
    In the Matter of John J. O’Keefe, Appellant, v Patrick V. Murphy, as Police Commissioner of the City of New York, Respondent. In the Matter of Ulysses F. Lawrence, Appellant, v Howard R. Leary, as Police Commissioner of the City of New York, Respondent.
    Argued January 5, 1976;
    decided February 17, 1976
    
      
      Victor J. Herwitz and Michael Kopcsak for appellant in the first above-entitled proceeding.
    I. The department’s unreasonable delay in bringing petitioner to trial on the charges deprived him of the fair trial to which he was constitutionally entitled. (Matter of Stein v Murphy, 44 AD2d 796, 34 NY2d 984; Matter of Evans v Monaghan, 282 App Div 382, 306 NY 312; Brenner v City of New York, 9 NY2d 447; Klopfer v North Carolina, 386 US 213; Barker v Wingo, 407 US 514; Matter of Cugell v Monaghan, 201 Misc 607; Matter of Gardner v Broderick, 27 AD2d 800, 20 NY2d 227.) II. In failing to specify "the proper authorities” referred to in the charges, the department deprived petitioner of one of the fundamentals of due process—notice of the charges. (Matter of Hecht v Monaghan, 307 NY 461.) III. The statements allegedly made by petitioner to Chisari while he was being held in custody should have been stricken from the record because they were the fruit of an unlawful arrest following the unlawful search and seizure of petitioner. (Terry v Ohio, 392 US 1; Wong Sun v United States, 371 US 471; Matter of Sowa v Looney, 23 NY2d 329; Matter of Leogrande v State Liq. Auth. of State of N. Y., 19 NY2d 418.) IV. There was no evidence in the record to support the trial commissioner’s factual findings upon which his guilty findings were based. (Matter of Barry v O’Connell, 303 NY 46.) V. The dismissal order should be annulled because it was based on a charge neither made nor proved. (Matter of Murray v Murphy, 24 NY2d 150.)
    
      W. Bernard Richland, Corporation Counsel (L. Kevin Sheridan of counsel), for respondent in the first above-entitled proceeding.
    I. Petitioner was not denied due process by reason of the delay in bringing him to trial on these charges. (Matter of Evans v Monaghan, 306 NY 312; People v Blakley, 34 NY2d 311; Barker v Wingo, 407 US 514.) II. Petitioner’s statements to Captain Chisari were admissible; in any event no proper objection was made to their admission at the hearing. (Matter of Finn’s Liq. Shop v State Liq. Auth., 24 NY2d 647; Matter of Sowa v Looney, 23 NY2d 329; Matter of Leogrande v State Liq. Auth. of State of N. Y., 19 NY2d 418; People v Morales, 22 NY2d 55, 396 US 102; People v Kinne, 40 AD2d 938; People v Valerius, 36 AD2d 671; People v Land, 33 AD2d 798.) III. Petitioner’s "proper notice” contentions are without merit. 
      (Matter of Murray v Murphy, 24 NY2d 150.) IV. There was no necessity for proving the alleged abortion.
    
      Victor J. Herwitz and Michael J. Kopcsak for appellant in the second above-entitled proceeding.
    I. The Police Commissioner’s guilty finding as to specification 4 was arbitrary and capricious because (a) it was not supported by the evidence; and (b) the rule allegedly violated was unconstitutionally void for vagueness. (People v Shakun, 251 NY 107; People v Phyfe, 136 NY 554; People v Vetri, 309 NY 401; People v Adamkiewicz, 298 NY 176; People v Bart’s Rest. Corp., 42 Misc 2d 1093; Weir v United States, 92 F2d 634; Matter of Murray v Murphy, 24 NY2d 150; People v Berck, 32 NY2d 567.) II. Not having been lawfully convicted by the Police Commissioner of any of the charges which led to his suspension, or which were even related thereto, petitioner is entitled under section 434a-20.0 of the Administrative Code of the City of New York to recover his full pay from the date of his suspension. (Brenner v City of New York, 9 NY2d 447.) III. The action of the Police Commissioner of New York City in refusing under section 434a-20.0 of the Administrative Code petitioner’s claim for his pay during the period of his suspension should be annulled as that section denies petitioner substantive and procedural due process of law under both Federal and State Constitutions. (Brenner v City of New York, 9 NY2d 447; Defiance Milk Prods. Co. v Du Mond, 309 NY 537; Fisher Co. v Woods, 187 NY 90; Matter of Jacobs, 98 NY 98; People ex rel. Ryan v French, 91 NY 265; Boddie v Connecticut, 401 US 371; Cafeteria Workers v McElroy, 367 US 886; Board of Regents v Roth, 408 US 564; Wisconsin v Constantineau, 400 US 433.) IV. Petitioner is entitled to full back pay during the period when he had been dismissed from his position by the Police Commissioner, whose action in so doing was violative of due process of law and of petitioner’s constitutional rights.
    
      W. Bernard Richland, Corporation Counsel (L. Kevin Sheridan, Bernard Abel and Diane R. Eisner of counsel), for respondent
    in the second above-entitled proceeding. I. The finding of petitioner’s guilt with respect to specification 4 was supported by substantial evidence. II. Having been lawfully convicted of two departmental charges, petitioner is not entitled to back pay for the period of his suspension. (Brenner v City of New York, 9 NY2d 447.) III. Petitioner is not entitled to back pay for the period between his dismissal and reinstatement. 
      (Canteline v McClellan, 282 NY 166; Gardner v Broderick, 392 US 273.)
   Per Curiam.

Appellant O’Keefe was a New York City police officer who was taken into custody by the department in connection with an alleged conspiracy to receive $50,000 from a New Jersey doctor believed to have been performing illegal abortions. He was suspended and charged by the department with participation in the conspiracy. Prior to a hearing on the charges, appellant was called before a Grand Jury where he refused to waive immunity. As a result of this refusal, he was dismissed from the force in July, 1965¡ .

Appellant Lawrence was a New York City police officer who was arrested on February 25, 1966 and charged with the crimes of bribery, attempted extortion and accepting unlawful fees. The arrest resulted from an investigation into charges that appellant had knowingly demanded and received money from persons he had previously arrested on gambling charges in return for a promised dismissal of the charges. He was immediately suspended from the force. In March, 1966 the Grand Jury refused to indict and departmental charges were then preferred against him shortly thereafter. Prior to a hearing on these charges, appellant was summoned before a Grand Jury where he refused to sign a limited waiver of immunity. As a result a department hearing was held based solely on his refusal to waive immunity and he was dismissed from his position on November 23, 1966.

Thereafter, in June, 1968 the United States Supreme Court ruled that a public servant’s employment could not be terminated for refusing to waive immunity (Gardner v Broderick, 392 US 273). By stipulation dated May 12, 1969 the appellant O’Keefe was reinstated without prejudice to the previously filed charges. In October, 1970 O’Keefe was tried on the departmental charges and found guilty with a recommendation of dismissal. Thereafter, he was dismissed and commenced this action to annul the determination. The trial court confirmed the officer’s discharge and dismissed the petition. The Appellate Division unanimously affirmed.

Appellant Lawrence was reinstated without prejudice to any pending disciplinary charges by stipulation dated July 30, 1969. He was tried in January, 1970 and as a result of a decision rendered six months later he was found guilty of two of the specifications and sentenced to forfeit 10 days from annual vacation. The Appellate Division unanimously confirmed the commissioner’s determination.

Both appellants contend that the extended delay deprived them of procedural and substantive due process. The assertion of procedural due process must be rejected in light of our holding in Matter of Jerry v Board of Educ. of City School Dist. of City of Syracuse (35 NY2d 534, 541) where we held that suspension of a tenured teacher without pay pending the final determination of disciplinary proceedings does not violate due process.

Analogizing to speedy trial principles, the appellants urge that the delays here were constitutionally impermissible. However, it must be remembered that we are dealing here with a civil rather than a criminal proceeding so that it is clear that the speedy trial considerations recently articulated (People v Taranovich, 37 NY2d 442; People v Johnson, 38 NY2d 271) are inapposite. Nevertheless, the due process aspect of delay in the administrative context presents an important issue. The controlling standard is one of "fairness and justice” (Matter of Evans v Monaghan, 306 NY 312; Matter of Brown v Ristich, 36 NY2d 183; Matter of Sowa v Looney, 23 NY2d 329). Thus, whenever a delay in an administrative adjudication significantly or deliberately interferes with a party’s capacity to prepare or to present his case, the right to due process has been violated.

Applying that yardstick here, we conclude that the delays did not deprive the appellants of fairness and justice mandated by due process. The major part of the delay was attributable to the operation of pre- Gardner law and the post- Gardner delay was not so extensive as to obstruct appellant’s defenses. Neither appellant has shown any harm to his capacity to defend himself or any deliberateness on the commissioner’s part. Moreover, no demand for an expedited hearing or disposition was made by Lawrence, and O’Keefe waited until July, 1970 to assert a claim of delay.

Appellant Lawrence argues that by virtue of the extended pay suspension he was subjected to a punishment grossly disproportionate to the charges sustained. In addition he urges that the suspension without pay was unwarranted since, although in form his conviction may have been of four of the six specifications originally charged, in substance he was convicted of a different offense, extortion, never specified and for which there was no supporting evidence. The record, however, reveals explicitly that appellant was convicted of specifications 1, 2, 3, and 6 of those originally charged. To the extent that the appellant may be understood as contending that his conviction was of an offense not specified among the charges on which his suspension was based, this argument was confronted and rejected in Brenner v City of New York (9 NY2d 447). In that case we also held that a suspension on charges is within the broad discretionary power accorded the commissioner. We further noted that "the courts have consistently held that a member of the police force is not entitled to salary during suspension” provided that he was convicted of the charges (at p 451).

This procedure is subject only to an overriding mandate of reasonableness. That mandate has not been violated in the instant case. Nor is it a judicial function to articulate specific time limitations; that is a legislative function (Matter of Jerry v Board of Educ. of City School Dist. of City of Syracuse, 35 NY2d, at p 547, supra [dissenting opn]). Consequently, in view of appellants’ failure to present any factor other than delay and our perception of this delay as reasonable, we affirm.

The final remaining question is O’Keefe’s contention that his statements were inadmissible due to the fact that he was illegally arrested. The respondent counters that this issue is not preserved for our review. At the hearing, appellant objected to the statements on the ground that he had not been informed of his Fifth Amendment rights. Merely claiming a violation of Miranda rights however will not as a matter of law raise the issue of illegal arrest. Accordingly, that issue is not properly before us (Matter of Sowa v Looney, 23 NY2d, at p 333, supra).

The orders of the Appellate Division should be affirmed, with costs.

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur in Per Curiam opinion.

In each case: Order affirmed.  