Gardner v. Constantine

140 Misc. 2d 894, 531 N.Y.S.2d 975, 1988 N.Y. Misc. LEXIS 512
CourtNew York Supreme Court
DecidedJuly 9, 1988
StatusPublished
Cited by1 cases

This text of 140 Misc. 2d 894 (Gardner v. Constantine) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gardner v. Constantine, 140 Misc. 2d 894, 531 N.Y.S.2d 975, 1988 N.Y. Misc. LEXIS 512 (N.Y. Super. Ct. 1988).

Opinion

[895]*895OPINION OF THE COURT

Michael W. Duskas, J.

THE PARTIES

The petitioner is the duly elected District Attorney of St. Lawrence County. Respondent Constantine is the Superintendent of the New York State Police; the respondent DeFrancesco is Chief Inspector of the New York State Police; the respondent Hook is Deputy Chief Inspector of the New York State Police; and respondent Lawliss is Commander of Troop B of the New York State Police, which troop encompasses St. Lawrence County.

THE FACTS

Petitioner prosecuted an indictment in the County Court of St. Lawrence County against one James Whitton. Mr. Whitton had been indicted by a St. Lawrence County Supreme Court Grand Jury for his involvement in a May 1987, two-vehicle fatal accident, which had been investigated by members of the New York State Police. The trial of that indictment resulted in a verdict of acquittal. There was conflicting evidence presented at that trial as to whether or not the defendant Whitton was the operator of the motor vehicle in which he and another were riding.

On or about February 23, 1988, petitioner contacted respondent Lawliss, as Commander of Troop B, and requested that he meet with him in Canton, New York. On February 24, 1988, petitioner and Lawliss conferred and at that time petitioner made allegations concerning members of the New York State Police with regard to their conduct during the investigation and trial of the Whitton matter. Petitioner specifically requested that the New York State Police conduct an internal investigation. Petitioner’s allegations included accusations that two members of the State Police may have committed perjury at the trial. An internal administrative investigation was immediately initiated by respondent Constantine.

The investigation was conducted by respondent Hook who was designated by respondent Constantine to conduct the investigation. Deputy Chief Inspector Hook interviewed dozens of witnesses, examined or reexamined physical evidence, and, according to the respondents, "assembled virtually every known document relating to the case.”

By letter dated March 10, 1988, addressed to respondent [896]*896Constantine, the petitioner acknowledged that he had been interviewed by Deputy Chief Hook and was willing to cooperate in the investigation. Petitioner also agreed to hold any Grand Jury investigation in abeyance until such time as the internal investigation was completed. Petitioner requested that the results of the investigation be made available to him, to include the names of the members disciplined, if any, and the specifics of the discipline.

Superintendent Constantine responded to that March 10th letter with a letter dated March 22, 1988, which stated in part: “As you know, we have begun an internal, administrative investigation of the conduct of several of our members relating to this investigation and trial. It is our longstanding policy that criminal investigations and prosecutions must take precedence over our internal, administrative needs. For this reason, and to avoid any possible perception of our attempting to interfere improperly with the criminal process, we will defer resolution of our internal, administrative proceeding until your criminal investigation has been concluded, including any prosecution which may result.”

This letter was responded to by a letter from the petitioner dated April 8, 1988, addressed to Superintendent Constantine, which requested that the investigation be completed without delay, and indicated to the Superintendent that it was the petitioner’s position that the Superintendent was required by law to complete the disciplinary investigation.

THIS PROCEEDING

By notice of petition and petition dated April 14, 1988, a special proceeding pursuant to CPLR article 78 was commenced. Petitioner seeks an order in the nature of mandamus directing the respondents to complete the internal investigation. Service of the petition and notice of petition was admitted by counsel for the New York State Police on April 18, 1988. The court now has before it a motion brought on by notice of motion dated May 6, 1988, in which the respondents seek an order pursuant to CPLR 3211 dismissing the petition on the grounds that the petitioner does not have standing, and on the further grounds that the petition fails to state a cause of action.

In support of the motion, respondents have submitted an affidavit of Katherine Gladstone, Assistant Attorney-General, duly sworn to May 6, 1988, a memorandum of law, and the [897]*897affidavit of Jeffrey Chamberlain, Esq., counsel to the New York State Police, duly sworn to May 6, 1988. Petitioner has submitted an affirmation dated May 12, 1988, in opposition to the motion.

By decision and order of this court dated May 31, 1988, an application by the Police Benevolent Association of the New York State Troopers, Inc., for an order permitting intervention, was denied.

APPLICABLE STATUTES AND REGULATIONS

Section 215 (3) of the Executive Law provides in part that the Superintendent shall make rules and regulations, subject to approval by the Governor, for the discipline and control of New York State Police.

Specific rules and regulations have been promulgated by the Superintendent pursuant to this directive, and are embodied in 9 NYCRR parts 475-479. In particular, 9 NYCRR 479.1 et seq. mandates the procedures to be used by commanding officers whenever accusations are made by any person, or information is received that a member has violated any rule, regulation, instruction, or order of the New York State Police. Internally, the New York State Police has provided in its administrative manual, in article 9, further procedures required to be followed upon the receipt of a personnel complaint.

The administrative manual article 9 is introduced with the following statement:

"The Superintendent recognizes that due to the nature of our police work duties, obligations and responsibilities (that encompass the exercising of authority in positions of public trust), public criticism and complaints against our personnel will occur from time to time.

"To protect the people of the State, our Members and employees, and the reputation of the NYSP as a responsible law enforcement agency, the Superintendent has a responsibility to cause a prompt, thorough investigation to be made of allegations and complaints received.”

issue: standing

Respondents initially take the position that the petitioner lacks standing to bring this proceeding. They argue that petitioner has not cited any statute which authorizes him to [898]*898maintain the proceeding on behalf of others, or that he has the right individually to seek the relief requested.

Petitioner’s position is that the respondents do not dispute the fact that it was he who initially provided information concerning the conduct of the members complained of which caused an investigation to be commenced. In essence, his argument is that if he as the complainant has no standing, then no one would be in a position to attempt to force the Superintendent to perform what he is ministerially compelled to do, that is, to conduct and complete an internal investigation.

Petitioner’s role in this proceeding can be analyzed from three different perspectives.

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Related

Gardner v. Constantine
142 Misc. 2d 623 (New York Supreme Court, 1989)

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Bluebook (online)
140 Misc. 2d 894, 531 N.Y.S.2d 975, 1988 N.Y. Misc. LEXIS 512, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gardner-v-constantine-nysupct-1988.