People v. Gallagher

• Decision Date: 24 October 1988
• Citation: 533 N.Y.S.2d 554,143 A.D.2d 929
• Parties: The PEOPLE, etc., Appellant, v. John GALLAGHER and Albert Sinram, Respondents.
• Court: New York Supreme Court — Appellate Division

Page 554

533 N.Y.S.2d 554

143 A.D.2d 929

The PEOPLE, etc., Appellant, v. John GALLAGHER and Albert Sinram, Respondents.

Supreme Court, Appellate Division Second Department.

Oct. 24, 1988.

Stephen P. Scaring, Mineola (Laurie S. Hershey, of counsel), for appellant.

Clayton, Miller & Mayer, Hauppauge (David W. Clayton, of counsel), for respondent Gallagher.

James F. Clarke, Westbury (Stephen M. Spahr, of counsel), for respondent Sinram.

Susan E. Shepard, New York (Richard C. Daddario, of counsel), for Temporary Com. of Investigation of the State of New York, amicus curiae.

Before BROWN, J.P., and KUNZEMAN, RUBIN and EIBER, JJ.

MEMORANDUM BY THE COURT.

Appeal by the People from so much of an order of the Supreme Court, Suffolk County (Rohl, J.), dated July 6, 1988, 531 N.Y.S.2d 970, as, upon the separate motions of the defendants to dismiss the indictment, declared the appointment of Special District Attorney Stephen P. Scaring null and void and dismissed the indictment.

ORDERED that the order is reversed, on the law and the facts, the defendants' motions to dismiss the indictment are denied, the indictment is reinstated and the matter is remitted to the Supreme Court, Suffolk County, for further proceedings.

The defendant Gallagher, the former Chief of Detectives of the Suffolk County Police Department, was indicted for offering a false instrument for filing in the first degree, tampering with physical evidence, conspiracy in the fifth degree and official misconduct. The codefendant Sinram, a police officer assigned to the Suffolk County Police Narcotics Squad, was indicted on the official misconduct count only. The indictment alleged that Gallagher and Sinram had approved a police department "2042" report in which Timothy Gallagher, the defendant Gallagher's son, was falsely described as a confidential informant and which falsely reported the activities that he allegedly performed in that role. The indictment charged that the younger Gallagher had not been a confidential informant and that the report had been filed with the intent that it would be used in a criminal proceeding against Gallagher's son, who had been arrested for the sale of a controlled substance, and would result in a reduction in the charge and a recommendation for leniency.

Following the disposition of the criminal case against Timothy Gallagher, in which he pleaded guilty to criminal possession of a controlled substance in the seventh degree and was sentenced to a three year term of probation and a fine of $500, the Temporary Commission of Investigation of the State of New York (hereinafter the Commission), which had been investigating allegations of misconduct and deficient administration involving Suffolk County Law enforcement officials, examined the charges with respect to the Gallagher matter and, thereafter, the Suffolk County District Attorney applied, pursuant to County Law § 701, for an order appointing a Special District Attorney to investigate and prosecute the case. The affidavit submitted in support of the District Attorney's application stated that members of the District Attorney's office, including the District Attorney himself, were material witnesses in the matter. The Supreme Court granted the application, disqualified the District Attorney and his assistants from taking any further action with respect to the investigation and prosecution of possible charges against Suffolk County law enforcement officials or personnel in connection with the prosecution and ultimate disposition of the Gallagher case and any related matters, and appointed Harv Arnoff as a Special District Attorney to investigate and prosecute any charges.

Following Arnoff's appointment, the Chairman of the Commission, David Trager, wrote to Justice Stark to inform him that despite a commitment by the Suffolk County District Attorney's Office to inform the Commission in advance of any application for the appointment of a Special District Attorney, the application resulting in Arnoff's appointment had been made without notice to the Commission and that, as a result, the Commission had been precluded from expressing an opinion with respect thereto. Trager then expressed his disapproval of the appointment of Arnoff, citing his purported lack of prosecutorial experience and his decision to hire a detective assigned to the Suffolk County District Attorney's Office, the very office whose conduct was involved in the allegation. Accordingly, he urged Justice Stark to reconsider the Arnoff appointment.

Justice Stark thereafter vacated and revoked Arnoff's appointment, stating that after he had appointed Arnoff, it became evident that Arnoff did "not enjoy the confidence of the State Commission of Investigation" and that the investigation and prosecution of the Gallagher matter required the cooperation of the Commission since much of the evidence had been obtained by the Commission during its own investigation. The District Attorney thereupon reapplied for the appointment of a Special District Attorney and Justice Stark appointed Stephen P. Scaring, who subsequently presented the evidence to the Grand Jury which resulted in the indictment of the defendants herein.

Thereafter, the defendants moved to...