SEGARS v. CITY OF BUFFALO (1997)

In this CPLR article 78 proceeding, petitioner challenges a determination terminating him from his employment as a police officer pursuant to Public Officers Law § 30(1)(e), following his conviction of menacing in the second degree.   Petitioner seeks a pretermination hearing pursuant to Civil Service Law § 75, as well as reinstatement, restoration of seniority, and back pay pending such hearing, on the ground that menacing is not a “crime involving a violation of his oath of office” (Public Officers Law § 30[1][e] ).   Petitioner appeals from a judgment of Supreme Court that denied his petition but ordered respondents to conduct a hearing to determine whether petitioner should be reinstated.

 We conclude that menacing in the second degree (Penal Law § 120.14 [1] ) is a “crime involving a violation of [petitioner's] oath of office” (Public Officers Law § 30[1][e] ).   By that oath, petitioner swore to “faithfully discharge the duties of the office of” police officer (N.Y. Const., art. XIII, § 1) and, implicitly, “to uphold the laws of New York” (Matter of Duffy v. Ward, 81 N.Y.2d 127, 134, 596 N.Y.S.2d 746, 612 N.E.2d 1213).   Commission of menacing in the second degree, i.e., the unjustified display of a firearm to threaten another, evinces a “lack of moral integrity,” which is defined as “intentional dishonesty” or “corruption of purpose” (Matter of Duffy v. Ward, supra, at 135, 596 N.Y.S.2d 746, 612 N.E.2d 1213).   In our view, a conviction for menacing is as indicative of a lack of moral integrity as a conviction for assault or reckless endangerment (see, Matter of DeCaro v. Ward, Sup. Ct., N.Y. County, index No. 19130/85, affd. without opn. 134 A.D.2d 967, 521 N.Y.S.2d 354;  Matter of Farnworth v. Ward, Sup Ct, N.Y. County, index No. 20131/86, affd. without opn. 141 A.D.2d 1011, 530 N.Y.S.2d 731, lv. denied 72 N.Y.2d 810, 534 N.Y.S.2d 938, 531 N.E.2d 658) and far more indicative of a lack of moral integrity than a conviction for criminal trespass or driving while intoxicated (see, Matter of Duffy v. Ward, supra, at 135-136, 596 N.Y.S.2d 746, 612 N.E.2d 1213;  Matter of Sharkey v. Police Dept., 179 A.D.2d 655, 657, 578 N.Y.S.2d 599).  Consequently, upon petitioner's conviction for menacing, petitioner's office became vacant and no pretermination hearing was required.

 In the exercise of our discretion, we modify the judgment by vacating the directive that respondents hold a hearing to determine whether petitioner should be reinstated.   That directive contravenes the statute, which provides that a public officer loses his position automatically upon his conviction, and which provides for a reinstatement hearing only where the conviction has been reversed or vacated (see, Public Officers Law § 30[1][e] ).   That directive also defeats the intent of the statute, which is to uphold the public's trust in the integrity of public officers and to avoid a hearing and factual disputes concerning the conduct underlying the conviction (see, Matter of Duffy v. Ward, supra, at 131, 133, 596 N.Y.S.2d 746, 612 N.E.2d 1213).

In light of our disposition, it is unnecessary to reach the parties' remaining contentions.

Judgment unanimously modified on the law and in the exercise of discretion and as modified affirmed without costs.

MEMORANDUM: