12-01 p. 584
Wholesale Laundry Board of Trade, Inc. v. City of New York 17 AD2d 327 N.Y. App. Div. 1962-12-11 p. 584
Wholesale Laundry Board of Trade, Inc. v. City of New York 12 NY2d 998 N.Y. 1963-02-28 p. 584
People v. County of Westchester 282 NY 224 N.Y. 1940-03-05 p. 584
Jewish Consumptives' Relief Society v. Town of Woodbury 256 NY 619 N.Y. 1931-05-12 p. 584
People ex rel. Elkind v. Rosenblum 184 Misc 916 N.Y. Sup. Ct. 1945-02-21 p. 584
People ex rel. Elkind v. Rosenblum 295 NY 929 N.Y. 1946-05-29 p. 584
Bareham v. City of Rochester 128 Misc 642 N.Y. Sup. Ct. 1927-02-03 p. 584
Bareham v. City of Rochester 246 NY 140 N.Y. 1927-07-20 p. 584
Van Valkenburgh v. Mayor of New York 49 App Div 208 N.Y. App. Div. 1900-03-09 p. 584
O'Neill v. City of New York 13 Misc 2d 1008 N.Y. Sup. Ct. 1958-08-12 p. 585
Great American Insurance v. London Records, Inc. 35 AD2d 661 N.Y. App. Div. 1970-09-29 p. 585
Gould v. Looney 60 Misc 2d 973 N.Y. Sup. Ct. 1969-10-09 p. 585
O'Keefe v. Murphy 38 NY2d 563 N.Y. 1976-02-17 p. 586
People v. Bryant 12 NY2d 719 N.Y. 1962-10-25 p. 587
People v. Minicone 28 NY2d 279 N.Y. 1971-04-15 p. 587
People v. White 32 NY2d 393 N.Y. 1973-06-06 p. 587
People v. Rodriguez 45 AD2d 41 N.Y. App. Div. 1974-06-04 p. 587
People v. Blakley 34 NY2d 311 N.Y. 1974-06-12 p. 587
People v. Timothy 34 NY2d 867 N.Y. 1974-06-26 p. 587
Dickey v. Florida 398 US 30 SCOTUS 1970-05-25 p. 587
People v. Winfrey 20 NY2d 138 N.Y. 1967-06-01 p. 587