Opinion
March 4, 1988
Appeal from the Supreme Court, Niagara County, Koshian, J.
Present — Doerr, J.P., Boomer, Green, Balio and Davis, JJ.
Order unanimously reversed on the law without costs and summary judgment granted defendant dismissing the complaint. Memorandum: In June of 1976, plaintiff, a City of Niagara Falls police officer, was convicted of two misdemeanor counts of perjury for making false statements in an affidavit submitted in support of an application for a search warrant. He was suspended without pay and disciplinary charges were filed pursuant to section 75 Civ. Serv. of the Civil Service Law. The disciplinary hearings were stayed pending appeals. In November of 1980, the Court of Appeals reversed one of the perjury counts, but it was not until July 12, 1983, that plaintiff was formally dismissed. Plaintiff commenced this action seeking back pay from November 20, 1980 until July 14, 1983, claiming that the city unreasonably delayed the disciplinary proceedings during this period (see, Matter of Amkraut v. Hults, 21 A.D.2d 260, affd 15 N.Y.2d 627). Special Term granted partial summary judgment in plaintiff's favor for most of the period of delay. We reverse and grant summary judgment dismissing the complaint.
Once a police officer has been convicted of a felony or of a crime involving a violation of his oath of office, his position becomes vacant, and his employment is automatically terminated (Public Officers Law § 30 [e]; Matter of Briggins v McGuire, 67 N.Y.2d 965). No disciplinary proceedings or hearings are required and in view of the strong public policy in favor of effectuating the mandate of the statute, automatic termination is not waived by the commencement of disciplinary proceedings and may be raised as an issue for the first time on appeal (Matter of Hodgson v. McGuire, 75 A.D.2d 763). We find that plaintiff's position with the City of Niagara Falls automatically terminated at the moment he was convicted by the jury's verdict (Matter of Gunning v. Codd, 49 N.Y.2d 495, 499), and that Special Term erred by concluding that section 30 of the Public Officers Law did not apply because defendant opted to initiate disciplinary proceedings (Matter of Pesale v. Beekman, 54 N.Y.2d 707).
We also conclude that plaintiff violated his oath of office by making false statements in an application for a search warrant (see, County of Broome v. Conte, 120 Misc.2d 1050, affd 101 A.D.2d 905; Matter of Hodgson v. McGuire, supra). The act was performed in the course of plaintiff's duties as a police officer and contravened the public's right to be assured that its police officers are individuals of moral integrity (see, Matter of Toro v. Malcolm, 44 N.Y.2d 146, 152, cert denied 439 U.S. 837).