Scornavacca v. Leary

Per Curiam. The orders of the Appellate Division should be reversed and the petitions dismissed in these article 78 proceedings. Both of these petitioners are New York City patrolmen who were suspended without pay pending the determination of departmental charges. Petitioner Scornavacca was criminally charged with assault and suspended on August 30, 1968. The criminal charges were dismissed on January 22, 1969 and the disciplinary proceeding, commenced the following day, was adjourned to March, 1969. In October, 1969 petitioner was found guilty. Petitioner Stein was indicted and suspended on February 25, 1970. On January 28, 1971 he was acquitted of the criminal charges. The police department hearing was held in June of 1971 and in August, 1971 he was found guilty on several specifications. Following conviction on the departmental charges each petitioner was disciplined and returned to duty. They then commenced these article 78 proceedings claiming, inter alia, that because of the delay in finally determining the charges they are entitled to back pay for all or most of the period of suspension. In both cases the courts below directed a hearing to determine the reasonableness of the delay. In our view the delay has no effect on the petitioners’ right to back pay. The police commissioner’s power to suspend a patrolman pending the determination of departmental charges is governed by section 434a-20.0 of the Administrative Code of the City of New York, not by section 75 of the Civil Service Law. Under the Administrative Code, the suspended officer is only entitled to back pay when he is not convicted of the departmental charges (Brenner v City of New York, 9 NY2d 447). Since the petitioners here were, in fact, convicted of the charges they are not entitled to recover back pay. With respect to the effect of the delay in finally determining [586] the charges see Matter of O’Keefe v Murphy (38 NY2d 563). Chief Judge Breitel and Judges Jasen, Gabrelli, Jones, Wachtler, Fuchsberg and Cooke concur in Per Curiam opinion. In Matter of Scornavacca v Leary: Order reversed, with costs, and the petition dismissed. Question certified answered in the negative. In Matter of Stein v Murphy: Order reversed, with costs, and the petition dismissed.