Opinion
2012-11-9
In the Matter of William J. THYGESEN, Petitioner, v. NORTH BAILEY VOLUNTEER FIRE COMPANY, INC. and Warren Homes, President, North Bailey Volunteer Fire Company, Inc., Respondents.
Hogan Willig, Amherst (Steven M. Cohen of Counsel), for Petitioner. Underberg & Kessler LLP, Rochester (Elizabeth A. Cordello of Counsel), for Respondents.
Hogan Willig, Amherst (Steven M. Cohen of Counsel), for Petitioner. Underberg & Kessler LLP, Rochester (Elizabeth A. Cordello of Counsel), for Respondents.
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, LINDLEY, AND WHALEN, JJ.
MEMORANDUM:
Petitioner commenced this CPLR article 78 proceeding challenging respondents' determination, following a hearing, to expel him from membership in respondent North Bailey Volunteer Fire Company, Inc. (Fire Company). Contrary to petitioner's contention, respondents did not violate CPL 160.50 either when they admitted in evidence media reports related to petitioner's two arrests or when they presented the testimony of a police investigator who was involved in the criminal investigations. It is undisputed that petitioners' charges were deemed dismissed following adjournments in contemplation of dismissal (see CPL 170.55) and, therefore, the records of those criminal prosecutions were sealed (see CPL 160.50[1] ). We note, however, that the media reports concerning petitioner's arrests do not constitute “official records and papers ... relating to [petitioner's] arrest or prosecution” under CPL 160.50(1)(c) and, because it is “ ‘permissible to consider the independent evidence of the conduct leading to the criminal charges' ” (Matter of New York State Dept. of Mental Hygiene v. State Div. of Human Rights, 103 A.D.2d 546, 549, 481 N.Y.S.2d 371,affd.66 N.Y.2d 752, 497 N.Y.S.2d 361, 488 N.E.2d 107, quoting Matter of Skyline Inn Corp. v. New York State Liq. Auth., 44 N.Y.2d 695, 696, 405 N.Y.S.2d 440, 376 N.E.2d 912), the police investigator was “free to testify from memory” concerning the conduct that led to petitioner's arrests (Matter of 53rd St. Rest. Corp. v. New York State Liq. Auth., 220 A.D.2d 588, 588, 632 N.Y.S.2d 815;see Matter of Kenner v. Coughlin, 105 A.D.2d 1130, 1130–1131, 482 N.Y.S.2d 615,lv. dismissed in part and denied in part65 N.Y.2d 760, 492 N.Y.S.2d 31, 481 N.E.2d 571).
Contrary to the further contention of petitioner, we conclude that there is substantial evidence establishing that he had exhibited a lack of “good moral character” in violation of article II, § 2 of the Fire Company's Constitution and By-laws and had committed misconduct under General Municipal Law § 209– l ( see Matter of Pawlowski v. Big Tree Volunteer Firemen's Co., Inc., 12 A.D.3d 1030, 1032, 784 N.Y.S.2d 785;see generally 300 Gramatan Ave. Assoc. v. State Div. of Human Rights, 45 N.Y.2d 176, 181–182, 408 N.Y.S.2d 54, 379 N.E.2d 1183). We have reviewed petitioner's remaining contentions and conclude that they lack merit.
It is hereby ORDERED that the determination is unanimously confirmed without costs and the petition is dismissed.