Opinion
December 17, 1992
Appeal from the Supreme Court, Greene County (Cobb, J.).
The facts of this case are set forth in detail in a prior proceeding (see, Matter of Greiner v Greene County Dept. of Fire Prevention Control, 177 A.D.2d 907). In brief, petitioner, a fire dispatcher and part-time fire investigator and Deputy Sheriff, was charged with misconduct when he wrongfully retained possession of a firearm found at the scene of a fire. The charges were sustained and respondent adopted the Hearing Officer's penalty recommendation that petitioner be dismissed from his position provided that, if he were subsequently acquitted of pending criminal charges involving the same incident, he would be reinstated or placed on a preferred eligible employee list. Reinstatement was to be allowed only if there was a "not guilty verdict or judgment"; it was not enough if the charges were merely reduced, a plea bargain entered, or a decision made by the District Attorney not to prosecute. After evaluating the evidence, the Grand Jury decided not to indict petitioner; a "no bill" was returned. Although respondent contends that this was in effect a decision not to prosecute, Supreme Court, with whom we agree, found it to be the equivalent of a "not guilty" verdict.
To obtain an indictment, the People need only present a prima facie case that a defendant committed the crime charged; proof beyond a reasonable doubt is not required (see, People v Mayo, 36 N.Y.2d 1002, 1004). Where, as here, this lesser standard is not met, it "must be taken as establishing as a fact that the evidence was not of sufficient credible worth to warrant a prosecution" (People v Dykes, 86 A.D.2d 191, 195), and thus that it could not support a conviction. There is no evidence to support respondent's assertion that the District Attorney's office was intentionally lax in marshaling the proof, so as to render the Grand Jury proceeding a sham.
We disagree, however, with Supreme Court's refusal to award petitioner back pay from the time the first vacancy arose after the charges were dismissed against him (Oct. 15, 1990) until he was reinstated pursuant to the court's judgment (Nov. 1, 1991). By failing to reinstate petitioner to the first available position, respondent effectively subjected him to an "unlawful removal" (Civil Service Law § 77) and he was therefore entitled to the remedy of back pay from that point until his reinstatement (see, Mauro v Village of Freeport, 143 A.D.2d 75, lv denied 73 N.Y.2d 702; see also, Matter of Sterling v Levitt, 168 A.D.2d 314, lv denied 77 N.Y.2d 810).
Mikoll, J.P., Mercure, Crew III and Casey, JJ., concur. Ordered that the judgment is modified, on the law, without costs, by reversing so much thereof as denied petitioner back pay; matter remitted to respondent for further proceedings not inconsistent with this Court's decision; and, as so modified, affirmed.