# Petition — Toro v. Malcolm

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1223%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1978
- **Citation:** 439 U.S. 837

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1223%3A1. Public record. Not legal advice.