People ex rel. Graham v. Partridge

I do not question the correctness of the proposition that in a certiorari proceeding to review the dismissal

Determination confirmed.

HIRSCHBERG, P. J., and JENICS, J., concur.

The relator, Frank M. Graham, asks this court to review the determination of the police commissioner of the city of New York, which resulted in his dismissal from the police force after a trial before the deputy commissioner. This court has power to review the evidence produced before the police commissioner, and reverse his determination if it be clearly against the weight of evidence. This proposition was decided in People ex rel. McAleer v. French, 119 N. Y. 502 , 508, 23 N. E. 1061 , 1063. In that case Judge Earl, speaking for the court, said:

“In all this class of cases it is the duty of the Supreme Court not only to inquire whether there is any competent proof tending to establish the guilt of the accused officer, but it must look into the evidence, and, if it finds that there is a preponderance of evidence against the determination of the commissioners, then it has the same jurisdiction to reverse the determination that it has to set aside the verdict of a jury as against the weight of evidence.”

If we find on examination that there was before the commissioner such a preponderance of evidence in favor of the relator as would call for our setting aside the verdict as against the weight of evidence had the testimony been presented to a jury, it is our duty to reverse thé determination of the police commissioner. This requires a review of the evidence. The testimony offered against the relator in support of charges and specifications which had been served upon him tended to show that at about 12:20 o’clock on the afternoon of the 8th day of October, 1902, the relator was in Prospect Park, sitting on the side of

The defense of the relator was an alibi, and the evidence of his witnesses tended to show that during the morning, and up to a time subsequent to this occurrence testified to by the witnesses for the prosecution, he was in the vicinity of his home at Canarsie, five miles distant from Prospect Park. Officer Peacock, with whom the relator was claimed to have had the trouble, testified that, although he had seen him before, he did not recognize him as Graham until one of the women who were with him addressed him by that name. I am satisfied from a careful reading of Peacock’s evidence that his identification of Graham was not based upon that clear and distinct knowledge which the courts should require to be the character of evidence upon which it is sought to sustain proceedings of this nature, unless corroborated by satisfactory evidence of others. The credibility of Peacock is fairly attacked by the circumstance that he did not arrest the relator, although he asserts that he was at the time in the actual commission of a felony, when it was his plain duty to take him into custody. One Ross, a gardener in Prospect Park, was called to testify upon the subject of the identification of Graham. He came no nearer the scene of the fracas than 50 feet, had never seen Graham before, heard none of the conversation, and that the revolver used by Graham on this occasion was of a dark color. Peacock says it was blue. It appears that when Graham was arrested, a few moments after he reported for duty at the station house, in the evening of the same day, he had on his person only the regular revolver used on the force, which was nickel. Gerrity and Fullum gave a clearer identification than any other of the witnesses for the prosecution, but the character of these witnesses appears upon examination to be such that their evidence is not of the highest value. They were cronies, and one of them had been arrested by Graham before the transaction in question, and they both appeared to be "corner loungers.” The witness Crump, who is assistant gardener of the park, attempted to identify Graham, and stated that he wore a mustache. It appears undisputed, except for the word of this witness, that the relator had worn no mustache for a long time prior to the month of October, 1902. Oberle, also" employed in the park, got two glances at the relator. Once he saw him while his back was toward the witness, and the other time he got a side glance, and on these two views he attempts to identify him as the party in Prospect Park on the day in question. Mailand, a grocer, was in the,Shelter House of the park, and testifies that he saw the relator there that morning under the influence of liquor, and, although he saw him but a mo

This is a summary of the evidence produced against Graham on his trial, and is, I think, in the absence of so strong a defense as Graham was able to make, quite sufficient to support the action of the commissioner; but Graham’s alibi was so clearly proved, and generally by such reputable witnesses, that we should reverse the judgment on the ground that it was against the weight of evidence. Graham was called in his own behalf, and testified in a clear and unambiguous manner as to his whereabouts during the whole of the day in question. He reached home from the police court between 11 and half past, and about 20 minutes of 12 walked out through Conklin, Rockaway, and G. avenues to Ninety-Second street, returning home about i o’clock, and then partaking of his dinner. To corroborate him as to the fact that he was in the vicinity of his home in Canarsie at the time when the offense with which he is charged was committed, the rel'ator called 12 witnesses. Bebensee saw him on Avenue G between 12:30 and 12:45; Lott, a contractor, and Warner,-a real estate agent, saw him feeding his chickens in his yard about 11 ¡45; Blatz, an electrical engineer, and Chambers, a special policeman, Vitty, a switchman, another neighbor, and a hotel keeper in the vicinity, two painters who lived in" the neighborhood, and a pattern maker who also lived in Canarsie, all testified without a show of contradiction or discredit that they saw the relator in various places in Canarsie, at least five miles distant from Prospect Park, at such times on the morning of the 8th day of October, 1902, that it would have been impossible for the relator to have been there at that time. The credibility or character of none of these witnesses was attacked. They were all neighbors and acquaintances of the relator, who had known him for some time, and who could not have been mistaken as to his identity.

Prom a careful reading of the evidence it seems clear to me that one who bore a strong resemblance to Graham must have been the offender in Prospect Park, and this unknown person was doubtless the one who bought the drinks, was intoxicated, wore the mustache, and possessed the • revolver of a dark color. A wholesome use by the Appellate Division of the power it possesses to reverse upon the ground of the preponderance of the evidence has recently been urged by the Court of Appeals. Collier v. Collins, 172 N. Y. 99 , 64 N. E. 787 ; Blumenthal v. Lewy, 82 App. Div. 535 , 540, 81 N. Y. Supp. 528 .

The point made by the relator that the determination of the police commissioner was without authority cannot be sustained. The record shows that the relator was tried before a deputy commissioner, and it also appears from the record itself that the same deputy commissioner found him guilty. The police commissioner merely approved this find

The determination of the commissioner should therefore be reversed, with costs, and the relator reinstated.

WOODWARD, J., concurs for reversal.