Matter Francis J. Kelly v. Michael J. Murphy

The Trial Commissioner cleared appellant of each of the charges against him. The only one which remains for our consideration is Specification 7, of which he was acquitted by the Trial Commissioner but found guilty by the Police Commissioner, which is that, without corrupt motive, Lieutenant Kelly ""off duty and in civilian clothes, acting in concert with Patrolman Flynn mentioned in Specification 1, at or about 9:45 a.m., February 23, 1962 at 68th Street and Fourth Avenue, Brooklyn, did without just cause solicit and advise Patrolman Terrance W. McPhillips, Shield 21842, 5th Precinct, also off duty and in civilian clothes, to make a false statement if and when questioned by a superior officer or other proper authority regarding the presence of the said Ralph Cozzino mentioned in Specification 1, in the 5th Precinct Station House on February 23, 1962 at about 3:30 a.m."" It is sufficiently established for the purposes of a departmental trial that Byrne and Flynn sought to obtain $500 from Cozzino in exchange for agreeing not to prefer charges against him when he was arrested under suspicious circumstances on the early morning of February 23, 1962. It is also established for this proceeding that Patrolman McPhillips, against whom neither criminal nor departmental charges appear to have been made, was aware of what Byrne and Flynn were doing and became a party to their attempted extortion of money from Cozzino, although he declined an offer by Flynn to split with him the $500 to be obtained from Cozzino and cut Byrne out of the deal. Actually no money was obtained and Byrne, Flynn and McPhillips had their early morning hours'