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Tomaino, Santino - Ruling, February 5, 1998

Ruling, February 5, 1998

NEW YORK STATE: DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matters of alleged Violations of Articles 25 and 71
of the New York State Environmental Conservation
Law (ECL), and Part 661 of Title 6 of the Official
Compilation of Codes, Rules and Regulation of the
State of New York (6 NYCRR) by

RULING ON RESPONDENT'S
MOTION TO SUPPRESS

Santino Tomaino
33 Peconic Trail
Flanders, NY 11779

DEC File No.:

84 Point Road R1-5909-97-02
Flanders, NY 11779 R1-5877-96-09

Tufano Asphalt Contracting
38 Long View Drive
East Quague, NY 11492

RESPONDENTS

February 5, 1998

Summary

Based on the protections provided by the Fourth Amendment to the US Constitution, and Article 1, Section 12 of the NYS Constitution, the Respondent moved on January 20, 1998, to suppress most of the evidence offered by the Department during the October 1997 hearing to consider the captioned matters. Claims about constitutional protections, however, must be submitted to a Court of appropriate jurisdiction [Matter of 303 West 42nd Street v. Klien, 46 NY2d 686 (1979), citing Matter of DiMaggio v. Brown, 19 NY2d 283, 291-292 (1967)]. Nevertheless, the Commissioner may decide to exclude certain evidence if he concludes that the evidence is tainted or was gathered in violation of a persons's constitutional rights.

Therefore, the Respondent's request to suppress and to strike evidence from the record is denied. By his objection, the Respondent has adequately preserved his Fourth Amendment claim for judicial review. When the hearing reconvenes on February 17, 1998, the Parties will have an opportunity to develop the record fully on the circumstances surrounding the Department Staff's inspections for consideration by the Commissioner.

Proceedings

The captioned matters relate to two separate tidal wetland [ECL Article 25] enforcement actions that involve the same Respondent, Santino Tomaino. The site of the first case is 33 Peconic Trail in the Town of Southampton, Suffolk County. The Department initiated the first action with a Notice of Hearing and Complaint dated September 26, 1996. The Department subsequently amended the Complaint on February 12, 1997 to correct typographical errors in the eighteenth and twentieth paragraphs. The Department filed a Statement of Readiness [622.9] dated February 13, 1997.

The site of the second enforcement action is 84 Point Road, which is also located in the Town of Southampton, Suffolk County. As provided by ECL 71-2503, the Department duly served the Respondent with a Cease and Desist Order dated February 12, 1997. After the Respondent waived his right to a hearing to contest the Cease and Desist Order [ECL 71-2503(b)], the Department served the Respondent with a Notice of Hearing and Complaint dated February 19, 1997 to obtain relief for the alleged violations.

The two captioned matters were the subject of a calendar call held on March 20, 1997. After adjournments duly taken to provide the Parties with several opportunities to settle the captioned matters, the hearing was set to commence on October 10, 1997.

Two or three days before the October 10, 1997 hearing was to begin, the Parties informed me that a settlement had been reached, and that the Parties would sign the Consent Order on October 9, 1997. On that date, however, the Respondent refused to sign the Consent Order.

On October 10, 1997, minutes before the hearing was about to begin, I received a letter of the same date from the Respondent's attorney, Michael G. Walsh, Esq., Water Mill, NY. According to the letter, Mr. Walsh had withdrawn and been discharged of counsel for the Respondent. Mr. Tomaino appeared at the October 10, 1997 hearing pro se, and requested a 120 day adjournment to obtain new legal counsel. I rescheduled the hearing for October 28, 1997.

On October 28, 1997, Mr. Tomaino appeared without any legal counsel and requested a further adjournment. I questioned Mr. Tomaino at length about his efforts to obtain new legal counsel [October 28, 1997 Transcript pp 4 - 24]. After considering Mr. Tomaino's responses, Mr. Tomaino explained that he telephoned the Nassau County chapter of the American Civil Liberties Union on either October 12 or 13, 1997. Then, on about October 14, 1997, the Respondent called two attorneys. One was named Ed Gould, who, according to Mr. Tomaino, said that he could not help Mr. Tomaino. The Respondent could only recall the second attorney's first name, Robert. The Respondent stated that when he spoke with the second attorney (Robert), the attorney explained that he was leaving for a two week trip to Italy, and would be returning at the end of October 1997. According to Mr. Tomaino, the second attorney said that he would review Mr. Tomaino's papers upon his return from Italy, and would then decide if he would represent Mr. Tomaino.

I concluded that the Respondent had not diligently attempted to retain new legal counsel. Over the Respondent's objection, I ruled that the hearing would go forward as scheduled.

I further ruled on October 28, 1997, that the Department would present its direct case with respect to the two sites, after which I would adjourn the hearing again to let the Respondent continue his search for a new attorney. I allowed the Respondent to reserve his right to cross-examine the Department's witnesses until after the adjournment.

If, during the adjournment, the Respondent obtained new legal counsel, the hearing transcript and exhibits would be available for the Respondent's new attorney to review as prefiled direct testimony. If the Respondent did not obtain legal counsel by December 1, 1997, however, I ruled that the Respondent would have waived his right to counsel. I explained that the hearing would then reconvene to give the Respondent an opportunity to cross-examine the Department's witnesses and to present his direct case. Then, I would prepare a Hearing Report for the Commissioner's review.

On October 28 and 29, 1997, the Department presented its direct case with respect to the alleged tidal wetland violations at the 33 Peconic Trail site and, except for one witness, its case about the 84 Point Road site. I left the exhibits in the custody of the Region 1 Department Staff so that the Respondent and his attorney could easily review the materials. The Office of Hearings and Mediation Services received the stenographic record from the October 28 and 29, 1997 proceedings on December 1 and 3, 1997, respectively.

In a letter dated November 26, 1997, Robert Accomando, Esq., Melville, NY, stated that Mr. Tomaino had retained him as legal counsel to represent him in the captioned matters. This ruling comes from Respondent's motion, dated January 20, 1998, to suppress most of the evidence offered by the Department during the October 1997 hearing. In addition, the Respondent asserted that his due process rights were violated during the October 1997 hearing. The Department filed a timely response on January 27, 1998, and the Respondent filed a timely reply on January 28, 1998.

Motion to Suppress Evidence

According to the Respondent, the Department Staff engaged in warrantless searches of his properties in violation of the protections provided by the Fourth Amendment to the US Constitution, and Article 1, Section 12 of the NYS Constitution. As a result, the Respondent objects to the admission of a substantial portion of the testimony, photographs and other materials offered by the Department and received into evidence at the October 28 and 29, 1997 hearing.

Citing Mapp v. Ohio, 367 US 643 (1961), the Respondent argued that any evidence obtained as a result of the Department's alleged illegal searches should be suppressed by virtue of the exclusionary rule. The Respondent contended that the exclusionary rule is intended to apply to administrative enforcement proceedings, in general, and to this proceeding, in particular. [See, for example, One 1958 Plymouth Sedan v. Pennsylvania, 380 US 693 (1965); US v. Calandra, 414 US 338 (1974); Finn's Liquor Shop, Inc. v. NY State Liquor Authority, 24 NY2d 647, 653 (1960); Piccarillo v. Board of Parole, 48 NY2d 76 (1979)]

Referring to LaFave's Search and Seizure [3rd Ed. Vol. 1], the Respondent argued that "the photographs and testimony obtained as a result of the Department's trespass, regardless of whether the conditions may have been viewable from the public right-of-way, must be suppressed." Accordingly, the Respondent wants the following evidence relating to the alleged violations at the 33 Peconic Trail site suppressed and stricken from the record:

Exhibits 3A, 3B, 3C, 3G, Exhibit 4, Exhibits 5A through 5E, Exhibit 6, Exhibits 12A through 12C, Exhibits 14A, 14B, 14D 14E, Exhibit 15, Exhibits 16A through 16E, Exhibit 17, Exhibit 18, and Exhibit 19, as well as the testimony associated with, or otherwise based on, these exhibits.

With respect to the 84 Point Road site, the Respondent wants the following evidence suppressed and stricken from the record:

Exhibit 23, Exhibits 24B through 24K, Exhibits 25B and 25L, Exhibit 26, Exhibits 29A through 29D, Exhibits 30A through 30F, and Exhibit 31, as well as the testimony associated with, or otherwise based on, these exhibits.

The Department opposes the Respondent's motion. The Department argued that constitutional claims cannot be asserted in administrative proceedings [Matter of 303 West 42nd Street v. Klien, 46 NY2d 686 (1979)]. Based on a ruling concerning the Matter of Robert J. Ward et al. [Ruling of Administrative Law Judge Buhrmaster dated December 17, 1997, p. 13] Expedited appeal denied by letter dated January 14, 1998., the Department contended, however, that although constitutional protections should be decided by the Courts, the Commissioner is not precluded from excluding evidence that he may find was gathered unfairly. Referring to the Ward ruling, the Department also argued that evidence concerning these matters should not be suppressed, but evidentiary objections should be noted for the record.

Furthermore, the Department contended that the principle in Finn's concerning the application of the exclusionary rule to administrative proceedings does not apply to the captioned matters because, unlike Finn's, these cases are not comparable to criminal proceedings. For violations of the Tidal Wetlands Act (ECL Article 25), the Department argued that ECL Article 71, Title 25 clearly delineates the administrative sanctions, which are sought here, from the criminal sanctions. Although the Department acknowledged that part of the requested relief in the captioned matters includes civil penalties, the Department emphasized that the relief also includes a remedial component [See, Matter of Geo. A. Robinson & Co., Inc., Commissioner's Decision and Order dated March 2, 1994], that is as significant as, or more significant than, the requested civil penalties.

The Department further argued that ECL 3-0301(2)(g) authorizes the Department Staff, through the Commissioner, to:

"Enter and inspect property or premises for the purpose of investigating either actual or suspected sources of pollution or contamination or for the purpose of ascertaining compliance or noncompliance with any law, rule or regulation which may be promulgated pursuant to this chapter...."

The Department cited Flacke v. Onondaga Landfill Systems, Inc., 127 Misc.2d 984, 487 NYS2d 651 (Sup. Ct. Onondaga Co., 1985), affirmed 117 AD2d 992, 499 NYS2d 625 (1986) reversed (as moot) 69 NY2d 873, 514 NYS2d 723, 507 NE2d 316 (1987), which found this provision of the ECL unconstitutionally broad for failing to place limits on the frequency, time or locations of searches. To address the Court's criticism in Flacke, the Department contended that the Staff inspected the Respondent's properties on week days during normal business hours. Moreover, the Department argued that the Appellate Division's determination in FRJE Holding Corp. v. Jorling, 193 AD2d 1013, 598 NYS2d 100 (3d Dept. 1993) does allow the Department to inspect properties containing wetlands.

The Department also refuted the Respondent's reliance on LaFave (supra.) concerning the necessary exclusion of evidence that was obtained from the public rights-of-way. Based on Oliver v. US, 466 US 170 (1984) and FRJE, the Department contended that the Respondent made no attempt to restrict access to his properties with fences or signs. With respect to the 33 Peconic Trail site, the Department observed that the backyard is viewable and accessible from a navigable intertidal creek. In addition, the Department alleged that the 84 Point Road site is a rental or investment property. The Department concluded that the Respondent could not have any reasonable expectation of privacy.

Ruling and Discussion: Claims about constitutional protections must be submitted to a Court of appropriate jurisdiction [Matter of 303 West 42nd Street v. Klien, 46 NY2d 686 (1979), citing Matter of DiMaggio v. Brown, 19 NY2d 283, 291-292 (1967)]. Nevertheless, the Commissioner may decide to exclude certain evidence if he concludes from his own consideration of the facts record that such evidence is tainted or was gathered in violation of a person's constitutional rights. When the hearing reconvenes, I will, therefore, provide the Parties with an opportunity to develop the record fully on the circumstances surrounding the Department Staff's inspections for the Commissioner's consideration. This same approach was used by the ALJ in the administrative hearing concerning Finn's Liquor Shop, Inc., which the NYS Court of Appeals fully supported [Finn's, footnote 2, p. 657].

Therefore, Respondent's request to suppress and to strike evidence from the record is denied. I also deny the Respondent's request for a separate suppression hearing to determine the admissibility of the Department's evidence. By his objection, the Respondent has adequately preserved his Fourth Amendment claim for judicial review.

With respect to future proceedings, the Department has one more witness concerning the 84 Point Road site. Consequently, the Respondent will have an opportunity to make any objections about that witness' testimony and any evidence proffered in connection with this testimony. Consistent with this ruling, however, I will not suppress or strike from the record any future evidence that the Department may offer based on the Respondent's constitutional claim. As explained above, the circumstances of the Department Staff's searches and the fruits of these searches must be fully explored in the administrative record for the Commissioner's benefit.

The following discussion provides the Parties with additional guidance about how the Respondent's constitutional claim will be developed in the administrative record. First, the Parties dispute the applicability of Finn's to the captioned matters. The Parties' positions are outlined above. Consequently, the Parties may present additional legal argument in their closing briefs and replies about the applicability of Finn's, and the other cases cited in the Parties' motion papers, to the captioned administrative actions.

Second, the dissenting opinion in Finn's, and some of the other case law offered by the Parties, identify some statutory exemptions where inspections conducted under a licensing program may be reasonable without a warrant, like ECL 3-0301(2)(g). The Respondent did not address this provision of the ECL in his motion papers. The Department, however, cited Flacke, and FRJE. With respect to this question, the Parties may present additional legal argument in their closing and reply briefs about whether ECL 3-0301(2)(g) provides authority for wetland inspections that are considered reasonable without a warrant, as well as the applicability of the Court's holdings in Flacke and FRJE to the captioned matters.

Finally, there are two questions related to reasonable expectations of privacy. First, there are factual issues about what, if any, actions the Respondent undertook to secure the sites, as well as what the actual conditions of the sites were at the time of the Department's inspections. For example, the Respondent contended that he did not transfer possession of the 84 Point Road site to a tenant, and that he secured the property by boarding up the windows, visiting the property at regular intervals, and storing items of personal property at the site. But the Department argued that the Respondent did rent the 84 Point Road site to a tenant as demonstrated by laundry drying on the line and a dog at the site. Therefore, at the hearing, the Parties will have an opportunity to present evidence about the actions that the Respondent took to secure the properties, and the conditions of the sites at the time of the Department's inspections.

There is also a legal issue about whether the Respondent's expectations for privacy were reasonable, and thereby protected under the Fourth Amendment. The legal authorities that address this issue, which the Parties have already cited, include: US v. Dunn, 480 US 294 (1987); Oliver v. US, 466 US 170 (1984); as well as the Respondent's reference to LaFave (supra.) and the Department's reliance on Robert Vinal's, New York Criminal Practice Handbook (1991). This issue, for example, relates to the Department's contention that the Respondent could have no expectation of privacy at the 33 Peconic Trail site because the backyard is viewable and accessible from a navigable intertidal creek. In their closing and reply briefs, the Parties may provide additional legal argument about the reasonableness of the Respondent's expectations for privacy.

Writ of Prohibition

In his reply dated January 28, 1998, the Respondent requested leave from me to file a Writ of Prohibition with the Court pursuant to the Civil Practice Law and Rule (CPLR) 7803(2) for a hearing on his constitutional claim. The Respondent requested an adjournment of the administrative hearing until the Court issues a ruling on his CPLR Article 78 petition.

Ruling and Discussion: I deny the Respondent's request for leave to file a CPLR Article 78 petition. I also deny the Respondent's request for an adjournment pending the outcome of the Respondent's CPLR Article 78 petition.

The Respondent cited the Matter of Ronald Gittens [(DEC No. 1-1986) Commissioner's Order dated March 27, 1992] to justify a court review of his constitutional claim. The same constitutional question was raised in Gittens. Judicial review of the matter, however, was not necessary because the Commissioner dismissed the charges alleged in the Complaint with prejudice due to a lack of subject matter jurisdiction.

Unlike Gittens, the administrative record concerning the captioned matters, of which the Respondent seeks judicial review, is presently incomplete. The Commissioner has not made a final determination on the merits of the alleged tidal wetland violations, and may exclude tainted evidence or evidence that has been obtained in violation of a person's constitutional rights, as explained above. Moreover, a reviewing Court could not make a determination about the Respondent's constitutional claim now because the administrative record is incomplete.

Therefore, the more prudent course, which would conserve the Court's limited judicial resources, would be to complete the administrative hearing as soon as possible so that the Commissioner can review the record and make a final determination on the merits. Depending on that outcome, the Respondent can then decide whether judicial review of the Commissioner's determination is necessary.

Due Process

The Respondent also asserted that his due process rights were "compromised" when I commenced the hearing on October 28 and 29, 1997 over his objections. The Respondent identified two different elements that contributed to the alleged due process error. The first relates to whether the Respondent's previous attorney, Mr. Walsh, withdrew from the case appropriately with my consent. The second element relates to having the Department's witnesses remain in the hearing room while other witnesses for the Department testified.

With respect to the first element, the Respondent argued that the Department did not produce, nor did I issue, an order that formally permitted Mr. Walsh to withdraw as the Respondent's legal counsel. To support his position, the Respondent cited Disciplinary Rule 2-110(A) of the Code of Professional Responsibility, Cannon 2 [ DR 2-110(A)].

Referring to DR 2-110(A), the Department argued that it is necessary to obtain permission from a tribunal to withdraw from employment only if permission is required by the rules of the tribunal. According to the Department, 6 NYCRR Part 622 [Uniform Enforcement Hearing Procedures] and the State Administrative Procedure Act [SAPA] do not require a lawyer to seek permission to withdraw from an administrative hearing before the Department. Consequently, the Respondent should not expect to receive an order from the Department or the Administrative Law Judge that would permit Mr. Walsh to withdraw as the Respondent's legal counsel.

Concerning the second element, the Respondent contended that he will not be able to cross-examine the Department's witnesses effectively because they remained in the hearing room while the other witnesses testified. According to the Respondent, any inconsistencies in the testimony or a witness' recollection could have been revised as a result of hearing the other witnesses' testimony. The Respondent contended that the ability to point out these inconsistencies would have been a significant part of his defense.

The Department argued that the Respondent was not prejudiced by having the Department's witnesses hear each others' testimony. According to the Department, the Respondent must make a witness by witness showing why a particular person should be excluded. Furthermore, the Department contended that the Respondent now has a significant advantage over the Department because the Respondent has had nearly two months to review the Department's entire direct case, except for one witness concerning the 84 Point Road site. The Department also argued that the Staff witnesses are also the Department's clients, and clients are routinely allowed to be in the court or hearing room during the proceedings.

Discussion: The Respondent made no specific request for relief here. Therefore, this part of the Respondent's motion will be considered objections that will become part of the record of the hearing.

The Department has correctly pointed out that 6 NYCRR Part 622 and SAPA do not require a lawyer to seek permission from the Administrative Law Judge to withdraw from a case pending before the DEC Office of Hearings and Mediation Services. In addition, Part 622 and SAPA do not provide me with any authority to compel a lawyer's appearance or to require a lawyer to represent a respondent during a hearing. Any question about whether the Respondent's previous attorney violated DR 2-110(A) is beyond the scope of this proceeding. If the Respondent wants to pursue this issue, he should present it in the appropriate forum.

The Respondent's assertion that he will not be able to cross-examine the Department's witnesses effectively because they remained in the hearing room during each other's testimony is without merit. There is no requirement in Part 622 or SAPA that witnesses for an enforcement action must be sequestered until it is time for them to testify. This is a very unusual request within the context of a DEC administrative hearing. Any Party making such a request must establish why a particular witness should be sequestered.

Furthermore, the Respondent's claim is meritless because he has been able to review the Department's direct case, except for one witness concerning the 84 Point Road site, since early December 1997. When the hearing reconvenes in mid-February 1998 to hear the Respondent's direct case, however, the Department will not have this same luxury.

In addition, a careful review of the transcript shows that the scope of each witness' factual testimony was limited to the observations made during that individual's site inspection, and at no time during the Department's inspections did the members of the Staff who testified at the hearing visit the sites together. For example, when Mr. Hamilton visited the 33 Peconic Trail site on August 21, 1994, neither Mr. Pasciutti nor Mr. Chiarella accompanied him. Then, on May 31, 1995, Mr. Pasciutti visited the site without Messrs. Hamilton or Chiarella. On June 16, 1995 and August 9, 1996 Mr. Chiarella visited the site without Messrs. Hamilton or Chiarella.

Although it is possible that the Department's witnesses were able to compare site conditions over the period of time in question because they heard each other's testimony, a review of the photographs taken during the various inspections would yield similar comparisons. Furthermore, the Department's witnesses not only testified about the facts, but were also qualified as expert witnesses To date, the Respondent has not objected to the Department's witnesses being qualified as experts.. Consequently, their testimony includes expert opinion based on their inspections of the sites at issue here, as well as their education and work experiences.

Hearing Schedule

By memorandum dated January 6, 1998, I set aside the week of February 16, 1998 to continue the hearing. I did not realize when I set this schedule that February 16, 1998 is a legal holiday (President's Day). Therefore, the hearing for the captioned matters will not convene on February 16, 1998. Rather, the hearing will reconvene on Tuesday, February 17, 1998 at 10:00 A.M. at the Department's Region 1 Offices on the SUNY Stony Brook Campus. The hearing will continue, as necessary, through Friday, February 20, 1998. The Department shall reserve a room for the hearing, as scheduled above, and make the necessary arrangements for a stenographer.

/s/
Daniel P. O'Connell
Administrative Law Judge

Dated: February 5, 1998
Albany, New York

To: Robert Accomando, Esq. FAX: 516-761-0042
Jeanne Compitello, Esq. FAX: 516-444-0348

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