Citation Numbers: 32 A.D.2d 284
Judges: McGivern, Tilzer
Filed Date: 7/1/1969
Status: Precedential
Modified Date: 1/12/2022
The petitioner in this article 78 proceeding is Tom Papoutsis, who emigrated from Greece in the year 1955, becoming a citizen in 1960. After many years wherein he worked as a bus boy and a waiter, and by dint of savings and family borrowings and a King-size mortgage, he opened up a small restaurant, primarily dedicated to the sale of alcoholic beverages, on the premises. The location was 1487 St. Nicholas Avenue, Manhattan, duly licensed by the respondent State Liquor Authority on August 24, 1964. Thereafter, the business became viable
Come the fall of 1967, the United States Treasury Department commenced a tax audit of the petitioner’s personal income tax returns and the petitioner brought in his accountant. In January-February, 1968, a Revenue Agent visited the premises on three occasions. Lengthy discussions ensued between the agent and the accountant—in which the petitioner took no part. On the last occasion, Tom’s accountant instructed him to get $500 “ right now ”, plus $75 for his fee. Tom dispatched his wife to the bank and she withdrew $500 from the child’s trust account. Tom left the money on the top of a box, the agent took the money and the accountant said to Tom, “ Don’t worry about anything, I’ll see you tomorrow.’’
On the morrow Tom was arrested and hailed before the United States District Court. He was indicted together with his accountant, for violating subdivisions (b) and (f) of section 201 of title 18 of the United States Code. There were three counts in the indictment. Tom pleaded to the third, essentially, the giving of an unlawful gratuity, a misdemeanor. The court gave him a suspended sentence and placed him on probation for two years. The Authority, after a hearing, on December 4, 1968, found the petitioner’s conduct to have been so improper as to warrant cancellation of his license, and in fact his license has been canceled, effective December 12,1968.
Before us solely is the question of excessiveness of sentence, a most delicate problem.
We recognize that when a reviewing court steps in to revise downward the penalty imposed by an administrative agency, the occasions should be like Angels’ visits, few and far between. This seems to be one of them. Here we have an immigrant Greek, a good family man, who with the help of his wife, by dint of grinding toil has built up a small but continuing business in an area on the downgrade. Relying on the advice of his accountant, a professional man, regarded by him with the awe, which in the old country, one accords “ a professor,” he placed a gratuity in the way of an ostensibly acquiescent and co-operative Federal agent, who accepted it. Technically, what he did was a misdemeanor (U. S. Code, tit. 18, § 201, subd. [f]; New York Penal Law, § 200.30), unrelated to the actual conduct of the licensed premises. In the Mediterranean lands, from whence
It seems unduly harsh and out of tune with Manhattan realities to destroy this industrious Greek and take away his rice howl because of one misstep in an otherwise creditable life characterized by nothing but hard and unremittingly menial labor since his arrival in America. The punishment as it now stands works a practical forfeiture of his life savings. Under the exceptional circumstances of this case, this seems to be disproportionate to the offense and is jolting to one’s sense of fairness. (See Matter of Mitthauer v. Patterson, 8 N Y 2d 37.)
The cases are not few wherein attorneys have fallen from grace and yet have not been disbarred, although as members of a public profession, an elite group, they are the custodians of a code commonly regarded as the strictest in society. We cannot equate this immigrant of humble origin with the expectations of such a code, or make him pay a more fearful price, even though he acted on professional advice. And cancellation would be the tantamount of disbarment.
Although in no way condoning the deed, we do not think the heavens will fall or society be any the worse if the petitioner is restored to his business after a suitable period wherein his license is suspended as a chastening reparation for his offense. We regard a reasonable period of suspension as condign satisfaction and more proportionate to the offense. The power to so act is free from doubt. (CPLR 7803, subd. 3; Matter of Mitthauer v. Patterson, supra; Matter of McGinnis’ Rest. v. Rohan, 6 A D 2d 115, affd. 6 N Y 2d 770; Matter of Garcia & Co. v. State Liq. Auth., 30 A D 2d 949.)
Accordingly, under the special circumstances of this case, the determination of the Authority should be modified, on the law and in the exercise of discretion, so as to mitigate the punishment from cancellation to suspension and as so modified, the matter should be remitted to the Authority for reconsideration and the imposition of a lesser penalty, and otherwise confirmed, without costs and without disbursements.