# Appendix — Branti v. Finkel > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0152%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1980 - **Citation:** 445 U.S. 507 ## Text ‘ t ‘ } ‘ ‘ ‘ 5 ‘ i] 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 oloyees? 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 was also a District Attorney? A Yes. Q By the way, there are three others in addition? By the way, you don't dispute the fact, do you, that these are all Demo- crats? A No. they are. tion. I don't dispute it. I assume I haven't checked the registra- MR. SCHOENBERGER: With the excep- tion, the registration is attached. Q Mr. Sanchez was not registered. John McCabe, do you recall who referred that name to you? [148] A I believe I discussed him with the county attorney's office. He had applied for a job with the county attorney. Q The county attorney is who? A Marc Parris at this point. Q Marc Parris gave you the name John McCabe? A He asked me if I would consider him for the public defender's office. Q In the process of your consid- eration did you discuss this with the Democratic legislators? Meter ce ote eet -167- Branti-cross A No. Q Gerald Blumenfeld, where did you obtain his name from? g A. I knew Mr. Blumenfeld for a number of years. I believe his name was mentioned to me by Ms. Cornell. Q The chairman of the Democratic party? A Yes. Q Laurna Bernard, you said you knew because she ran for family court judge? A I believe she ran in a primary for that. Q You have conceded, I believe with- out question that Mr. Tabakman and Finkel are competent attorneys and were properly per- forming the functions of their jobs at the time you took office, is that correct? A I think I said that I thought they were competent attorneys. I never made any indication on whether they were properly per- forming their functions as assistant public defenders. | Q Mr. Finkel has been an assistant public defender for some -- A Five years. [149] -168- Branti-cross MR. FINKEL: Seven, Q Do you know what John McCabe's criminal background is, how much c iminal law he has practiced? nA A He has had some limitéd criminal experience. He's a young man that I grew up with who I feel will move in. -He has done a lot of appellate work on the civil end who I feel will move in and become my appellate man on the criminal end. Q Gerald Blumenfeld, do you know what background he has in criminal law? A I have had numerous cases with him in the Rockland County court. I talked about some cases that were pending. Q How about Laurna Bernard, has she done extensive criminal work? A Mrs. Bernard was a former Town Judge I believe, a number of years ago who had both civil and criminal cases [150] before her at that time. Q Did any of these three to your knowledge handle anywhere near the volume of criminal cases that Mr. Finkel did in the seven years and Mr. Tabakman did in the 2-1/2 years he was in the public defender's office? -169- Branti-cross A I have no idea what their volume was. I am sure the number of cases could not compare. ‘’ Q Other than Mr. Tabakman, who you said was mentioned to you by Mr. Dusanenko, was the name of any other Republican sug- gested to you by anyone? A I don't believe so. Q You received 50 phone calls spon- soring people, about 50. A Not sponsoring people. Q Urging you to consider people? A Not urging. I am talking about individuals. I said approximately 50 phone calls. I take that back. It's an exager- ation. I received numerous phone calls from attorneys that I met every day in the county court house asking for jobs. Q It is your testimony that not one Republican except Mr. Tabakman was recom- mended to you by anyone? | A No. To be honest with you, sir, I expected that Mr. Grogan, who was voted the minority leader prior to my selettion (151] would be in touch with me to discuss any available attorneys he had. I never re~ ~170- Branti-cross ceived any telephone call from him. Mr. Dusanenko sought me out and we discussed Mr. Tabakman. Mr. Grogan never called. Q You admit that you did discuss your appointments with the 11 members of the Democratic caucus of the County legislature? A Not with all 11 members. Q But individuals? A I never attended a caucus. I did discuss it with some Democratic legislators, that is correct. Q You indicated that the only reason that you considered Mr. Sanchez qualified and Mr. Tabakman not was because Mr. Sanchez had announced his intention to sever his relationship with with the firm of Freedman, Wray, Wagner & Tabakman? A With the firm of Freedman, Wray & Tabakman? That was not my only reason for retaining Mr. Sanchez. I believe I indi- cated earlier that Mr. Sanchez was one of the individuals who would go to the wall ina local court, and excusing the expression, your Honor, would battle to the wall for the best possible plea, the best possible -171- Branti-cross defense that he could give his client. He had that reputation in the District Attorney's [152] office. That was a consideration. b Q Now, did you ever prior to the in- stitution of this action discuss this impedi- ment with Mr. Tabakman by virtue of the fact that his partner is a Town Justice, and offer him the opportunity of severing his partner- ship to remain as a deputy public defender? A No, I didn't. I felt that that was Mr. Tabakman's responsibility to come to me. I resented that he brought Judge Wray with him. Q Just a minute, Mr. Branti. The party we are talking about was a party given by Mr. Kenneth Gribetz, the District Attorney of Rockland County, is that correct? A That is correct. Q Invited to that party besides the general public were the current public defender's staff which included Mr. Tabakman and Mr. Wray, and also Town Judges, correct, of which Mr. Wray was then? A I believe, I don't know if that's how he got his invitation or not. -172- Branti-cross Q Why do you say that Mr. Wray brought Mr. Tabakman to you when they were both invited by Mr. Gribetz; in fact, you too were invited by him. A I didn't say that. I said he had Judge Wray with him when he spoke to me. THE COURT: Just a second, gentlemen. Our reporter is tired to begin with. He can't write when you are talking as fast as you are. And when both of you are talking it goes out the window. MR. WAGNER: I apologize, your Honor. Q If Mr. Tabakman were to today sever his relationship with our law firm would you have any objection to retaining him as an assistant public defender? A Probably. Q What would that be? A Mr. Tabakman is.not going to fit in with what I had planned for the office. Q You indicated that you were look- ing for suggestions for names, imput as you put it for the open six positions that you had not already filled. And you also indi- [153] ~173-,,anti-cross cated that you had a final veto as to any- body that was selected, is that correct? A Selected by who? I don't know what you mean. Q All right. That any name that was put forward to you had a right to veto? A That is correct. Q Now, when you were appointed public defender who notified you of your [154] appointment? A I believe Mrs. Cornell, I believe. Q Did you have any discussions with the so-called Democratic caucus either prior to, I am sorry, strike that. Did you have any discussions with the Democratic caucus, either the entire group or individual Democratic legislators prior to your appointment as public defender? MR. SCHOENBERGER: Objection, your Honor. THE COURT: Overruled. A On what basis? I had conversa- tions, yes. About what, I don't know. Q You were actively seeking the job of public defender, is that correct? A That is correct. -174- Branti-cross Q Were you ever asked by any of these legislators who agreed to support you whether you in turn would support certain names which they put forward as your appoin- tees? A Never. That's why I didn't think I was going to get the job, to be honest with you. Q At no time did any Democratic legislators ever ask fom any quid pro quo from you in return for their support? A No. Q Now, how long have you practiced law in Rockland County? ry I was admitted to practice in '72. Q At that time in '72 do you know whether Laurna Bernard who is one of your appointees was a partner in the firm of Prindel, Maidman, Windheim & Bernard? A I believe that was the firm that she had been a partner in, Q:. Were you aware of.the fact that Mrs. Bernard whose partner Judge Robert Maidman is a co-equal judge with Wray who practiced in the Justice Courts in Rockland County? [155] -175- Branti-cross A I am sorry, you will have to repeat the question. MR. SCHOENBERGER: Objection. Objection as to its relevance, your Honor. THE COURT: I am not sure of its relevance but I will overrule the objection. THE WITNESS: Could I have the question read back? (Record read.) Q Were you aware of the fact, sir, that Mrs. Bernard, who is one of your appointees, was a partner in the law firm [156] of which Judge Robert Maidman was also a partner and Mrs. Bernard practiced criminal and civil law in Justice Courts in the County of Rockland, not of course before her own partner but in other Justice Courts? A Yes. Q At the time she was a member of the partnership, one of her partners was a Town Judge? By I have no idea. Q Would that make any dif ference in your mind with regard to her qualifications? A \ Presently? Q Yes. -176- Branti-cross A No. She is no longer a member of that firm. Q Do you know a Judge Samuel Miller? Yes, I do. Have you ever appeared before Judge Miller? Yes. Do you consider Judge Miller to be ethical? I would assume he is ethical. I have never attempted to pass on anyone else's ethical qualifica- tions but only what I see directly that affects me. Q Do you know Rayfield Mertzel, Mayor of Haverstraw, also an attorney? (157] A Judge Miller's partner, yes. Q Do you know whether when they were partners Rayfield Merzell -- MR. SCHOENBERGER: Objection, your > Or DO »y Honor. THE COURT: I think this is ging far afield. | MR. WAGNER: I will withdraw the question. Q Mr. Branti, I show you Plaintiffs' Exhibit 7 in evidence, and it is your testi- mony and statement that the selections were actually made by the Democratic caucus com- posed of the parties? 2 TR eR 8 ee IE oe SS -177- Branti-cross MR. SCHOENBERGER: Objection. Your Honor, this is in evidence only to show that it was in the newspaper, not as to the truth contained therein. It can't be used on cross examination. THE COURT: What rule of law are you drawing on for that interesting conclusion? | MR. SCHOENBERGER: This is only in evidence. THE COURT: Overruled. Q It is your testimony and state- ment that the selections were actually made by the Democratic caucus composed of the parties 11 county legislators, was completely incorrect? A It is my testimony that the selec- tions were actually made. That is not my [158] statement, No. 1. I had been interviewed for this particular article and again I told this particular newspaper reporter exactly what I said here. It is my testimony that that's not true; it is my testimony that I discussed each of these positions with various membegs who I assume were present at a Democratic caucus. Q Various members of what? -178- Branti-cross /redirect A The Democratic party, and Mr. Desanenko, a member of the Republican party. Q Did you appoint anybody who was recommended by Mr. Dusanenko? A The only recommendation Mr. Dusanenko made was Mr. Tabakman. MR. WAGNER: Nothing further, your Honor. REDIRECT EXAMINATION BY MR. SCHOENBERGER: Q Earlier you spoke about Mr. Grogan. Is that the same Mr. Grogan who is a legislator for the Town of Clarkstown and the Republican minority leader? ’ A Yes. Q Did he ever consult you or ask you to appoint anybody to the public defender's office. [159] A No. Q In your office, the public defender's office had you been giving your public de- fenders the ability to make broad determin- ations? A Yes. Q Had you been giving them the Opportunity to make policy decisions? A On individual cases, that is correct. ee ee -179- Branti-redirect’ Q Do you feel that between you and your assistant public defenders, there must be a feeling of confidentiality? ‘’ A Absolutely. Q Do you feel this would be a main- stay or a basic part of your office? A Yes. Q Do you feel that the relationship between you and your assistant public de- fenders is a confidential one? A Certainly. MR. SCHOENBERGER: Nothing further. MR. WAGNER: I have nothing further, your Honor. THE COURT: Thank you.* © [20] MR. GOODFRIEND: I never said that. If you want me to come back here Thursday afternoon or Thursday at 11 o'clock and if the Court directs me to be here, I am an attorney, I am an officer of this court and I will appear without subpoena. MR. WAGNER: I would respectfully request that he be directed to remain and testify as long as he is here this afternoon. THE COURT: I won't do that. MR. FINKEL: May we fix a time -180- Barone-cross where we can have Mr. Goodfriend present? THE COURT: Will you be here at 11 o'clock on Thursday, Mr. Goodfriend? MR. GOODFRIEND: I prefer 2. | THE COURT: All right, 2:15 on Thrusday. MR. GOODFRIEND: All right, sir, I will be here at 2:15 on Thursday. MR. APOTHEKER: I would like to make clear to the Court that I would like the caption to be amended to so state ex- actly what the Court directed. THE COURT: The caption will be amended so that the title of this case will be Aaron Frankel and Alan Tabakman, Plaintiffs, against Peter Branti as Public Defender, Rockland County, Defendant. {71] Q Do you contribute to other political campaigns, Mr. Barone? A I certainly do. Q For example? A I contributed to Mr. Jim Damiani's campaign this year. Q He's a Democrat? A He's a Democrat. I contributed to Mr. Ted Dusanenko's compaign. RAEN LONE A ne Kibo cal eects ese Paani -181- Barone-cross Q He's a Republican? A He's a Republican. And several others. I contribute to people I know and respect. Q Without any coercion? A No coercion. Q If you didn't want to contribute to Mr. Goodfriend's campaign, did you have to? Absolutely not. No one coerced you at any time? Absolutely not. Mrs. Seigerman called you up and on Fr ODO YK asked you whether you would like to con- tribute to Mr. Goodfriend's campaign? A No, she didn't say that. Q What did she say? [72] A She said that Mr. Goodfriend had suggested that she make the call, and asked me if I would, and if I would ask those assistants whom I have just named if they would. Q Any threat implied or expressed? a Not one bit. Q Mr. Barone, in your office as the public defender, you permitted your attorneys to practice? -182- Barone-cross /redirect A yes. Q Was that a change from the prior administration? A No. Q They were always, even under Mr. Becker, permitted to practice? A Yes. The reason being that it is a part-time office, Mr. Apotheker. Q Did you ever have occasion to counsel Mr. Finkel on conflicts between his practice and his duties as assistant public defender? A Yes, I counseled all my assistants, not only Mr. Finkel, as to possible conflicts. Q Did you ever have to criticize Mr. Finkel for any possible.conflicts, he might have had? A No. * (77] MR. APOTHEKER: I have no further questions at this time subject to recall. REDIRECT EXAMINATION BY MR. FINKEL: Q Mr. Barone, did you hope at some time to be retained in office as Public Defender by the new Rockland County Legis- lature prior to the time you learned of its control by Democrats? -183- Barone-redirect A Yes, I had assumed that if the election were to bring us a Republican legislature that I probably would be reappointed. Q Did you think it would hurt your effort by contributing to the campaigns of various legislators? A I contributed to their cam- paigns because they were friends of mine and because I respected them not for any other reason. Q You didn't think that it would hurt? A Quite honestly I didn't think it would help either. Q When were you admitted to prac- ~ tice law in the State of New York? A 1951. MR. APOTHEKER: We have been through that and we have covered Mr. Barone's competency. : : [83] HARRIET CORNELL, called as a witness, having been duly sworn, testified as follows: -134- Cornell-direct MR. WAGNER: Do you have any objection if Mr. Burke sits in the jury box? THE COURT: No. MR. WAGNER: I have no objection. MR. BURKE: I don!t know if the record has reflected an appearance. I just appear to represent the witness, for that limited purpose, your Honor. THE COURT: far as this lawsuit is concerned but you may sit there. MR. BURKE: DIRECT EXAMINATION BY MR. WAGNER: Q Mrs. Cornell, do you presently hold any official political position in Rockland County? A Yes, I do. Q What is that position? A Chairman of the Rockland County Democratic Committee. You have no standing so Thank you, your Honor. Q - For how long have you held that position? A Since approximately June, 1972. * [86] OEE NAR ae LI PERE RR A -185- Cornell-direct Q Who presided at this meeting? A I did. an Q Besides yourself and the members of the legislature who were present can you tell us who else was present? A We had several such meetings. Generally speaking the legislators were present and the town chairmen were invited to attend and I was present. Q The meeting that I am concerning myself with at this point is the meeting at which Mr. Peter Branti was designated to be the next Public Defender. a I can't quite remember whether all of the town chairmen were present. I know that one town chairman had been ii} for a One was not able to It would be hard for me to specifically remember. couple of meetings. attend for a vacation. Q But, in other words, most of the legislators and some of the town chairman were present along with yourself? A yes. THE COURT: are there? THE WITNESS: There are five towns, five town chairmen. How many town chairman | -186- Cornell-direct Q Was the press present at the meet- ing? A No. Q You say there were several meet- ings. Was there more than one meeting at which the appointment of the public defender was discussed, to your recollection? A No. I don't think so. Q y am confining my questions now then spex “ically to that meeting at which Mr. Bra’ )"s appointment was discussed, whenever it may have taken place. I don't think the time is of that much importance. It was sometime in the early part of December, was it not? A Sometime in December. Q At this meeting can you tell us who was proposed for public defender other than Mr. Branti, if anyone? A I don't think anyone else was proposed by any of the legislators. Q Do you recall who proposed Mr. Branti's name? A I don't remember. I can only guess that it was one of the legislators from his own township. [88] -187- Cornell-direct Q What town is that? A The Town of Haverstraw. Q That would be then Mr. Rotella ahd Mr. Grant which are legislators from that town? A Yes, that is correct. [93] Q At the time of his nomination was there any discussion of assistant public defenders, the people that he would appoint to work under him? A As to who he would appoint? Q Yes. A No, sir. Q Was there any discussion as to the procedure by which he would appoint them? A The only discussion that took place that night had to do with how recommen- dations would go to Mr. Branti from the Democratic caucus. [94] Q How was it agreed that that would be done? A It was agreed that it would be done by -- I may have to backtrack a little bit. Basically, it was agreed that the different town delegations would agree among themselves that evening, if possible, -188- @Gornell-direct how many numbers of recommendations they "were permitted to make to both the County attorney's office and to both the public defender's office. Q To backtrack for a moment, I take it that all of the people present at this meeting were all Democrats? A Yes. Q As it was considered by the Demo- cratic caucus, was there an agreement that Mr. Branti had the right to refuse to accept recommendations by the caucus? A It was mentioned by several leg- islators present. The question was raised, basically, and a number of legislators indi- cated that if Mr. Branti turned down their request, which everybody had acknowledged that he not only had the right but the responsibility to do in order to have an efficient office, a number of the legisla- tors asked, from the different towns, asked if they might have the option of submitting different names of whoever Mr. Branti might have turned down. [95] Q If a certain legislator proposed an individual was declined by Mr. Branti, -189- Cornell-direct then that same legislator would have the right to propose another name? A It wasn't so much that an individ- ual legislator might. Basically, these recom- mendations were coming from the Town delega- tions. In a town that had six legislators presumably if recommendations from’ that town had been turned down by Mr. Branti, presumably those legislators would have an opportunity to meet again and discuss other names and then resubmit a name or names to Branti for his selection. Q It was more or less agreed by the caucus that each Town delegation would have a certain amount of input both in the County attorney's and the public defender's office, is that correct? A Yes, that's correct. Q Each Township would get its share? MR. APOTHEKER: Your Honor, I am going to object to that question. THE COURT: Overruled. Do you understand that question? A Would you put it to me, again? Q I am talking now because you mentioned that assistant County attorneys -190- Cornell-direct and assistant public defenders were treated, [96] in essense, as a package, is that correct? A We weren't talking especially about the public defender's office. THE COURT: I cannot hear her answer if you start asking the next question. MR. WAGNER: I am sorry. THE COURT: Would you repeat the question before the witness. (Testimony read. ) A We were not talking simply about the public defender's assistants or recommen- dations to that office. We were talking about attorneys for both the County attorney's office and the public defender's office. We knew that there were together in both offices that there were fourteen assistants, part- time assistants, that they were talking about. The towns wanted to make recommenda- tions for these assistants and basically, the discussion that night was how should the recommendations come; how many recommenda- tions should be permitted from each town. Q To the best of your knowledge, were the names of any specific appointees discussed that night other than Mr. Branti himself? --191- Cornell-direct A I do not think that the names for any of the assistants were discussed that [97] evening. a Q Did there come a subsequent meet- ing when the various Town delegations did in fact submit names for consideration for the positions of assistant public defender? A Yes. Q That meeting, I assume, took place after the one in which Mr. Branti was appointed? A Yes. ; Q Did you also preside at that meeting? A Yes. Q Did that meeting, to the best of your recollection, take place some time around December 22nd or 23rd? A Somewhere around that date. I would have guessed earlier in the week. Q Were the same parties present as you mentioned as being present at the previ- ous caucus? A My recollection is about the same for all of these meetings, they had most of the legislators and some of the Town chairs. Q This meeting was limited to Democratic personnel? -192- Corness-direct A Yes. Q Was Mr. Branti present at this meeting? A No. Q Did you again chair this meeting? A Yes. I chaired it and I think Sam Coleman, who was to be the chairman of the legislature, he was there. They weren't always so very orderly and it wasn't like a formal kind of a meeting. Q Were you chairing the meeting or in essence attempting to chair the meeting at the time that nominations were put in for assistant public defenders? A Yes, I think probably. Q Were names for assistant public defenders and names for assistant County attorneys considered together? A Yes. Q Could you tell us, if you would, please, how the names were put into con- sideration? A The different Town delegations really proceeded to nominate people or to give their recommendations for these posi- tions. Q You say Mr. Branti was not pre- sent at this meeting? A No, he wasn't. [98] -193- Cornell-direct Q Do you have any knowledge as to whether or not Mr. Branti had been pre- [99] sented with a list of these people for his approval prior to their submission? A Do I know whether he had? Q Yes . A No, I don't know whether he had. Q Do you recall the names that were put forth that night for assistant public defender? A Yes. Q Was the name John Allison submitted? A Yes. Q Do you recall by what Town delega- tion? A The Clarkstown delegation. Q John Costa, by whom was he submitted? THE COURT: Let's find out if he was submitted. Q Was the name of John Costa submitted? A Submitted for what, sir? Q Submitted for the position of deputy public defender or assistant public defender? A No. Q John McAlevey, was his name submitted? A Yes. -194- Cornell-direct MR. APOTHEKER: I think Mrs. Cornell has characterized it as a recommenda- tion. I think that word should be used. . THE COURT: I read submission as meaning recommendation. I suggest you use recommended hereafter. MR. WAGNER: Q Mr. McAlevey by the Ramapo Yes, your Honor. delegation? A I don't think I said, but he was. Q Mrs. Cornell, were each of these recommendations made by the chairman of the delegation or were some made by individual members? A Each Town delegation did have a chairman. The different Town delegations did not have chairmen of their delegations. They presumably had discussions among them- selves prior to coming to the caucus. Q Did one member of the Town delega- tion act as a spokesman for the Town dele- gation or did it vary according to the dele- gation? MR. APOTHEKER: I object to that question. I don't see the relevance of that at all. THE COURT: Overruled. [100] A I am not sure if I remember that or not. : Q Mr. William Nelson, was his name recommended? A Yes. Q By which delegation, do you recall? A Clarkstown. [101] Q Manuel Sanchez, was he recommended? A No. I don't believe so. Q Wayne Feinberg, was he recommended? A Yes, he was recommended. Q By what delegation, do you recall? A Stony Point, I believe. Q You know who recommended him be- cause that is a one-man delegation, right? A Right. Q Mr. John McCabe, was he recommended? A Yes. Q By what delegation was he recom- mended? A Also by Stony Point. Q Was Gerald Blumenfeld recommended? A Yes. Q By what .delegation? A He was recommended by me. Q How long have you known Mr. Blumenfeld? -195- Cornell-direct -196- Cornell-direct A Approximately four years. Q Did you have any discussions with Mr. Branti or anyone else prior to your recommendation of him? A I did not have any discussion with Mr. Branti. Q Did you have any discussions with anyone before you made your recommen- dation? A I had indicated to certain of the legislators, I think--let me think for a minute. (Pause) A (Continuing) I think I had indi- cated to some of the legislators that I was going to recommend his name. Q There must have come a time in your mind when you yourself decided that he was worthy of being proposed as an Assistant Public Defender? A The caucus before was when the discussion took place, if I remember correctly, about Mr. Blumenfeld. Q What discussion took place at that time concerning Mr. Blumenfeld? A We discussed the fact that there [102] [103] ears 2 -197- Cornell-direct had been -- basically the different towns were going to make recommendations. You recall that I discussed that with you. ¥ Q Right. A At that point before we really got into deciding how the different towns would make their recommendations or how many recom-. mendations they would be able to make I asked because I wanted to nominate Mr. Blumenfeld's name as being someone that I recommended very highly and I wanted it looked upon as not coming from any particular town. Q This is what you might call a county chairman's prerogative? A The county chairman in Rockland doesn't have any prerogative.. Q Courtesy? A No, it wasn't even that. THE COURT: Mr. Wagner, if you let her finish her answer. MR. WAGNER: A No. It wasn't a courtesy at all. I was really submitting his name because I felt that he had been the law chairman for the County Democratic Committee; he was very I would appreciate it, I apologize. diligent, hard working; besides being a [104] -198- Cornell-direct lawyer he was a CPA. I thought he was well gualified and I was submitting him to the whole caucus for their approval, but I felt that he couldn't really -- I was dubious as to whether he would be recommended by a particular township. What I wanted was for the caucus to agree that perhaps he could be one of the recommendations that the caucus would submit to Mr. Branti and after that they could submit other recommendations on a town basis. Q You said that you were afraid that his name might not be submitted by one of the town delegations? A Yes. Q If his name had not been submitted by one of the town delegations then, I assume, that he would not have had a chance to get that nomination. MR. APOTHEKER: I object. THE COURT: Overruled. A ‘Repeat that, please. (Question read.) A He might not have been recommended. He might not then have been recommended by one of the town delegations. [105] -199- Cornell-direct Q My question was if a person was not recommended by a town delegation then that person was not in the running for an appointment, is that correct? A That would not be correct. I am sure he would have been free to submit his application directly to Mr. Branti. Q Are you familiar, Mrs. Cornell, in a general way with the duties of an Assis- tant Public Defender? A I am a little bit now. Q Were you at the time that you decided to submit Mr. Blumenfeld's name? A I think so. Q What was your understanding of the duties of an Assistant Public Defender or was your understanding of those duties at the time you decided to propose Mr. Blumenfeld? A I knew that the Assistant Public Defenders often had to go to Justice Court in the evenings. A great deal.of it was evening work.* (111) Q Once the various -- THE COURT: Did you mean that question the way you asked it? (Question read) ii -200- Cornell-direct THE COURT: You meant to exclude Mr. Finkel? MR. WAGNER: No, at the time this took place Mr. Finkel was still on the job. His replacement was not to take place until January, '78. I will limit my question. Q Was there a discussion of any of the other incumbent Assistant Public De- fenders, whether they sh#:ld be kept on? A No, I don't believe there was any discussion. Q Mrs. Cornell, after the names had been recommended to the caucus as a whole did the caucus then vote on the names? A No. Q What then was the next procedure to bring about the official appointment of these people, the submission of the names to Mr. Branti? A Yes, for his approval. Q And who was charged with submit- ting the names to Mr. Branti, was that your- self? A I did, yes. Q Did you subsequently have a meet- ing with Mr. Branti? [112] -201- Cornell-direct » A No, I did not. Q How did Mr. Branti obtain the recom- mendations of the caucus from you? A I called him on the telephone. Q You read him the names? A Yes, I told him that there were certain names that were being recommended. He had already told me in a prior telephone conversation the day that I told him that he was being named Public Defender that he had the right to make final decisions and if anybody was unsatisfactory or not -- that he didn't feel could do the work in his office that he would not accept that and that was fully understood and completely acceptable. But I gave him or told him those names that I did have of people who were being recom- mended by the caucus. Q Did he have any comment with regard to any of the names? A He did have a couple of comments, yes. He did have a couple of comments. * | [117] Q Would you consider yourself an expert on Rockland County politics? -202- Cornell-direct MR. APOTHEKER: I don't think any- body can be considered an expert on Rockland County politics. I don't think there are such qualifications. THE COURT: That may be. Maybe Ms. Cornell can give an opinion. A People active in Rockland County politics know that it is an unusual, per- haps a somewhat unusual situation. Many other counties don't understand this, many other places. Because of the type of government we have with a legislature and no county executive and the legislators elected on a townwide basis the town Demo- cratic Committees function as rather auton- omous groups. The County Democratic Com- mittee serves in a sense kind of an ina way mediating or chairing a position. It is quite unlike that of other political bodies or other counties. [118] Q You have grown in this system since 1960 to the point where you are now the highest Democratic County official in the County, is that correct? A Well, I had done all sorts of political activities in those first few -203- Cornell-direct years that were not very -- that were not leadership activities. Q I repeat my original question. Would you consider yourself to be an expert in Rockland County politics? A Well, I am not sure I consider my- self an expert at anything but I guess I probably know quite a bit about it. Q Would you, based upon your long experience in Rockland County politics, would you characterize the appointments of the assistant public defenders as political appointments, political patronage? A From the standpoint of the caucus and the political party there were numerous positions that were vacant and we felt that we certainly ought to have the ability to make recommendations and have input for these positions and that was the spirit in which these recommendations were made. * [120] Do. I understand that after the Democratic caucus had decided that Mr. Branti would be the public defender that you notified him of that choice? THE WITNESS: Yes, I did, the next day. -204- Cornell-direct THE COURT: Was it at that time or was there at that time a discussion of the appointment of assistant public defenders? THE WITNESS: Yes, there was. THE COURT: Would you tell me what that complete conversation was? I wanted the complete conversation, in substance, that you had with Mr. Branti immediately after the Democratic caucus had decided that he was to be public defender. THE WITNESS: I called him the next day basically to inform him that he had been so selected and to congratulate him and we had -- he was very pleased about that. I then brought to his attention the fact, which I am sure he didn't need me to bring it to his attention, but since he had been an assistant district attorney I wanted to call to his attention specifically the fact that there were certain cases that he-might be able to legitimately and properly handle as public defender and that I thought for his benefit he should look very carefully into that area to be sure that he knew what his {121] office could handle and could not handle in terms of cases that had been in the dis- ee i Ee, ees ad -205- Cornell-direct trict attorney's office. He said that he certainly would because he wanted everything to be proper as he took office as public dé fender. He then said to me that he wanted me to understand that he felt that he had to make the decisions as to who would be appropriate in his office and who would have the right qualifications and he would be happy to accept recommendations from the Democratic caucus but so long as I under- stand that. And I said I certainly did and that there was no question otherwise, that we expected him to exercise that right of his and responsibility. THE COURT: Did you have any dis- cussion of how the recommendations would be channeled to him? THE WITNESS: Well, I don't really remember. I may have told him that there would be further discussions at the next Democratic caucus and that I would be in touch with him. THE COURT: Did you have any discussion with respect to the Democratic caucus or you as County chairman have any sort of corresponding veto over his choices? [122] -206- Cornell-cross THE WITNESS: Did we have any such discussion? THE COURT: Yes. THE WITNESS: There was no such discussion and there was no question of that after he indicated to me that he felt that he had to have the final decision. I agreed with him. THE COURT: Did he tell you that he had chosen some people already and that there were X or X minus 1 or any number of positions that were presently available? THE WITNESS: No, I don't think he said anything about that and I don't think we discussed any individual names. THE COURT: Thank you. CROSS-EXAMINATION BY MR. APOTHEKER: Q You have gone into detail about the conversation you had with Mr. Branti, Mrs. Cornell. Am I right in assuming that you at no time told him he would have to appoint any of the individuals that you recommended from the Democratic caucus? A No, sir, I never told him that. Q Do you know either of the plain- -207- Cornell-cross tiffs, Alan Tabakman or Aaron Finkel? A No, I don't. [126] * ” Q Do you know the term of the office of the public defender, his term of office? A Yes. Q What is it? A Six years. Q The people that he appoints as his assistants, how long do they serve? A It was my understanding they serve at the public defender's will and pleasure. Q You were aware, were you not, at the end of Mr. Barone's term the positions in his office would be vacant, is that correct? MR. WAGNER: Objection, your Honor. I believe that is what this whole lawsuit is about. THE COURT: He is asking for her understanding of the situation. MR. WAGNER: Then I withdraw my objection. 4 That was my impression, yes. Q You felt you were not necessarily replacing anyone -- not you were replacing any- one -- but Mr. Branti was not necessarily re- placing someone but were making recommendations -208- Cornell-cross to appoint new people to vacant positions, is that correct? A Yes. That was my impression. IQ4 How long have you known Gerald Blumenfeld? A About four years, I think. Q Have you known him to be a com- petent and gualified attorney at bar? A Yes. Q Have you ever had any question about his ethics or moral character? A No. Q Did you see him as absolutely qualified to be an assistant public defender? MR. WAGNER: Objection. The wit- ness said she was only generally familiar with the duties of a public defender. THE COURT: This answer is called for within the framework of her previous testimony. (Question read) A yes, I did. Q Was your testimony that you didn't nominate or any one of the democratic caucus did not nominate, but they recommended, is that correct? [127] HRD ET -209- Cornell-cross A Mr. Branti? Q Yes. A Yes. That's correct. [128] 7 Q Did you know Aaron Finkel's party registration? Did you know during the time from November to January of 1977 of Mr. Finkel's registration? A No. THE COURT: She said she didn't know Mr. Finkel. I take it that means you didn't know his party registration? THE WITNESS: I don't think I did, your Honor. I am still not sure I_ know what it is. Q Was Mr. Finkel ever discussed by the democratic caucus? A No. I don't believe so. Q Did you say that Mr. Finkel would have to go? A No. Mr. Finkel was never discussed at any caucus, as far as I know. Q What about Mr. Tabakman? Did any- one say at any caucus including yourself that Mr. Tabakman could not be reappointed? A No. Q Was his name discussed? A No. -210- Cornell-cross Q Did any democratic legislator or town chairman ever ask you about Mr. Tabakman and whether he could maintain his position? A No. Q Did Legislator Dusanenko ever call you on behalf of Mr. Tabakman? A No. Q Did a non-democrat ever call you to see if they could be appointed as an assistant public defender, to the best of your knowledge? 4 yes. Q Who was that? A Mr. Barone. Q Mr. Branti was never ata caucus; is that right? A That's right. MR. APOTHEKER: May I have a mo- ment, your Honor? (Pause) MR. APOTHEKER: I have no further guestions at this time. MR. WAGNER: I have no further questions. THE COURT: I have a few more. [129] {133] -211- Cornell - Gorman-direct Q Do you mean as a candidate or as an endorsement? * A As a candidate. MR. APOTHEKER: Up until now I haven't objected that much. I fail to see the relevance of Mr. Barone who is not a party to this action and what rele- vance any conversations either the caucus or Mrs. Cornell had about Mr. Barone. THE COURT: You really see no relevance at all to that? MR. APOTHEKER: No. THE COURT: I do so I will overrule your objection. BY THE COURT: Q Was there any discussion at the time you passed a long his application of the fact that he was a republican and hence not eligible? A No, sir. THE COURT: Are there any further questions? Mr. Apotheker? MR. APOTHEKER: No. (153] Q Was it, to your recollection, was it not common knowledge among Democratic circles that Mr. McAlevey had made it a point that he was going to maintain Mr. Barone on as an Assistant Public Defender if he did get the nomination? -212- Gorman-direct A That is possible, yes. Q Didn't you in fact tell him that one of the reasons that his attempt to get the nomination of Public Defender was in trouble was because of his insistence on appointing Mr. Barone? A I said that in my opinion one of the problems and I stated this before, the first priority that the Ramapo legislators had was to select a chairman from Ramapo. The other prob- lem was the fact that he may have had a problem because of this so-called -- I was not part of any agreement or any deal or anything else that came up. It was knowledge that there may have been some kind of agreement that he would have kept Frank Barone on. Q Mr. Gorman, were you present at a Democratic caucus at which the recommenda- tion of Assistant Public Defenders was made some time in the latter part of December? A As far as names were concerned? Q ‘Yes. A I don't believe so. [154] Q Were you at a Democratic caucus at which Mr. Peter Branti was designated Public Defender? . -213- Gorman-direct A Yes. Q At that caucus were any names put forth as Assistant Public Defenders -- well, Were any names put forward? A I don't remember any names coming forward. Q To the best of your recollection, at that caucus was any understanding arrived at as to how the Assistant Public Defenders would be chosen? A To the best of my knowledge I remember that the Public Defender's position and also the County Attorney's position were treated as one. There was some sort of a setup there or an agreement they came to that X amount of attorneys, I will use the word attorneys, would come from each township. The only thing that I do remember is that there were a number of attorneys that were supposed to come from the town of Ramapo or recommended from the town of Ramapo. Q Were you as the town chairman of the town of Ramapo advised as to the number of appointments that you have? A I had no appointments. Q The town would have, not you personally. -214- : Gorman-direct MR. APOTHEKER: I object to that question. I don't believe the town has any [155] appointments and there was not any testimony that they did. ; THE COURT: I am not really sure what the question is at this point. (Question read) MR. WAGNER: By you I mean the town of Ramapo. MR. APOTHEKER: Same objection. THE COURT: I thought you said you had no objection. MR. APOTHEKER: I thought I did say I had an objection because there has been no testimony that the town of Ramapo had any appointments. THE COURT: I will sustain the objection. } Q Mr. Gorman, in the parceling out of the attorneys' jobs, i.e., Assistant County Attorney and Assistant Public Defender, were any number of these jobs alloted to the Ramapo delegation? MR. APOTHEKER: I object to the use of the words parceling out and allotting to. -215- Gorman~-direct THE COURT: You want him to use recommended. Q Allotted to Ramapo to recommend, I will put it that way. A The legislators from Ramapo, to the best of my knowledge, it was suggested that they can or they should recommend at . [156] least six attorneys. Q And that was six altogether for both offices, Public Defender and County Attorney? A Right. Q Mr. Gorman, Mr. Frank Barone is a resident of the town of Ramapo, is that correct? A I don't know. Q Were you present at a caucus when the county chairman, HarrietCornell, brought up the name of Frank Barone as possibly being kept on in the Public Defender's office? MR. APOTHEKER:.. Objection, your Honor, hearsay. THE COURT: Overruled. (Question read) A I may have been there. I believe I might have been there. Q And what was the reaction of the -216- Gorman-direct delegation to that suggestion regarding Mr. Barone? A They did not look upon Mr. Barone's actions, one who had criticized the District Attorney, as very good. Q And Mr. Barone is a Republican, right? A I don't believe that that question that he was a Republican ever entered into it.*-. & Meehan-direct Q Were you party to any conversations prior to that meeting at which it was determined that only the name Mr. Branti would be put in? A There were some discussions. It is very difficult to recollect. I guess I would have to say — Could y [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0152%3A2. Public record. Not legal advice.