Ruskin v. Safir

• Decision Date: 24 June 1999
• Parties: , In re Application of Thomas F. RUSKIN, Petitioner-Respondent, For a Judgment, etc., v. Howard SAFIR, etc., Respondent-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 356

692 N.Y.S.2d 356

257 A.D.2d 268,

In re Application of Thomas F. RUSKIN, Petitioner-Respondent,

For a Judgment, etc., v. Howard SAFIR, etc., Respondent-Appellant.

Supreme Court, Appellate Division, First Department, New York.

June 24, 1999.

James A. Moss, of counsel (Michael G. Albano, on the brief, Herrick, Feinstein, L.L.P., attorneys) for petitioner-respondent.

Ellen Ravitch, of counsel (Stephen J. McGrath and Marta Soja, on the brief, Michael D. Hess, Corporation Counsel of the City of New York, attorney) for respondent-appellant.

BETTY WEINBERG ELLERIN, P.J., MILTON L. WILLIAMS, ANGELA M. MAZZARELLI and DAVID B. SAXE, JJ.

ELLERIN, P.J.

At issue on this appeal are the circumstances under which a court, upon dismissing an appeal as academic, should vacate the underlying order or judgment upon which the appeal was predicated.

The instant appeal was brought by respondent Police Commissioner to contest an order ruling inadmissible under the laws of this State certain eavesdropping evidence that had been obtained in conformance with the laws of another jurisdiction. The evidence at issue was acquired during a Federal criminal investigation in Louisiana and was sought to be used in a disciplinary proceeding against petitioner, a detective with the New York Police Department [the "Department"]. The proceeding, brought by respondent as Commissioner of the Department, is based on charges that petitioner participated in a scheme with one Gary Lane Lowery of Louisiana to defraud various airlines.

According to the allegations upon which the charges were based, between November of 1992 and May of 1993 Henry Volentine, a neighbor of Lowery in Louisiana, used a scanner to intercept radio waves from Lowery's cordless telephone, which was not illegal under Louisiana law at the time in question. As a result of the contents of overheard conversations, Volentine came to believe that Lowery was fraudulently acquiring commercial airline tickets and contacted the local sheriff's office. Subsequently, the FBI was contacted, and Volentine agreed to tape Lowery's cordless telephone conversations, in exchange for which Volentine received confidential informant status and was paid $750.

Based on numerous taped telephone conversations, Lowery was arrested by Federal authorities in Louisiana based on his alleged participation in a conspiracy to defraud various commercial airlines. The tapes demonstrated, in effect, that Lowery would telephone the airlines, falsely represent that he was a travel agent, and obtain tickets for "customers" that he would then sell for a fraction of their worth, without paying anything to the airlines. Among the tape recordings were numerous telephone conversations between Lowery, in Louisiana, and petitioner, in New York, arranging for petitioner to pick up pre-paid airline tickets at various airport ticket counters.

Upon his arrest in Louisiana, Lowery offered to provide assistance to the FBI, agreeing to testify that all of his "customers", including petitioner, had known that the tickets they were buying were obtained fraudulently from the airlines.

On September 19, 1996, based on Lowery's Grand Jury testimony, an indictment was brought against petitioner in the Western District of Louisiana Federal Court charging that petitioner conspired with Lowery to fraudulently obtain airline tickets through telephone conversations, in violation of Federal law. As soon as this indictment was returned, respondent-appellant brought the instant disciplinary proceeding against petitioner charging him with violating Department regulations based on the same allegations upon which the indictment was based.

After a Departmental inquiry, further proceedings on the disciplinary matter were held in abeyance pending resolution of the Federal charges. In March, 1997, the Federal District Court in Louisiana before which the indictment against petitioner was pending granted his motion to suppress both the tapes and the testimony of witnesses who were parties to the taped telephone conversations pursuant to Federal law.

The Department prosecutor thereupon advised the presiding officer that, because the tapes had been suppressed by the Louisiana Federal Court, the Department would not offer the tapes themselves as evidence. However, he asserted that the Department still intended to call as witnesses Lowery, Ramona Ridge, who allegedly introduced petitioner to Lowery, FBI Agent Daniel Westcott and a case officer from the Department's Internal Affairs Bureau who had been monitoring the Federal criminal case.

Petitioner then brought the instant motion for a preliminary injunction, arguing that the Department should be precluded not only from using the tapes but from hearing any testimony of witnesses who were parties to the taped telephone calls or whose identity was derived from the taped telephone calls. Although, after this motion was brought, the Louisiana Federal District Court's order suppressing the tape recordings was reversed by the United States Court of Appeals for the Fifth Circuit in an unpublished opinion (United States v. Ruskin, 145 F.3d 360 (5th Cir.1998)) ¹, the motion court in this matter nevertheless granted the preliminary injunction suppressing

all recorded telephone conversations pertaining to discounted airline tickets between Lowery and anyone else and all information derived therefrom including, but not limited to, testimony of Lowery, FBI agent Daniel West, Ramona Ridge and anyone from the Police Department's Internal Affairs Unit who has been monitoring this case.

Respondent appealed. However, after the appeal was heard, but before it was decided, petitioner informed this Court that he had voluntarily resigned from the Police Department. According to respondent, this action on petitioner's part was completely unilateral. Both parties agree that the appeal is therefore rendered academic and should be dismissed. Respondent, however, argues that we should also vacate the order of the trial court holding that the evidence was inadmissible, since respondent was deprived of its opportunity to argue on appeal that such decision was wrong and to eradicate any precedential effect it will thereby have.

"It is a fundamental principle of our jurisprudence that the power of a court to declare the law only arises out of, and is limited to, determining the rights of persons which are actually controverted in a particular case pending before the tribunal." (Matter of Hearst Corp. v. Clyne, 50 N.Y.2d 707, 713, 431 N.Y.S.2d 400, 409 N.E.2d 876, citing Matter of State Ind. Comm., 224 N.Y. 13, 16, 119 N.E. 1027 and California v. San Pablo & Tulare R. R., 149 U.S. 308, 314-315, 13 S.Ct. 876, 37 L.Ed. 747).

In accord with this principle, it is the general policy of the courts of this State where an appeal has been rendered moot to simply dismiss the appeal (see, e.g., Matter of Roadway Express v. Commissioner of N.Y. State Dept. of Labor, 66 N.Y.2d 742, 497 N.Y.S.2d 358, 488 N.E.2d 104; Matter of Barbara C., 64 N.Y.2d 866, 487 N.Y.S.2d 549, 476 N.E.2d 994; Wisdom v. Wisdom, 111 A.D.2d 13, 488 N.Y.S.2d 682). However, on occasion, such dismissal has been accompanied by vacatur of the order appealed. The decision that vacatur is appropriate in such a matter is a discretionary one (see, Paramount Communications v. Gibraltar Cas. Co., 212 A.D.2d 490, 623 N.Y.S.2d 850), and in many cases the vacatur has not been accompanied by an explanation of the court's reasons (see, e.g., Matter of Park E. Corp. v. Whalen, 43 N.Y.2d 735, 401 N.Y.S.2d 791, 372 N.E.2d 578; Wilmerding v. O'Dwyer, 297 N.Y. 664, 76 N.E.2d 325; see also, Karger, Powers of the New York Court of Appeals, § 71(a), at 435 [3d ed.] ["there seems to be no uniform pattern for determining when a disposition of that kind will be made and when, instead, the appeal will simply be dismissed"] ).

A situation in which the Court of Appeals has held that vacatur is appropriate is where an intervening decision has been rendered in a separate matter that is relevant to the matter at...