Schultz v. Waterfront Commission ( 1970 )

McGivern, J. (dissenting).

I feel that since the Legislature gave the commission the discretionary power to recognize rehabilitation, it should have done so here, at least to the extent of giving the petitioner a probationary status. His last criminal offense was over 15 years ago. Actually, he worked on the docks, as a cooper, until 1960, without incident; and had worked as a longshoreman until 1958, having started at the age of 17 years. It was the only way of life he knew and loved. Said he: Ci Well, I have been down here most of my life. I was contented with the work. It’s a good income for my family. It’s my whole life since I have been a kid ”.

It thus seems particularly poignant to me, and a social and an economic waste, to deny this able-bodied veteran an opportunity now to do hard labor because of some misdeeds done in the long ago under the stress of temptations about which we know not. He petitions us now not to work in Tiffany’s, nor at Fort Knox, nor as a cashier in a bank. He begs the privilege of wielding a bale hook on the open piers, in the cold of winter and the heat of summer, in order to put bread oh the family table. I vote to give him a chance.

When a lawyer falls from grace, if not disbarred, he is suspended for a period, and then readmitted to a position of trust in an honored fellowship. Nay, and which is more, he may be disbarred. There is still provision he may be readmitted on evidence of rehabilitation, even though convicted of a crime. The same holds true of doctors, even men of the cloth. Why should longshoremen be measured by yet more lofty, and perhaps unattainable, standards ?

We. have before us a family man, 45 years of age, whose only work skills are attuned to the waterfront. For 10 years he has been forced to scrounge around, unsuccessfully, for odd jobs as a janitor, trucker, bartender, to support an ailing wife and a child, getting by only by help from veterans welfare. He has stayed straight and clean for 15 years. He comes supported by attestations by professionals in social work, by the family physician, and by neighbors. And there is nothing in this record to controvert these representations that the applicant is completely rehabilitated. Society cannot possibly suffer from an extension of mercy by permitting this man to do hard work, on the unrefuted evidence of his rehabilitation. Quite the reverse.

These views are not of novel import. In the Matter of Papoutsis v. State Liq. Auth. (32 A D 2d 284) a license of a bar and grill was restored, even though the licensee had been convicted of a serious crime. In the Matter of La Greca Rest. v. New York State Liq. Auth. (33 A D 2d 537) this court noted that the discretion vested in an administrative agency to grant a license must be “ consonant with the policy of the State to assist in the rehabilitation of persons convicted of crime ”. ('See, also, Matter of Nalore v. Baker, 244 App. Div. 554; Matter of Ciccio v. 0’Connell, 17 A D 2d 771.) Judges the most eminent have recorded similar views: In the Matter of Barton Trucking Corp. v. O’Connell (7 A D 2d 36, 41, revd. 7 N Y 2d 299) then Mr. Justice Beeitel said: “ If there were some evidence or some supportable finding that the applicant had been engaged in illegal activities immediately or proximately prior to the making of the application, or some similar showing that the applicant was likely to use its license for illegal purposes, then, of course, the commissioner, under the principles earlier discussed, might have the power to withhold the granting of the license. But there was no such showing here. All that appears were a conviction of more than two decades ago and a number of arrests which resulted in dismissals of the criminal proceedings. * * * An old conviction and some old arrests, without more, does not establish unfitness.” And, in the Matter of Hanzich v. Waterfront Comm. of New York Harbor (286 App. Div. 835, 836) Peck, P. J., said: “ In the case of a longshoreman, however, conviction of a crime is not a disqualification but merely a factor to be taken into consideration in the exercise of the commission’s discretion in granting or denying registration.” (Dissenting opinion.)

Accordingly, I find the refusal to include petitioner in the longshoremen’s register an arbitrary and capricious abuse of discretion, and I would remand for the purpose of issuing a temporary registration as a longshoreman to the applicant, provisional on his continued good behavior.

Eager, J. P., and Tilzer, J., concur with Steuer, J.; McGtvern, J., dissents in an opinion in which Capozzoli, J., concurs.

Judgment, Supreme Court, New York County, entered on January 7, 1970, affirmed, without costs and without disbursements.