Sewell v. City of New York

• Decision Date: 14 April 1992
• Citation: 182 A.D.2d 469,583 N.Y.S.2d 255
• Parties: William A. SEWELL, Petitioner-Respondent, v. The CITY OF NEW YORK, The New York City Police Department, License Division, Respondents-Appellants.
• Court: New York Supreme Court — Appellate Division

Page 255

583 N.Y.S.2d 255

182 A.D.2d 469

William A. SEWELL, Petitioner-Respondent, v. The CITY OF NEW YORK, The New York City Police Department, License Division, Respondents-Appellants.

Supreme Court, Appellate Division,

First Department.

April 14, 1992.

Before MILONAS, J.P., and WALLACH, KASSAL and RUBIN, JJ.

MEMORANDUM DECISION.

Order and judgment (one paper) of the Supreme Court, New York County (Franklin R. Weissberg, J.), entered on January 4, 1991, which granted petitioner's petition pursuant to Article 78 of the CPLR to set aside respondents' determination to revoke his pistol license, is unanimously reversed on the law and the petition denied and dismissed, without costs or disbursements.

Petitioner William Sewell, a retired detective, had his pistol license suspended by respondent New York City Police Department on March 23, 1988, and an administrative hearing ensued. The reason for respondents' action was information received concerning jury tampering in the matter of United States v. Ruggiero, a federal criminal prosecution. The United States District Court for the Eastern District of New York had declared a mistrial due to, among other things, evidence that petitioner's services had helped in identifying the members of the supposedly anonymous jury. In that regard, confidential informants advised the Federal Bureau of Investigation (FBI) that petitioner had engaged in jury tampering in the subject proceeding. Since the case involved such charges as racketeering and heroin distribution, an anonymous jury had been impaneled. After it conducted an examination of the allegations, the government brought the results of its investigation to the attention of the District Court, which interviewed each juror in chambers and held hearings. Accordingly, the court determined that there was a great likelihood that the jury panel had been compromised. The inquiry into jury tampering in the Ruggiero trial, as well as press reports on the subject, prompted a probe into petitioner's fitness to possess a retired Member of the Service (MOS) pistol license, at the conclusion of which he was directed to surrender his weapons.

At the administrative hearing, Special Agent John F. Flanagan testified that of the approximately 13 years that he had been employed by the FBI, he had been assigned to organized crime for the last 10 of those years. As part of his duties, he investigated the claims of jury tampering in United States v. Ruggiero, in which Angelo Ruggiero, Gene Gotti and other members of the Gambino crime family were defendants. Several months into the trial, the FBI learned from confidential informants whose information had proved credible in the past that defendants, including Gene Gotti, were attempting to identify and contact jurors. The informant told Agent Flanagan that petitioner had been retained to identify jurors so that someone could "attempt to approach them, bribe them, or by some means influence them", and he was aware that the purpose was to compromise the jury. Moreover, petitioner, who had worked for defense counsel on a prior trial of John Gotti, would follow jurors out of the courtroom in order to tail them to a car or home.

In addition, Agent Flanagan stated that when an individual named Gary Barnes was dismissed from the jury because he was not a citizen of the United States, he was able to corroborate the confidential informants' account. Upon interviewing Barnes, Agent Flanagan discovered that the former had been approached by a co-worker, Melvin Rosenberg, who offered him a BMW in exchange for details about the jury. Although Barnes did not know petitioner by name, he later positively identified a photograph of him as someone whom he had observed in the courtroom a couple of times during the trial. Further, Barnes described an incident that had occurred in the municipal parking garage when he was walking with another juror to her car and petitioner came up alongside Barnes, and he also indicated having seen petitioner talking with a defense lawyer during a pause in the trial. The other juror was questioned by Agent Flanagan and confirmed Barnes' version. While Rosenberg was quizzed by Agent Flanagan as well, he denied any acquaintance with Gotti or tendering a BMW to Barnes; he did, however, recall a conversation dealing with the jury that he characterized as a "lark." Flanagan also testified that petitioner and his attorney met with Rosenberg in a restaurant concerning a grand jury subpoena served upon Rosenberg. In Agent Flanagan's opinion, petitioner had followed Barnes, and then Rosenberg, believing that he was still on the jury, made the overture of the BMW in exchange for information about the jury. Petitioner, however, denied to Agent Flanagan that he had ever been asked to identify an anonymous juror and merely depicted himself as a paralegal primarily engaged in serving subpoenas.

Petitioner took the same position during his testimony at the administrative hearing. He asserted that since his retirement from the Police Department, he had been doing such paralegal work for attorneys as serving subpoenas, locating and interviewing witnesses and taking statements from clients. Indeed, he did not have a private investigator's license. Petitioner admitted having worked on the John Gotti case but denied having ever been assigned to follow anyone. His attendance at the Ruggiero trial on several occasions was attributed to the necessity of picking up some legal material or idle curiosity. Finally, petitioner recalled accompanying his lawyer to the restaurant in question but claimed that he never saw Rosenberg and had no idea who he was.

The hearing officer, evidently deeming the testimony of Agent Flanagan more persuasive than that of petitioner, issued a report recommending that petitioner's pistol license be revoked. Petitioner thereafter appealed the finding to the...