
    In the Matter of Peter Toro, Respondent, v Benjamin J. Malcolm, as Commissioner of the Department of Correction of the City of New York, et al., Appellants.
    Argued January 11, 1978;
    decided March 29, 1978
    
      POINTS OF COUNSEL
    
      W. Bernard Richland, Corporation Counsel (Irving Cohen, L. 
      
      Kevin Sheridan and Leonard Koerner of counsel), for appellants.
    I. Petitioner’s position as a correction officer was vacated pursuant to section 30 of the Public Officers Law upon his felony conviction. He was not entitled to salary for the period between his conviction and his reinstatement upon the reversal of the conviction. (Matter of Breslin v Leary, 35 AD2d 794; Matter of Davis v Impelliteri, 197 Misc 162; Matter of Obergfell, 239 NY 48; Matter of Pauley v Noeppel, 1 Misc 2d 928; Matter of Smith v Noeppel, 204 Misc 49; Matter of Jerry v Board of Educ., 35 NY2d 534; Matter of Mason v Perrotta, 41 AD2d 916.) II. Petitioner’s claim is barred by laches. (Matter of Peruzzin v Test, 282 App Div 550; Matter of Tilt v Krone, 31 AD2d 561; Kunz v City of New York, 286 App Div 252, 3 NY2d 834; Matter of Foy v Brennan, 285 App Div 669; Thoma v City of New York, 263 NY 402; Matter of Central School Dist. No. 2 v New York State Teachers’ Retirement System, 27 AD2d 265, 23 NY2d 213; Matter of Fryer v Broome County Bd. of Supervisors, 37 AD2d 755; Austin v Board of Higher Educ., 5 NY2d 430.)
    
      Robert Rivers, P. G, for respondent.
    I. Petitioner was not "convicted” within the meaning of section 30 (subd 1, par e) of the Public Officers Law. (Matter of Keogh v Wagner, 20 AD2d 380, 15 NY2d 569; Thaler v State of New York, 79 Misc 2d 621; Matter of Obergfell, 239 NY 48.) II. The courts below were correct in awarding petitioner his back pay. (Matter of Pauley v Noeppel, 1 Misc 2d 928; Matter of Mason v Perrotta, 41 AD2d 916; Matter of Lytle v Christian, 47 AD2d 824; Matter of Yeampierre v Gutman, 52 AD2d 608; Matter of Jerry v Board of Educ., 35 NY2d 534.) III. Petitioner’s cause of action is not barred by laches. (Reynolds v Snow, 10 AD2d 101, 8 NY2d 899; Varconi v Unity Tel. Corp., 11 Misc 2d 191; Prince Hall Grand Lodge F. & A. M. of N. Y. v Supreme Council of U. S. Sovereign Grand Inspectors Gen. of 33rd & Last Degree A & A Scottish Rite, 32 Misc 2d 390; Matter of Maurer v Cappelli, 42 AD2d 758; Austin v Board of Higher Educ., 5 NY2d 430; Matter of Amkraut v Hults, 21 AD2d 260, 15 NY2d 627.)
   OPINION OF THE COURT

Jasen, J.

The issue posed on this appeal is whether a public officer whose felony conviction is reversed on appeal is entitled to an award of back pay from the date of his conviction to the date of his voluntary reinstatement.

Respondent, Peter Toro, was appointed on September 8, 1969 as a Correction Officer of the New York City Correction Department. On August 30, 1971, respondent was arrested and charged with burglary, petit larceny, and impersonating a police officer. After a jury trial, he was convicted of these charges and was sentenced to a maximum term of four years’ imprisonment. On October 4, 1973, respondent was notified that, pursuant to section 30 of the Public Officers Law, his office was vacated effective May 24, 1973 — the date of his conviction and sentencing for the felony of burglary in the third degree.

Upon appeal, the Appellate Division reversed respondent’s conviction and dismissed the indictment. The court concluded that the complainant’s eyewitness identification of respondent was tainted and should have been suppressed. Absent this identification, noted the court, the People’s case rested on the uncorroborated testimony of a self-confessed participant. Additionally, the court believed that respondent’s testimony concerning his whereabouts on the day of the crime raised a reasonable doubt as to his guilt. It was the interaction of these factors which led the Appellate Division to reverse respondent’s conviction and dismiss the indictment.

After the Department of Correction voluntarily reinstated the petitioner as a correction officer, he commenced an article 78 proceeding to recover back pay for the interim between his suspension and reinstatement. Special Term awarded respondent back pay from the date of his suspension to the date of his reinstatement. The Appellate Division, with two Justices dissenting in part, modified the order and judgment of Special Term by excluding from the award 30 days’ pay. (See Civil Service Law, § 75.) The dissenters would also have excluded from the award back pay for the period between respondent’s conviction and his voluntary reinstatement.

We hold that a public officer whose felony conviction is reversed on appeal and who is voluntarily reinstated is not entitled to recover back pay for the period between his conviction and voluntary reinstatement.

The directive contained in section 30 of the Public Officers Law is clear and unqualified: every public office becomes vacant upon the officer’s conviction of a felony. A conviction of the incumbent constitutes an abridgement of the office, automatically terminating its duration. (Matter of Obergfell, 239 NY 48, 50; Matter of Breslin v Leary, 35 AD2d 794, 795; see, generally, 3 McQuillin, Municipal Corporations, pp 432-433.) It follows that once an office becomes vacant, the contingency of reversal of the judgment of conviction does not defeat the operation of this statutory directive. (Matter of Obergfell, supra; Officer — Conviction of Crime, Ann., 71 ALR2d 593, 600.) Nor does the actual reversal of the judgment of conviction require the reinstatement of the former officer (Matter of Breslin v Leary, 35 AD2d, at p 795, supra; Matter of Smith v Noeppel, 204 Misc 49, 51; Matter of Pauley v Noeppel, 1 Misc 2d 928, 931; Tourjie v Noeppel, 120 NYS2d 478, 482), and the award of back pay for the intervening period (Matter of Breslin v Leary, 35 AD2d 794, supra; 15 Opns St Comp, 1959, p 437).

As a matter of policy, the Legislature did not choose to provide merely for suspension from office upon an officer’s conviction of a felony, but chose instead to declare the office vacant upon conviction. Hence, during the hiatus between petitioner’s vacatur of office and voluntary reinstatement, he was not a correction officer, nor did he render services as a correction officer. Absent his continued status as a correction officer, no statutory authority exists for the payment of petitioner’s salary, or to permit him to render services as a correction officer. (See Matter of Davis v Impelliteri, 197 Misc 162, 164.)

The automatic termination of a public office upon the officer’s conviction of a felony is not a punishment meted out in consequence of the conviction. (Officer — Conviction of Crime, Ann., 71 ALR2d, at p 600.) But rather, it is a legislative decision borne of the recognition that a public officer’s conviction of a felony does not permit the cessation of governmental functions for the period required to exhaust the appellate process. Continued performance of governmental functions necessitates the existence of a point in time at which the affected office may be filled without concern for the possibility that at some future date a former officer’s conviction may be reversed. Certainly, a government agency should not be faced with the possible dilemma of having two officers for the same position.

Admittedly, a situation, and perhaps this case may be construed as one, may arise in which an innocent officer is unjustly convicted of a felony, necessitating a reversal of the conviction on appeal. In that event, the unfortunate officer’s loss of public office and its accompanying financial remuneration would, of course, be tragic. But such a hard case should not lead us to make bad law. To adopt a general rule, as the dissenters propose, that public officers whose convictions have been reversed be automatically reinstated to their former office and awarded back pay, would apply to all public officers whose convictions were reversed regardless of the basis for the reversal. For example, notwithstanding conclusive evidence of guilt — a voluntary admission or confession — a conviction may be reversed on the ground of double jeopardy or that the applicable Statute of Limitations has run. Similarly, convictions may be reversed where evidence sufficient to establish guilt indisputably exists, but because of certain police or prosecutorial irregularities or violations of law, the evidence must be suppressed. Also possible is the reversal of a conviction solely because of the absence of a transcript deemed necessary to demonstrate the existence of appealable issues. (See, e.g., People v Rivera, 39 NY2d 519.)

While we are sympathetic to the plight of a truly innocent officer unjustly accused and convicted, we are opposed to establishing a general rule which would provide unjustified relief to others not equally deserving.

To urge that a public officer whose conviction is reversed on appeal on a legal technicality, and who is automatically reinstated and awarded back pay, may nevertheless be discharged for misconduct pursuant to a disciplinary proceeding misses the point. The fact that the reinstated officer may be ultimately discharged would have no effect on his right to receive back pay. Pursuant to section 75 of the Civil Service Law, an officer found guilty of misconduct and discharged is entitled to receive his salary from the date of suspension to discharge, less 30 days’ pay. (See, e.g., Matter of Mason v Perrotta, 41 AD2d 916.) Thus, notwithstanding an eventual finding of misconduct, the officer would be entitled to receive back pay for a period which would include the interim between the date of conviction and the date of discharge. Where a conviction is reversed for a legal technicality in no way indicative of innocence, the public should not be required to continue to pay the officer’s salary until its interest is ultimately vindicated.

In weighing the interest of a public officer convicted of a felony, whether justly or unjustly, against that of the public, the balance must be struck in favor of the public’s right to rest assured that its officers are individuals of moral integrity-in whom they may, without second thought, place their confidence and trust. (See Matter of Pauley v Noeppel, 1 Misc 928, 931, supra; 30 Col L Rev 1045, 1050.) A felony conviction, notwithstanding its reversal on appeal, may in many cases shatter this ideal. To avoid this occurrence, we believe the Legislature has chosen to vacate a public office upon the officer’s conviction of a felony. More than 50 years ago we so held in Matter of Obergfell (239 NY 48, supra) and the Legislature has not changed or amended the substance of section 30 since our decision. In the face of this clear statutory directive, the courts lack the power to order the reinstatement of a former officer or an award of back pay based upon the subsequent reversal of the officer’s conviction.

In a similar vein, an attorney, as an officer of the court, who is convicted of a felony is ipso facto disbarred. (Matter of Mitchell, 40 NY2d 153, 156; Matter of Barash, 20 NY2d 154, 157; Matter of Ginsberg, 1 NY2d 144, 147.) Reversal of the conviction does not automatically restore the attorney to the Bar. (Matter of Ginsberg, supra.) To attain this relief, the attorney must make a motion for reinstatement. (Matter of Barash, 20 NY2d, at p 158, supra.) In deciding whether to grant a motion to reinstate, the Appellate Division has discretion under section 90 of the Judiciary Law "to take a realistic view of all of the circumstances in the case in order to prevent injury to clients or to the public.” (Id., at p 159.) To this extent, an attorney’s restoration to the Bar cannot be said to be automatic. Nor if and when granted is such restoration retroactive — there remains the period of disbarment from the date of the conviction to the date of restoration.

Moreover, unlike the power exercised by the Appellate Division in determining whether a disbarred attorney should be restored to the Bar, it is not the courts which possess the discretion to reinstate a public officer whose felony conviction has been reversed on appeal. That decision, as in the case of an initial appointment to public office, lies in the discretion of the governmental agency in which the officer was employed. (Matter of Pauley v Noeppel, 1 Misc 928, 932, supra.)

For the reasons stated, the certified question is answered in the negative and the order of the Appellate Division modified, with costs, to provide that petitioner is not entitled to back pay for the period after May 24, 1973, the date his office as a correction officer became vacant.

Fuchsberg, J.

(dissenting). A matter of great public interest indeed is involved in this case. It is that a statute not be unnecessarily interpreted in a manner resulting in the unconscionable treatment of members of the public.

Peter Toro, a New York City Corrections Officer who enjoyed a blameless prior record, was suspended as the immediate result of criminal charges brought against him on the basis of an incident unrelated to his employment. After a flawed trial produced a conviction, the Appellate Division, Second Department, in an opinion in which it minced no words, found that Toro’s arrest had been the result of an erroneous identification which had led to a complete miscarriage of justice. Under no circumstances does the language of that court justify the characterization of the basis for the petitioner’s vindication as a "legal technicality”, whatever place such a term may possibly have in some other jurisprudential context. Accordingly, it dismissed the charges on the merits both on the facts and on the law (People v Toro, 44 AD2d 848).

The Department of Corrections, acting sua sponte, thereupon promptly ordered Toro’s unconditional reinstatement. Toro made application for payment of the wages of which he had been deprived during his suspension. After delaying for a year, during which his departmental superiors supported his right to be paid, the city rejected his demand. This article 78 proceeding followed.

The Supreme Court Justice who heard the case at Special Term awarded judgment directing payment of all wages which Toro would have received between the date when he was suspended and the date when he was reinstated, inclusive of contract raises which became effective in the interim, but less uniform allowances, vacation pay and any moneys he had earned during that period. The Appellate Division, First Department, by a divided court, upheld that decision, except to the extent of disallowing payment for the first 30 days of the suspension. Notedly, the two dissenters differed from the majority only in that they would have limited the back pay to the period preceding the date of conviction at trial; all five Justices agreed on the injustice suffered by the petitioner, the majority terming it "grave”, the dissenters "great”.

On this appeal to us, the issue is whether a civil servant who ultimately is found innocent of any criminal culpability whatsoever is within the embrace of section 30 (subd 1, par e) of the Public Officers Law, which provides that every office becomes "vacant upon * * * [the] conviction [of the incumbent thereof] of a felony, or a crime involving a violation of his oath of office”. Is it not a fundamental precept of justice that, once it is finally decided that an accused has been falsely charged and, on this basis, has been proved guiltless, he is, so far as reasonably possible, to be treated as though he had never been accused at all?

The question answers itself. It does not do so for the first time here. Legal philosophers have long wrestled, not with whether the wrong should be righted, but with how best to do so (see Nixon, Voltaire and the Calas Case [1962], p 198; Borchard, Convicting the Innocent: Errors in Criminal Justice [1932], p 37).

The salutary effect on public confidence in government that flows from realization of the natural societal urge to return a falsely accused individual to his or her status quo ante is not to be underestimated. The moral values so indorsed far outweigh the alarums sounded by the majority. So far as any dislocation of personnel is concerned, it would hardly call for much administrative ingenuity to arrange that appointment to a post vacated by an occupant whose case is still in the appellate process be conditioned on the possibility of a reversal. In Toro’s case the reality not only is that his position remained available but that, having been vindicated on the merits, he was welcomed back with open arms. Certainly, in any event, "the prospect of financial impact” should not "dictate the judicial outcome” (Brooklyn Union Gas Co. v New York State Human Rights Appeal Bd., 41 NY2d 84, 90).

Significantly, section 30 of the Public Officers Law itself provides no specific guidance with regard to suspended wages in circumstances where a conviction has been rendered nugatory by a superseding determination that it was totally unfounded. The statute’s complete silence on the subject makes it difficult to imply an undeserved forfeiture.

It is familiar doctrine that a statute imposing a penalty or forfeiture is to be strictly construed (Osborne v International Ry. Co., 226 NY 421, 426; McKinney’s Cons Laws of NY, Book 1, Statutes, §§ 271, 273; 82 CJS, Statutes, § 389). Unless plain and unequivocal language so requires, "a 'penalty cannot be raised by implication, but must be expressly created and imposed’ ” (Health Dept. of City of N. Y. v Knoll, 70 NY 530, 536; see, also, United States v Weitzel, 246 US 533, 543 [Brandéis, J.]; Verona Cent. Cheese Co. v Murtaugh, 50 NY 314, 317). This principle of sound statutory construction especially interdicts an interpretation of section 30 which unnecessarily would run counter to the quest for fundamental fairness to persons who ultimately are found to have been entirely innocent of any wrongdoing. An opposite view would literally add injury to insult.

Matter of Obergfell (239 NY 48, 50), relied on by the majority, does not require a contrary result. That case arose in a much different matrix. The petitioner there was an elected official. A Mayor who had obtained a stay pending the appeal of his criminal conviction, he sought an order directing the board of elections to disregard the city clerk’s certification that his office was vacant. At the time the court affirmed the denial of the application, the conviction was still in full force and effect and there was therefore at most a "possibility” that it eventually might be reversed. Thus, the decision in Obergfell represents only an application of the rule that the term "conviction”, as used in statutes providing for disabilities, disqualifications, or forfeitures, should be construed to mean an undisturbed judicial finding of guilt (see, e.g., Matter of Mitchell, 40 NY2d 153; Matter of Robinson v Board of Regents, 4 AD2d 359, mot for lv to app den 3 NY2d 708; cf. Matter of Keogh v Wagner, 20 AD2d 380, 384-385, affd 15 NY2d 569). It did not determine the issue before us, i.e., the effect of an unmistakable and unqualified final exoneration.

For these reasons, the certified question should be answered in the affirmative and the order affirmed.

Chief Judge Breitel and Judges Gabrielli, Jones and Cooke concur with Judge Jasen; Judge Fuchsberg dissents in part and votes to affirm in a separate opinion in which Judge Wachtler concurs.

Order modified, with costs, in accordance with the opinion herein and, as so modified, affirmed. Question certified answered in the negative. 
      
      . The Appellate Division believed subdivision 3 of section 75 of the Civil Service Law required the modification. Since Toro has not cross-appealed, it is unnecessary to reach the merits of that question (see Little Joseph Realty v Town of Babylon, 41 NY2d 738, 746; People v Consolidated Edison Co. of N. Y., 34 NY2d 646, 648; City of Rye v Public Serv. Mut. Ins. Co., 34 NY2d 470, 474).
     
      
      . Matter of Pauley v Noeppel (1 Misc 2d 928), Matter of Smith v Noeppel (204 Misc 49), Tourjie v Noeppel (120 NYS2d 478) and Opinions of the State Comptroller (vol 15, 1959, p 437), all cited by the majority, are premised on a far broader reading of Obergfell than that decision warranted. Compare Matter of Learman v Roche (176 Misc 980).
     