Gruner v. McNamara

Per Curiam. This proceeding relates to the same civil service examination for police sergeant which was previously reviewed in Matter of Blumenthal v. Morton (273 App. Div. 497, affd. 298 N. Y. 563). The final order required the Civil Service Commission to select a single best answer to such questions as it deemed capable of such an answer. Question No. 60, which was retained by the commission, reads as follows: “ 60. Shortly after a robbery a patrolman stopped an automobile in which were four men and a driver. Underneath the rear seat he found a loaded revolver. One of the occupants h¡ad a license to carry such a" weapon. Without further evidence, it would be proper to book on a charge of illegal possession of a dangerous weapon. “ (A) all the occupants of the automobile “ (B) all the occupants except the driver “ (C) all except the licensee “ (D) none of the occupants of the automobile.” Previously the commission had said that (A) and (D) were both right. After the decision in the Blumenthal case (supra) the commission decided on (D) as the single best answer. The applicable statute is section 1898-a of the Penal Law, entitled “ Weapons in automobiles; presumption of possession.” It states that the presence in an automobile, other than a public omnibus, of a pistol, shall be presumptive evidence of its illegal possession by all of the persons found in such automobile at the time the pistol is found there. However, this section further provides in part that “ Where one of the persons found in such automobile possesses with him a valid license to have and carry concealed the pistol or revolver so found, and he is not there under duress, said presumption of unlawful possession shall not attach to the other persons found in the automobile.” In the present article 78 proceeding, Special Term has ordered that answer (A) be substituted for answer (D) on the theory [487] that it does not appear from the question that the license covered this particular weapon, and that therefore all of the occupants of the automobile should be arrested. We think that there was a reasonable basis for the commission to decide upon answer (D), that none of the occupants should be arrested. If there is a reasonable basis for the determination by the Municipal Civil Service Commission, it will not be disturbed (People ex rel. Caridi v. Creelman, 150 App. Div. 746; Matter of Immediato v. Kern, 254 App. Div. 672, affd. 278 N. Y. 680). The commission cannot be held to have acted arbitrarily or capriciously in construing the question to require the applicant, on the facts therein stated, to conclude that a police officer would lack probable cause to believe that any of the occupants of the auto-bile was guilty of the crime defined by the said statute. The hypothetical state of facts which the question assumes, presupposes discovery by the policeman of a license belonging to one of the occupants of the car to carry the type of weapon which he found in the car. Although it is true that this would not exonerate any of the occupants unless the license related to that specific weapon, the question, in effect, poses the query whether the officer should decide to make an arrest or arrests without examining the license to discover whether its number corresponded to that on the revolver. If the occupants of the auto were behaving in a peaceable manner, it was not unreasonable to rule that he should examine the license and the pistol more carefully before making arrests. The commission have considered that there would not have been probable cause for the officer to believe any of the occupants to be guilty without ascertaining this fact, and have determined that the use of the language in the question, “ without further evidence ”, meant that the officer should not make an arrest without comparing the license number with that borne by the revolver. Further evidence which the commission ruled should be obtained by the officer before making an arrest, under these circumstances, meant evidence that the number on the license did not correspond with the revolver found in this car, viz., that the license, while covering a weapon of this type, did not sanction the carrying of this pistol. The order appealed from should be reversed, with $20 costs and disbursements, and the determination of the Municipal Civil Service Commission reinstated selecting answer (D) as the correct answer to question No. 60.