Petition — Toro v. Malcolm

i

Supreme Court, U, om

FILED

| JUN 87 1978

Wren, RODAK.

j

JR., CLERK

In The

Supreme Court of the United States

October Term, 1978

77-1844

PETER TORO,

Petitioner,

—against —

BENJAMIN J. MALCOLM, as Commissioner of the

Department of Corrections of the City of New York, and

HARRISON J. GOLDIN, as Comptroller of the City of

New York,

Respondents.

Petition For Writ of Certiorari

to the Court of Appeals, State

of New York

ROBERT RIVERS, PC.

Attorney for Petitioner

393 Front Street

Suite 411

Hempstead, New York 11550

(516) 483-3555

—

me

TABLE OF CONTENTS

Page

OPINIONS IN COURTS BELOW .....ccccccccccccces 6

JURISDICTIONAL STATEMENT ..................- I

Fe oe OU UEP 6 cv bac co ccccsccccccccccees !

CONSTITUTIONAL PROVISIONS

PEE chlo kub eho ee che 00s cacdeccteseces 2

STAT Iee Ge Clee CARS oc ccccsccccccccccccsces 3

REGS cheek Sheds cheddccvecevnaesoctooeteccas 6

The automatic application of Section 30

of the Public Officers Law to an innocent

public official violates the Equal Pro-

tection Clause of the Fourteenth

Amendment.

TABLE OF CASES

Page

Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995,

Tee eC eT TTT Pee Te TTT TTT 6

Matter of Griffiths, 413, U.S. 717, 93 S.Ct. 2851,

en no ec ecee ee aunaseebeeuke es baee 6

Harper v. Virginia Board of Elections, 383 U.S. 663,

rr ee ec cine babe e 6

Hernandez v. Texas, 347 U.S. 475, 74 S.Ct. 667,

PP Py to ccc dees bet adudbasebenee chngeensea 6

James v. Strange, 407 U.S. 128, 92 S.Ct. 2027

Si Cia chi deus Veveberehe ene cekneshuneeanee 8

Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817,

ee als adn a dee a eudsion 6

Police Department of Chicago v. Mosely, 408

> BR fe BTR ® BPPTOTTTTT TTT ere 6

Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322,

eS GO Pree 6

Skinner v. Oklahoma, 316 U.S. 535, 62 S.Ct. 1110,

BD ETD. GED oc ccccccccccecccccstscccesccccccees 6

Sugarman v. Dougall, 413 U.S. 634,

fo i PEEP TiTTTITTTrT iti kth 6

Takahashi v. Fish and Game Comm., 334 U.S. 410,

68 S.Ct. 1138, 92 L.Ed. 1478. ....... Cckaeehevess 6

Weber v. Aetna Casualty & Surety Co., 406 U.S. 164,

SRBC. COD CIGTE. cccccvcccccccccscccescceses 8

OPINIONS iN COURTS BELOW

Page

People v. Toro, 44 A.D. 2d 848,

. 2 RS BR Ff Er TTTTTIT TTT Trt 10

Toro v. Malcolm, 56 A.D. 2d 796, 392 N.Y.S.

Es icnc\cnkbhadhedhonwss d0naess 14, 16

Toro v. Malcolm, N.Y. 2d

(decided March 29, 1978) ..... SOROS a Aaa ee 20

In The

Supreme Court of the United States

October Term, 1978

PETER TORO,

Petitioner,

—against —

BENJAMIN J. MALCOLM, as Commissioner of the

Department of Corrections of the City of New York, and

HARRISON J. GOLDIN, as Comptroller of the City of

New York,

Respondents,

x

Petition for Writ of Certiorari to the Court of Appeals,

State of New York.

JURISDICTIONAL STATEMENT

The opinion of the New York Court of Appeals sought to be

reviewed is dated March 29, 1978. A motion for reargument ts

presently pending before the Court of Appeals. The

jurisdiction of this court is invoked pursuant to 28 U.S.C.

1257(3). Due to the fact that the petitioner herein prevailed on

the trial court level and thus was the respondent in each of the

state court appeals the constitutional issues raised by the

denial of back pay to Mr. Toro were not directly reviewed,

although an equal protection rationale was employed by the

Court of Appeals in both the majority and dissenting opinions.

QUESTIONS PRESENTED

Does the application of Section 30 of the Public Officers

Law of the State of New York denying an innocent public

official back wages upon reinstatement, violate the equal

protection clause of the Fourteenth Amendment of the

Constitution?

CONSTITUTIONAL PROVISIONS

AND STATUTES

Amendment 14, United States Constitution

“***No State shall make or enforce any

law which shall abridge the privileges or

immunities of citizens of the United

States; nor shall any State deprive any

person of life, liberty or property, without

due process of law; nor deny to any

person within its jurisdiction the equal

protection of the laws.”

Section 30(1), Public Officers Law of the State of New York,

McKinneys Consolidated Laws of New York, Book 46,

Suppl. p. 31.

§ 30 Creation of Vacancies

1. Every office shall be vacant upon the happening of one of

the following events before the expiration of the term thereof:

The death of the incumbent;

His resignation;

His removal from office;

His ceasing to be an inhabitant of the State, or if he be a

local officer, of the political subdivision, or municipa!

corporation of which he is required to be a resident

when chosen;

ao gs

€. His conviction of a felony, or a crime involving a

violation of his oath of office;

f. The entry of a judgment or order of acourt of competent

jurisdiction declaring him to be insane or incompetent;

g. The judgment of a court, declaring void his election or

appointment, or that his office is forfeited or vacant:

h. His refusal or neglect to file his official oath or under-

taking, if one is required, before or within thirty days

—«

ee STR a

after the commencement of the term of office for which

he is chosen, if an elective office, or if an appointive

office, within thirty days after the commencement of

such term; or to file a renewal understanding within

the time required by law, or if no time be so specified,

within thirty days after notice to him, in pursuance of

law, that such undertaking is required.

The neglect or failurc of any state or local officer to

execute and file his oath of office and official under-

taking within the time limited therefor by law, shall not |

create a vacancy ia the office if such officer was on

active duty in the armed forces of the United States and

absent from the county of his residence at the time of his

election or appointment, and shall take his oath of office

and execute his official undertaking within thirty days

after receipt of notice of his election or appointment,

and provided such oath of office and official under-

taking be filed within ninety days following the date it has

been taken and subscribed, any inconsistent provision of

law, general, special, or local to the contrary

notwithstanding.

STATEMENT OF THE CASE

Petitioner, PETER TORO, was suspended from his

position as a New York City Corrections Officer on August 31,

1971 as the immediate result of criminal charges brought

against him. Although a subsequent letter purportedly was

sent to MR. TORO notifying him that his position had been

“vacated” by operation of law, no such communication was

ever received by MR. TORO.

On or about March 14, 1973 petitioner was tried in Kings’

County Supreme Court on charges of burglary, impersonating

an officer and petty larceny. After an initial inappropriate

verdict of guilty and immediately following sentencing, a

certificate of reasonable doubt was obtained.

MR. TORO was exonerated of all charges on May 20, 1974

when the Appellate Division, Second Department unani-

mously reversed his conviction on the law and on the facts and

dismissed the indictment on the grounds that the initial arrest

and subsequent trial were based on an obvious and tragic case

of mistaken identification.* It must be noted that the

disposition on appeal was based on a clear and compelling

absence of guilt or wrongdoing on the part of MR. TOROand

not on a legal “technicality”.

lt should be noted further that the police officers who

arrested MR. TORO in 1971 were suspended, the presiding

justice at his trial ultimately faced criminal charges, and the

chief prosecution witness was a fugitive from justice.

On June 24, 1974 petitione: was reinstated to his position as

a Corrections Officer without application nor execution by

him of a waiver of his right to back wages. Upon his re-

instatement petitioner sought reimbursement for wages lost by

him due to his suspension. The Department of Corrections

denied his request and on May 8, 1975, by Order to Show

Cause petitioner sought to secure his back pay pursuant to

Article 5 of the Civil Service Law of New York. This

application was denied on technical grounds. Thereafter, on

October 14, 1975 an Article 78 proceeding was commenced on

behalf of petitioner.

On May 12, 1976, after extensive litigation an order and

judgment of the Supreme Court, New York County was

entered directing the respondents to pay to MR. TORO his

back wages, inclusive of contract raises which would have been

received by him for the period from August 30, 1971 to June

24, 1974, less uniform allowances, vacation pay and any

monies earned by him during said period of time.

*People v. Peter Toro, 44 A.D. 2d 848

<r eS

After countless delays on the part of the respondents, an

appeal from the decision was taken by respondents to the

Appellate Division of the Supreme Court, First Department.

That court, by order entered March 24, 1977 with two justices.

dissenting in part, modified the order and judgment of the

Supreme Court by striking the decretal paragraph and

substituting therefor a new decretal paragraph, providing that

respondents pay petitioner his back wages, inclusive of

contract raises and benefits whi: h would have been received by

him from August 30, 1971 to June 24, 1974 less, uniform

allowances, vacation pay and any monies earned by him

during said period of time and also less thirty days pay.

By notice of appeal dated March 24, 1977 respondents

sought to appeal the order as modified to the Court of Appeals

as a matter of right. By order dated May 12, 1977 said appeal

was dismissed by the Court of Appeals sua sponte upon the

ground that the order appealed from was not a final

determination within the meaning of the Constitution.

Respondents then sought and were granted leave to appeal to

the Court of Appeals on a certified question of law, on July 7,

1977. By decision dated March 29, 1978 the Court of Appeals

modified the order of the Appellate Division to provide that

petitioner was not entitled to back pay for the period after

May 24, 1973.

During the course of his arrest, suspension and trial

petitioner and his family suffered tremendous financial loss

and emotional devastation. The courts below have unani-

mously recognized the hardship worked upon the TORO

family by a tragic miscarriage of justice.

ARGUMENT

THE AUTOMATIC APPLICATION OF SECTION 30

OF THE PUBLIC OFFICERS LAW TO AN INNOCENT

PUBLIC OFFICIAL VIOLATES THE EQUAL

PROTECTION CLAUSE OF THE

FOURTEENTH AMENDMENT

The Toro case presents a compelling example of the

devastating effect of a wrongful conviction upon an innocent

individual. While lip service has been paid throughout the long

and tortuous history of this case to the obvious injustice done

to the petitioner because of a tragic misfiring of the legal

system, this same system unaccountably has refused to make

the petitioner whole, hiding instead behind the mechanical

application of Sectvon 30 of the Public Officers’ Law of the

State of New York. Thus, in the case of an entirely innocent

individual, the injustice rises to the level of a constitutional

violation, for the automatic operation of such a statute works a

denial! of the right to equal protection.

The threshhold issue in an equal protection case is the nature

of the classification created by the statute in question. If the

statute deals with a suspect classification or a fundamental

right, then it is subject to the strict scrutiny of a compelling

state interest. Suspect classifications enumerated thus far

include (Loving v. Virginia, 388 U.S. 1, 87S. Ct. 1817, 18 L.

Ed. 2d 1010), national origin (Hernandez v. Texas, 347 U.S.

475, 74S. Ct. 667, 98 L. Ed. 866); Takahashi v. Fish and Game

Comm., 334 U.S. 410, 68 S. Ct. 1138, 92 L. Ed. 1478) and

alienage (Matter of Griffiths, 413 U.S. 717, 93S. Ct. 2851, 37

L. Ed. 2d 910); Sugarman v. Dougall, 413 U.S. 634, 93S. Ct.

2842). Designated fundamental interests are voting (Dunn v.

Blumstein, 405 U.S. 330, 92 S. Ct. 995, 31 L. Ed. 2d 274);

Harper v. Virginia Board of Elections, 383 U.S. 663, 86S. Ct

1079, 16 L. Ed. 2d 169), travel (Shapiro v. Thompson, 394 U.S.

618, 89 S. Ct. 1322, 22 L. Ed. 2d 600), free speech (Police

Depariment of Chicago v. Mosely, 408 U.S. 92, 92S. Ct. 2286,

33 L. Ed. 212), procreation (Skinner v. Oklahoma, 316 U.S.

535, 62 S. Ct. L110, 86 L. Ed. 1655) Absent either a suspect

class or a fundamental right, the review of the statute generally

— ———-—

is relegated to the “rational basis” test. There is a recent trend,

however, to resort to a middle ground of review by striking

down statutes on equal protection grounds in spite of som»

showing of a rational basis on the part of the state. It is

respectfully submitted that the basis for the classification

established by Public Officers Law §30, as espoused by the

majority of the Court of Appeals, is not rationally related to a

legitimate state interest.

The majority stated:

“Continued performance of govern-

mental functions necessitates the ex-

istence of a point in time may be filled

without concern for the possibility that at

some future date a former officer's

conviction may be reversed. Certainly a

government agency should not be faced

with the possible dilemma of having two

officers for the same position.”

The minority opinion, however, aptly exposes the fallacy of

this argument in light of the fact that the petitioner was

voluntarily reinstated by the Department of Corrections

shortly after his exoneration by the Appellate Division of the

State Supreme Court - Judge Fuchsberg wrote on behalf of

the dissent:

“The salutary effect on public confidence

in government that flows from realization

of the natural societal urge to return a

falsely accused individual to his or her

status quo ante is not to be under-

estimated. The moral values so endorsed

far outweigh the alarms sounded by the

majority. So far as any dislocation of

personnel is concerned, it would hardly

call for much administrative ingenuity to

arrange that appointment to a post

vacated by an occupant whose case is still

in the appellate process be conditioned on

the possibility of a reversal. In Toro’s case

the reality not only is that his position

remained available but that, having been

vindicated on the merits, he was wel-

comed back with open arms.”

It can readily be seen from these portions of the majority and

dissenting opinions that both employed an equal protection

analysis to the review of the Toro case. An asserted

governmental interest was balanced against the right of an

innocent individual to be free from penalties or forfeitures

arising out of an entirely wrongful conviction. Clearly,

administrative convenience is a poor justification for the

hardship worked upon Peter Toro and his family at the hands

of our “criminal justice system.” As this Court has stated, the

essential, minimum requirement under any equal protection

standard ts that the “statutory classification bear some rational

relationship to a legitimate state interest.” Weber v. Aetna

Casualty & Surety Co., 406 U.S. 164, 92 S. Ct. 1400 (1972).

“The essential inquiry...is...inevitably a

dual one: What legitimate state intcrest

does the classification promote? What

fundamental personal rights might the

classification endanger.” Id, at 173.

Although this court has never passed on the “fundamental”

nature of the right asserted in the Toro case: namely, the right

of an innocent public officer to be free from unjust forfeitures

flowing from a wrongful conviction it is respectfully submitted

that the rights of the innocent can be no less precious than the

rights of the accused, which have been scrupulously guarded

by this Court. In addition to the legion of cases upholding the

constitutional rights of the accused in criminal actions, this

Court has evaluated the financial hardship of a criminal

defendant on equal protection grounds. In James v. Strange,

407 U.S. 128, 92 S. Ct. 2027 (1972) this Court rejected a

purported “legitimate interest” asserted by the state of Kansas

with respect to its statutory scheme for recoupment of counsel!

fees from indigent defendants. In spite of the State's claimed

financial interest, the statute was struck down as violative of

che right to equal protection. The New York statute in

question, Public Officers Law Section 30, deserves equally

close scrutiny. Although the petitioner herein was not an

indigent defendant, the financial impact of his wrongful

conviction upon Mr. Toro and his family was devastating. As

the dissent in the Court of Appeals recognized, the protection

of the innocent and the right of the unjustly accused to be made

whole must outweigh the protestations of administrative in-

convenience put forth on behalf of the State.

The interplay of the majority and dissenting opinions as

highlighted above reveal that an equal protection rationale

was employed by both sides, albeit noi specifically demoni-

nated as such. The recurring theme in the 7oro case is the quest

of an unjustly accused public officer for equal treatment under

the laws. Under any constitutional standard the State's so

called “legitimate interest” must fail. It is therefore respectfully

requested that the writ sought herein be allowed.

Respectfully submitted,

ROBERT RIVERS, P.C.

Attorney for Petitioner

393 Front Street

Suite 411

Hempstead, New York 11550

(516) 483-3555

OPINIONS IN COURTS BELOW

10

44 A.D.2d 848

The PEOPLE, etc., Respondent, v. Peter TORO, Appellant.

Supreme Court, Appellate Division, Second Department.

May 20, 1974.

Defendant was convicted in Supreme Court, Kings County,

of burglary in the third degree, petit larceny and criminal

impersonation, and he appealed. The Supreme Court,

Appellate Division, Second Department, held that defendant's

in-court identification had been illegaliy tainted by an

improper out-of-court identification of defendant while he was

sitting alone in a small room, and that the evidence failed to

show defendant's guilt beyond a reasonable doubt.

Reversed.

1. Burglary @ 41(1)

False Personation @ 6

Larceny © 65

Evidence was insufficient to establish defendant's guilt of

burglary in third degree, petit larceny and criminal imper-

sonation beyond reasonabie doubt.

2. Criminal Law @ 339

Where out-of-court identification of defendant was

improperly conducted while defendant was sitting alone tn

small room, such improper identification tainted later in-court

identification by same witness.

Before GULOTTA, P.J.. and MARTUSCELLO, LA-

THAM, COHALAN and BENJAMIN, J.J.

MEMORANDUM BY THE COURT.

Appeal by defendant from a judgment of the Supreme

Court, Kings County, rendered May 24, 1973, convicting him

of burglary in the third degree, petit larceny and criminal

impersonation, upon a jury verdict, and imposing sentence.

The appeal brings up for review the propriety of the denial of a

pretrial motion to suppress certain identification evidence.

Judgement reversed, on the law and the facts, and

indictment dismissed.

{1} The People failed to establish defendant's guilt beyond a

reasonable doubt.

Defendant was arrested and taken into custody in

connection with a larceny and an impersonation of a police

officer that occurred four days prior to his arrest. After a

criminal complaint was formally filed against him, he was

suspended from his job, which he had held for three years, asa

New York City Correction Officer. He was released on his own

recognizance after pleading not guilty.

At the Wade hearing held immediately prior to trial, the

complainant, Marie Evans, almost 73 years of age and with

poor vision, testified that defendant came to her apartment on

a certain date, together with two other persons—a woman

called Elase Glover and a man. She said defendant identified

himself to her as Jose. After they left, she discovered that

money was missing. Another witness related that Mrs. Evans

stated the amount to be about $30.

Mrs. Evans next saw defendant at a police station, where he

was sitting alone in a small room. She identified him as the

man who had said his name was Jose. Later, she was told by

someone that his name was Peter Toro.

The practice of exhibiting a defendant alone for the purpose

of identification was condemned in Stovall v. Denno, 388 U.S.

293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 as being unnecessarily

suggestive and in violation of due process. It thus became

incumbent upon the People to establish by clear and

convincing evidence that the identification was based upon

visual observation by the complainant on the date of the

alleged crime at her apartment and was not tainted by the

illegal showup (People v. Logan, 25 N.Y.2d 184, 191, 303

N.Y.S.2d 353, 250 N.E.2d 454; People v. Ballott, 20 N.Y.2d

600, 286 N.Y.S.2d 1, 233 N.E.2d 103; People v. Velez, 43

12

A.D.2d 745, 350 N.Y.S.2d 724). This, on the record, the People

failed to do.

[2] The motion to suppress the tainted identification should

have been granted (United States v. Wade, 388 U.S. 218, 87

S.Ct. 1926, 18 L.Ed.2d 1149). There, the court noted (p. 229, 87

S.Ct. p. 1933):

“ ‘It is a matter of common experience

that, once a witness has picked out the

accused at the line-up (here there was no

lineup), he is not likely to go back on his

word later on, so that in practice the issue

of identity may * * * for all practical

purposes be determined there and then,

before the trial.’ ” (parenthetical matter

supplied).

Absent the identification, the People’s case rested on the

testimony of Elase Glover, a self-confessed participant, whose

testimony required corroboration.

It should be noted at this point that appellant had a

previously unblemished record. He is an honorably dis-

charged Viet Nam veteran. He lives in Brooklyn with his

parents, a sister and a younger brother in a close-knit family

relationship.

At the time of his arrest he was earning approximately

$11,000 yearly. It passes belief that he would involve himself in

such a senseless crime and so jeopardize his job and his future.

In addition, it came out at the trial that defendant bore a

striking resemblance to one Jose Nadal, who was known to

Elase Glover.

Toro took the stand in his own defense and gave an hour-by-

hour account of his actions on the day of the crime. He

supported his assertions by proof that he was nowhere near the

Evans apartment at the time of the perpetration of the crime.

According to the complainant, the intruders in her Brooklyn

13

apartment entered at about 2:30 P.M. and stayed for 30 to 45

minutes. Yet Toro showed by documentary evidence that he

was miles away in Manhattan and at his place of employment

at about 3:30 P.M. He would have needed the winged feet of

Mercury or the attribute of ubiquity to have been in the two

places at almost the same moment.

The time element itself was enough to raise a reasonable

doubt and this, coupled with the tainted identification,

requires that the judgment of conviction be reversed and the

indictment dismissed.

14

Ata term of tne Appellate Division of the Supreme Court held

in and for the First Judicial Department in the County of New

York, on March 24, 1977.

Present—-Hon. Harold A. Stevens, Presiding Justice,

Francis T. Murphy, Jr.,

Harold Birns,

Samuel J. Silverman,

. J. Robert Lynch, Justices

In the Matter of the Application of

Peter Toro,

Petitioner- Respondent,

—against— 4193

Benjamin J. Malcolm, as Commissioner of the

Department of Correction of the City of New York,

and Harrison J. Goldin, as Comptroller of the City

of New York,

Respondents- Appellants.

An appeal having been taken to this Court by the

respondents-appellants from an order and judgment (one

paper) of the Supreme Court, New York County (Kirschen-

baum, J.), entered on May 12, 1976, granting the application

to the extent of directing respondents to pay petitioner back

pay, inclusive of contract raises and benefits which would have

been received by petitioner during the period from August 30,

1971 to June 24, 1974, less uniform allowances, vacation pay

and any monies earned by him during said period of time; and

said appeal having been argued by Mr. Irving Cohen of

counsel for the appellants, and by Mr. Robert Rivers of

counsel for the respondent; and due deliberation having been

had thereon, and upon the memorandum decision of this

Court filed herein,

1S

It is ordered that the order and judgment (one paper) so

appealed from be and the same is hereby modified, on the law,

without costs and without disbursements, to strike the decretal

paragraph therein and to substitute the following decretal

paragraph:

“ORDERED AND ADJUDGED,

that the application be granted to the

extent of directing respondents to pay

petitioner back pay, inclusive of contract

raises and benefits which would have

been received by petitioner during the

period from August 30, 1971 to June 24,

1974, less uniform allowances, vacation

pay and any monies earned by him during

said period of time, and also less 30

days pay.”

ENTER:

JOSEPH J. LUCCHI

Clerk

16

Stevens, P.J.. Murphy, Birns, Silverman, Lynch, JJ.

4193 In re Application of Peter Toro,

Petitioner- Respondent, R. Rivers

—against —

Benjamin J. Malcolm, etc., et ano.,

Respondents- Appellants. 1. Cohen

Order and judgment (one paper), Supreme Court, New

York County (Kirschenbaum, J.), entered May 12, 1976, is

modified, on the law, without costs, to strike the cecretal

paragraph therein and to substitute the following decretal

paragraph:

“ORDERED AND ADJUDGED, that

the application be granted to the extent of

directing respondents to pay petitioner

back pay, inclusive of contract raises and

benefits which would have been received

by petitioner during the period from

August 30, 1971 to June 24, 1974, less

uniform allowances, vacation pay and

any monies earned by him during said

period of time, and also less 30 days pay.”

We agree with the factual recitation of the dissenting

opinion and with all of its legal conclusions except that which

would deny the petitioner recovery of compensation after his

conviction on May 24, 1973. Agreeing especially that the

petitioner has suffered a great injustice, we do not feel that the

law requires the insufficient relief the dissent would

accord him.

Conceding that Matter of Obergfell (239 N.Y. 48) and

Matter of Pauley v. Noeppel (1 Misc. 2d 928), cited by the

dissent, hold that conviction of a public officer vacates his

office and that reversal of the conviction does not work an

automatic reinstatement, we cannot so easily conclude there-

from that the city was without power to reimburse the

petitioner the pay he would have received once the conviction

was reversed. Neither Obergfell nor Pauley reaches the basic

17

question here — does the law deny the petitioner the

compensation he would have received as a public officer from

the date his office was vacated by reason of his conviction to

the date of reinstatement after it was determined that his

conviction was erroneous for a mistaken identification.

We have found no direct ruling on the point in this state.

Other states have split on the question (see C.J.S., Officers,

§86, sud. a; 106 A.L.R. 644). We find, however, that an

analogy may be drawn from Matter of Jerry v. Board of

Education (35 NY 2d 534). There a school teacher was properly

suspended from his position with the result that he neither held

the position nor performed its duties. Yet, the court found that

these were not reasons to prohibit his receiving compensation

for the position because the statute authorizing the suspension

was silent whether pay should continue or not (even though

another subdivision provided for full recompense if the teacher

were ultimately acquitted of the charges). More recently the

court permitted suspension without pay but only because in

that instance the statute specifically forbade pay (Matter of

Meliti v. Nyquist, 41 NY3d 183).

Public Officers Law, §30, sub. I(e), requiring vacation of an

office upon conviction is silent whether an officer whose

position is so vacated should be paid should his conviction be

reversed and the charge dismissed. The court stated in Jerry,

“Compensation its a matter of such substantive right on the

part of the teacher that we conclude that it cannot be taken

away from him except pursuant to explicit statutory

authorization.” If true there, how much truer here where the

petitioner has been trapped by a miscarriage of justice.

All concur, except Stevens, P.J., and Silverman, J., who

dissent in part in the following memorandum by Silverman, J.:

STEVENS, P.J. and SILVERMAN, J. (Dissent in part in

memorandum by SILVERMAN J.)

We differ from the majority only in that we would not allow

petitioner any back pay for the period after May 24, 1973, the

date of his felony conviction.

18

On August 30, 1971, petitioner, 2 correction officer of the

City of New York, was arrested and charged with burglary and

related crimes. He was immediately suspended by the

Corrections Department without pay, pending the disposition

of the criminal charges. No departmental disciplinary charges

were ever served upon him. On March 23, 1973, he was found

guilty of the chafges, and on May 24, 1973, he was sentenced to

a term of imprisonment. The Corrections Department there-

after informed petitioner that upon his conviction of a felony,

his position as a correction officer was vacated pursuant to

Public Officers Law §30 sub. I(e). Petitioner remained on bail

pending his appeal. On May 20, 1974, the Appellate Division,

Second Department, unanimously reversed the conviction and

dismissed the indictment, in essence holding that the identi-

fication was mistaken. People v. Toro, 44 A.D. 2d 848 (2d

Dep't 1974). On June 24, 1974, the Corrections Department,

without request, reinstated petitioner to his position as a

correction officer. On May |, 1975, respondent informed

petitioner that he was not entitled to back pay. Petitioner

commenced an Article 78 proceeding on May 8, 1975, which

was dismissed on July 18, 1975, for failure to file the requisite

Notice of Claim. He filed such a Notice of Claim and there-

after commenced this Article 78 proceeding on October |,

1975. Special Term granted judgment in favor of petitioner for

back pay for the entire period from the date of his original

suspension. We would modify to exclude from the back pay

recovery the period after petitioner's sentence on the felony

conviction plus 30 days. Obviously, petitioner has suffered a

great injustice. However, with respect to the period following

his conviction, the controlling authority is that on conviction

of a felony — rightly or wrongly — a public office is vacated

under the provisions of Public Officers Law §30 subd. I(e). Jn

Matter of Obergfell, 239 N.Y. 48, 50 (1924), the Court of

Appeals said:

“The abridgment of the term upon the

conviction of the incumbent is not a

punishment for his offense. ...1t is an

automatic limitation upon the duration

of his office. ...The application of the

statute is not defeated by the possibility

that the judgment may be reversed.”

19

This is an “abridgment” of the term of office. Even a reversal of

the conviction does not work an automatic reinstatement.

Matter of Pauley v. Noeppel, | Misc. 2d 928, 931 (Sup. Ct.,

Erie Co. 1953). Thus, from the time of his conviction of the

felony until his reinstatement following reversal, petitioner

was not a correction officer and the City was without power to

pay him, or to permit him to render services as a correction

officer. His office was vacated by operation of iaw.

Civil Service Law §75 subd. 3 authorizes suspension of an

employee without pay for a period not exceeding 30 days. We

think the Corrections Department had the right, and perhaps

the duty, upon the arrest, to suspend petitioner for 30 days.

Accordingly, petitioner is not entitled to pay for the first 30

days of his suspension. Beyond that, however, the City had no

right to continue the suspension without pay, at least in the

absence of a showing of either waiver or some responsibility by

petitioner for the delay. Lytle v. Christian, 47 A.D. 2d 824 (Ist

Dep't 1975). There was no such showing.

Petitioner's claim for back pay was rejected by a letter of

May I, 1975. The four-month period of limitations prescribed

by CPLR §217 was extended by the provisions of CPLR §205

(a) and, accordingly, the petition was timely.

Order filed.

20

State of New York

Court of Appeals

| No. 49

In the Matter of

Peter Toro, OPINION

Respondent, This opinion is

ys. uncorrected and

subject to revision

before publica-

tion in the New

York Reports.

Benjamin J. Malcolm, as Commissioner

of the Department of Correction of the

City of New York, et al.,

Appellants.

(49) Allen G. Schwartz, NY City Corporation Counsel

Irving Cohen, L. Kevin Sheridan & Leonard Koerner

(of counsel) for appellants.

Robert Rivers, Hempstead, for respondent.

JASEN, J.:

The issue posed on this appeal is whether a public officer

whose felony conviction is reversed on appeal is entitled to an

award of backpay from the date of his conviction to the date of

his voluntary reinstatement.

Respondent, Peter Toro, was appointed on September 8,

1969 as a Correction Officer of the New York City Correction

Department. On August 30, 1971, respondent was arrested

and charged with burglary, petit larceny, and impersonating a

police officer. After a jury trial, he was convicted of these

charges and was sentenced to a maximum term of four years

imprisonment. On October 4, 1973, respondent was notified

that, pursuant to section 30 of the Public Officers Law, his

office was vacated effective May 24, 1973 — the date of his

conviction and sentencing for the felony of burglary in the

third degree.

Upon appeal, the Appellate Division reversed respondent's

conviction and dismissed the indictment. The court concluded

“ee

21

that the complainant's eyewitness identification of respondent

was tainted and should have been suppressed. Absent this

identilication, noted the court, the People’s case rested on the

uncorroborated testimony of a self-confessed participant.

Additionally, the court believed that respondent's testimony

concerning his whereabouts on the day of the crime raised a

reasonable doubt as to his guilt. It was the interaction of these

factors which led the Appellate Division to reverse

respondent's conviction and dismiss the indictment.

After the Department of Correction voluntarily reinstated

the petitioner as a Correction Officer, he commenced an

Article 78 proceeding to recover backpay for the interim

between his suspension and reinstatement. Special Term

awarded respondent backpay from the date of his suspension

to the date of his reinstatement. The Appellate Division, with

two justices dissenting in part, modified the order and

judgment of Special Term by excluding from the award 30

days’ pay. (See Civil Service Law, §75.) The dissenters would

also have excluded from the award backpay for the period

between respondent's conviction and his voluntary rein-

statement.

We hold that a public officer whose felony conviction is

reversed on appeal and who is voijuntarily reinstated is not

entitled to recover backpay for the period between his

conviction and voluntary reinstatement.

The directive contained in section 30 of the Public Officers

Law is clear and unqualified: every public office becomes

vacant upon the officer's conviction of a felony. A conviction

of the incumbent constitutes an abridgement of the office,

automatically terminating its duration. (Matter of Obergfell,

239 NY 48, 50; Breslin v Leary, 35 AD2d 794, 795; see

generally, 3 McQuillin, Municipal Corporations, pp 432-433.)

It follows that once an office becomes vacant, the contingency

of reversal of the judgment of conviction does not defeat the

operation of this statutory directive. (Matter of Obergfell,

supra; Ann, Officers —- Conviction of Crime, 71ALR2d 593,

600.) Nor does the actual reversal of the judgment of

conviction require the reinstatement of the former officer

ty

ty

(Breslin v Leary, 35 AD2d, at p 795, supra; Matter of Smith v

Noeppel, 204 M 49, S51; Matter of Pauley v Noeppel, | M2d

928, 931; Matter of Tourjie v Noeppel, 120 NYS2d 478, 482),

and the award of backpay for the intervening period (Breslin v

Leary, 35 AD2d 794, supra; 15 Op. State Compt. 437 [1959)).

As a matter of policy, the Legislature did not choose to

provide merely for suspension from office upon an officer's

conviction of a felony, but chose instead to declare the office

vacant upon conviction. Hence, during the hiatus between

petitioner's vacatur of office and voluntary reinstatement, he

was not a Correction Officer, nor did he render services as a

Correction Officer. Absent his continued status as a

Correction Officer, no statutory authority exists for the

payment of petitioner's salary, or to permit him to render

services as a Correction Officer. (See Matter of Davis v

Impelliteri, 197 M 162, 164).

The automatic termination of a public office upon the

officer's conviction of a felony is not a punishment meted out

in consequence of the conviction. (Ann, Officers - Conviction

of Crime, 71 ALR2d, at p 600, supra). But rather, it ts a

legislative decision borne of the recognition that a public

officer's conviction of a felony does not permit the cessation of

governmental functions for the period required to exhaust the

appellate process. 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. Certainly, a government agency

should not be faced with the possible dilemma of having two

officers for the same position.

Admittedly, a situation, and perhaps this case may be

construed as one, may arise in which an innocent officer is

unjustly convicted of a felony, necessitating a reversal of the

conviction on appeal. In that event, the unfortunate officer's

loss of public office and its accompanying financial

renumeration would, of course, be tragic. But such a hard case

should not lead us to make bad law. To adopt a genera! rule, as

the dissenters propose, that public officers whose convictions

/23

have been reversed be automatically reinstated to their former

office and awarded backpay, would apply to all public officers

whose convictions were reversed regardless of the basis for the

reveisal. For example, notwithstanding conclusive evidence of

guilt — a voluntary admission or confession — a conviction

may be reversed on the ground of double jeopardy or that the

applicable statute of limitations has run. Similarly, con-

victions may be reversed where evidence sufficient to establish

guilt indisputably exists, but because of certain police or

prosecutorial irregularities or violations of law, the evidence

must be suppressed. Also possible is the reversal of a

conviction solely because of the absence of a transcript deemed

necessary to demonstrate the existence of appealable issues.

(See, e.g., People v Rivera, 39 NY2d 519).

While we are sympathetic to the plight of a truly innocent

officer unjustly accused and convicted, we are opposed to

establishing a general rule which would provide unjustified

relief to others not equally deserving.

To urge that a public officer whose conviction is reversed on

appeal on a legal technicality, and who is automatically

reinstated and awarded backpay, may nevertheless be

discharged for misconduct pursuant to a disciplinary

proceeding misses the point. The fact that the reinstated officer

may be ultimately discharged would have no effect on his right

to receive backpay. Pursuant to section 75 of the Civil Service

Law, an officer found guilty of misconduct and discharged is

entitled to receive his salary from the date of suspension to

discharge, less 30 days’ pay. (See, e.g., Matter of Mason v

Perotia, 41 AD2d 916.) Thus, notwithstanding an eventual

finding of misconduct, the officer would be entitled to receive

backpay for a period which would include the interim between

the date of conviction and the date of discharge. Where a

conviction is reversed for a legal technicality in no way

indicative of innocence, the public should not be required to

continue to pay the officer's salary until its interest is

ultimately vindicated.

In weighing the interest of a public officer convicted of a

felony, whether justly or unjustly, against that of the public,

the balance must be struck in favor of the public's right to rest

assured that its officers are individuals of moral integrity in

whom they may, without secoud thought, place their

confidence and trust. (See Matter of Pauley v Noeppel, | M2d,

at p 931, supra; 30 Colum. L Rev 1045, 1050.) A felony

conviction, notwithstanding its reversal on appeal, may in

many cases shatter this ideal. To avoid this occurrence, we

believe the Legislature has chosen to vacate a public office

upon the officer's conviction of a felony. More than fifty years

ago we so held in Matter of Obergfell (supra) and the

Legislature has not changed or amended the substance of

section 30 since our decision. In the face of this clear statutory

directive, the courts lack the power to order the reinstatement

of a former officer or an award of backpay based upon the

subsequent reversal of the officer's conviction.

In a similar vein, an attorney, as an officer of the court, who

is convicted of a felony is ipso facto disbarred. (Matter of

Mitchell, 40 NY2d 153, 156; Matter of Barash, 20 NY2d 154,

157; Matter of Ginsherg, | NY2d 144, 147.) Reversal of the

conviction does not automatically restore the attorney to the

Bar. (Matter of Ginsherg, supra.) To attain this relief, the

attorney must make a motion for reinstatement. (Matter of

Barash, 20 NY2d, at p 158, supra.) In deciding whether to

grant a motion to reinstate, the Appellate Division has dis-

cretion under section 90 of the Judiciary Law “to take a

realistic view of all the circumstances in the case in order to

prevent injury to clients or to the public.” (/d, at p 159). To this

extent, an attorney's restoration to the Bar cannot be said to be

automatic. Nor if and when granted is such restoration retro-

active — there remains the period of disbarment from the date

of the conviction to the date of restoration.

Moreover, unlike the power exercised by the Appellate

Division in determining whether a disbarred attorney should

be restored to the Bar, it is not the courts which possess the

discretion to reinstate a public officer whose felony conviction

has been reversed on appeal. That decision, as in the case of an

initial appointment to public office, lies in the discretion of the

governmental agency in which the officer was employed.

(Matter of Pauley v Noeppel, | M2d, at p 932.)

‘a

For the reasons stated, the certified question is answered in

the negative and the order of the Appellate Division modified,

with costs, to provide that petitioner is not entitled to backpay

for the period after May 24, 1973, the date his office as a

Correction Officer became vacant.

FUCHSBERG, J. (dissenting):

A matter of great public interest indeed is involved in this

case. It is that a statute not be unnecessarily interpreted in a

manner resulting in the unconscionable treatment of members

of the public.

Peter Toro, a New York City Corrections Officer who

enjoyed a blameless prior record, was suspended as the

immediate result of criminal charges brought against him on

the basis of an incident unrelated to his employment. After a

flawed trial produced a conviction, the Appellate Division,

Second Department, in an opinion in which it minced no

words, found that Toro’s arrest had been the result of an

erroneous identification which had led to a complete mis-

carriage of justice. Under no circumstances does the language

of that court justify the characterization of the basis for the

petitioner's vindication as a “legal technicality”, whatever

place such a term may possibly have in some other juris-

prudential context. Accordingly it dismissed the charges on

the merits both on the facts and on the law (People v Toro, 44

AD2d 848).

The Department of Corrections, acting sua sponte, there-

upon promptly ordered Toro’s unconditional reinstatement.

Toro made application for payment of the wages of which he

had been deprived during his suspension. After delaying for a

year, during which his departmental superiors supported his

right to be paid, the City rejected his demand. This article 78

proceeding followed. ;

The Supreme Court Justice who heard the case at Special

Term awarded judgment directing payment of all wages which

Toro would have received between the date when he was

suspended and the date when he was reinstated, inclusive of

26

contract raises which became effective in the interim, but less

uniform allowances, vacation pay and any monies he had

earned during that period. The Appellate Division, First

Department, by a divided court, upheld that decision, except

to the extent of disallowing payment for the first thirty days of

the suspension.' Notedly, the two dissenters differed from the

majority only in that they would have limited the back pay to

the period preceding the date of conviction at trial; all five

Justices agreed on the injustice suffered by the petitioner, the

majority terming it “grave”, the dissenters “great”.

On this appeal to us, the issue is whether a civil servant who

ultimately is found innocent of any criminal culpability

whatsoever is within the embrace of Section 30 (subd. |, par

Ye] ) of the Public Officers Law, which provides that every

office becomes “vacant upon ... [the] conviction [of the

incumbent thereof] of a felony, or crime involving a violation

of his oath of office”. 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 question answers itself. It does not do so for the first

time here. Legal philosophers have long wrestled, not with

whether the wrong should be righted, but how best to do so

(see, Nixon, Voltaire and the Calas Case [1962], p. 198;

Borchard, Convicting the Innocent: Errors in Criminal Justice

[1932] p. 37).

The salutary effect on public confidence in government that

flows from realization of the natural societal urge to return a

falsely accused individual to his or her status quo ante is not to

be underestimated. The moral values so endorsed far outweigh

' The Appellate Division believed Section 75 (subd. 3) of the Civil Service

Law required the modification. Since Toro has not cross-appealed, it ts

unncessary to reach the merits of that question (see Little Joseph Realty In

v Town of Babylon, 41 NY 2d 738, 746; People v Consolidated Edison Co., 34

NY 2d 646, 648: Rye v Pub. Serv. Mut. Ins. Co., 34 NY2d 470, 474).

the alarums sounded by the majority. So far as any dis-

location of personnel is concerned, it would hardly call for

much administrative ingenuity to arrange that appointment to

a post vacated by an occupant whose case is still in the

appellate process be conditioned on the possibility of a

reversal. In Toro’s case the reality not only is that his position

remained available but that, having been vindicated on the

merits, he was welcomed back with open arms. Certainly, in

any event, “the prospect of financial impact” should not

“dictate the outcome” (Brooklyn Union Gas Co. v Human

Rights Appeal Board, 41 NY2d, 84, 90).

Significantly, Public Officers Law, section 30, itself provides

no specific guidance with regard to suspended wages in

circumstances where a conviction has been rendered nugatory

by a superseding determination that it was totally unfounded.

The statute’s complete silence on the subject makes it difficult

to imply an undeserved forfeiture.

It is familiar doctrine that a statute imposing a penalty or

forfeiture is to be strictly construed (Osborne v Nat'l Ry. Co.,

226 NY 421, 416; McKinney’s Statutes § § 271, 273; 82C.J.S.,

Statutes, § 389). Uniess plain and unequivocal language so

requires, “a penalty cannot be raised by implication, but must

be expressly created and imposed” (Health Dept. v Knoll, 70

NY 530, 536; see also, United States v Weitzel 246 U.S. 533.

543 [Brandeis, J.}; Verona Cheese Co. v Murtaugh, 50 NY

314, 317). This principle of sound statutory construction

especially interdicts an interpretation of section 30 which

unncessarily would run counter to the quest for fundamental

fairness to persons who ultimately are found to have been

entirely innocent of any wrongdoing. An opposite view would

literally add injury to insult.

Matter of Obergfell (239 NY 48, 50), relied on by the

majority, does not require a contrary result. That case arose in

a much different matrix. The petitioner there was an elected

official. A mayor who had obtained a stay pending the appeal

of his criminal conviction, he sought an order directing the

board of elections to disregard the city clerk's certification that

28

his office was vacant. At the time the Court affirmed the denial

of the application, the conviction was still in full force and

effect and there was therefore at most a “possibility” that it

eventually might be reversed. Thus, the decision in Obergfell

represents only an application of the rule that the term

“conviction”, as used in statutes providing for disabilities,

disqualifications, or forfeitures, should be construed to mean

an undisturbed judicial finding of guilt (sce, e.g., Matter of

Mitchell, 40 NY2d 153; Matter of Robinson v Bd. of Regents,

4 A.D. 2d 359, mot. Iv. app. den. 3 NY2d 708: cf Matter of

Keogh v Wagner, 20 A.D.2d 380, 384-385, affd. 15 NY2d 569).

It did not determine the issue before us, ie., the effect of an

unmistakable and unqualified final exoneration.?

For these reasons, the certified question should be answered

in the affirmative and the order affirmed.

?. Matter of Pauley v. Noeppel, (1 Misc. 2d 928. Matter of Smith v. Noeppel

(240 Mise. 49), Matter of Tourjie v Noeppel, (120 NYS 2d 478 [n.o.1.]) and

195$ Opn. State Comp. 437, all cited by the majority, are premised on a far

broader reading of Obergfell than that decision warranted. Compare Matter

of Learman v. Roche (176 Misc. 980).

Order modified, with costs, in accordance with the opinion

herein and, as so modified, affirmed. Question certified

answered in the negative. Opinion by Jasen, J. All concur

except Fuchsberg, J., who dissents in part and votes to affirm

in an opinion in which Wachtler, J.. concurs.

Decided March 29, 1978