Sabatini v. Kirwan

• Citation: 348 N.Y.S.2d 379,42 A.D.2d 1022
• Parties: In the Matter of Louis N. SABATINI, Petitioner, v. William E. KIRWAN, as Superintendent of New York State Police, Appellant.
• Decision Date: 25 October 1973
• Court: New York Supreme Court Appellate Division

Page 379

348 N.Y.S.2d 379

42 A.D.2d 1022

In the Matter of Louis N. SABATINI, Petitioner, v. William E. KIRWAN, as Superintendent of New York State Police, Appellant.

Supreme Court, Appellate Division, Third Department.

Oct. 25, 1973.

William Goffen, New York City, for petitioner.

Atty. Gen. Louis J. Lefkowitz (William J. Kogan, Albany, of counsel), for respondent.

Before GREENBLOTT, J.P., and COOKE, SWEENEY, MAIN and REYNOLDS, JJ.

MEMORANDUM DECISION.

Proceeding pursuant to CPLR article 78 (transferred to the Appellate Division of the Supreme Court in the Third Judicial Department by order of the Supreme Court, entered in Albany County) to review a determination of the Superintendent of the New York State Police which ordered petitioner's dismissal from the Division of State Police.

Petitioner, a member of the New York State Police for 20 years was charged with several particulars of misconduct in the performance of his duties and six of the charges against him were sustained. Those sustained were based on factual specifications alleging: that petitioner and three other State Police officers conspired with members of a gambling syndicate to permit, protect and further gambling interests in Rockland County; that he accepted bribes and gratuities in furtherance thereof; that he participated in illegal or improper 'accommodation arrests' of three individuals as part of the scheme to conceal the existence of the conspiracy; and that he disclosed the existence of a wiretap on four of the syndicate's telephones to the gamblers.

Prior to the institution of departmental charges, petitioner had been indicted by a federal grand jury on related charges with other alleged participants in the conspiracy. However, the indictment was severed as to him and, ultimately, was dismissed without prosecution. The other alleged participants either pleaded guilty or were convicted after trial.

In this proceeding, petitioner challenges the findings of the respondent as unsupported by substantial evidence in the record. We agree. A review of the record reveals that the evidence against the petitioner, except for two items, consisted entirely of hearsay recitations of declarations by gamblers, corrupt officers and others of unsavory backgrounds.

Such hearsay evidence was adduced on the theory that since petitioner was allegedly part of a conspiracy, the declarations and admissions of co-conspirators, made in the furtherance of the enterprise and while the enterprise was pending, were admissible against them all (People v. Ryan, 263 N.Y. 298, 305, 189 N.E. 225, 227). However, it is axiomatic that before the admissions or declarations of co-conspirators are introduced against another, the existence of the conspiracy itself must either be admitted or proved (Richardson on Evidence (Prince--9th ed.), § 320). These admissions and declarations cannot be admitted to prove the fact of the conspiracy (Lent v. Shear, 160 N.Y. 462, 55 N.E. 2; Cuyler v. McCartney, 40 N.Y. 221, 228, 229). As stated in Lent v. Shear, supra at 471, 55 N.E. at 4:

The testimony of Mr. Shear was not admissible as the declaration of a co-conspirator, because when it was received no evidence had been given tending to prove a conspiracy, and the declaration of an alleged conspirator cannot be admitted against an alleged co-conspirator for the purpose of proving the conspiracy itself.

Here, the proof of the existence of the conspiracy was a hearsay declaration by a gambler to petitioner's superior, whom he was attempting to bribe, that he had a 'marriage' with four State Police officers including petitioner. The gambler, Peter Variano, did not explain what he meant by the term, but the superior, Senior Investigator Colligan, testified that '(a)t that time I felt that it was an agreement that he had made between State Police and that they would receive some consideration for the agreements' (emphasis supplied). In a criminal proceeding, this evidence would not be admissible to establish the existence of the conspiracy. We need not, at this time, address ourselves to the issue of whether the evidentiary requirements for proof of a conspiracy and for the admission of declarations of co-conspirators apply to administrative hearings. It is clear that, although compliance with technical rules of evidence is not required in disciplinary proceedings before an administrative officer, nevertheless, no essential element of a fair trial can be dispensed with unless waived without rendering the administrative determination subject to reversal upon review (Matter of Sowa v. Looney, 23 N.Y.2d 329, 333, 296 N.Y.S.2d 760, 763, 244 N.E.2d 243, 245). It would be a manifest deprivation of a fair hearing to petitioner if, in this case, we were to accept the fact of the conspiracy without any other reliable proof of its existence. Once this fact is accepted, the remaining hearsay declarations of the alleged co-conspirators would become competent proof of petitioner's participation in the conspiracy without affording him any effective right of cross-examination to refute the charges. Particularly in view of the disreputable character of the declarants in this case and of the great stake petitioner obviously has in the outcome of the hearing, proof of the existence of the...