Silverman v. McGuire — 51 N.Y.2d 228

Majority

p. 228

In the Matter of John L. Silverman, Respondent, v Robert J. McGuire, as Police Commissioner of the City of New York, et al., Appellants.

Argued October 16, 1980;

decided November 18, 1980

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POINTS OF COUNSEL

Allen G. Schwartz, Corporation Counsel (Alexander J. Wulwick and Carolyn E. Demarest of counsel), for appellants.

I. As the police commissioner ultimately must be held accountable for the efficacy and integrity of the police department, so also must he be held to assume final, sole, and nondelegable responsibility for disciplining the members of his department, including the power to review a stipulated penalty. (Matter of Brown v Codd, 62 AD2d 547 ; Matter of Kelly v Monaghan, 9 AD2d 92 ; People ex rel. Garvey v Partridge, 180 NY 237 ; Matter of Simpson v Wolansky, 38 NY2d 391 ; Matter of Pell v Board of Educ., 34 NY2d 222 ; Matter of Perry v Blair, 64 AD2d 870 ; Matter of Gristmacher v Felicetta, 57 AD2d 444 ; Matter of Juno Operating Corp. v Police Dept. of City of N. Y., 22 Misc 2d 676 .) II. The police commissioner is not estopped from rejecting the recommended plea bargain inasmuch as petitioner was fully aware of the tentative nature of the recommendation and did not rely thereon to his detriment. (People v Selikoff, 35 NY2d 227 ; Matter of Town of Cornwall v Diamond, 39 AD2d 762 ; Matter of Roberts v Parker, 52 AD2d 651 ; Matter of 1555 Boston Rd. Corp. v Finance Administrator of City of N. Y., 61 AD2d 187 ; Eden v Board of Trustees of State Univ. of N. Y., 49 AD2d 277 ; Matter of Di Giacomo v

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City of New York, 58 AD2d 347 ; Matter of Talamo v Murphy, 38 NY2d 637 ; Matter of Bergstein v Board of Educ., 34 NY2d 318 .) III. The determination to dismiss petitioner was within the sound discretion of the police commissioner to make and was not so disproportionate to the offenses as to be shocking to one’s sense of fairness. (Matter of Steward v Leary, 57 Misc 2d 792 ; Matter of Alfieri v Murphy, 38 NY2d 976 ; Matter of Gristmacher v Felicetta, 57 AD2d 444 ; Matter of Mansfield v Murphy, 21 AD2d 659 , 16 NY2d 986 ; Matter of McDermott v Murphy, 15 AD2d 479 , 12 NY2d 780 ; Matter of Gibides v Powers, 45 NY2d 994 ; Matter of Beneky v Waterfront Comm. of N. Y. Harbor, 42 NY2d 920 ; Matter of Anonymous v Codd, 40 NY2d 860 .)

Richard A. Dienst for respondent.

The Deputy Police Commissioner of Trials of the Police Department of the City of New York has the authority, both actual and apparent, to settle a police disciplinary proceeding and bind the police commissioner where the plea settlement was absolute upon its face, and there was no indication that it was conditioned upon the approval of the police commissioner. (Matter of Brown v Codd, 62 AD2d 547 ; Matter of Dolgin Eldert Corp., 31 NY2d 1 ; Veith v ABC Paving Co., 58 AD2d 257 ; Fuchs v Fuchs, 65 AD2d 595 ; Matter of Abramovich v Board of Educ., 46 NY2d 450 .)

OPINION OF THE COURT

During a police department disciplinary proceeding petitioner agreed to enter a nolo contendere plea with the understanding that he would forfeit 30 days’ pay and be placed on probation for one year. Neither the trial commissioner nor the prosecutor stated explicitly that the plea was conditioned on the police commissioner’s approval or that it was not. Though the trial commissioner recommended acceptance of the plea, the police commissioner rejected it and ordered that there be a departmental hearing.

After hearing, the charges against petitioner were sustained and upon recommendation of the trial commissioner, he was dismissed by the police commissioner. In this article 78 proceeding petitioner contends that the plea arrangement negotiated by the trial commissioner was binding on the police commissioner, and that he is, therefore, entitled to reinstate

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ment. Special Term relying on Matter of Brown v Codd ( 62 AD2d 547 ) annulled the commissioner’s determination and remanded the matter to the department for rehearing and reconsideration. The Appellate Division affirmed, on constraint of Matter of Brown (supra).

Petitioner’s first argument, that the police commissioner is estopped by the plea arrangement made by the trial commissioner, is negated by the acknowledgment of his attorney during oral argument that petitioner suffered no detriment through loss of a witness or otherwise. He argues further that the trial commissioner’s determination to accept the plea is binding upon the police commissioner because section 434-a-14.0 of the Administrative Code of the City of New York authorizes the hearing of disciplinary charges against members of the police force by "the commissioner, or one of his deputies” in accordance with rules and regulations prescribed by the commissioner (subd b) and provides that "the commissioner, or the deputy * * * hearing * * * the charges” may place the department member on probation for a period not exceeding one year, and that the commissioner may impose punishment at any time during that period (subd d). He relies also upon CPLR 2104 which makes an oral stipulation in open court binding on the parties to it.

CPLR 2104 is not helpful -to petitioner because departmental proceedings are not, however similar to a courtroom setting the physical surroundings may be, conducted in a court but in an administrative proceeding. No more helpful are the Administrative Code provisions which simply authorize a deputy to conduct hearings, but appear to leave ultimate discipline to the commissioner, and do not speak to the extent to which a trial commissioner can make an agreement binding upon the commissioner.

Nor do we find persuasive the reasoning of Matter of Brown (supra). Though the trial commissioner may negotiate plea settlements in disciplinary matters and could by appropriate express regulation or other express delegation be given authority to enter into binding plea arrangements, petitioner has not established that the commissioner in fact did so either in his case or generally. Given the sensitive nature of the work of the police department and the importance of maintaining both discipline and. morale within the city’s "chosen mode of organization for its police force” (Kelley v Johnson, 425 US 238 , 247), we believe that there are, indeed, policy

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impediments precluding enforcement of plea arrangements negotiated by a trial commissioner, absent express prior delegation of that authority by the commissioner or subsequent express approval of the particular bargain made in an individual case.

Accordingly, the order of the Appellate Division should be reversed and the commissioner’s order of dismissal reinstated, without costs.

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

Order reversed, without costs, and the determination of the police commissioner reinstated.

Cases cited

Brown v. Codd 62 AD2d 547 N.Y. App. Div. 1978-06-01 p. 229, p. 230, p. 231
Kelly v. Monaghan 9 AD2d 92 N.Y. App. Div. 1959-10-20 p. 229
People ex rel. Garvey v. Partridge 180 NY 237 N.Y. 1905-01-17 p. 229
Simpson v. Wolansky 38 NY2d 391 N.Y. 1975-12-22 p. 229
Pell v. Board of Education 34 NY2d 222 N.Y. 1974-05-15 p. 229
Perry v. Blair 64 AD2d 870 N.Y. App. Div. 1978-07-13 p. 229
Gristmacher v. Felicetta 57 AD2d 444 N.Y. App. Div. 1977-05-27 p. 229, p. 230
Juno Operating Corp. v. Police Department 22 Misc 2d 676 N.Y. Sup. Ct. 1960-02-18 p. 229
People v. Selikoff 35 NY2d 227 N.Y. 1974-10-07 p. 229
1555 Boston Road Corp. v. Finance Administrator 61 AD2d 187 N.Y. App. Div. 1978-01-30 p. 229
Eden v. Board of Trustees 49 AD2d 277 N.Y. App. Div. 1975-11-10 p. 229
Di Giacomo v. City of New York 58 AD2d 347 N.Y. App. Div. 1977-07-14 p. 230
Talamo v. Murphy 38 NY2d 637 N.Y. 1976-02-26 p. 230
Bergstein v. Board of Education 34 NY2d 318 N.Y. 1974-06-12 p. 230
Steward v. Leary 57 Misc 2d 792 N.Y. Sup. Ct. 1968-09-03 p. 230
Alfieri v. Murphy 38 NY2d 976 N.Y. 1976-03-25 p. 230
Mansfield v. Murphy 16 NY2d 986 N.Y. 1965-10-28 p. 230
McDermott v. Murphy 12 NY2d 780 N.Y. 1962-11-01 p. 230
Gibides v. Powers 45 NY2d 994 N.Y. 1978-11-28 p. 230
Beneky v. Waterfront Commission 42 NY2d 920 N.Y. 1977-06-30 p. 230
Anonymous v. Codd 40 NY2d 860 N.Y. 1976-10-14 p. 230
Dolgin v. Dolgin 31 NY2d 1 N.Y. 1972-06-08 p. 230
Veith v. ABC Paving Co. 58 AD2d 257 N.Y. App. Div. 1977-07-12 p. 230
Abramovich v. Board of Education 46 NY2d 450 N.Y. 1979-02-13 p. 230
Kelley v. Johnson 425 US 238 SCOTUS 1976-04-05 at 247 p. 231