Appendix — Branti v. Finkel
Supreme Court brief1980
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MAS RODAK, IR, CLERK :
APPENDIX ——a i
Iu the Supreme Coot of the United States
OCTOBER TERM, 1979
—o—
No. 78-1654
PETER BRANTI, As Public Defender
of Rockland County
Petitioner,
vs
AARON FINKEL AND ALAN TABAKMAN,
Responcents.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT
OF APPEALS FOR THE SECOND CIRCUIT
PETITION FOR CERTIORARI FILED
APRIL 30, 1979
CERTIORARI GRANTED JUNE 25, 1979
APPENDIX
IN THE SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1979
No. 78-1654
PETER BRANTI, as Public Defender
of Rockland County,
Petitioner
o<—V7. mee
AARON FINKEL and ALAN TABAKMAN,
Respondents
ON WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE
SECOND CIRCUIT
PETITION FOR CERTIORARI FILED
APRIL 30, 1979
CERTIORARI GRANTED JUNE 25, 1979
Ro PRL:
-i-
TABLE OF CONTENTS
Page
Relevant Docket Entries Vv
Plaintiffs’ Order to Show Cause
with Temporary Stay 1-17
Complaint 18
Answer 22
Opposing Affidavits 24-44
Excerpts from Testimony: 45
Preliminary Injunction
Hearing, 1/6/78
Excerpts from Testimony of:
* FRANK P. BARONE
Direct 46
Cross 56
Redirect 74
AARON FINKEL
Direct 76
Cross 89
Redirect 102
Recross 104
ALAN TABAKMAN
Direct 105
Cross 110
Redirect 113
WILLIAM WRAY, JR.
' Direct 113
Cross 117
Redirect . 119
*NOTE: All witnesses are for Plaintiffs
unless indicated otherwise.
Page
THEODORE DUSANENKO
Direct 120
Cross 126
Redirect 130
JAMES K. ANDERSON (For Defendant)
Direct 133
Cross 141
PETER BRANTI (For Defendant)
Direct 145
Cross 163
Redirect 178
Excerpts from Plenary Trial Testimony of:
FRANK P. BARONE
Cross 180
Redirect ' 182
HARRIET CORNELL
Direct 184
Cross 206
EDWARD GORMAN
Direct 211
JOHN MEEHAN
Direct 216
Cross 222
FRANCIS MASCOLA
Direct 235
Cross 241
JOHN McCABE
Direct 242
Cross 247
-iii-
GERALD BLUMENFELD
By the Court
Direct
COLLOQUY
ANNE O'SULLIVAN
Direct
Cross
JAMES DAMIANI
Direct
PHILIP ROTELLA
Direct
RICHARD J. SULLIVAN
Direct
Cross
SAMUEL COLMAN
Direct
Cross
By the Court
Cross
Redirect
ROBERT SELTZER
Direct
AARON FINKEL
Direct
PETER BRANTI (For Defendant)
Direct
Cross
| 265
276
277
285
288
295
305
317
318
329
337
352
380
Please note that the opinions and
judgments of the United States District
Court and the United States Circuit
Court of Appeals for the Second Circuit
have already been printed as appendix
to the Petition For Certiorari at
pages 1A through 32A of said appendix.
-V~=
RELEVANT DOCKET ENTRIES
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
Docket No. 78 Civ. 14
Date NR. Proceedings
1-3-78 1 Complaint.
1-4-78 2 Plaintiffs' exparte motion
for Temporary Restraining
Order and Preliminary
Injunction.
1-12-78 5 Affidavit in opposition to
Plaintiffs' application.
9-5-78 20 Answer.
9-30-78 21 Opinion granting injunction.
10-10-78 23 Judgment for Plaintiffs
issuing permanent in-
junction
10-10-78 24 Notice of Appeal.
11-1-78 26 Stipulation re: transmittal
of sealed portions of trial
record to United States
Court of Appeals.
ee ew ae
— atta aan
-l-
U. S. DISTRICT COURT
SOUTHERN DISTRICT, NEW YORK
Sse eee ee ees eae aw ae eas eam aw ee eee oew a xX
AARON FINKEL and ALAN
TABAKMAN, 78-Civ-14
Plaintiffs, Judge Broderick
against ORDER TO SHOW
CAUSE FOR
PETER BRANTI as Public TEMPORARY
Defender, Rockland County, RESTRAINING
and SAMUEL COLEMAN, Chairman, ORDER & A
and JOHN MURPHY, DIANE BELJEAN, PRELIMINARY
IRWIN BERNSTEIN, HEZEKIAH INJUNCTION
EASTER, THEODORE DUSANENKO,
JAMES DAMIANI, EUGENE GROGAN,
THOMAS MORAHAN, ANNE O'SULLIVAN,
ISAAC GOODFRIEND, SANFORD
RUBENSTEIN, HERBERT REISMAN,
SAMUEL ZELMAN GDANSKI, JOHN
MEEHAN, PHILIP ROTELLA, JOHN
GRANT and RICHARD SULLIVAN,
comprising the Rockland County
Legislature,
Defendants.
This cause came on to be heard on the
application of plaintiffs upon the verified
complaint herein and the affidavits of AARON
FINKEL and DAVID MAC RAE WAGNER attached
thereto, for a temporary restraining order,
pursuant Rule 65 FRCP; and, it appearing
to the court therefrom that immediate and
irreparable injury, loss and damage will
result to the plaintiffs before notice can
~2<
be given and the defendants or their
attorneys can be heard in opposition to
the granting of a temporary restraining
order for the reason that the loss of
first amendment freedoms for even minimal
periods of time constitutes irreparable
injury, it is
ORDERED, that defendants, their agents,
servants, employees and attorneys and all
persons in active concert or participation
with them are hereby restrained from
terminating or attempting to terminate, alter,
change or in any way affect plaintiffs current
employment status as of December 31, 1977 as
Assistant Public Defenders for the County of
Rockland, and it is further
ORDERED, that this orcer expire at 10 a.m.
on 1/13, 1978, unless~within said time it is
for good cause shown extended for a longer
period, or unless defendant consents that it
may be extended for a longer period; and it
is further
ORDERED, that Plpff file a bond as security
in the amount of $500.00 by January 6, 1978;
ORDERED, that plaintiffs' motion for a
preliminary injunction be set for hearing on
1/6, 1978, at 4:00 p.m., of that day or as
a anes PERE 8
=3-
soon thereafter as counsel can be heard, in
the United States District courtroom #401 in
the city of New York, state of New York;
before Honorable Vincent Broderick;
FURTHER ORDERED, that copies of this
order be personally served upon Peter Branti
and Samuel Coleman on or before 12 Noon on
1/5/78 and that copies thereof be mailed
special delivery to each of the other
named defendants on or before 1/4/78 at
5:00 p.m.
This order issued at 10:20 a.m. this
4th (1/4/78) day of January, 1978.
S/
UNITED STATES DISTRICT
JUDGE
————
APPLICATION FOR
TEMPORARY
RESTRAINING
ORDER
Same Caption
Plaintiffs apply to the court, upon the
verified complaint herein and the affidavits
of AARON FINKEL and DAVID MAC RAE WAGNER
attached hereto, for a temporary restraining
order against the above-named defendants,
their agents, servants, attorneys and privies,
pending the hearing and decision of plaintiffs'
motion for a preliminary injunction, enjoining
them from terminating or attwipting to
terminate, alter, change or in any way
affect plaintiffs current employment
status as Assistant Public Defenders for
the County of Rockland.
Yours, etc.
FREEDMAN, WRAY, WAGNER,
& TABAKMAN & FINKEL
Attorneys for Plaintiffs
11 Stokum Lane
New City, New York 10956
(914) 638 - 1400
Dated: New City, NY
January 3, 1978
ee re OTS SSCS OHEEG +! OO Orme ite
Same Caption AFFIDAVITS IN
SUPPORT OF
TEMPORARY
RESTRAINING ORDER
STATE OF NEW YORK )
COUNTY OF ROCKLAND "aa
DAVID MAC RAE WAGNER, being duly sworn,
deposes and says: )
i. Deponent is an attorney at law admitted
to practice in the United States District Court,
Southern District New York, is fully familiar
with the facts and circumstances surrounding
this action, and makes this affidavit in
support of plaintiffs application for
Temporary Restraining Order.
2. Plaintiffs bring this action pursuant
to the first and fourteenth amendments of
the Constitution of the United States
interpreted by the United States Supreme
Court in ELROD vs BURNS, 427 US 347, 96
S. Ct., 2673, 49L Ed.2 547.
Plaintiffs are non-policy making, non-
confidential government employees satis-
factorily performing their jobs and, there-
fore, cannot be discharged or threatened
with discharge solely because of their
political beliefs, which proposition
afte
stated in the concurring opinions of
Justices STEWART and BLACKMUN represents
the “lowest common denominator" of the
ELROD ruling, Ramey vs Harber, 431 F.
Supp. 657 (D.C. W.D. Va. 1977, P. 662).
3, Plaintiffs' threatened discharge by
defendants threatens their First Amendment
freedoms and injunctive relief therefore
clearly lies; "The loss of First Amendment
freedoms, for even minimal periods of time,
unquestionably constitutes irreparable
injury", Elrod vs Burns, Supra, P. 373.
Plaintiffs should not be required to
give further notice to defendants of this
application for a temporary restraining
order. As set forth in exhibit A annexed
hereto, and the complaint herein, plaintiffs
notified defendants of their intention to
remain employed in their present capacity;
plaintiffs further, on January 3, 1978,
reported for duty and were subsequently
asked to return their files and informed
that their respective court calendars for
which they were to represent the Public
Defender's office had been adjourned.
WHEREFORE, it is respectfully submitted
that a temporary restraining order be issued
Phe RN ROO Ls ET tk
RE tL a OR ORE ee or rene ee
~ =
restraining the defendants, their agents
and employees, from terminating or
attempting to terminate, alter, change or
in any way affect plaintiffs current en-
ployment status as Assistant Public
Defenders for the County of Rockland.
S/ eee
DAVID MAC RAE WAGNER
Sworn to before me this
3rd day of January, 1978.
SZ
Same Caption AFFIDAVIT
STATE OF NEW YORK )
COUNTY OF ROCKLAND) ss:
AARON FINKEL, being duly sworn,
deposes and says:
For the past seven years I have served
without interruption as an Assistant Public
Defender of Rockland County, part-time and
full-time, under two Public Defenders of
different political persuasion and legisla-
tures of both Democrat and Republican con-
trol. I am 43 years old, have been employed
in public positions for more than 20 years
and have a vested pension interest.
Almost incredibly, my employment has been ter-
minated without notice or hearing establishing just
cause, and solely for political reasons, in viola~-
tion of the First and Fourteenth amendments
to the Constitution of the United States. On
December 30, 1977, I joined with Assistant
Public Defender Alan Tabakman in serving a
demand for clarification and request to be
continued. On January 3, 1978 Mr. Tabakman
and I reported for work and obtained our
files for the day but were asked to return
-9-
them. We did. We have still not been of-
ficially notified that we were terminated
but our names have been replaced with others
on the wall of the Public Defender's Office
where messages and other memoranda are left
for us.
In December, 1977 I was shocked to read
in the Rockland County Journal News, the
local newspaper, that the Democratic Caucus
of the Rockland County Legislature had chosen
various persons to replace all but two of the
Assistant Public Defenders. I was one of
those named to be replaced. A copy of that
article is annexed. Never was I otherwise
advised, formally or informally, that I was
to be terminated or the reasons therefor.
When I was first employed as Assistant
Public Defender, March 26, 1971, a duly
sworn appointment dated March 29, 1971 was
filed by Arnold Becker, Public Defender, with
the County Clerk of Rockland County. A copy
of that sworn and filed appointment is
annexed. It would. appear that my appointment
was no less than permanent as permitted by
Section 716 of the County Law af the
State of New York. \
Concurrently with my swearing in, the
ee eeerereroerrwrreenanaeeeereeere SS Sl
-10-
Public Defender filed a Report of Personnel
Change dated March 26, 1971, with the Rock-
land County Personnel Office. That form,
a copy of which is also annexed, designates
the appointment as being”"PERMANENT"” rather
than any of the other alternatives provided
by the form such as "PROVISIONAL", "TEMPORARY,
UNTIL ", or TERM OF OFFICE, UNTIL”.
Read together, the two aforementioned
documents are incapable of inference other
than that I was appointed to a permanent
position.
By letter dated April 2, 1971, Herschel
Greenbaum, Chairman of the Rockland County
Legislature, was notified by the Public
Defender that I had been appointed to the
position of Assistant Public Defender. That
letter, a copy of which is annexed, likewise
does not in any way limit the term of my
appointment.
Mr. Becker, a Democrat, was not re-
appointed Public Defender by the Rockland
County Legislature when his term expired,
December 31, 1971. Frank P. Barone, a
Republican, was appointed by the then
Republican controlled legislature, to a
six year term, commencing January 1, 1972.
-lil-
Both Mr. Becker and his successor, Mr.
Barone, maintained non-partisan offices.
At the time I was an enrolled Republican
appointed by Mr. Becker, a Democrat.
Mr. Barone continued my employment
without question and he duly filed a Report
of Personnel Change with the Rockland County
Personnel Office dated January 5, 1972 and sworn
Appointment designating me Senior Assistant
Public Defender. Those forms, copies of which
are annexed, also showed me to be "PERMANENT"
rather than any other of the provisional or
temporary alternatives provided by the form.
Effective January 1, 1973, by Report of
Personnel Change dated June 22, 1973, I was
given a raise in salary. A copy of that form,
filed with the Rockland County Personnel
Office, is also annexed. It reveals no
change in status. I was never advised of
any change from permanent to temporary status
until it was alleged in December 1977 in
order to terminate me.
More than five years after my appoint-
ment and on or about Sepbember 5, 1975
another personnel form was filed designating
me Assistant Public Defender and increasing
my salary and hours. That form, then filed
without my knowledge of its contents, showed
-12-
"TERM OF OFFICE, UNTIL 12/31/77". That error,
for whatever reason, was again made in a
similar form filed March 19, 1976. Now, only
nine months later, it seems that it is sought
as justification for terminating my employment
in order to appoint a party faithful.
It would be absured to believe that the
mere filing of a paper with the Office of
Personnel, without my knowledge, can change
the status created by the sworn filed appoint-
ment and original personnel document. The
Public Defender himself was surprised to
learn that his secretary began enterring
termination dates for his employees concur-
rent with his own term. Annexed is a letter
of Frank P. Barone, Public Defender, Rockland
County, dated December 30, 1977 wherein he states
the most recent forms mistakenly indicated I
was to serve a term concurrent with his. The
recent documents should be ineffective as a
matter.of law as well as for mistake of fact,
whether or not motive is suspect.
Except for the two recent forms filed
without my knowledge and by mistake on the
part of the Public Defender himself, all sworn
appointments and Reports of Personnel Change
clearly showed me to be a permanent employee.
o1 3%
My service as an Assistant Public Defender
had been highly regarded. I was commended
by both Public Defenders under whom I
served. Mr. Barone's letter dated Decem-
ber 30, 1977 expresses grateful appreciation
for my services to the Office of Public
Defender of the County of Rockland with the
highest degree of professional responsibi-
lity and excellence. He further states in
that letter that he would have been delighted
to continue my employment.
I anticipate that it will be argued that
I was serving a term that expired December 31,
1977. That is not true, as shown. However,
even if it could conceivab’y be so held, it
does not lend justification or propriety to
the failure to continue my employment,
flagrently violating my First and Fourteenth
amendment rights. The United States Supreme
Court has held that even an untenured teacher
is entitled to be rehired, at the expiration
of his contract term, if able to prove in
some way that the only reason for not extending
his contract was the teacher's exercise of
First amendment rights. PERRY v. SINDERMANN,
408 U.S. 593(1972) S. Ct.
—~ye
In the Perry case, not only did the
teacher have no tenure in office but he
was terminated at the expiration of a con-
tractual term. This leaves, in the case
at bar, only the issue of First amendment
rights, which can be put to rest quickly.
I do not think it will be denied that the
Assistant Public Defender positions are
being dealt with as political patronage.
The legislators have openly treated the jobs
as such. I have read correspondence between
legislators showing their political involve-
ment. The Rockland County Journal News has
reported "The selections were actually made
by the Democratic Caucus composed of the
party's 11 county legislators." The poli-
tical affiliation of the appointees, the
documented statements of the legislators,
the testimony of certain of the appointees,
their proponents and the legislators, will
overwhelmingly show my termination and
replacement was the result of political
patronage practise.
Patronage practise of discharging
non-policy making employees for belonging
to the losing political party was held in-
valid under the First and Fourteenth amend-
=iSe
ments to the Constitution of the United States,
ELROD v. BURNS, 427 U.S. 347, 96 S. Ct. 2673,
49 LED 2547(1976): RAMEY v. HARBER, 431 F. Supp.
657 (D. Ct., W. D. Va., 1977). An Assistant
Public Defender enjoys no policy making
functions. As an Assistant Public Defender I
defended indigent clients of the Office of the
Public Defender. The clients were selected
by the Public Defenderer the court using
guidelines over which I had no control. I
had no authority but to work in the various
courts and on cases as the Public Defender
directed. All policy was fixed by the
Public Defender himself and articulated in
memoranda or at periodic meetings. Every
letter or document prepared by an Assistant
Public Defender was reviewed by the Public
Defender. The Public Defender was the sole
administrator of the office and he made that
fact well known.
If my employment is not continued and
this litigation successful, the County of
Rockland, my family and myself will suffer
irreparable injury. The cost to the county
of paying backpay and other damages without
having the benefit of my employment will be
substantial. My family will be without the
-16- o17J=
excellent health insurance provided by the politics or mine or the political control of
county for its employees. That coverage, the legislature, I had a legitimate “expectancy”
on a private basis, is extremely costly of re-employment. PERRY v. SINDERMANN,
and there is then question as to whether 408 U.S. 593(1972) supra.
the same coverage can be had. Naturally Dated: January 3, 1978
e 7
my family will be deprived of my week to Spring Valley, New York
week earnings in the interim. For this |
reason, I am moving by Order to Show S/
Cause. No previous application has been AARON FINKEL
made.
In short, the Democratic Caucus, with Sworn to before me this
3rd day of January, 1978.
its life and death type of power of appoint-
ment of the Public Defender, has tried un-
lawfully to name all Assistant Public De- S/
fenders. The termination of my employment
is violative of my First and Fourteenth
amendment rights as expressed in ELROD v.
BURNS, 427 U.S. 347, 96 S. Ct. 2673, 49 LED
2574(1976); PERRY v. SINDERMANN, 408 U.S.
593(1972) S. Ct.; and RAMEY v. HARBER, 431
F. Supp. 657 (D. Ct.; W. D. Va. 1977). Ir-
reparable harm will result to the County of
Notary Public
Rockland and myself if I am not continued
in employment pending litigation. Certainly,
employed for seven years under two Public
Defenders in varying capacities as Assistant
Public Defender, irrespective of their
-18-
Same Caption VERIFIED
COMPLAINT
AARON FINKEL and ALAN TABAKMAN, by their
attorneys, FREEDMAN, WRAY, WAGNER, TABAKMAN
and FINKEL, complaining of the defendants
herein, allege as follows:
1. Plaintiffs are Assistant Public Defenders
employed by the County of Rockland; plaintiff
AARON FINKEL was so appointed on March 26, 1971
(see exhibit A annexed hereto); plaintiff ALAN
TABAKMAN was appointed on September 5, 1975.
2. Defendant, PETER BRANTI, is the Public
Defender designee of the County of Rockland
and upon information and belief will be appointed
to that position by the County Legislature on or
about January 3, 1978.
3. Defendants COLEMAN, MURPHY, BELJEAN,
BERNSTEIN, EASTER, DUSANENKO, DAMIANI, GROGAN,
MORAHAN, O'SULLIVAN, GOODFRIEND, RUBENSTEIN,
REISMAN, GDANSKI, MEEHAN, ROTELLA, GRANT and
SULLIVAN comprise the legislature of the
County of Rockland having been elected as
County Legislators for a legal term commencing
on January 1, 1978.
4. On or about December 24, 1977, plaintiffs
became aware through an article in the local
-19-
newspaper, the Journal-News, that defendant
BRANTI had been selected to be the next
Public Defender of the County of Rockland
and, upon his appointment to that position,
he would attempt to terminate their posi-
tions as Assistant Public Defenders (see
exhibit B annexed hereto).
3. After learning of this attempted termin-
ation of their positions, plaintiffs, on
December 30, 1977, informed defendant BRANTI
in writing of their willingness and intent
to continue in their positions as Assistant
Public Defenders (see exhibit C annexed
hereto).
6. On January 3, 1973, plaintiffs reported
to the office of the Public Defender and
wére assigned court calendars in their capa-
city of Assistant Public Defenders for
January 3, 1978. These assignments were
made by the Chief Assistant Public Defender
and subsequently plaintiffs were called by
him and were advised that the court calendars
at which they were to appear had been ad-
journed and they were directed to return
their files to the Public Defender's
office.
=-20-
Ve Based upon information and belief
conversation with defendant BRANTI and
articles appearing in the local newspaper,
plaintiffs truly believe that it is the
intention of the defendants to attempt
to terminate plaintiff's employment
because plaintiffs are Republicans and
defendant BRANTI, a Democrat, having been
appointed by a Democratic majority of
the County Legislature, which wishes to
replace plaintiffs with members of their
own polital party.
8. The position of Assistant Public
Defender is a non-policy making, non-
confidential governmental position. Plain-
tiffs have satisfactorily performed their
duties in their positions as Assistant Public
Defenders and continue to do so (see exhibit
D and annexed hereto).
9. Defendant's threatened termination of
plaintiff's positions as Assistant Public
Defenders without notice or hearing and
without due cause is in violation of plain-
tiffs' federal rights pursuant to the first
and fourteenth amendments of the United
States Constitution and, therefore, raises
@-21-
a material federal question.
WHEREFORE, plaintiffs pray for an
injunction to be issued by this Court
permanently enjoining defendants, their
agents and employees, from terminating or
attempting to terminate, alter, change or
in any way affect plaintiffs current em-
ployment status as Assistant Public Defenders
for the County of Rockland.
Yours, etc.,
FREEDMAN, WRAY,
WAGNER, TABAKMAN
and FINKEL
Attorneys for
Plaintiffs
11 Stokum Lane
New City, New York 10956
(914) 638-1400
=22~@
Same Caption VERIFIED ANSWER
78 Civ. 14
Defendants by their attorney, MARC L.
PARRIS, ESQ., County Attorney for the County
of Rockland, answering the Plaintiffs' com-
plaint allege as follows:
1. Denies knowledge sufficient to
form a belief as to the allegations con-
tained in paragraphs designated "4", "5" and
"6" of Plaintiffs’ complaint.
2. Denies the allegations contained
in paragraph designated "7" of Plaintiffs'
complaint and states as a matter of fact
that Plaintiff, Aaron Finkel, changed his
party registration to Democratic in
February 1977 to take effect January,1l, 1978.
de Denies the allegations contained
in paragraphs designated "8" and "9" of
Plaintiffs’ complaint.
4. Denies the allegations contained in
paragraph designated "1" of Plaintiffs’
complaint, except to admit that the Plain-
tiffs’ are Assistant Public Defenders
solely by force of the temporary restrain-
ing order issued in this action.
WHEREFORE, Defendants pray that the
83a
Plaintiffs' complaint be in all respects
dismissed and that Plaintiffs' application
for a preliminary and permanent injunction
be in all respects denied.
Dated: New City, New City
February 17, 1978
Yours, etc.,
MARC L. PARRIS, ESQ.
County Attorney,
County of Rockland
Attorney for Defendants
Office & P. 0. Address
County Office Building
11 New Hempstead Road
New City, New York 10956
Tel. No. (914)638-0500
TO: FREEDMAN, WRAY, WAGNER & TABAKMAN, ESQS.
Attorneys for Plaintiff
11 Stokum Lane
New City, New York 10956
Att.: David M. Wagner, Esq.
ohn
Same Caption AFFIDAVIT
STATE OF NEW YORK )
COUNTY OF ROCKLAND ) ss.:
ILAN SCHOENBERGER, being duly sworn,
deposes and says:
That I am the Deputy County Attorney for
the County of Rockland and make this affidavit
in opposition to plaintiff's application for a
temporary restraining order and preliminary
injunction to restrain the County of Rockland
in altering the plaintiff's current employment
status. Attached hereto as exhibits are the
affidavits of Public Defender, PETER BRANTI,
Election Commissioner, ALEXANDRIA LEFEVER,
and Personnel Officer, JAMES K. ANDERSON.
That for the plaintiffs to succeed in
their application, they must show irreparable
injury and the probability of success on the
merits. If that cannot be shown, then the
plaintiffs cannot succeed in obtaining the
preliminary injunction.
The plaintiffs have alleged in their
moving papers that they have been terminated
because of their political beliefs and that
this threatened or actual termination affects
their first amendment freedoms. They cite the
-25-
case of ELROD v. BURNS, 427 U. S. 347, 49
L. Ed. 2d 547, 95 S.Ct. 2673, in support of
their allegations. In the Elrod case, the
respondents were Sheriff's deputies and low
level employees discharged or threatened
with discharge because of their non-affiliation
with the political party of the newly elected
Sheritf. That case exhibited facts which may
be construed as insidious to the political
process. The case states that as a condition to
be retained in their employment they had to
swear allegiance to the political party of the
newly elected Sheriff, be affiliated with that
party or be sponsored by that party. They also
were coerced into supporting that party finan-
cially. There is no such allegation in plain-
tiff's affidavit herein.
That there is no infringement upon plain-
tiff's first amendment rights since the de-
fendants at no time coerced the plaintiffs into
supporting their party. The defendants at no
time conditioned the retention of the plaintiffs
on the support of the Democratic Party in Rock-
land County.
As was stated in MARKS V. UNITED STATES:
-26-
"When a fragmented Court decides
a case and no single rationale
explaining the result enjoys the
assent of five Justices, 'the
holding of the Court may be viewed
as that position taken by those
Members who concurred in the
judgments on the narrowest grounds
- + «'" MARKS V. UNITES STATES,
430 U.S. 188, 193, 97 S.Ct. 990,
993, 51 L. Ed. 2d 260 (1977).
In the ELROD case, Mr. Justice Stewart
concluded as follows:
“The single substantive question
involved in this case is whether a
nonpolicymaking, nonconfidential
government employee can be dis-
charged or threatened with discharge
from a job that he is satisfactorily
performing on the sole ground of
his political beliefs. I agree with
the plurality that he cannot. See
PERRY V. SINDERMANN, 408 U.S. 593,
597-598. 92 S.Ct. 2694, 33 L. Ed.
24 570." 427 0.8. at 375, 96 S.Ct.
at 2690.
In the instant case, in order to fall
within the holding of ELROD supra, four things
must exist. First, the plaintiffs must be
non-policymaking governmental employees.
Secondly, the plaintiffs must be non-confiden-
tial governmental employees. Thirdly, they
must be satisfactorily performing their job
and fourthly, they must be discharged on the
sole ground of their political beliefs.
@27e=
Both plaintiffs are policymaking
governmental employees. They appear at
the Public Defender's Office and receive
files to represent the Public Defender's
Office at various Court appearances. Their
latitude and discretion is broad. They
appear in Court and upon each case, formu-
late a case by case policy on how to best
represent the interests of those accused
of crimes.
As was stated in ELROD, supra, 427 U.S.
at pg. 367, 49 L.Ed. 2d, at pg. 52: ;
"Non-policymaking individuals usually
have only limited responsibility and
are therefore not in a position to
thwart the goals of the in-party."
And furthermore, at 427 U.S. 368 49 L.Ed.
2d 562:
"An employee with responsibilities
that are not well defined or are of
broad scope more likely functions
in a policy-making position. In
determining whether an employee
occupies a policymaking position,
consideration should also be given
to whether the employee acts as an
advisor or formulates plans for the
implementation of broad goals."
This is not a case of first impression.
As
was held in the matter of CLARKE v. O'BRIEN, 91
Misc. 2d 190, aff'd. 56 AD 2d 869, the case
-28<
involving an Assistant District Attorney
who was discharged when a new District
Attorney took office, the Court held at
page 193:
"The District Attorney cannot be
expected to personally discharge
his constitutional and statutory
function in every case. For this
reason he is authorized to appoint
assistants and delegate and
specify their duties.
Subdivision 1 of section 702 of the
County Law provides for the appoint-
ment of assistants by the District
Attorney within his budgetary ap-
bropriation, and authorizes him to
revoke performance by the Assistant
District Attorney of such duties
pertaining to the office as the
District Attorney shall direct.
Subdivisions 3 and 4 authorize the
Assistant District Attorney to per-
form the duties of the District At-
torney during the latter's absence
or inability, and authorize desig-
nation of the order in which the
assistants shall act where more
than one is appointed.
Petitioner and his former colleagues
thus occupy unique and sensitive
positions in the public service and,
notwithstanding the number of assis-
tants appointed, any one of them
may by statute be called upon to
discharge the powers and duties of
their elected principal. The nature
of the position requires that
=29e
respondent be entitled to
appoint and remove his
assistants at will during
his term."
And furthermore, the Court held:
"To the extent that that the assis-
tants discharge the statutory duties
of the principal in the prosecution
of crimes, the District Attorney
must be the sole judge of their per-
formance.
The administrative organization and
structure of the prosecutor's office
and the particular assignment therein
of an individual assistant cannot
operate to convert an office posess-
ing the statutory attributes of a
deputyship into a subordinate
clerical position. The criteria to
be applied is the statutory authoriza-
tion and the duties required of and
delegated to petitioner and his
compeers by the various duties
statements."
Ar. attorney is one of the prime examples
of confidential relationship. There exists a
confidential relationship between the Assistant
Public Defender and the clients he represents.
There also exists a confidential relationship
between the Assistant Public Defender and his
appointing officer, namely, the Public De-
fender. The Assistant Public Defender is a
personal extension of the Public Defender in
=30=
the Court where he is representing the
Public Defender's Office. In that Court,
he formulates such policies and makes such
determinations as he feels are necessary
to accomplish his job. Since the position
of Assistant Public Defender is a policy-
making position and a confidential posi-
tion, it does not come within the narrow
construction of ELROD V. BURNS, supra.
The question as to whether Mr. Tabakman
and Mr. Finkel are satisfactorily performing
their jobs is a question for proper deter-
mination by the present Public Defender at
whose pleasure they serve. Furthermore, the
grounds for dismissal of Mr. Tabakman and
Mr. Finkel are not the “sole ground" of
their political beliefs. Their dismissal
furthers a legitimate governmental interest
as is shown in these papers.
That it is a matter of evidence that
plaintiff, AARON FINKEL, is in fact, a
Democrat (see affidavit of Alexandria
Lefever).
That the Public Defender, PETER BRANTI,
upon assuming office and prior thereto, re-
viewed the qualifications of the applicants
for the positions of Assistant Public Defender
and made valued judgments thereon.
-31-
That Public Defender, PETER BRANTI, was
a former Chief Assistant District Attorney of
Rockland County prior to assuming his duties
as Public Defender and as such, was in a posi-
tion during the past few years of being able
to make valued judgments on the qualifications
of various Assistant Public Defenders during
that time.
That aside from the qualifications of
plaintiff, ALAN TABAKMAN, or lack thereof, an
obvious conflict of interest exists by his
continuing as Assistant Public Defender.
Attached hereto is New York State Bar Associa-
tion Ethics Opinion No. 232 of 1972 which
states that it is a conflict of interest for
an Assistant Public Defender and a Town
Justice to be law partners.
‘That on November 8, 1977, William Wray
was elected Town Justice of the Town of Clarks-
town, County of Rockland. Mr. Wray is the law
partner of plaintiff, ALAN TABAKMAN. For ALAN
TABAKMAN to continue his duties as Assistant
Public Defender would give rise to a conflict
of interest.
That upon information and belief, at the
times these papers were served, ALAN TABAKMAN
was and still remains a member of the firm of
PREEDMAN, WRAY, WAGNER & TABAKMAN and still
o-32-
remains a member of the firm today.
That in the ELROD case, the practice of
the Sheriff's Department of Cooke County was
to dismiss one-half of the Sheriff's Depart-
ment solely on a political basis.
In Rockland County, as is shown by the
plaintiff's papers, the Public Defender's
Office historically has been a bi-partisan
office.
That in addition to the plaintiffs not
being retained as Assistant Public Defenders,
other assistants of the previous Public
Defender were not reappointed «as well. Some of
those assistants were Democrats. fherefore,
the non-reappointments of certain Assistant
Public Defenders were not made on a political
basis. Furthermore, certain Public Defenders
were reappointed including a person with no
political affiliation. “
The Public Defender's term expired on
December 31, 1977. A new Public Defender was
appointed. The new Public Defender has a
right to terminate those assistants who serve
at his pleasure. No present or former
Assistant Public Defender was ever coerced
into either joining the Democratic Party of
Rockland County, supporting the Democratic
Party of Rockland County or requesting sponsorship
ee =
*~\
by the Democratic Party of Rockland County
as was the case in ELROD V. BURNS. There was
no loss of first amendment freedom at any
time. The Legislature of Rockland County
changed its political majority in 1974 to
Democratic. That resulted in no political
dismissals from the Office of the Public
Defender. His assistants were retained and at
no time ever threatened with the lost of their
jobs for their failure to join another politi-
cal party.
That the present Public Defender has
hired (1) a female attorney of the highest
reputation as one of his new assistants; (2)
has hired a former Assistant District Attorney;
(3) has hired a former Assistant County Attorney as a
new Assistant Public Defender; (4) has hired a former
District Attorney and (5) has hired a former aid to
the Special Prosecutor.
That at no time was the position of
Assistant Public Defender to be considered
a permanent position. That Plaintiff, FINKEL,
has offered in his affidavit, an affidavit
dated January 5, 1972 by the former Public
Defender, FRANK BARONE, in which he has
appointed AARON FINKEL as a senior Assistant
Public Defender commencing January 1, 1972.
-34-
Since Mr. Finkel started his employment as an
Assistant Public Defender almost one year
prior, if there was permanency to his position
what was the necessity of reappointing Mr.
Finkel? The only conclusion that can be
drawn is that Mr. Finkel's term was subject
to reappointment by a new Public Defender,
FRANK BARONE, when he took office on
January 1, 1972.
That the temporary restraining order
should be lifted and a preliminary injunction
should be denied on the basis that if the
plaintiffs cannot show deprivation of first
amendment rights; that the probability of
plaintiff's success on the merits is small
since the facts of this case can be dis-
tinguished very clearly from ELROD V. BURNS,
supra.
WHEREFORE, deponent prays that the tem-
porary restraining order be lifted and that
a preliminary injunction be denied.
S/
ILAN SCHOENBERGER
Sworn to before me
this 6th day of
January, 1978.
———————————
@35-
NEW YORK STATE BAR ASSOCIATION
ONE ELK STREET ALBANY NEW YORK 12207
COMMITTEE ON PROFESSIONAL ETHICS
Opinion #232 - 2/25/72
(5-72) Topic: Town Justice Partner-
ship with Assistant
Public Defender;
Conflicts
Digest: The limitations upon
the practice of a Town
Justice prevent his
partner from being
Assistant Public
Defender
Code*: EC 9-2; 9-6
Canons of Judicial
Ethics: 31
QUESTION
May partners hold respectively the offices of
town justice and assistant public defender?
OPINION
It would be incongruous to expect a Town
Justice to also be an Assistant Public
Defender. The position of Public Defender
carries with it the duty to represent
indigent defendants in criminal cases and
may result in the representation of
defendants in the Court of the Town
Justice or a Court of higher jurisdiction.
-36-
Such a criminal practice is prohibited to
a Town Justice. N.Y. State 146 (1970);
N.Y. State 146 (a) (1970). See also N.Y.
State 214 (1971); N.¥. State 228 (1972).
The relations of partners in a law firm
are such that neither the firm nor any
member or associate thereof may accept any
professional employment which any member
of the firm cannot properly accept. N.Y.
State 203 (1971); EC 9-2; 9-6; Canons of
Judicial Ethics 31.
Therefore, partners may not properly
hold both the offices of town justice and
assistant public defender.
ae ee
ye
Same Caption AFFIDAVIT
STATE OF NEW YORK )
COUNTY OF ROCKLAND ) ss.:
PETER BRANTI, being duly sworn, deposes
and says:
That I am the Public Defender of Rock-
land County, appointed to that office on
January 3, 1978.
That at the time of my appointment, my
designated assistants were sworn by the
County Clerk of Rockland County as Assistant
Public Defenders.
That subsequent to November 8, 1977,
I was approached by the Democratic majority
of the 1978 Legislature and was told that
I would be appointed as Public Defender.
Thereafter, I spoke with the various
Democratic and Republican political leaders
of Rockland County and was given names of
lawyers within Rockland County who made
known their availability to the position of
Assistant Public Defender.
That at no time was any pressure from any
political leader brought upon me not to re-
_7 appoint any particular person in the office of
the former Public Defender.
That as an Assistant District Attorney
-38-
with extensive trial experience for the past
four years, I have had the opportunity to
be on opposite sides with various members of
the former Public Defender's Office and made
judgments as to their competency and ability,
and it was my feeling that the reappoint-
ment of plaintiffs was net necessary to the
proper functioning of my office and would
not meet the highest standards that I have
set for attorneys in my office.
That I had requested that certain
former Assistant Public Defenders be
retained and I have so appointed William
Nelson, Manuel Sanchez and John F. McAlevey
to continue as Assistant Public Defenders.
That at no time did I coerce any
member of the prior or present Public
Defender's Office to support the Demo-
cratic Party of Rockland County or to
request that they swear allegiance to
the Democratic Party of Rockland County and
in no way did I make their jobs conditioned
on their political beliefs.
That attached hereto is a list of
the former Assistant Public Defenders
appointed by my predecessor. Next to
their names are their political affiliation.
ae ne Oe ee)
=39<
Next to their political affiliation is
whether they were reappointed or resigned.
As is shown in that list, a number of
Democrats were not reappointed and Mr.
Sanchez, who is not affiliated politically,
was reappointed. Some of the former
Assistant Public Defenders who are Re-
publicans had either resigned or retired.
That plaintiff, FINKEL, is listed as
a registered Democrat and in no way
therefore, can his non-reappointment be
considered on the basis of political
reasons.
That plaintiff, TABAKMAN, is a
registered Republican. However, as of
the date of these papers, his continued
membership in the firm of FREEDMAN, WRAY,
WAGNER & TABAKMAN would constitute a con-
flict of interest since his law partner,
William Wray, took office on January 3, 1978,
as Clarkstown Town Justice. This would
create an appearance of impropriety in the
Public Defender's Office and does not
measure up to the high starards which I
intend to maintain in my office.
That at no time since November 8, 1977,
did Mr. Tabakman take any action that would
-40-
prevent a conflict of interest from
arising, to my knowledge.
That this conflict of interest was
considered by me in deciding whether to
reappoint Mr. Tabakman and is proper
cause for Mr. Tabakman's non-reappointment.
WHEREFORE, deponent prays that the
temporary restraining order be lifted; that
a preliminary injunction be denied inasmuch
as defendants have adequately shown that
the plaintiff's non reappointment resulted
from other than political reasons.
S/
PETER BRANTI
Sworn to before me
this 6 day of
January, 1978.
S/
AL 4 td PBF ahd Sh
RE tL TS Ba De
IE Dee 5 BERNER TEN i NEG De Got RADA Ripe sll Goel Be Ba Nant RE Na ee
~$ti-
PUBLIC DEFENDER'S OFFICE
FORMER STAFF
Fitzgerald, James A N.R. D.
McAlevey, John F. R. D.
Nelson, William K. R. D.
Sanchez, Manuel R. N. Reg.
Selman, Barnet S. Ret. R.
Leudan, Stuart M. Res. D.
Wray, William F. Jr. Res. R.
Finkel, Aaron N.R. D.
Tabakman, Alan N.R. R.
N.R. denotes Not reappointed
R. denotes Reappointed
Ret. denotes Retired
Res. denotes Resigned
D. denotes Democrat
R. denotes Republican
N.Reg. denotes Not registered
82
Same Caption AFFIDAVIT
STATE OF NEW YORK )
COUNTY OF ROCKLAND ) ss.:
JAMES K. ANDERSON, being duly sworn,
deposes and says:
I am the Personnel Officer of the
County of Rockland and make this affidavit
in opposition to plaintiff's application for
a preliminary injunction.
That I have reviewed the Personnel
records of ALAN TABAKMAN and AARON FINKEL
and have attached copies of their Personnel
record. ALAN TABAKMAN'S and AARON FINKEL'S
positions were in an exempt class. Appointees
to such positions are not reviewed for quali-
fications. The appointing officer has sole
discretion in the appointment and removal of
individuals in this class of position under
the Civil Service Law of the State of New
York. In this case, the appointing officer
is the Public Defender. Historically, an
Assistant Public Defender serves at the
pleasur2 of the Public Defender and no
permanent status had ever attached to
either of these plaintiffs. Although an
appointment may be processed for tech-
nical reasons as permanent, this classi-
I aR let 8: BG OES Gh oA et SM
Dc tae ed Pa we
an na ts Bt LC ae TE At SE LEE tal BLS bain aes Pen a a Oe oo a Te wat oe at ik
-43-
fication does not restrict the appointing
officer in any way.
S/
JAMES K. ANDERSON
Sworn to before me
this 6th day of
January, 1978.
S/
-44-
Same Caption AFFIDAVIT
STATE OF NEW YORK )
COUNTY OF ROCKLAND ) ss.:
ARTHUR ACKERSON and ALEXANDRIA LEFEVER,
being duly sworn, depose and say:
That we are the Elections Commissioners
of Rockland County. That upon the request
of the County Attorney, we have reviewed the
most up-to-date voter registration lists
available in our office.
That attached hereto is a list of the
voter registrations of the former: Assis-
tant Public Defenders and the newly appointed
Assistant Public Defenders as well as copies
of the applicable voter registration lists.
S/
ARTHUR ACKERSON
SL
ALEXANDRIA LEFEVER
Sworn to before me this
6th day of January, 1978.
S/
DDD OCDE. Heh. Ln 7g te Qnae.
“eR A Biro te
OL Rta Can te LLIN es: be tr be PO ts
he ets es eres ae.
-45-
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
The following is a reprinting of the
relevant portions of the trial transcript
of the United States District Court,.
Southern District of New York. Please
note that pages 46 through 179 of this
appendix contain the relevant portions of
the transcript of the hearing on the
preliminary injunction. Pages 180 through
390 of the appendix contain the relevant
portions of the transcript of the plenary
trial, which was combined with the hearing
on the preliminary injunction.
An asterisk (*) indicates omission of
testimony which extends onto a page not
reprinted in the appendix.
-46-
Barone-direct
as follows: [3]
DIRECT EXAMINATION
BY MR. FINKEL: |
MR. FINKEL: Your Honor, at this
time, if I may, I would like to make an
application to exclude some witnesses.
THE COURT: Very well.
MR. SCHOENBERGER: Mr. Branti, who
will testify, is also a defendant in this
matter.
THE COURT: He may stay.
BY MR. FINKEL:
Q Mr. Barone, until recently, have
you held any public office?
A I was the public defender of Rockland
County by appointment from January L.. Gore
through and including December 31, 1977.
Q By what party was the legislature
controlled when you were appointed?
A The majority of the legislators at
the time of my appointment were Republican.
Q What was the political persuasion
of your predecessor, if you know?
A He was Arnold Becker, my predecessor,
and he was a Democrat.
© Rl eee en
ee eee
ee en ee ee ee oe
-47-
Barone-direct
* (5]
Q That is correct.
A Can you be of some further assis-
tance by refreshing my vecollection?
Q Was William Nelson appointed by you?
A Yes. He was appointed by me. He is
a Democrat. ,
Q James Fitzgerald?
A He was appointed by me and he is also
a Democrat.
Alan Tabakman was appointed by me
and he is a Republican.
Q I was a Republican at the time that
you continued to be in office?
A As I recall, yes.
Q I had served to your knowledge
under Mr. Becker who was a Democrat?
A Mr. Becker had appointed you
Originally, yes.
Q Was it your understanding that Mr.
Tabakman and I were permanent or provisional
or what kind of employees were we?
MR. SCHOENBERGER: Objection, your
Honor.
THE COURT: Overruled. [6]
A My understanding, my own personal
understanding, was that everyone was appointed
by me permanently, but at my pleasure, could
Le removed.
-~48-
Barone-direct
Q For no reason at all or for cause;
would you need cause?
x I would not need cause.
Q You thought that you would not need
A I felt that I would not need cause.
Q But the appointments were permanent?
A The appointments were permanent.
Q Did there come a time when you
discussed the appointments to be made under
the public defender who was to succeed you,
with your succeeding public defender, that is
Mr. Branti?
4 Yes, Mr. Branti and I had perhaps
two conversations that I might recall about
the appointment of the new assistant public
defenders. iia
Q Did you discuss with Mr. Branti how
the public defender, assistant public de-
fenders were to be chosen and on what basis
they were to be chose, and who was to be
appointed?
X It was my understanding that the
majority of the new legislators, eleven, were
going to hold a series of caucuses and
prepare a list of attorneys submitted by them
(7]
——
-49-
Barone-direct
from which would be chosen the assistant
public defenders and the assistant county
attorneys.
I suggested to Mr. Branti certain
assistants and he suggested that it would
have to come from the legislators.
Q Was there any discussion as to how
many and who would be the public defenders
from each of the townships and how they would
be chosen in each of the townships?
A No, we had no such discussion. If
he knew he didn't tell me, I will put it that
way?
Q Were you satisfied with my employ-
ment during my employment with you over the
six years that you served?
x Yes, completely so. I think I
wrote you a letter to that effect.
Q That is correct.
Did you find me to be competent?
A Yes. I would reemploy you again.
You will recall, Mr. Finkel, that
you were the first public defender in the
County of Rockland to win a drug case. I
won't forget it.
Q How would you characterize Mr.
Tabakman's performance over the period of
time that he served with you? [8]
-50-
Barone-direct
A I think Mr. Tabakman is an extremely
competent attorney and I can't say more than
that. I have been happy with him.
Q Would you have continued my employ-
ment had you remained as public defender?
A Yes.
MR. SCHOENBERGER: Objection.
THE COURT: Overruled.
A Yes, I would have.
Q Would you have continued Mr. Tabakman's
employment if you--
MR. SCHOENBERGER: Same objection,
your Honor.
THE COURT: Overruled.
A Yes, I would have.
Q In the regular course of business
did you keep a personnel file for your own
records, copies of which went into a per-
manent personnel file?
A Yes.
Q I show you certain documents -- I
will show you first a report of personnel
change dated March 26, 1971, signed by or
apparently the original of which was signed
by Mr. Becker.
we
eee 1 neste are
aStua
Barone-direct
MR. FINKEL: Your Honor, I would
appreciate it if the Court would make a note
to the extent that Mr. Tabakman's oath is a
part of the answering papers.
THE COURT: You are referring to
this oath that is dated September 5, 1975?
MR. FINKEL: Yes, your Honor.
MR. SCHOENBERGER: There is no oath
on there for Mr. Tabakman. It appears to
have Mr. Barone's name on there.
THE WITNESS: No.
THE COURT: I have a note here
signed by Mr. Tabakman, to be sworn to before
Mr. Barone.
MR. SCHOENBERGER: I am sorry, your
Honor.
THE WITNESS: That's right.
BY MR. FINKEL:
Q Mr. Barone, I show you another
doucment annexed to the answering papers of
the defendants.
It is marked "Report of Personnel
Change" dated September 5, 1975, and having
to do with the appointment of Alan Tabakman.
A Yes.
[22]
@-52=
Barone-direct
Q When you filed that report of
personnel change--did you file that report of
personnel change? [23]
A Yes, my office did.
Q When you filed it, did you like-
wise, or were you likewise unaware of the
fact that it called for a temporary or a
period type of appointment?
A This document that you are showing
me, which is a photostatic copy of an appoint-
ment of Mr. Tabakman, indicates a term of
office until 12/31/77.
As I have told you before, and as I
will tell you now under oath, it was never my
intention to limit that. I left this to Ms.
DiCarlo to prepare. As a matter of fact, the
X mark where it says “Temporary” and_the X
mark where it says "Exempt" are not done by
my office at all since they are apparently
done in ink. ,
I never paid that much attention to
it. I left it to Ms. DiCarlo to prepare this
in total and merely signed it.
I developed a policy in later
years, as pointed out by one of your exhibits,
of signing the duplicate copy and keeping it
in the personnel file rather than having it a
conformed copy.
-53-
Q Thank you.
THE COURT:
"Part Time"?
THE WITNESS: That is-- nothing is
Nothing is marked there except that
all assistant public defenders, your Honor, [24]
are part time.
THE COURT:
THE WITNESS:
time anyway.
THE COURT:
practice law?
THE WITNESS: Yes. Actually part-
time as used in the County of Rockland must
be differentiated from exclusivity. That
means they can't practice law.
Barone-direct
How about the words
done.
All right.
They were at this
It means that he can
Many of them
put in 30 or 40 hours a week on a part-time
basis.
Q Mr. Barone, would you have continued
the employment of Mr. Tabakman irrespective
of whether or not his partner may have become
a judge if it were legally permissible or if
some kind of conflict could be removed?
MR. SCHOENBERGER: Objection, your
Honor. |
I object to the form of the question.
-54- Barone-direct
THE COURT: I think I will sustain
that objection.
Q Would you have continued Mr.
Tabakman in office had you continued in
office.
A Yes.
MR. SCHOENBERGER:
your Honor.
THE COURT:
Objection again,
I will overrule the
objection.
Q Did you consider him to be a permanent?
A Yes.
Q Mr. Barone, who was the administra- [26] _
tor or administrators, who were the adminis-
trators of your office.
A Just myself.
Q Did you always call yourself the |
Dictator?
A I frequently told you, Mr. Finkel,
and everyone who worked for me that you live
in a democracy but you work in a dictatorship.
Q Did you review every piece of paper
that left that office prepared by either
myself or Mr. Tabakman? )
ee No assistant ever prepared a letter |
in my office that was not first reviewed by
me before it went out.
“35- pBarone-direct
Q Did I enjoy any confidential
relationship other than as, as attorney-
client, was there any peculiar confidential
relationship that I enjoyed or Mr. Tabakman
enjoyed in that office?
A With myself?
Q With yourself or in the office as a
whole? :
A No. You had nothing to do with the
administration. And the only confidentiality
that you and I enjoyed mutually was the
confidentiality of the client-attorney
relationship.
Q Did Mr. Tabakman or I have the
auhtority to determine which clients were
eligible for representation by the office? [27]
A No.
by the public defender in Rockland County are
The guidelines for representation
set by the legislature, the are, however,
The public defender has the
final right of determination as to who shall
only guidelines.
be represented, absent an order from a judge,
and each time a judge requested that we
defend someone who was indigent, I would ask
the judge to put on the record that he
examined into the indigence.
aii==
Barone-direct /cross
Q As an assistant public defender I
was not a policy-making employee?
A No. You were given a file.
Q Was I a confidential employee?
A No.
Q As a senior assistant public
defender was I a confidential employee or a
policy-making employee?
A You were not.
Q Did I administer the affairs of the
office in any way?
A No. You were a supervisor of the
justice courts.
Q Thank you.
Tabakman --
A I beg your pardon?
Was Alan, Mr.
Q Did Mr. Tabakman have any peculiar
policy-making functions?
A No.
Q Was he an administrator?
A No.
MR. FINKEL: I have no further
questions, your Honor.
CROSS-EXAMINATION
BY MR. SCHOENBERGER:
Q What are the duties of your assis-
tant public defenders?
(28]
LS ee a ee eae
Se at OS ot OP ee date eer Be tr
AN 5 ee Tol
i
Barone-cross
A The assistant public defender is
assigned duties in connection with the
defense of indigent persons accused of crime,
in justice courts, county courts, or wherever
in the County of Rockland.
There are 23 justice courts and at
the present time 3 county courts.
Q Can you tell me in detail what the
responsibilities are?
A Well, I think that you could best
get that from a job description which is on
file with personnel, but a description of
their duties are --
Q I asked you their responsibilities.
A Their responsibilities, all right.
They have the responsibility to
make appearances in court and to competently
defend the clients assigned to them.
Q When one of your assistant public
defenders appeared in court and a matter
required some determination on his part, a
legal determination or a strategical determination,
how to handle a case, did he have full author-
ity and power to make that?
A Only if the decision had to be made
at the moment in the courtroom.
[29]
-58-
Barone-cross
Q But were he in a courtroom and were
a situation to arise, perhaps the plea of a
defendant, he had the authority to use his
judgment and determination as to what the
plea should be if he could get one that would
be acceptable?
A If the circumstances dictated that
the plea had to be taken at that moment; but
if it didn't, he had to come back to the
office.
I will give you an example, if you
will, and perhapa, save you a lot of questions.
If a case came on and the question
was, shall we make a motion or not; in other
words, to put the defendant on the stand, it
would be my decision after discussion with
the assistant about the pertinent facts and
details concerning the defendant, his rap
sheet, if you will, and what have you. [30]
That decision had to be made in the
office.
If he had to take a plea in court,
as of that moment, it was usually done on the
spot, if.the circumstances dictated, but only
in the justice courts, not in the county
courts, not on felony matters.
-59-
Barone-cross
Q Did-Mr. Tabakman or Mr. Finkel
represent the public defender's office in the
county courts as well as the justice courts?
By Yes. Mr. Tabakman far less than
Mr. Finkel, but Mr. Finkel has many times
represented the public defender's office in
the county court. They both represented our
clients for the most part in the justice
courts on misdemeanors and traffic offenses.
Q If they were before a j'idge in the
county court and they had Mr. Finkel, for
instance, he would have full latitude and
discretion on how to handle that case and
what to do with it?
A To a limited extent, as any lawyer
would. My policy was never to destroy the
professional attitude that I believe a lawyer
should maintain in defending a client. I
would not wish to in any way psychologically
demean him so that he had to call me for
every minor decision that had to be made. But
he didn't have the latitude that you suggest. [31]
Most of my assistants knew just how
far they could go.
Q But they all had a limit to which
they could go?
-60-
Barone-cross
A Yes. As any lawyer should.
Q They all had some determination as
to how to handle a case?
A Yes.
Q And the policies to set on each
case?
A You would have to tell me what you
mean by policies.
Q I will certainly not debate with
you.
A I don't know what you mean by
policy. If you will tell me what you mean by
it, I will be happy to answer it.
Do you mean what plea to accept?
Q With an individual case.
A Yes.
THE COURT: I think what I had
better suggest to you is that I don't see
policy and confidentiality the way you
apparently see it, Mr. Schoenberger.
I think this has to do with a
person's function in government, and not with
their relationships to a client, not with
their performance ofassigned tasks such [32]
as defending a client and making policies on
an individual case or accepting confidencies
sith. in cabs sas Sa capes
th A A ALE Zar
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i as:
<A DR Pb
a0 SD tliat ALAA BD |? 2a eth ho CRAIG TL set PAG I Cod
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af2<
Barone-cross
from a client; I do not regard that as the
confidentiality and the policy-making that is
spoken of in the cases.
Q In the years that Mr. Pinkel and/or
Mr. Tabakman were with you, did there come a
time when they had your confidence?
MR. WAGNER: Objection, your Honor.
I don't think that "confidence" is
used as it is meant in the statute.
THE COURT: Just a second. Mr.
Finkel is the attorney on this.
MR. WAGNER: I am sorry.
MR. FINKEL: Your Honor, I don't
intend to object to this line of questioning,
in the interest of expediency, and I would
like ts get this hearing concluded.
I am going to give Mr. Barone the
fullest latitude in answering the questions.
A Mr. Schoenberger, would you please
explain to me what you mean by “confiden-
tiality"* I will be happy to answer the
question.
Q You are a lawyer, Mr. Barone. You
are familiar with the word "confidentiality."
You know what the word “confidentiality” (33]
means.
-6§2-
Barone-cross
Did Mr. Tabakman or Mr. Finkel,
during the course of their employment by you,
have your confidence and confidentiality?
A In making policy? In what way?
In discussing whether we should ask for
another girl from the legislature or whether
the work in the office was. getting too great
or voluminous?
Q If there was a confidential matter
concerning a case.
A Concerning a case?
Q And you wished to discuss it with
them, did you feel that you could confiden-
tially discuss it with them?
A The case they were handling?
Q Any cases in the office.
A Any cases in the office I could
discuss with them, absolutely.
Q You felt that there was a con-
fidential relationship between you and them
as your employees?
A In connection with clients, ab-
solutely. I said that before to Mr. Finkel.
+
[36]
-63-
Barone-cross
Q Did you discuss with him the
possibility of keeping you on in the office
of public defender?
A I certainly did.
Q Do you recall what he said to you
at that time concerning that?
A Yes. He was aware, as I was, that
at about a year and a half ago I had an
opening for an assistant public defender and
the only applicants I had were Democrats. I
called Mrs. Cornell, the chairman of the
Democratic Party in RocklandCounty, and I
suggested to her that I would be most appre-
ciative if she could recommend several names
to me, and if acceptable, I would be happy to
appoint one. And that I would then expect
some consideration so that at the end of my
term of office in December of 1977, I would
receive an appointment somewhere in the
county hopefully as an assistant public
defender so as to achieve a retirement for
which I have approximately four to five
months left.
-64-
Barone-cross
When Mr. Branti came to my office,
I asked him if it was his intention to re-
appoint me as an assistant and I offered at
that time to do all of his appeal work which
I had been doing for six years. (37]
Q Once again, do you recall what his
response to you was at that time?
as Yes. He said he couldn't do it.
Q Mr. Barone, are you resentful at
all to Mr. Branti for having not appointed
you?
A No. Mr. Branti and I have been
friends for a number of years and I am not
resentful of Mr. Branti at all. As a matter
of fact, as Mr. Branti will tell you, I hope,
we have been most cooperative since he took
office before and during the strike that's
going on right at the present moment.
Q Mr. Barone, how many of the public
defenders or assistant public defenders or
other attorneys in your office were either
partners or associated with the firm of
Freedman, Wray, Wagner & Tabakman?
MR. FPINKEL: Objection, your Honor.
THE COURT: What is the basis of
the objection?
Ste a lieth.
een er ee
-65-
Barone-cross
MR. FINKEL: It is immaterial and
it has no probative value, your Honor.
| MR. SCHOENBERGER: Your Honor, it is
very material.
THE COURT: I don't know whether it
is er not. But I will listen to it. I will
overrule the objection. [38]
A Fine.
In answer to your question, in my
office, not appointed at the same time, but
in my office at, on the date that I termi-
nated December 31, 1977, I had Mr. Tabakman —
and Mr. Wray, who are partners, and Mr.
Sanchez, who was associated with the firm.
He is not a partner, to the best of my
knowledge.
Q To the best of your knowledge, on
this day, are Mr. Tabakman or Mr. Wray still
partners?
A To the best of my knowledge today
they are still partners.
Q Do you have any idea, approxi-
mately, an approximate idea, if possible, how
much the partners or the associates of the
firm of Freedman, Wray, Wagner & Tabakman
receive in salaries from the county, while
under your employ in the public defender's
aT
Barone-cross
office?
MR. FINKEL:
THE COURT:
arithmetic, either addition or multiplica-
tion. I don't see the relevancy of this.
If there are three of them who are
partners, then it is a matter of adding up
their three salaries.
MR. SCHOENBERGER:
if he could give us an approximate figure. [39]
I will tell you what I am leading
I think there is a much
Objection, your Honor.
That is a matter of
I was wondering
to, your Honor.
closer association here besides public
defender and assistants.
I think that goes to the direct
credibility of Mr. Barone's testimony.
THE COURT: I will overrule it.
A What you would have to tell me was
the date of appointment of each.
Q I am asking you if you know.
A No. It is $13,000.
Q Would you be surprised to learn
that between Mr. Wray, Mr. Tabakman, Mr.
Finkel, and Mr. --
MR. FINKEL:
I am not a partner of that firm.
MR. SCHOENBERGER:
Ojbection, your Honor.
Excuse me.
we
RAK 1 nN thir si DN AOE SOLU ee atten ne SF oF CPE earn at sil
«Je
Barone-cross
Between Mr. Wray, Mr. Tabakman and Mr.
Schanez, that during your tenure of public
defender, those gentlemen received over
$100,000 from the County of Rockland?
A I would say that is approxi-
mately correct.
Q Mr. Barone, did you have any
expectation of becoming a member of that
firm after you left the public defender's
office?
A No.
Q Never at any time, sir?
A No. I had an expectation of
getting space there if it were available.
It has been made available and I have not
accepted it. There was never any question
of becoming a member of that firm.
Q Barry Weiss, is he a member of
the public defender's office?
4 No. Barry Weiss was a law
student under appellate division order in
his last year and after that and subsequent
to that he was a volunteer in the office.
Q Where does he work?
A He works for Freedman, Wray,
Tabakman & Wagner; recently, that is, in
(40]
-68-
Barone-cross
the last few months.
Q Did he at any time cover calen-
dar for Freedman, Wray, Tabakman & Wagner?
A Yes. And others.
Q As public defenders?
A And others, yes.
Q . Did he cover calendars for your
office also?
A Yes.
employ outside counsel.
I am authorized by law to
Q Did he ever take an oath of
office?
A He doesn't have to. He doesn't
get paid.
Q Your answer is no?
A No. He didn't take an oath of
office.
Q Did you ever as a highly pro-
fessional public defender and attorney
feel that this association may border on
impropriety or even be in the realm of
impropriety?
MR. FINKEL Objection, your
Honor.
THE COURT: What relationship?
MR. SCHOENBERGER: The relation-
(41)
te 18 aap AE ae ae betes Staoieixes.t
RR AIOE 5 to ht ec BODO 9 ha Sy Pap lt 5 PR PLLA G batt 8 AE te AR
-69-
Barone-cross
ship between the public defender's office
and Freeman, Wagner, Tabakman & Wray.
A I don't understand the question.
THE COURT: Just a second.
there is a pending objection.
I will overrule the objection.
Do you think that it was improper?
THE WITNESS: No, I didn't.
Q Would you think it was improper
if Mr. Tabakman remained in the office of
public defender when his partner Mr. Wray
became a Clarkstown Justice?
Q As I said before, and the point
was not pressed, I would have reappointed
Mr. Tabakman even though his partner Mr.
Wray was appointed town justice because it
is my recollection there there is an
Opinion of the Attorney General, and also
an opinion of Audit and Control which I
read, which indicates that a town justice
who is part time may not practice in any
other justice court, but that any person
who is partner or associate in the firm
may practice criminal law in any other
justice court excepting his.
That is my recollection and that
would have been the basis of the reappointment.
-70-
Barone-cross
I don't have the numbers of
the --
Q You don't feel, sir, do you,
that a municipal employee, an assistant
public defender, might be acting impro-
perly if he were to appear in the justice
court where his own partner was sitting as
a judge?
A He could not appear there. I
just pointed it out.
Attorney General points out that he could
not appear in the justice court in which
The opinion of the
his partner was sitting, whether his
partner was sitting as the judge or
whether there was another judge there. He
could not appear in that court.
Q I show you a copy of the Opinion
Committee on Professional Ethics for the
New York State Bar Association, dated
wah a Rca id
Have you ever seen this opinion
before?
A No, the opinions I saw were --
Q Would you read the opinion?
A -- of the Attorney General and
the Department of Audit and Control, if I
remember correctly.
(43)
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sree eae A AOE PD A GRR i CIO ANE oo Cai ins M0
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=?is
Barone-cross
This opinion, do you wish me to
read it?
Q Yes.
A The opinion --
MR. FINKEL: Objection.
Your Honor, I think the opinion
is part of the papers submitted to the
Court. In order that we complete this
hearing, perhaps if it can be done today,
I don't think it is necessary.
MR. SCHOENBERGER: Your Honor, I
would like Mr. Barone to read the opinion.
THE COURT: He can read it to
himself.
A This opinion has absolutely no
bearing on what we were talking about.
Now, if you would like, I will
read it.
Q Have you read it, sir?
A Yes, I have.
It has no bearing on what we are
talking about.
Q Even with the knowledge of this
Opinion you would then still appoint Mr.
Tabakman were you able to as an assistant
public defender?
o7F2«
Barone-cross
A Absolutely.
Q Thank you very much.
MR. SCHOENBERGER: No further
questions, your Honor. [44]
MR. FINKEL:
THE COURT: What do you mean
that this opinion has no bearing?
THE WITNESS:
that opinion again?
I have a few
May I just have
I have never seen it before. I
read it rather quickly. I will point out
to the Court why it has no bearing.
The question is, may partners
hold respectively the offices of town
justice and assistant public defender?
Opinion: It would be incongruous
to expect a town justice to also be an
assistant public defender.
I absolutely agree with that and
would not have appointed Mr. Wray.
The position of public defender
carries with it the duty to represent
indigent defendants in criminal cases and
may result in the representation of defendants
in the court of the town justice or a
court of higher jurisdiction. Such a criminal
practice is prohibited to a town justice. The relations
1A ll iA a ana aia SE
“etd oe |.
i RRA
Mie ws Bo
6 Ue Lee
NaC RS nt teil ow
oe ‘Mec iok.
~_ i=
Barone-cross
of partners in a law firm are such that
neither the firm nor any member or associ-
ate thereof may accept any professional
employment which any member of the firm
cannot properly accept. [45]
Now, I don't think that applies. I
think that the application is to the town
justice alone.
He can't --
BY MR. SCHOENBERGER:
Q Did you read the digest in the
upper right-hand corner?
Would you read it out loud?
a "Town justice partnership. The
limitation upon the practice of a town
justice prevents his partner from being an
assistant public defender."
This is on the stationery of the
New York State Bar Association, the
Committee on Professional Ethics.
May I ask you what standing that
has?
Q I am not on the witness stand,
sir.
THE COURT: When you say it has
no bearing, do you mean that you disagree
with it?
THE WITNESS: Yes, sir. It has
oF4~
Barone-cross /redirect
no bearing based on the opinions I have
seen from the Attorney General which I
think takes precedence over the New York
State Bar Association opinion.
I hasten to add that those
opinions may have been superseded, but I
am not aware of them. I do get most of
the literature. [46]
BY MR. SCHOENBERGER:
Q Mr. Barone, this opinion was
rendered on February 25, 1972.
You were a public defender at
that time, weren't you?
A I am talking about the opinions
of the Attorney General, Mr. Schoenberger.
Q You don't follow the Opinions on
Ethics, is that the idea?
MR. FINKEL: Objection, your
Honor.
THE COURT: Objection sustained.
MR. SCHOENBERGER: No further
questions.
MR. PINKEL:
questions.
REDIRECT EXAMINATION
BY MR. FINKEL:
I have a few
*
é
:
I
i
3
is
°
eee . a
pe AS AIRED airtel tinue eas 6
~ ai iia’:
-75=
Barone-redirect
Q When you appointed Manny Sanchez
as an assistant public defender, was he a
member of the firm ofFreedman, Wray,
Wagner & Tabakman?
A He was not.
Q Do you know of any financial or
economic relationship between them or even
if they knew each other at the time you
took Manny Sanchez into your office?
*
oFEa
Finkel-direct
[52]
Q You were appointed by the then
public defender Arnold Becker?
A Yes.
Q What was his political party?
A Arnold Becker, to the best of my
knowledge, was a Democrat, appointed by a
Democratic-controlled legislature, or
Board of Supervisors.
Q What was your enrollment at the
time of your appointment?
A I was put on as a permanent
employee.
Q What was your political enroll-
ment at that time?
A I was a Republican. I had been
a Republican for at least ten years at
that time.
Q At the time of your jnitial
appointment, did you have any understand-
ing as to whether this was a temporary or
a permanent appointment?
A . There was no question in my mind
that I was a permanent appointment. I
wouldn't have taken the job for the tenure
sens
@o77=
Finkel-direct
of Mr. Becker, which was just a few
months.
Q You were appointed in 1971. Mr.
Becker's appointment ran out when?
A December 31, 1971.
Q Right.
Now, Mr. Finkel, subsequent
thereto Mr. Barone, who just testified,
became the public defender, is that
correct?
A Yes.
Q Did you approach Mr. Barone
about being retained in your position?
A No. He just continued me in
office.
Q Was there any discussion between
you and Mr. Barone as to whether you would
stay or whether you would go?
4A He asked me, I believe -- it is
a long time ago -- I believe he asked me
if I would supervise some of the other
assistant public defenders. I did. I
stayed on.
Q At that time was it your belief
that your continuation by Mr. Barone was
on a permanent basis?
(53]
~~, =
Finkel-direct
A It certainly was.
Q Did there come a time some time
in the latter part of the year 1977 when
you became aware as to the possibility
that an attmept would be made to terminate
you from your job?
A Towards the end of the year
1977, yes. I read it in a newspaper. [54]
Q Prior to reading it in the
newspaper, was there anything which led
you to believe that Mr. Barone was going
to be replaced by another public defender?
4 Yes. There was much talk about
that. The new legislature was going to
appoint a Democrat and then there was
discussion as to who itwould be. It was
pretty much understood that Mr. Barone
would not be reappointed by the Democratic
legislature.
Q Mr. Barone was a Republican
appointed by a Republican-controlled
legislature in 1972, it that correct?
A Yes.
Q There was an election held in
Rockland County as it is held every four
years for the County legislature, is that
=79ea
Finkel-direct
correct?
A Yes.
Q Which party won the election?
A In the most recent election,
the Democrats controlled the legisla-
ture.
Q As the result of your feeling
that a new public defender would be
appointed, did you have occasion to have
any conversation with the defendant herein,
Peter Branti, concerning whether he would
become the public defender and if so [55]
whether he would retain you in that
position?
A Yes, I did.
Q Could you tell us approximately
when you had that discussion and the gist
thereof?
A In fact I had two discussions. I
had one, I think it was in November in the
office of the District Attorney. I approached
Mr. Branti and I indicated in some way that
I would like to remain on with the public
A Yes.
Q Subsequent to your conversation
defender's office.
He didn't commit himself, he
didn't say anything at that time. At that
time I don't think he knew that he had, he
WAS going to get the appointment. I was
@Sie
-80-
Finkel-direct . Finkel~direct
with Mr. Branti wherein you indicated your
intention to remain with the public defender's,
: if possible, did there appear an article
i
between him and Jack McAlevey. which you read in the local newspaper, the
He didn't commit himself because I Rockland County Journeal-News?
@on't think’ he new. A Yes. I am looking at a copy of
Q Did you have a subsequent con- that article now.
versation with Mr. Branti concerning your Q Is the Rockland County Journal
being retained in that position?
A Yes. I met Pete Branti at the
back of the courthouse, by chance, and I
asked him, I told him that I had two kids in
college and I needed the job, and I would
News a daily publication published in and
around the County of Rockland?
A Yes.
Q Did you yourself obtain a photo-
stat copy of the article from that newspaper?
like to remain on because I understood that a Yes, I have the. original in ay
papers if you would like that.
MR. WAGNER: I would like to offer
that in evidence, your Honor.
MR. SCHOENBERGER: I have no
objection to it being admitted into evidence, [57]
there was talk that the legislators were
going to make the appointments. {[56]
Nobody had approached me or said
anything to me.
Pete said it is not up to him
Pre AER your Honor, only as a copy of a newspaper
Q This coffversation, did the con-
versation, to the best of your knowledge,
article, but not as to any truth pertaining
to the article.
take place prior to December 24, 1977, when THE COURT: All right. It will be
there was an article in the newspaper? received.
@-82-
Finkel-direct -
(Plaintiff's Exhibit 7 received
in evidence)
Q Mr. Finkel, subsequent to reading
that article --
A Shall I find it for you?
Q That's all right.
Mr. Finkel, could you tell us
essentially what the gist of that, the
purport of that article is?
MR. SCHOENBERGER: Objection, your
There is no indication that the
article reports the truth or any semblance
of the truth. I have no objection to the
fact that it appeared in the newspaper. I
will accept that as being true.
MR. WAGNER: I offered it to lay a
Honor.
ground for the plaintiff's subsequent actions
which he took based upon what he read in the
public press. :
THE COURT: I just read the
article. I take it that you read the
article?
THE WITNESS: Yes.
THE COURT: We will go on.
NTA REDE Ts WA Ge ST I EE RP RICE BET 8 se ye SA LAE RO, SY ON
SS ae ee
oat
~§3«
Finkel-direct
Q Subsequent to that appearance of
the article, did you in concert with Mr.
Tabakman, the coplaintiff herein, prepare
and serve upon the defendant Peter Branti a
certain letter?
A Yes.
Q Was that letter in fact served on
Mr. Branti on December 30, 1977?
| A Yes, it was.
Q I believe counsel for the de-
fendants has a copy of this letter.
MR. WAGNER:
receipt by the County Attorney and Mr.
Branti. I would offer that in evidence.
MR. SCHOENBERGER: I will object
to the admission of that letter in evidence,
your Honor because (1) it is completely
self-serving; (2) one needs only to look at
the letter to determine that it was prepared
for the purposes of this litigation.
MR. WAGNER:
I offer it, your Honor, solely for
It acknowledges
I will so concede.
the purpose of showing that defendant Branti
was put on notice of the fact that Mr.
Finkel and Mr. Tabakman intend to continue
their employment with the public defender's
(58]
-84-
Finkel-direct
office and were ready, willing and able to
do so.
THE COURT:
MR. WAGNER:
tiff's Exhibit 8, your Honor.
(Plaintiff's Exhibit 8 received
in evidence)
Q Mr. Finkel, can you tell us --
MR. SCHOENBERGER:
please, I will object for the record. I
think that if Mr. Finkel is going to write
notes to Mr. Tabakman during the course -- I
am sorry, Mr. Finkel is going to write notes
it will be received. [59]
I offer it as Plain-
If your Honor
to Mr. Wagner during the course of the
trial, in order to aid him, presumably to
help him testify, to ask him questions, I
will object to that very seriously.
MR. WAGNER:
to the objection, your Honor.
THE WITNESS: I made a note for
Mr. Wagner thought perhaps that I
I was only
I have no objection
myself.
was making a note for him.
making a notice for myself.
MR. WAGNER: Also, I couldn't even
read his note.
THE COURT: Let's go on.
af
%
Pater Phin” Lie on
-85-
Finkel-direct
Q Mr. Finkel, in your duties as an
assistant public defender, and I am talking
about your duties as of the end of December,
1977, what did those duties consist of?
A I went to-- I handled all justice
courts matters as directed by the public [60]
defender.
Q When you say “handled,” what
exactly was it, your position vis-a-vis the
defendants who appeared in these courts;
what did you do?
A I would come into the office each
Monday morning or Monday afternoon, obtain
my files, review my files either at the
office or elsewhere, appear Monday nights in
the Town of Stony Point to represent those
Gefendants whose files I had -- they were
declared eligible by Mr. Barone prior to
that time.
Q Did you have anything to do with
declaring someone eligible by you as an -
assistant public defender?
A No. As a matter of fact if I went
to court and a prospective client needed
assistance, I always, at the direction of
Mr. Barone, asked the Court to please grant
-86-
Finkel-direct
an adjournment to either the next Monday
night or to two weeks hence so the defendant
could appear at my office and be interviewed
by an investigator or an attorney and be
declared eligible by Mr. Barone for repre-
sentation. x
Q Did you have any say or voice or
any relationship whatsoever with the running
of the public defender's office.
A. Not in any way whatsoever. AS a
matter of fact, Mr. Barone was always
adamant that any piece of paper that went
out of that office be reviewed by him for
its legal sufficiency and technical sufficiency.
Q Did Mr. Barone, did you and Mr.
Barone have any position of confidentiality,
one with the other, wherein he would take
you into his confidence concerning any
matters other than cases in which you were
(61]
appearing?
A Perhaps in an unusual circumstance
we shared a confidence. He would say,
"Look, don't tell anybody.”
that, among any employer and employee.
Q Did you share the same confidences
The same thing
with your coem>loyees?
is
-87-
Finkel-direct
A Yes.
Q And with other members of the bar
who were not related to you in any way,
friends of yours?
A On occasion if it didn't violate a
defendant's relationship with me.
Q Mr. Finkel, in the course of your
employment as deputy public defender, or
assistant public defender under both Arnold
Becker and Frank Barone, were you ever
reprimanded by either one?
A No, never. Mr. Barone sounds off
once in a while.
Q A formal reprimand?
a No. As a matter of
fact, I asked Mr. Barone if he had anything
that might be helpful to me in this action.
"Well, I have some letters from
various churches and things which I have
In no way.
He said,
received commending you for certain work
that you have done.” I didn't bring it out
in his testimony, but I am sure if he is
recalled --
Q To your knowledge, there has never
been any question raised by anyone in the
two terms, the two public defenders under
(62)
-88-
Finkel-direct
which you served concerning your competence
or ability?
A No. In fact, Mr.
party after I won a very substantial case.
Mr.
Becker made a
Barone has commended me often.
Q Mr. Finkel, what political party
are you registered in as of today?
A I really don't know. Back in
February or so I had a conversation--I have
been 3 Wepublican for the past seventeen
year". In February or so of this year I had
a coé»’rversation with the District Attorney
who, of Rockland County, who indicated to me
that--he offered me a job in his office. I
told him that I wanted to stay on with the
He told me that
it would be a good idea if I changed my
public defender's office.
enrollment.
I went to the office of the
Commissioner of Elections and I changed my
enrollment.
Q When was that change effective?
A « It was effective after the lst of
this year. I didn't want to seem as though
I was doing it for political reasons.
Q In other words, as of at least the
(63]
alt Ashen de lad ta BA CRIS Et
t
:
4
y
;
4
4
¥
4
:
}
i
4
-89-
Finkel-direct /cross
end of December, 1977, you were still a
Republican, registered as such?
A Yes.
Q Mr. Finkel, do you have any
Opinion as to the reason why you were not
reappointed?
A There is absolutely no question in
my mind that I was not reappointed because I
was a Republican.
MR. SCHOENBERGER: Objection.
That is a proper determination for the
Court. -
THE COURT:
MR. WAGNER:
questions, your Honor.
THE WITNESS:
just say one thing?
Overruled.
I have no further
Your Honor, may I
I am not certain that
it was, that the District Attorney, when he
spoke to me, used the exact words I used.
But he did say that it would be a good idea
to change my enrollment or something of that
and I did do it.
CROSS-EXAMINATION
BY MR. SCHOENBERGER: '
Q Is it correct that in about.
February of 1977 you filed papers with the
nature,
[64]
=9@-
Finkel-cross
Board of Elections to become a Democrat?
A Yes.
Q Copies of those forms are attached
to the papers that we submitted here?
A What was that?
Q Have you seen copies of those
forms attached to the papers submitted?
Q I went over your papers in five
minutes. If you have the form I signed, I
will acknowledge that it is accurate. I did
sign a form to become an enrolled Democrat.
Q Is this the form?
A That is a form bearing the date
February 16, 1977, signed by me; the signa-
‘ture and the date are very obvious to me in
my handwriting from the photocopy, that is.
The other printed material, I don't think I
wrote. I don't think I wrote anything else
on that form but I did write the date and I
did sign it, and I did make that application.
Q Did anyone ever force you to
become a Democrat? > [65]
A No.
You did so voluntarily?
Q
A Yes.
Q Did anyone ever force you to give
~ Coco aie wie
53 RAEN De ed 5 en aes
_—
TON ney aes ee
AAT Re |
2 eee
eT
-9l]-
Finkel-cross
money to the Democratic Party?
A No, but I have.
Q when were you first appointed as
am assistant public defender?
ry I was first appointed in March of
1971.
Q When you were appointed, was that
March of 1971?
A I think it was the 26th of March
or the 29th of March.
Q Approximately.
A This is my recollection from
papers I have reviewed. It was not -- it
was the first part of 1971, I will say.
Q Wasn't the existing legislature
due to terminate in December 1972?
r That is right.
When you were appointed by Mr. Becker,
in March 1971, are you aware if there were
any promises or representations made or any
political deals to carry you into the new
legislature and into a new appointment, or a [66]
further appointment as a public defender?
A No. I am not a very strong person
politically. I was a committeeman at one
time, but of minor stature.
SE ee te
re
=92=
Finkel-cross
Q The second time you spoke to Pete
Branti, had he then been appointed as public
defender?
A The second time, no.
Q You asked Mr. Branti if in the
event he became public defender, if you
could remain in the office, is that correct?
A My recollection is, it was a brief
meeting, I recall; I recall almost precisely
what I said. I said, "Pete, I have two kids
in college. I need the job." And I don't
know if I said I understand you are going to
terminate me. But it was understood that I
was not going to be there. Nobody spoke to
me. Everybody avoided the situation.
Everybody knew that we were all going.
So -- what was the question? I am
getting emotional.
Q You knew “we were all going." Go
ahead and finish.
A What was the question?
Q You classified yourself as being
permanent?
A Yes.
Q You testified that you had a belief
2 Bk AWE Bide gH ea
Ee AAR LAEAGRD LAB BERS BB POS AAD ARD
ARAN AL nl TRO ELT A
that you were permanent? [67] |
=-93-
Finkel-cross
A Yes.
Q You heard Mr. Barone testify--
A Yes.
Q --as to what permanent meant to
him?
A Yes.
Q Did you have the same understand-
ing as to what permanent meant to you also?
A Until recently, yes.
Q You knew you were serving at the
pleasure of the public defender, didn't you,
when you were first appointed?
A I felt if I did my job--
Q Would you answer my question,
please? You were serving at the pleasure of
the public defender when you were first
appointed, weren't you?
4 Yes, provided I did my job, pro-
vided I didn't mess up. I assumed that I
was --
Q You knew when you took that job in
March 1971, it was at his pleasure?
aA You are putting words in my mouth
and you know that. We can be adult about
this. We are both attorneys.
MR. SCHOENBERGER: Your Honor -- [68]
-94-
Finkel-cross
THE COURT: The question is, did
you know in 1971 when you took the appoint-
ment as an assistant public defender that
you would hold that job at the pleasure of
the public defender?
THE WITNESS: At that time I felt
that I served at the pleasure of the-public
defender, yes.
THE COURT: Next question.
Q Do you recall previously testify-
ing in court that you would not have taken
the job in March, 1971, if you had not
believed it to be permanent?
A Yes. I left a job to take that
job.
Q At the pleasure of the public
defender?
A Yes.
Q Were you aware when you took the .
job that the public defender, whoever that
may be, could dismiss you without cause if
he chose to do so?
A At that time I believed that to be
true. But I generally do my work well and I
never dreamed that I would ever be dismissed
from a job.
BS ESE ARTES EY SEL 7,
9 LE GEA A i. Cog lots BPS EI
-95-
Finkel-cross
Q Isn't it true that when someone
comes to the public defender's office, and
seeks assistance of the public defender to
represent them in court, they are met by
secretaries who discuss their situation with
them; is that true or isn't it. [69]
A Sometimes. Sometimes the secretary
will discuss a situation with a defendant.
But if a legal question becomes involved,
they have no authority.
Mr. Barone is, was very strong
about that. It must go to an investigator or
to a lawyer.
Q Isn't it true, the secretaries in
your office are the ones who make the
determination as to whether a person is
eligible for assistance, generally speaking?
A Absolutely untrue. If a secretary
ever did, and it became known, she would
have some job explaining the situation.
Q Was there a confidential relation-
ship between you and Mr. Barone, the public
defender, concerning cases upon which you
were appearing, representing the public
defender's office?
A If an accounting to Mr. Barone
-96-
Finkel-cross
about my files that I must treat as con-
fidential between the client and myself is a
confidential relationship of the nature that
you are talking about, the answer is yes. I
discussed my files with Mr. Barone.
If I had a problem I would go to :
him with it. I didn't go to, I didn't hide
problems from him. He was very helpful to ;
:
me. Sometimes I felt not, but that's besides |
the point. (70) ©
Q When you were in justice court or |
county court, did you feel yourself to be
an extension of Mr. Barone in that court? |
A Very definitely. As all my papers
were Frank Barone, Aaron Finkel, of counsel.
d
£
Q You were, if I may say so, his
personal -- not his personnel -- his per-
sonal representative in court?
A Yes, I was.
Q You enjoyed along with that all
the aspects of a personal relationship,
including confidentiality; that's true,
isn't it?
A I was an employee of an employer.
My employer was the public defender.
Q Would you answer the question yes
-97-
Finkel-cross
or no?
A I owed him the confidential rela-
tionship of the principal agent, of the
employer/employee. Yes, I did.
Q When Mr. Barone was not in the
office, on vacation, out sick, who presided
over the office and determined policy?
A I am glad you asked that question.
Not me. At no time did Mr. Barone ever
leave me in full charge of that office.
There was a period of time when he
left Herman Vanellen in. There was a period
when he left Mr. Nelson. {[71]
There was a period of time when he
might have left somebody else. I felt upset
at times that he never did choose to leave
me in charge of the office, never very
upset, but you know --
Q Regardless of all the competence
you had in the office, as you testified,
competence you had in the pursuit of your
duties as assistant public defender, you
felt upset that he didn't leave you in
charge?
A Yes.
Q Wasn’t there a time when you were
-98-
Finkel-cross
a senior assistant public defender?
A Yes.
Q Who was the public defender at
that time?
A I think I served as senior assis-
tant only under Mr. Barone. I was up and
down. However, it worked out best for Mr.
Barone. I served as his assistant. I got
bigger salaries, smaller salaries. I put in
bigger time and smaller time as he directed.
Q Who is directly subordinate to the
public defender in the public defender's
office?
A There is an executive assistant, a
chief assistant. There may be somebody else
in between. The senior assistant -- scratch
that.
Q Would you tell me the duties of a
senior assistant?
A My duties were pretty much the
same as the assistant. I just handled a
bigger load of cases. If there was, if the
defender thought he had a particular problem
in a particular court, he might call me up
in the middle of the night or something like
that and I had to straighten it out, based
(72]
-99-
Finkel-cross
on his directions.
Q Isn't it true that when you
appeared in county court representing the
public defender's office, you have respon-
sibilities that were not well-defined and
broad?
A No. I think they were well-
defined. They may have been broad. Any
attorney in any court has broad responsi-
bilities, has a big job. He has to be on
his toes at all times. But well-defined--
Q When you were in county court
representing a defendant, did you formulate
plans for the implementation of the goals
which you were therefor, namely, to repre-
sent that defendant?
A I am sorry, I don't understand the
question.
Q When you were in county court
representing a defendant as an assistant
public defender, did you formulate plans for
the goals of the representation of that
defendant? ) (73]
A Yes,’ I believe yes. I am still
not absolutely sure about your question. I
did try to do the best I could for the
-100-
Finkel=cross
4 -101-
ff Finkel-cross
would serve he his pleasure and he could
discharge you without cause, is that correct?
A At that time that is not true at
all, because back in July of 1977, I studied
the constitutional law questions in this
defendant, yes; if that's what your question
is.
Q You had wide latitude and dis-
cretion on how to proceed, didn't you?
A I didn't have that wide a lati-
tude. I had to work within a certain
matter and I studied constitutional law very
ot eee eile. pM
framework. Mr. Barone called meetings from thoroughly. I was convinced that Mr. Branti
time to time and would say, for example, or whoever the public defender was didn't
that if anybody dares take a plea for a guy have that power. But I did-- I was not
eisomaemnetn
who is on probation, you are in big trouble.
I didn't have that kind of latitude where I
could take a plea for somebody on probation.
privy to any of the machinations in the
Democratic Party.
MR SCHOENBERGER: Your Honor, I
Q In normal circumstances of repre- move to strike that as totally not respon-
senting the defendant as an assistant public sive.
defender or as a senior assistant public THE COURT: Yes.
Q I show you a list of the former
public defenders in office, the former
staff, as part of our papers filed with the
defender, and you had an opportunity to take
a plea on occasion, in normal circumstances,
did you call Mr. Barone and ask him if it
was all right to take that plea or did you Court.
make your own decision? A Yes. {[77]
(75]
* x
A Not my reappointment. My being Q Out of those names do you know who
continued on the job. is still remaining on the public defender's
staff today?
A I have no idea. I know what the
Q Because you knew, didn't you, that
if he were appointed public defender, you
-102-
Finkel-cross /redirect
newspaper said, I know that from hearsay but
I don't know who was actually appointed.
Q Thank you very much.
A I would comment on something --
Q Thank you very much.
MR. SCHOENBERGER: I have no
further questions.
REDIRECT EXAMINATION
BY MR. WAGNER:
Q Isn't it correct and would it not
be fair to say that as an assistant public
defender your sole obligation was to repre-
sent individual indigent clients within the
guidelines set down by Frank Barone in court
on a case-to-case basis?
A Yes.
Q You had no role whatsoever in
formulating overall policy?
A Absolutely none.
Q You might have formulated policy
with regard to an individual case that you
were appearing on within Mr. Barone's
guidelines, is that correct? {78]
A That is correct. Mr. Barone was
very, very adamant that nobody took over his
administrative --
-103-
Finkel-redirect ~
Q I think we discussed that.
Mr. Finkel, suppose you were
offered what you thought was a good deal for
your client and you advised, you counselled,
you begged and cajoled him to accept the
plea. If he insisted on pleading not guilty
would you have to represent him and plead
not guilty and proceed with this trial?
A I never controlled a client. I
never pushed a client around to take a plea.
If a client, well counselled, wanted to take
a plea, sure I had that power.
Q Suppose that you felt that a
particular defendant's going to trial was
the qumbest thing that he possibly could do,
but he insisted, do you have any authority
to say to him that you won't represent him
any more, or if you will do that I am
leaving, or did you have to represent him as
I directed?
A I did have with limited exception.
There were, to be completely honest, there
were times when I would tell, there were
times when I would tell a client just to
give him a cooling off period, or something
like that, saying I won't represent you if
-104-
Finkel-redirect /recross
you do such and such, just to give, I would
take some kind of action to give him time to [79]
cool off if I had to. Generally, I did the
Client's will.
MR. WAGNER: Nothing further.
RECROSS EXAMINATION
BY MR. SCHOENBERGER:
Q When you spoke to a client and
gave him that time to cool off, or coun-
selled him as to whether to take a plea or
not, you did all that based upon your own
discretion without calling Mr. Barone up on
the telephone asking if that was correct?
A I had to do things.
Q It is correct?
A Yes.
MR. SCHOENBERGER: Thank you.
(Witness excused. )
MR. WAGNER: At this time, your
Honor, I would like to call plaintiff Alan
Tabakman to the stand.
[80]
-105-
Tabakman-direct
ALAN TABAKMAN, a plaintiff,
called as a witness on behalf of the
plaintiffs, having been first duly
sworn, testified as follows:
DIRECT EXAMINATION
BY MR. WAGNER:
Q Mr. Tabakman, did there come a
time when you assumed the position of
assistant public defender for County of
Rockland?
A There did.
Q I show you here a document and I
ask you if that is the oath of office or a
copy of the oath of office which you swore
to and filed with the County Clerk.
A It is a copy, and that is my
signature.
MR. WAGNER: Any objection?
MR. SCHOENBERGER: No objection.
MR. WAGNER: I offer it in evi-
dence as Plaintiffs' Exhibit 9.
THE COURT: Received.
(Plaintiffs' Exhibit 9 was
received in evidence. )
Q Mr. Tabakman, you were appointed
by Frank Barone, is that correct?
A Yes.
(81)
-106-
Tabakman-direct
Q At the time of your appointment,
sir, did you believe your appointment to be
temporary or permanent?
A I believe my appointment to be
permanent.
Q You have heard Mr. Finkel describe
the duties of an assistant Public defender.
Without going into great detail, were your
duties essentially similar to his?
A They were essentially the same
duties. I would add that I was never a
senior assistant public defender or an
executive assistant public defender. Since
the time of my appointment I was only an
assistant public defender. The duties were
essentially the same other than with the
limitations that I have just mentioned.
Q To represent indigent clients to
the best of their interest within the guide-
lines set forth by Mr. Barone?
A Yes.
Q You didn't ever exercise any
policy making powers in that office?
A No.
Q Was your relationship with Mr.
Barone as your employer a confidential
-107-
. Tabakman-direct
relationship other than the normal confi-
dence that an employer expects of an employee?
A No. It was not. [82]
Q In the course of your employment
as an assistant public defender were you
ever reprimanded?
A I was never reprimanded, not by
Mr. Barone.
Q Were you ever reprimanded by
anyone over you, whether Mr. Barone or his
executive assistant or anyone?
A No.
Q Were any compliants ever made to
you about the quality of your work?
A To the best of my knowledge,no.
Q Did there come a time in some time
late 1977 when you became aware that Mr.
Barone's term which was expiring was expiring
and that he would not be reappointed?
A Yes. I did become aware of that.
Q Did you subsequently become aware
either through political rumor or newspapers
or what not that Mr. Branti was being considered
for the job of public defender?
A I did become aware of that also.
Q As the result of the fact that you
-108-
Tabakman-direct
believed Mr. Branti to be the next public
defender did there come a time when you had
a conversation with Mr. Branti more speci-
fically at the Christmas cocktail party of
the District Attorney of Rockland County, [83]
Mr. Kenneth Gribetz?
A Yes. I did have a conversation
with him.
Q Mr. Tabakman, what was the gist of
that conversation?
A I believe at that time that Mr.
Branti was, so to speak, the shoo-in as far
as the public defender's office was con-
cerned or the appointment to it.
I had spoken to Pete, Pete had
indicated to me that he liked me. He would
have liked, he would like to keep me in the
office. He told me that he didn't have the
power to make the appointment. The power to
make those appointments was with the Demo-
cratic caucus, specifically with the 11
Democratic legislators who had recently been
elected in the early part of November.
Q Did he make any suggestions as to
any procedure which you could follow to gain
the approval of the Democratic caucus?
-109-
Tabakman-direct
A Weil, to gain the approval of the
Democratic caucus was to find a Democrat,
find a Democrat to sponsor you. Then you
could stay in the office.
Q Did he at any time --
THE COURT: Did he say that?
THE WITNESS: I would have to find
a Democrat to sponsor me. [84]
THE COURT: He said that?
THE WITNESS: To me.
Q His words were you have to find a
Democrat to sponsor you?
A Yes. that is right.
Q Did Mr. Branti at any time during
that conversation or at any time prior to
today ever state to you that he could not
retain you as an Assistant Public Defender
because your partner had been elected a Town
Justice?
BY No. He never said that to me. I
wish that he would have given me the opportunity.
If he would have spoken to me about that, I
wish he would have done that.
Q Mr. Tabakman, did you ever as a
regular assignment appear as the assistant
public defender in the Town of Clarkstown?
A No.* [88]
a |
‘
-110-
Tabakman-cross
CROSS EXAMINATION
BY MR. SCHOENBERGER: .
Q Mr. Tabakman, as an attorney do
you consider yourself to be a person of high
ethical standards?
4A I try to be. Not only as an
attorney, by the way...
Q I am glad to hear that. Have you
ever seen this opinion before?
4 Not until today.
Q Have you read it?
A Yes.
Q Anywhere in that opinion does it
limit or make reference to the fact of a
partner who was a public defender appearing
in the same court as the other partner who
is a Justice Court Judge?
A It apparently does.
Q Isn't it true that that opinion is
a very broad opinion saying that an assistant
public defender cannot appear in any court,
cannot practice law as an assistant public
defender if his partner is a Judge?
A I don't know if I would characterize
it as a broad opinion. It is an opinion.~-
Q Is the characterization I just
gave, isn't that correct? [89]
eS en
-111-
Tabakman-cross
A What was that, what characteri-
zation? Broad?
Q The characterization that as an
attorney whois a public defender.
A If your law partner is a justice
that youcannot act as a public defender.
That's apparently what the opinion says.
Q It doesn't limit it merely to the
court in which the partner is the Judge,
isn't that correct?
x That's apparently what it says.
Q You spoke to Mr. Branti at the
Christmas cocktail party?
A Correct.
Q Were you alone?
A No.
Q Who was there?
A Mr. Wray, my partner.
Q Anyone else?
A There were a lot of people there.
I don't believe that they heard what took
place as far as the conversation was concerned.
Q But Mr. Wray, your partner, the
now Judge Wray was there with you, wasn't
he?
A Correct. The assistant public
-112-
Tabakman-cross
defenders were invited to the party, he was an |
assistant public defender at that time and a judge elect. [9
Q What is your registration?
A Republican.
Q Has anyone coerced you to change
your registration to Democrat?
A To change my registration to Democrat?
Q Yes.
A I haven't changed my registration.
Q Has anyone attempted to coerce you
to attempt to get you to change your registration?
A No. |
Q Has anyone made your job condi-
tioned upon contributions to the Democratic
party?
A No.
THE COURT: You are talking about
the job he used to have, I take It?
MR. SCHOENBERGER: Yes, sir.
Q Did anyone condition your reappoint-
ment upon your allegiance to the Democratic
party?
A Not allegiance to the Democratic
party.
MR. SCHOENBERGER: Thank you very
much.
*
-113-
Tabakman-redirect
MR. WAGNER: No further questions.
MR. SCHOENBERGER: I have no
further questions.
MR. WAGNER: The plaintiffs wish to
call Judge William Wray, Jr.
WILLIAM WRAY, J R., called as a
witness on behalf of the plaintiffs,
having been first duly sworn,. testified
as follows:
DIRECT EX§8MINATION
BY MR. WAGNER:
Q Mr. Ray, do you currently hold any
governmental position?
THE COURT: State your full name
for the record.
THE WITNESS: My name is William
Wray. I was elected to the posittion..of
Clarkstown Justice.
Q Do you currently hold any form
of governmental employment?
A ~ In November I was elected to be
Clarkstown Town Justice in the Town of
Clarkstown. I was officially sworn in
yesterday morning.
Q Judge Wray, were you present at a
conversation which took place between the
(92]
~114-
Wray-direct
plaintiff Al Tabakman and the defendant
Peter Branti during the latter part of
December at a cocktail party hosted by
Kenneth Gribetz, the District Attorney for [93]
Rockland County?
A Yes, I was.
Q Did you have occasion at that
time to participate in or to overhear a
conversation between plaintiff Tabakman and
Defendant Branti concerning plaintiff
Tabakman's reappointment or continuation as
an assistant public defendant?
* ig We were all talking, but mostly I
was listening.
Q Could you tell us as best as you
can recall the gist of that conversation?
A The gist of the conversation was
that, of course we would like to have Alan
reappointed as public defender, and Mr. Branti
said that he didn't have any objection to
that. But that he didn't have any control of
that and that it would be in our best
interest to try to get the Democratic
legislator to put Alan's name into the
political process.
Q Did Mr. Branti at that time tell
you or give you any information as to how
the appointments or reappointments to
Vie are
oer AR in ee RE
-115-
Wray-direct
assistant public defender were being
made?
A I am not sure if Mr. Branti did,
although in conversations with him and others
in the Democratic party, we were told that
Mr. Tabakman's name --
MR. SCHOENBERGER:
your Honor.
Objection,
It appears to be a hearsay
conversation.
MR. WAGNER: I will withdraw the
question.
THE COURT:
have the conversation limited to the conver-
Just a second. Let us
sation with Mr. Branti.
THE WITNESS: I believe I would
have to say that we were told that the
names should come from Madam Troy, the Demo-
.cratic Chairwoman of Clarkstown.
Q Mr. Wray, at the time Judge Wray,
at the time that you were elected Town
Justice of the Town of Clarkstown, did you
have occasion to review either by yourself
or with plaintiff Tabakman the applicable
rulings of the audit control and the Attorney
General concerning the practice’ by a law
partner before other courts within the county
[94]
-116-
Wray-direct
or other co-equal justice courts?
A Yes, I did, both at the time that
I was elected and before I decided to run.
Q What did you determine from that
investigation?
A It was determined by --
MR. SCHOENBERGER: Objection. It
requires a legal conclusion.
MR. WAGNER: I will withdraw the
question, your Honor.
Q Can you tell us what these opinions
were and who rendered them? [95]
A We discussed it on numerous
occasions with Mr. Barone. I understand
there were opinions from Audit and control
and it was cur understanding that as long
as Mr. Tabakman didn't appear in the parti-
cular Justice Court in which I was sitting,
that he would be perfectly qualified to
continue as a public defender.
MR. SCHOENBERGER: Objection, your
Honor, to that entire answer. I will ask
that it be stricken as hearsay.
THE COURT: It will be stricken.
Q , Mr. Wray, do you know of any situ-
ations in Rockland County where partners of
ee et ld He ne a eR &
ee ee ee OE
-117-
Wray-direct /cross
town or village justicespractice not
before their partner but in other courts
of equal jurisdiction?
hg A Yes.
A Is it to the best of your
knowledge and information an accepted
practice?
A Yes, it is.
Q Mr. Wray, you are of course a
member of tne firm of Freedman, Wray,
Wagner & Tabakman?
A Yes.
*
[100]
Q Have you seen this opinion of
the --
A Yes, I read the papers. I did.
Q The opinion doesn't only speak of
partners?
A I think that opinion can be distin-
guished.
Q May I ask my question?
A Yes. You certainly may.
Q That opinion does not only speak of
partners, of Town, or Village Justice practi-
cing before other Town Justices but it does
-118-
Wray-cross
more specifically speak about public em-
ployees such as public defenders whose
‘partners are judges?
A Yes.
Q Do you know of any other public
' defenders, assistant public defenders or
municipal employees in the County of Rock-
land whose partners are judges that practice
in those courts?
A I can't specifically name anybody.
Q Do you, sir, feel that there will
be an impropriety if a public official like
an assistant public defender whose partner
was a Town Justice appeared before another
Town Justice in the County of Rockland? [101]
A No. I don't.
MR. SCHOENBERGER: Nothing furthur,
your Honor.
THE COURT: Mr. Wray, getting to
this conversation that you had with Mr.
Branti, was anything said at the time about
the problem that would be created by your
being the Town Justice with Mr. Tabakman
being in the public defender's office?
THE WITNESS: In all the conversa-
tions we had with anybody in the political
process that was never mentioned. I
-119-
Wray-redirect
believe that has been brought up I think
personally as an afterthought.
THE COURT: Any further gues-
tions?
MR. WAGNER: Yes, sir.
REDIRECT EXAMINATION
BY MR. WAGNER:
Q To the best of your knowledge is
there any other assistant public defender
who has’ a law partner who is a judge?
A I really can't think of anybody
at the minute. There are judges, Town
Justices in the county who have partners
going into other crime, to Justice Courts
handling criminal cases, and I don't see
why it should be any different for an
indigent defendant as for a regular [102]
defendant.
MR. WAGNER: Nothing further, your
Honor. :
MR. WAGNER: The plaintiffs call
Theodore Dusanenko.
-120-
Dusanenko-direct
THEODORE DBS ANEN K O, called
as a witness on behalf of the plain-
tiffs, having been first duly sworn,
testified as follows:
DIRECT EXAMINATION
BY MR. WAGNER:
Q Where do you reside?
A 2 Scott Drive, New City, New York.
Q Do you presently hold any official
position in the county government?
A Yes, I do.
Q What is that position?
A County Legislator.
Q When were you first elected County
Legislator?
o 1969.
Q You were just reelected in this
past election of 1977, is. that correct?
A Yes, I was.
Q Mr. Dusanenko, were you not at one
time the minority leader of the County Legis-
lature? [103]
A Yes, I was.
Q Mr. Dusanenko, are you familiar in
any way with the political process involved
in the appointments of department heads of
a
-121-
Dusanenko-direct
the County of Rockland by the County
Legislature?
A To a large extent, yes.
by Q Are you familiar in any way with
the circumstances surrounding Mr. Branti's
appointment?
A Yes, I am.
Q Could you tell us what you know of
your own knowledge concerning that appoint-
ment?
A Mr. Branti, I may add, is a very
qualified gentleman, was the choice of the
majority caucus of the Rockland County Legis-
lature and by majority caucus I mean the 11
of 18 members who were affiliated with the
Democratic party who have the controlling
power in that legislature.
Q Were you ever approached or con-
sulted by the Democratic caucus or any: of
the members thereof concerning either the
appointment of the public defender or the
appointment of any of his assistants?
A Not in that department or any
other department.
Q Did you ever make inquiries of
any of the members of the Democratic caucus [104]
ee
he ante
-122-
Dusanenko-direct
as to whether they would consider the appoint-
ment of anyone that you sponsored? |
A Yes. I had asked several indivi-
duals to consider the continued employment of
some individuals and that was all that I had
asked.
Q What answers did you receive when
you requested that? ~
A Of who?
Q Well, all right. I will withdraw
the question.
Who did you ask to continue the
employment of various individuals in appointed
positions?
rN I asked Legislator Goodfriend, I asked Legis-
lator Colman, I asked Legislator Meehan, I asked Legisla-
tor Damiani, I asked Legislator Rotella.
Q Did any of these legislators react
in any way to your request that they consider
appointing people that you recommended?
THE COURT: Appointing to what?
MR. WAGNER: Withdrawn.
Q What position did you discuss?
I will withdraw that too.
Did you ever have occasion to
discuss the assistant public defenders? {105]
A Yes.
SO A who 5 a
ee ee
-123-
Dusanenko-direct
Q Did you have occasion to discuss
the continuation of Mr. Finkel or Mr.
Tabakman?
’ A Mr. Finkel's name I had not men-
tioned but I did mention Mr. Tabakman's name.
Q Mr. Dusanenko, you represent the
Town of Clarkstown, is that correct?
A Yes. 7
Q Mr. Finkel is not one of your
constituents but Mr. Tabakman is, is that
correct?
A To the best of my knowledge, yes.
Q How did you ask to continue Mr.
Tabakman in employment?
A The people who I previously named.
Q You asked all of them?
A Yes. And I also asked Mr. Btranti
to find out, not specifically, I said what
is the procedure that would be used for con-
tinued employment, et cetera.
Q What did Mr. Branti tell you?
A At that time, that the decisions
were made, and it is beyond his ability to
have any imput into those decisions at
that point in time.
Q Did he tell you by whom the
decisions were made?
-124-
Dusanenko-direct
A’ No.
Q Did any of the other County Legis-
lators respond in any way to your request that
Mr. Tabakman be kept on?
A Some said it was imperative to have
a sponsor to be on a Town Chairman's list or
on a list of several legislators.
Q Did they define --
MR. SCHOENBERGER: Your Honor, I
will object to all of that as hearsay.
THE COURT: Overruled.
Q Did they tell you, Mr. Dusanenko,
what the definition of a sponsor was?
MR. SCHOENBERGER: Objection.
Hearsay.
THE COURT: Let's see. Mr.
Goodfriend is a defendant.
MR. WAGNER: Mr. Dusanenko is a
defendant.
THE COURT: Mr. Coleman is a
defendant.
MR. WAGNER: If I can save the
Court some tims all the individuals men-
tioned by Mr. Dusanenko are all county
legislators and also co-defendants.
THE COURT: Overruled.
-125-
Dusanenko-direct
A What does that mean?
Q That means you can answer.
Did any of the other county legis-
lators with whom you spoke define what they [107]
meant by a "sponsor"?
A I was never clear in my mind because on
occasion some people spoke that it would be the caucus,
when they met. Some people said that the recommenda-
tions from individual legislators participating in the
caucus would be helpful and other cases some people
led me to believe that the political town chairman
would pose or prepare such lists.
Q Taking them one at a time, would
the sponsorship by a legislator have to be
the sponsorship by a Democratic legislator?
A The representatives had no say in
that matter.
Q I am not sure you understand my
question.
You said that one form of spon-
sorship might be by a legislator. Would
that have to be a Democratic legislator or
could a Republican legislator have spon-
sored an individual and had him accepted?
A I myself had no participation
into any appointments. We were not invited
-126-
Dusanenko-direct /cross
All these
choices were made by the Democratic caucus.
Q I don't think I have to ask you
what the Democratic caucus is since it is
to the Democratic caucus.
evident.
You also mentioned possible
sponsorship by Town Chairmen. Did that
mean sponsorship by either Republican,
Democrat or Liberal or Conservative chair-
men?
A To those people I spoke to, they
were only discussing Democratic Town Chair-
men at that time.
MR. WAGNER: Thank you.
I have no further questions, your
Honor.
CROSS EXAMINATION
BY MR. SCHOENBERGER:
Q Did any of the legislators you
spoke to tell you that Mr. Tabakman woald
have to switch allegiance to the Democratic
party, give money to the Democratic party,
or support to the Democratic party to be
reappointed?
A No.
Q You were not invited to the Demo-
cratic caucus, were you?
[108]
-127-
Dusanenko-cross
A Never.
Q You were not there when the
Democrats caucused?
7a No.
Q So you do not know for a fact
whether these choices were made by the
Democratic caucus, do you?
A Yes.* [110]
Q You do know that the public
defender appoints his assistants, don't you?
A Yes.
Q Once again, you were not at the
caucus?
A That is correct.
Q You don't know whether the assis-
tants chosen by the public defender were
chosen by the caucus, do you?
A Only through conversations, with
others. I was not present at them.
Q But of your own knowledge?
A That's the knowledge I have, is
from conversations with other people.
Q Of your own personal knowledge
not based upon hearsay?
THE COURT: Counsel, there are a
number of people that he has testified to
-128-
Dusanenko-cross
convergations with, who are defendants in
this action.
I don't regard his converda~
tions with those persons as being hearsay.
I am interested in knowing what those con-
versations were if there were such conver-
sations. So, please don't restrict him so
much. {111]
BY MR. SCHOENBERGER:
Q You testified that you spoke with
Mr. Goodfriend?
A Yes.
Q Do you recall the nature and extent
of that conversation?
A Yes, sir.
Q Could you tell us in court what
that conversation was?
a Yes.
It was in the offices of the General
Fiscal Services in the same building and at
that time I asked what was necessary in order
to save one or two individuals who are cur-
rently or previously, let me say employed
during 1977 in the public defender's office,
that was Mr. Alan Tabakman and Mr. Manny
Sanchez. In that conversation Mr. Goodfriend
-129-
Dusanenko-cross
suggested, well, if anything could be done
he would be in favor of Mr. Sanchez, but
on the other hand Mr. Tabakman was too
Closely associated with an opposition poli-
tical party.
Q He never indicated to you, did he
that the decision not to hire Mr. Tabakman
was made in caucus, did he?
as I don't know. As you said I
wasn't there. That part of a conversation
was never discussed about who was not going
to be returned. I think at that time what-
ever conversations took place were about
the number of jobs, the ratio of the posi-
tions and the individuals who were going to
receive new jobs, rather than deciding on
which individuals previously employed were
going to stay.
Q Once again did Mr. Goodfriend or
any other legislator, Democratic legislator,
tell you that Mr. Tabakman or anyone else's
job, excuse me, that Mr. Tabakman's job
was conditioned upon him swearing allegi-
‘ance or supporting the Democratic party;
did they?
A You asked that before and I said
no.
{112]
-130-
Dusanenko-redirect
MR. SCHOENBERGER: No further
guestions, your Honor.
REDIRECT EXAMINATION
BY MR. WAGNER:
Q Mr. Dusanenko, you mentioned that
you spoke to some four or five individuals con-
cerning the retention of Mr. Tabakman in his
position. Did any of those individuals ever
memtton or bring up anything involving the
fact that Mr. Tabakman's partner had been
elected judge and therefore Mr. Tabakman
was not eligible for that job?
A Yes.
Q Who brought that up? {113]
A The same Mr. Goodfriend.
Q Was that at the same conversation
when he referred to the political allegiance?
A Yes. ty
Q Which did he refer to first, if
you recall, political allegiance or the fact
that his partner had been elected judge, or
was it part of the same conversation?
A It was part of the same g¢onversa~
tion.
Q In your opinion, Mr. Dusanenko,
when Mr. Goodfriend -- who I believe was the
former chairman of the county legislature?
ewes a
P bettie ee Lae
-131-
Dusanenko-redirect
No.
The majority leader?
I don't believe so.
All right. I am wrong on that.
Mr. Dusanenko, when Mr. Goodfriend
referred to Mr. Tabakman's active participa-
tion with an opposition faction, in your
Opinion was he referring to the fact that
he was the partner of a Republican Town
Justice who had just run and been elected?
A Yes.
MR. SCHOENBERGER:
oO Yr YD PY
Objection, your
Honor.
THE COURT: Overruled.
MR. WAGNER: No further questions.
THE COURT: I want to get back to
this conversation that yau had with Mr.
He told you that the decisions had
already been made with respect to who the
new assistant public defenders would be and
he could not have an input.
THE WITNESS: He didn't say the
first part of that, I don't believe, your
Honor. I thank he stated that the decision
was out of his hands. I don't believe he
elaborated on it any further.
Branti.
[114]
-132-
Dusanenko-redirect
THE COURT: Did he say whose hands
it was in?
THE WITNESS: I don't believe so.
THE COURT: Thank you.
(Witness excused. )
MR. WAGNER: Your Honor, for the
pumposes of this motion, the plaintiffs rest.
THE COURT: All right.
MR. SCHOENBERGER: Your Honor,
at this time I would like to make a motion.
The motion is to deny the prelim-
inary injunction and dismiss the temporary
restraining order on the basis that the
plaintiffs have failed to meet the quantity
of proof necessary in this case and have
failed to set out a prima facie case.
THE COURT: I will reserve
decision on that. {115]
MR. WAGNER: May I be heard in
opposition or would your Honor rather go on
with the hearing?
THE COURT: I would rather go
on.
MR. WAGNER: I will reserve my
argument until the conclusion of the
hearing.
-133-
Anderson-direct
MR. SCHOENBERGER: I call Mr. James
K. Anderson.
JAMES K. ANDERSON, called as
4 a witness in behalf of the defendants,
having been first duly sworn, testi-
fied as follows:
DIRECT EXAMINATION
BY MR. SCHOENBERGER:
Q Mr. Anderson, are you employed by
the County of Rockland.
A I am.
Q In what position?
A Personnel officer.
Q Can you correlate for us what a per-
sonnel officer is under the civil service law?
A Under the state civil service law
he is in charge of the administration of the
civil service law for the County of- Rockland
and all civil divisions therein.
Q Can you briefly explain to the Court
and to all of us the different classifications
of employees within the County of Rockland? [116]
A The classification of employees in
the County of Rockland, under the statewide
classifications system all public employees
are divided into two broad classes, the
unclassified and classified.
-134-
Anderson-direct
The unclassified service consists
of elected officials and teachers essentially.
The classified service comprises all others.
The classified service in turn is
divided into four broad jurisdictional
classes, one being the competitive class
which has the requirement not only of
minimum qualifications, but the require-
ment of passing a competitive examination.
The non-competitive class, the
second class, is similar to the competi-~
tive class, having minimum qualifications,
but no examination, formal examination is
required on a competitive basis.
A third class in terms of numbers
is a labor class, which consists essentially
of unskilled laborers.
In the fourth class, the smallest
of all the classes is called the exempt
class, a category for which no examination
is deemed practical or feasible for the
reason that the positions in the exempt
class essentially are those of a deputy or
somebody in a confidential relationship to
its principal. (117]
Q Am I correct in understanding
oO 8 8s ae 2 ee.
ee ee ee ie eR ee
-135-
Anderson-direct
that one of the characteristics of the exempt
class is that the principal would have a
confidential relationship to his appointees?
, MR. WAGNER: Objection. It is a
question of law, and No. 2, I don't think
the witness is qualified to answer it.
MR. SCHOENBERGER: Your Honor, he
acts as a Civil Service Commissioner for the
County of Rockland and he is certainly quali-
fied to answer it.
THE COURT: Overruled.
A Mhe positions are placed in the
exempt class because of the, of a policy
determination, carrying out some of the
major functions of the principal as though
the principal were present, or a confidential
relationship. All three or any one of those
factors may be present in the determination
of a position being placed in the exempt
class.
Q How many, approximately, how many
employees are employed by the County of
Rockland?
A Roughly 2,000, sir.
Q Out of those approximately 2,000
employees in the County of Rockland, do you
-136-
Anderson-direct
know either exactly or approximately how
many belong in that exempt class?
A Under 50.
Q Are attorneys in the county
attorney's office, public defender's office,
and district attorney's office included
within the exempt class? _
A Mostof them.
Q Are assistant public defenders
included in the exempt class?
A Yes. They all are,
Q.__ Are assistant county attorneys
included in the exempt class?
A Assistant county attorneys, by
that title are all included in the exempt
class.
Q Approximately how many exempt
attorneys are there in the county attorney's
office, public defender's office, and
district attorney combined?
A May I refer to my notes?
Q Yes, you may.
Do you need some notes to refresh
your recollection?
A It's approximately 34, counsel.
I would like to look at my notes.
[118]
-137-
Anderson-direct
MR. WAGNER: I will accept that
approximation, your Honor.
THE WITNESS: All right. [119]
tv lg That's 34 out of approximately 50?
A Yes, sir. Actually there are 42
positions other than some special education
aides, there are approximately half a dozen
specialized at the Mental Health Center.
There are 42 remaining positions that would
fall in the category of deputy or confidential
relationship. Of those 42, three are secre-
tarial or assistant types such as a secretary
“o the district attorney, confidential
secretary to the president of the Community
College, and the assistant to the chairman of
the County Legislature. Deputy county clerks,
deputy county treasurer, the head of the
Office of Civilian Defense and Emergency
Services. That should add up to about 7 or
8, all the rest of them are attorneys in the
three offices of the county which employ
attorneys, the district attorney, the county
attorney and the public defender.
Q Could you explain to us who appoints
an exempt appointee to his job and what his
term of office is, if there is a term and
-138-
Anderson-direct j
how is it determined that his tenure may
end?
A Under the civil service law of the '
State of New York, the appointing authority
in most cases is a single individual al-
though it may be a board or commission. [120]
Q Is that generally the department
head?
A The department head. It may be '
a single head or a commission will make the
appointment of a, to an exempt class position.
There is no review of qualifications of any
appointee to an exempt class position.
The incumbents of exempt class
positions are deemed to hold their position
at the pleasure of the appointing officer
without restriction as to appointment or
removal.
Q Is there such a thing as a perman-
ent appointment of an exempt man so that he
can remain in office and succeed his
appointing authority?
A No, sir.
Q When an individual is appointed
to an exempt position he is required to
take an oath of office, is he not?
-139-
Anderson-direct
A All employees are required to take
an oath of office including those appointed
to an exempt class position.
% Q I show you Plaintiff's Exhibit 2,
Plaintiff's Exhibit 4, and Plaintiff's Exhi-
bit 6. Do any of those indicate to you an
appointment beyond the pleasure of the appoint-
ing authority?
A They do not. {121]
Q Do you know what the purpose of
those letters are by any chance?
THE COURT: There is not a question
in this case but that the appointment is at
the pleasure of the public defender. I
don't see any point in offering evidence on
that subject. The testimony of the plain-
tiffs' witnesses have been to that effect.
MR. SCHOENBERGER: Your Honor, the
reason that I am doing this is that plaintiff
Finkel is taking the position that he is
permanent and cannot be discharged. I
wanted to clarify it.
THE COURT: I don't care what
position he is taking. I don't think there
is any question but that the appointment is
at the pleasure of the appointing authority.
-1L40-
Anderson-direct
The issue in this case is how that pleasure
is exercised.
MR. SCHOENBERGER:
few more questions, your Honor.
Q I would like you to look at
Plaintiffs' Exhibit 5, 3 and 1, all pur-
ported to be reports of personnel changes.
Just a brief
Are you familiar with those forms?
A I am.
Q Can you tell me who processed
forms like these?
A They are initiated by the
appointing authority and proceeds through
my office, the personnel office of the
County of Rockland.
Q The appointing authority is the
one who solely determines the qualifica-
tions of his appointee, am I correct?
A That is correct.
Q Whatever they put on that form
would be satisfactory to you?
A No, sir.
Q If they were to check a box
that someone was permanent would that make
him permanent?
A No. It would not.
MR. SCHOENBERGER:
your Honor.
Nothing further,
EW or VaR TS
[122] |
-141-
Anderson-cross
CROSS EXAMINATION
BY MR. WAGNER:
Q Mr. Anderson, to what political
party do you belong?
A I am a registered Democrat, sir.
Q When were you appointed as a
county personnel officer?
A I was appointed in November, 1961.
Q Were you appointed for a set term
or was it at the pleasure of the County
Legislature or Board of Supervisors?
A Under the Civil Service Law of the
State of New York the personnel officer has
a fixed term of six years. I was initially
appointed by the Board of Supervisors, re-
appointed by a Board of Supervisors which
was Democratically controlled and re-
appointed by a County Legislature which was
Republican controlled.
Q When was that last reappointment?
A Approximately four years ago, sir.
Q Your job is not civil service?
A it is in the non-competitive class
of the classified service, yes.
Q I am a little bit hazy on your
terms. You are: appointed for a set term
but you are protected by the Civil Service
[123]
-142-
Anderson-cross
Law, you cannot be discharged at the dis-
cretion of your employer?
A That is correct.
under two categories, one as a war veteran
in the non-competitive war veteran under
Section 75 of the Civil Service Law of the
State of New York, and as a public officer
holding a specified term of office pursuant
to the public officers law.
Q Mr. Anderson, you indicated that
I am protected
there were some approximately 50 employees
in the class of Mr. Finkel and Mr. Tabakman
which I think you said was non-competitive.
A No, sir. It is not non-competi-
tive in the sense that the word is used in
the Civil Service of the State of New York.
They are in one of the four jurisdictional
class categories as exempt.
Q I see. There are some 50 employees
of whom you said I believe 43 were attorneys?
A No, sir. I said there are approxi-
mately 50, or under 50, a half dozen or some
being special education aides in our mental
health center, 42 being in the category
of policy determiners, policy carry outers
with a confidential relationship.
[124]
te 8 Rw nly a8 CIN
a Bere et ee ee See ee ee et ee
©
-143-
Anderson-cross
Of the 42, 34 give or take one
or two are attorneys.
Q Of those 34 who are attorneys,
and I believe that embraces the county
attorney's office, the district attorney's office
and the public defender's office, are you familiar
with the political make-up of those appointees?
A I am not.
Q Do you know whether any of those
appointees currently is a Republicans?
A I do not, of my own knowledge.
Q Is it your opinion, Mr. Anderson,
that a public defender or a district attorney
or a county attorney has the unlimited right
to terminate his employees, deputies, for
any reason whatsoever?
A In the categories, yes. To that
extent, yes.
Q Mr.
rules or state law conflict with the --
THE COURT:
is black?
THE WITNESS:
under the civil service law, and that is --
THE COURT:
But are you saying that
Anderson, if the civil service
Could it be because he
No, sir. I am saying
I heard just exactly
what you said.
[125]
-~144-
Anderson-cross
because he has this absolute right to dis-
continue somebody, he can do it because he
is for example black or because he is Jewish?
THE WITNESS:
vice law, he could.
Under the civil ser-
He would have other
remedies and I am not saying that he doesn't
have other remedies under other statutes but
not under the Civil Service Law of the State
of New York. He would have remedy under other
federal statutes but under the Civil Service
Law of the State of New York as an exempt
class employee, the appointing officer has
a full right to employ who he likes and dis-
charge who he likes and for whatever reason.
THE COURT: And he can give the
reasons and still do it and not be subject
to attack under the civil service.
THE WITNESS: Not under the Civil
Service Law. |
THE COURT: I take it a part of
what you are saying is that under some of
the other laws that you cited, state or
federal, what he does can be undone.
THE WITNESS: Yes, sir.
BY MR. WAGNER:
Q In your opinion, if the civil
{126}
ce OV RL PD ATR RE
-145-
Branti-direct
service rules or the state law are in conflict
with or violate the U.S. Constitution should
they be followed?
; MR. SCHOENBERGER:
Honor.
Objection, your
THE COURT:
the objection.
I think I will sustain
Q Mr. Anderson, in your opinion and
I am asking you this only in your own opinion,
and if you don't have an opinion you can de-
cline to answer. In your opinion do the
federal laws and the federal Constitution
protect an individual who is being termin-
ated from a position he is performing
successfully simply because of his politi-
cal afciliation?
MR. SCHOENBERGER:
THE COURT:
MR. WAGNER: Nothing further.
(Witness excused. )
MR. SCHOENBERGER: I call
the public defender, Peter Branti, Jr.
PETER BRANTI, J R., called as
a witness on behalf of the defendants,
having been first duly sworn, testi-
Objection.
Sustained.
[127]
fied as follows:
-146-
Branti-direct
DIRECT EXAMINATION
BY MR. SCHOENBERGER:
Q Are you an employee of the County
of Rockland?
A Yes.
Q Can you tell me your position,
please?
BY As of January 3rd I am the public
defender of Rockland County.
Q 1978?
A Yes. That is correct.
Q As a public defender of Rockland
County do you have a staff, part of which
consists of assistant public defenders?
A That is correct, sir.
Q Can you tell me what was involved,
the process you went through in determining
who was to be your assistant public defenders?
A If I may, and with the Court's
indulgence, in about March or April of 1977 I
decided that I would leave the District Attor-
ney's office, if I could, and seek the post
of public defender. At that time I made my
feelings known to certain individuals, some
were politicians, others were attorneys.
One of the attorneys I spoke with was a Mr.
Feinberg. In March of 1977 or April, whatever
a
-147-
Branti-cross
it was, I had decided that if I became public
defender, Mr. Wayne Feinberg would be my chief
assistant and I asked him. at that point if he
agreed.
I made my feelings known to both
Democrats and to Republicans that I thought
I was a very capable attorney in my opinion,
and I wrote a letter to the Chairman of the
Rockland County Democratic Party.
In that letter I indicated to her my
qualifications, that I was interested in
the post and that I would be happy to meet
with any group of people and supply a resume,
if they were so interested. The letter was
never acknowledged by the Democratic Party.
I want to make that clear now. I actively
sought the post, and in November of 1977 I
spoke with each legislator. I spoke with
the Town Chairman, I spoke with both Republi-
cans and Democratics about the position of
public defender.
After the election it became
clear that I was a valid contender for
the public defender's post. And I spoke
again to both Democrats and Republicans,
one of the Republicans I spoke with was [129]
Mr. Dusanenko.
-148-
Branti-direct
I let it be known that it was not
an elrctive post and that I wished to dis-
cuss my:..appointments with anyone who was sit-
ting on that body, that I would like to dis-
cuss names of attorneys that were avail-
able, but that one thing each individual
had to understand that any name that was
supplied to me I would have the right to
veto it because I was familiar with every
criminal attorney in Rockland County. I
had discussed many names.
At no time was I ever threatened
to hire anyone, nor was I threatened to
fire anyone from the public defender's office.
I spoke with Mr. Sanchez who was
a member of the firm of Freedman, Wray,
Wagner & Tabakman as early as May of 1977
or June. I believe Mr. Tabakman was present
at that time. It was at a picnic held for
an assistant district attorney who was
leaving the office.
I made it clear to everyone who
was sitting on the legislature, and in
particular the Democrats that Bill Nelson
would remain in the public defender's office.
Mr. Nelson is a black attorney
-149-
Branti-direct
that started with me in the district attorney's
office, and probably the most competent
attorney in the public defender's office.
7 MR. WAGNER: Your Honor, up to
this point I have not objected to the nar-
rative form of the testimony. I believe we are
getting far afield. I concede the qualifications of Mr.
Nelson. He is a friend of mine too, but why don't we
get on with the selective processes.
MR. SCHOENBERGER: One of the
questions is how were the public defenders
to be hired and not to be hired. This is a
process that he is presenting to us.
THE COURT: Let us go on. It is
twenty to seven, gentlemen.
A The point I am trying to make,
your Honor, is that Mr. Wayne Feinberg--no
one from the Democratic caucus ever spoke
to me about Wayne Feinberg, who is now the
chief assistant public defender. No one
spoke to me about Bill Nelson who is now
the executive assistant, and then a former
chief assistant public defender. John
Allison who was an assistant public defender at this
point and an assistant district attorney until June 3rd,
I talked to him in March of 1977, when he told me
([130]
-150-
Branti-direct
that he decided he wanted to leave the employ of the
district attorney's office. At that point I asked
him "John, stay with us until the end of
the year. If by some stroke of good for-
tune I should get to be public defender
you will have a job with me. If you don't,
I will do everything in my power to try to
help you because you are a competent
attorney."
No one came to me and said, "You
must take Allison with you, you must take
Wayne Feinberg with you, and you take a,
leave Bill Nelson in the office."
Mr. Dusanenko came to me about
Alan Tabakman, one of the plaintiffs.
Madam Troy, a Democratic chairman for the
Town of Clarkstown, a Democratic chairman
came to me about Alan Tabakman. And I
said I would see what I would do. I
received about 50 telephone calls from in-
dividuals who wanted six positions which
were left in the public defender's office.
Each one that I wanted to get
rid of I would send to certain individuals.
There is no. question that the Democratic
caucus played a part in the selection of
[131]
2 SPOLETO
FN A I TT ORES em aE
ee en
-151-
Branti-direct
the six remaining positions, but we tossed
many names around. I never attended a
caucus meeting. I didn't even know when
caucus meetings were held. I spoke with
the chairperson of the Democratic party
who asked me questions about certain law-
yers, if I thought they were qualified,
would I be willing to work with them,
could I work with them,
One of those individuals was a
person I selected, a Mrs. Laurna Bernard.
I met Mrs. Bernard two or three years ago
when she--I believe at the time was, had
made known her intention to run in a
primary or a family court for a family
court judgeship. I remember reading the
report at that time that came out. I
don't know whether it was a Bar Associ-
ation Committee or not, but she had the
highest rating of all the individuals at
the time. I was happy for Mrs. Bernard
at that point. I said I would like you to
come to work for me. She said she was in-
terested. I let my wishes known to the
Democratic chairperson of the party. I
went through each of my appointments that
I made in exactly the same way. I spoke
[132]
-152-
Branti-direct
with Mr. Barone, on numerous occasions about
his staff.
Tabakman.
I spoke with him about Mr.
I asked Mr. Barone if Mr.
Tabakman was still a partner with Judge
William Wray. We-tetd me, yes, but there
was nothing wrong with it. I said that's
your opinion. I asked about Manual
Sanchez, and he said yes, he is an associ-
Mr. Sanchez did come in fact to see
me, aS aman. Mr. Sanchez didn't bring
Judge William Wray with him when he came
He said, "I need a job. My
ate.
to see me.
wife is pregnant."
I said, "Are you an associate
in the firm?"
He said, "Well,
association but we will be breaking it up
shortly." I appointed Mr. Sanchez. I was
at a cocktail party held by the members of
the district attorney's office of which I
was the executive assistant D.A., a party
that the general public was invited to in
a small confines of the district attorney's
office.
I do have an
[133]
I was approached by Mr. Alan
ree ee ee
-153-
Branti-direct
Tabakman together with Judge William Wray, a
man who had been elected. A man who knew
that my staff, if I became public defender
it’ was common knowledge at that point --
MR. WAGNER: Objection.
THE COURT: Sustained.
the testimony, not the argument.
I think we better go back to
questions.
BY MR. SCHOENBERGER:
Q At the Christmas cocktail party,
when Mr. Wray and Mr. Tabakman approached
you--speaking from your own personal feel-
ings, your own personal impression--did
you feel that they were trying to pressure
you?
-We want
MR. WAGNER: Objection. It calls
for a conclusion.
THE COURT: Sustained.
Q Did you feel that it was improper
for a Judge from the Town of Clarkstown --
THE COURT: Objection.sustained.
Q Is it or is it not true, that your
single criteria in selecting people for the
public defender's office to be your assis-
tants was quality and competence?
[134]
-154-
Branti-direct
A That was most of my criteria.
I would take a person with less experience
than someone else who didn't have a private
practice that wouldn't interfere with the
position, that I could work with and train to
fit in what I thought a public defender's
office should be. I wanted no appearances
of poor ethics.
MR. WAGNER: Objection, your
Honor. We are getting back to the narra-
tive testimony again, now.
I think the question has been
answered, sir.
Q Did you feel ~tt was an impro-
priety?
MR. WAGNER: Objection again.
I am sorry you didn't finish.
Q Do you feel that it will be an
impropriety and reflect poorly upon your
office as public defender if you had an
assistant public defender whose partner
was a justice in the Town of Clarkstown?
A I feel that it would have been
an impropriety to have a public defender
who had a partner as a justice in any
town in Rockland County, sir. I am
certain the district attorney would
-155-
Branti-direct
have something to say about it if I did
do that, and rightfully so.
Q After you determined which people
you yourself wanted in your office to be a
part of your office, were there still some
vacancies?
A There were six vacancies.
Q At that time in the process of
determining how to fill the six vacancies,
did you seek recommendations from the
Democratic and Republic parties in Rockland
County?
A I sought them primarily from the
Democratic party. I did speak to Mr.
Dusanenko about Mr. Tabakman. I never
spoke to Mr. Dusanenko about Mr. Sanchez.
Q Even if a name was referred to
you by the Democratic party did you or did you
not have an understanding that you had veto
power?
A That is correct. I made that
clear, if I may just expand on the answer;
I made that clear. I refused to comment
on whether or not I was going to be the
public defender until everyone else knew that
that was going to be the way that I would
accept the position.
{135]
-156-
Branti-direct
Q When people came to you and spoke
to you, you said you had some 50 phone
calls, and I imagine numerous people came
and spoke to you. Did you ever use the
excuse that you had to get support, to get
people off your back? [136]
A I always used that excuse.
Q Did you ever require any of your
assistants to swear allegiance or support
the Democratic party?
A Never.
Q With reference to Mr. Sanchez,
did you keep him on with the specific under-
standing that you would terminate his rela-
tionship with the firm of Freedman, Wray?
A No. When he approached me for a
job he made it clear that he would be
severing the relationship.
Q If he had not made that clear to
you, would you have felt it was an impro-
priety for him to work as an assistant
public defendant?
A I would have written to Judge
Gagliardi and asked his opinion on it.
Q You have been an assistant dis-
trict attorney for how many years?
-157-
Branti-direct
A 1972. I worked for six months as
a volunteer right after being admitted to the
bar, excuse me, after graduating from law
school and being admitted to the bar because
I had no other experience. I was a truck
driver.
Q While you were employed at the
district attorney's office did you have
occasion to view the activities of the
public defender's office? [137]
A I didn't finish my other
answer.
In 1973 I took an appointment
to the district attorney's office as the
only full-time assistant district attorney
that I knew of in the office at that point.
Yes, I had a very close relationship with
the public defender's office since 1973. I
have seen public defenders come in and public
defenders leave.
Q In your professional opinion, did
you ever feel there was an improper rela-
tionship between the firm of Freedman,
Wray, Wagner & Tabakman and the public
defender's office?
A Definitely.
-158-
Branti-direct
Objection.
Overruled.
MR. WAGNER:
THE COURT:
A It was common knowledge around
the courthouse, and particularly in the
district attorney's office it was joked
about that the public defender's office
was an annex of Freedman, Wray, Wagner &
Tabakman.
Q Do you have any comments that you
would like to make concerning the gages of
Mr. Tabakman and/or Mr. Finkel as assis-
tant public defenders that you feel influ-
enced you in your determination as to
whether they should stay in your office?
A The individuals that I kept in
the public defender's office were in my
opinion the most competent trial attorneys
on that staff. Mr. Nelson has an excep-
tional reputation. Mr. McAlevey, while
not having a great deal of criminal ex-
perience prior to his entering the public
defender's office has gained the respect
of every assistant district attorney in
Rockland County.
As a matter of fact, we call
him Komikasi Jack because he will try any
case at the drop of a hat.
[138]
-159-
Branti-direct
MR. WAGNER: Your Honor, again
I have to object to this narrative testimony.
THE COURT:
objection.
I will overrule the
A He has absolutely no fear whatso-
ever of the jury system or of a courtroom or
of a jduge. He will fight tooth and nail on
every case that comes down. That was the
man that I wanted to stay on in the public
defender's office with me. It was also my
main Gompetition for public defender. Mr.
Sanchez has had a reputation among the local
assistant district attorneys that worked the
local courts as being tenacious on every case
that he has. When a young assistant D.A.
would come in to me and say Mr. X is a nice
guy from the public defender's office or
Mr. B is, I knew one thing, that he was
getting his own way in the courts that
that attorney was in. They continually
came in and cried about Mr. Sanchez. I
have had cases, I have had an Opportunity I
should say, to see Mr. Finkel work in the
past five years.
[139]
Mr. Finkel in my opinion
is a competent attorney. I have seen
Mr. Tabakman in the past two years or so,
~160-
Branti-direct
on a limited basis as he indicated we had
one felony case together where we selected
a jury and it resulted in a plea. He is a
competent attorney. I have seen him handle
conferences, bail applications, discussions
about clients that the district attorney
would like to speak to on certain other
matters, and I was not impressed with
either attorney. But, they are competent
attorneys.
The criteria I used with the men
who stayed in the public defender's office,
that I insisted that I wanted in the public
defender's office, was a simple one, would
I want these individuals to defend me if I
needed them. That's the criteria that I
tried to use.
Again, there is no question that
I discussed each appointment with the Demo-
cratic caucus. I am not trying to deny
that or to hide it. I felt they had an
opportunity to submit names to me, that if
I thought these people were qualified I
would accept them if I so desired; if for any
reason I didn't want them I had the right
to veto them. As far as I am concerned I
vetoed Mr. Tabakman.
-161-
Branti-direct
Mr. Dusanenko spoke to me about
Mr. Tabakman and so did Mrs. Troy, a Demo-
cratic chairperson, in the town that he
lived in. When I spoke to Mr. Dusanenko
there were only limited positions avail-
able, there were discussions going on
and I did tell him, I have no more imput
at this point, I am waiting to see the
names that are supplied to me before I
accept or reject anyone.
I did say to Mr. Dusanenko at
that point when he mentioned Mr. Tabakman's
name to me, what his feelings were about
Judge Robert Stolerich's law clerk.
Judge Stollerich, excuse me, your Honor,
is a Republican. I don't know whether his
law clerk is a Republic or not but I have
always been impressed with him.
Mr. Dusanenko at that point said
he has a job, I am not worried about it.
I am concerned about Mr. Tabakman.
I said fine. There was never
any other discussion on it.
Q Did you also veto Mr. Finkel?
A I never considered his staying on
in the public defender's office. I like
-162-
Branti-direct
Mr. Finkel; Finkel in my opinion is a
wonderful person. Had the president of
the United States come to me and insisted
that Mr. Finkel stay on as public defender,
I probably would have vetoed Mr. Finkel {141]
in that situation. I feelbad that I have
to say these things here, your Honor, but I
am trying to tell you what I feel in my
heart.
Q Did anyone ever tell you that if
you were going to be public defender you will
have to fire Mr. Finkel or Mr. Tabakman?
A Never. No one ever told me that
you are going to hire Mr. x or anybody else,
no one ever said that to me.
Q I will show you a list of the former
public defenders, the former staff.
with our papers to the court. Are there any
names there which are Democrats which you
didn't retain?
a Yes.
Q Can you tell us who they are?
A James Fitzgerald. Stuart Leudan.
Aaron Finkel. That's it.
It is in
Q I will ask you what I hope is one
final question. Your decision to hire,
CE -
-163-
Branti-direct /cross
terminate the assistant public defenders
was primarily your decision based ee ee
petence and integrity of the office which
you wished to fill, is that correct?
A Yes, that is correct.
MR. SCHOENBERGER: Nothing further. [145]
Q With Manuel Sanchez?
A I don't know. I am sure you are not.
Mr. Sanchez has indicated to me that.
Q With Barry Weiss?
A I believe Barry Weiss works for
Mr. Wray and Judge Wray and Mr. Tabakman
and Mr. Wagner.
MR. FINKEL: I have no further
questions.
CROSS EXAMINATION
BY MR. WAGNER:
Q Mr. Branti, as one of the defenders
you were present here during the testimony of
Mr. Tabakman and Judge Wray when they re-
ferred to a certain conversation in the
public, in the District Attorney's Office
Christmas party. In fact you yourself
alluded to it in passing?
-164-
Branti-cross
Yes.
That conversation did take place?
No question.
Q Is it not a fact that at that time
you told Mr. Tabakman in the presence of Mr.
Wray that he would have to get a recommenda-
tion or a referral from a Democratic legis-
lator to be considered by you for appointment
to one of the six slots that were still open?
A I believe at that time what I said
was that I asked the Democratic caucus to
compile a list of names. And that is his
name should be on the list and I should
consider it. He had already had, at that
time prior to that, I believe this indica-
tion may have been on the 23rd, I don't re-
call when the party was, I had already
spoken with Mr. Dusanenko about Mr. Tabakman.
Q What you told him in _effect was that
the other six appointments that you had not
in your own mind decided on were going to
come through the Democratic caucus and he
would have to be referred by one of them
to be considered by you?
> DO Y
A No. I said go get somebody to
put you on a list of names that I will be
[146]
-165-
Branti-cross
choosing from for the remaining portion.
Q Where did the list of names come
from?
‘’ A Not from the Democratic caucus.
Q Maybe I misheard your testimony.
Didn't I hear you just testify that you
filled all but six spots and then the Demo-
cratic caucus came up with the recommenda-
tions for the other six?
A I don't believe it was the caucus.
I talked to individual people about it. I
was never at a caucus meeting. I have no
idea of what was discussed. [147]
Q You have currently, if I am not
mistaken, nine assistant public defenders?
A That is correct.
Q And of them John Allison came to
you from the District Attorney's office
where you had worked with him, and Mr.
Costa I understand was a former assistant
prosecutor with Mr. Nadjari?
A Yes. A former police officer who
went to law school with me.
Q Mr. McAlevey was a holdover from
the prior public defender; Mr. Nelson and
Mr. Wayne Feinberg besides being a close
-166-
Branti-cross
friend of yours w
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