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MATTER ALECK P. SOWA v. FRANCIS B. LOONEY (12/11/68)

COURT OF APPEALS OF NEW YORK 1968.NY.43831 <http://www.versuslaw.com>; 244 N.E.2d 243; 23 N.Y.2d 329 decided: December 11, 1968. IN THE MATTER OF ALECK P. SOWA, RESPONDENT,v.FRANCIS B. LOONEY, AS COMMISSIONER OF THE NASSAU COUNTY POLICE DEPARTMENT, ET AL., APPELLANTS Matter of Sowa v. Looney, 28 A.D.2d 893, reversed. Counsel Morris H. Schneider, County Attorney (Seymour S. Ross of counsel), for appellants. James G. Blake for respondent. Jasen, J. Chief Judge Fuld and Judges Burke, Scileppi, Bergan, Keating and Breitel concur. Author: Jasen


Matter of Sowa v. Looney, 28 A.D.2d 893, reversed.

Jasen, J. Chief Judge Fuld and Judges Burke, Scileppi, Bergan, Keating and Breitel concur.

Author: Jasen

 This is an article 78 proceeding to review a determination by the Commissioner of the Nassau County Police Department dismissing petitioner from the police department.

Complainant, a 21-year-old woman, was driving along a lonely road in petitioner's area of patrol at 1:15 in the morning when she was stopped for speeding by a Nassau County police officer. Later that day, complainant accused petitioner, a patrolman in the Nassau County Police Department, of improper sexual conduct toward her while parked with her in his police car.

A police disciplinary hearing concerning this charge was held at which petitioner was present and represented by counsel. A summary of the evidence presented at this hearing follows.

Complainant testified that she was stopped for speeding by petitioner at about 1:15 on the morning of March 17, 1966. She explained to petitioner that her excessive speed resulted from an urgent need to return home to go to the bathroom, and requested him not to give her a ticket. Petitioner then allegedly suggested that complainant relieve herself in the ladies' room of a nearby beach club for which he possessed the key. Upon arriving at the dark and isolated club, complainant learned that petitioner did not have the key. Complainant stated that petitioner then made sexual advances toward her and committed a sexual act in her presence while parked with her in his patrol car. Petitioner then drove complainant back to her car, returned her license and registration, and informed her that his name was "Al Shone" (phonetic) and to mention "Big Al" if she had any trouble with the police in the future. Complainant admitted that she delayed several hours before making an official complaint, did not initially explicitly describe each sexual act petitioner committed, and later attempted to withdraw her complaint. She gave possible public notoriety and fear of a slander suit as reasons for her attempt to withdraw her charge.

Complainant was able to identify petitioner from a lineup of six patrolmen who were identically dressed and one of whom was similar in height, build and physical characteristics to petitioner. The physical description given by complainant before identifying petitioner at the lineup was reasonably accurate as was her description of the area of the incident and the lighting conditions which prevailed there.

Petitioner admitted that he was sometimes called "Big Al," and two witnesses at the hearing referred to him as "Al." However, petitioner denied the misconduct alleged by complainant and maintained that he was in the company of two Hempstead Town Park security guards during most of the time of the alleged incident, leaving twice for short periods not in excess of 10 minutes. The two guards corroborated petitioner's alibi.

Finally, the testimony of Inspector Tobin, petitioner's commanding officer, indicates that petitioner was the only patrolman assigned to the area of the incident at the time complainant testified it took place.

After considering the evidence adduced at this hearing, the Trial Commissioner determined that substantial evidence established that petitioner had made "sexual advances towards a female person and [committed] a sexual act in the presence of said female person while parked with said female in Departmental Car Number 112", and recommended that the Police Commissioner of Nassau County impose appropriate disciplinary action. The Police Commissioner confirmed the findings and recommendations of the Trial Commissioner and ordered petitioner dismissed from the police department. Petitioner then commenced this article 78 proceeding to revoke or modify the Police Commissioner's order dismissing him from the force. The Appellate Division vacated the Police Commissioner's determination because "the admission of the results of the polygraph tests [at the disciplinary hearing] was improper [citation omitted] as was also the admission of the hearsay reports of the 1961 unverified incident which petitioner had never been called upon to refute."

In addition to the reasons given by the Appellate Division for reversal, the petitioner maintains that the Police Commissioner's determination is not supported by "substantial evidence."

There is no dispute that a hearsay report of an unverified 1961 complaint accusing petitioner of sexual misconduct while a patrolman was considered at the disciplinary hearing. However, the record discloses that petitioner failed to object to receipt of this evidence. In the absence of a proper objection at the administrative hearing, the issue of the admissibility of evidence is not preserved for our review. (Matter of Leogrande v. State Liq. Auth., 19 N.Y.2d 418, 424.)

A more difficult problem is presented by the admission in evidence, over objection, of the results of certain polygraph tests (commonly known as lie detector tests) administered to the complainant and two defense witnesses.

Compliance with the technical rules of evidence is not required in disciplinary proceedings before a Police Commissioner or other administrative officer. (Civil Service Law, § 75, subd. 2; Matter of Roge v. Valentine, 280 N. Y. 268, 278-280; cf. 1 N Y Jur., Administrative Law, § 121.) Generally, all relevant, material and reliable evidence which will contribute to an informed result should be admissible in disciplinary proceedings for there is a public interest in ascertaining the truth of charges brought against public employees. (Cf. 1 Benjamin, Administrative Adjudication in the State of New York [1942], pp. 171-181; cf. 2 Davis, Administrative Law Treatise, §§ 14.01-14.07 [1958].) Nevertheless, no essential element of a fair trial can be dispensed with unless waived without rendering the administrative determination subject to reversal upon review. ...


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