Dep't of Correction v



Taxi and Limousine Comm’n v. Martinez

OATH Index No. 1183/07, mem. dec. (Apr. 11, 2007)

Petitioner failed to prove that respondent verbally harassed, assaulted or imprisoned a passenger or that he destroyed the passenger’s property. Charges dismissed.

______________________________________________________

NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

TAXI AND LIMOUSINE COMMISSION

Petitioner

- against -

PAULINO MARTINEZ

Respondent

______________________________________________________

MEMORANDUM DECISION

JOAN R. SALZMAN, Administrative Law Judge

This license revocation proceeding was referred by petitioner, the Taxi and Limousine Commission, pursuant to the New York City Administrative Code and the Taxi and Limousine Commission’s For Hire Vehicle Rules. Respondent Paulino Martinez, a licensed for hire driver, is charged with assaulting, verbally harassing, and unlawfully imprisoning a passenger, as well as destroying the passenger’s property, in violation of the For Hire Vehicle Rules, 35 RCNY, sections 6-18(f), (i), and (d)(2) (Pet. Ex. 1).

At the hearing held on February 7 and continued on March 14, 2007,[1] petitioner presented the testimony of Sami Gross, the passenger, whose first language is Yiddish (Tr. 13), and who speaks English. Respondent, whose first language is Spanish, testified and denied the charges; he also presented the testimony of two colleagues from the Brooklyn Car Service, for which he works. The entire hearing was translated from English to Spanish and Spanish to English so that respondent could understand the proceedings. Mr. Gross appeared at the resumed trial via teleconference by stipulation of the parties. Asked if a Yiddish-English translation was also needed for the benefit of Mr. Gross, petitioner indicated repeatedly that such translation was not necessary (Tr. 77-78, 103). Following post-trial submissions, the record closed on April 9, 2007.

Respondent’s license was suspended by the Commission, as a result of this incident, for an unspecified period that included the original hearing date; his license was restored after a criminal assault charge against him was disposed of by a guilty plea to a violation, not a crime (Tr. 37, 55).

In essence, this case involves a fare dispute and a disturbing and unfortunate failure to communicate by two people whose first language is not English. A deep misunderstanding surrounding perceived anti-Semitic remarks by the driver quickly degenerated into a chase on foot -- a fearful incident for both men involved -- and resulted in criminal charges lodged against the driver and claims of mental and physical injury to the passenger. While the allegations were extremely serious ones which could, if proved, result in license revocation and substantial fines, I find that petitioner failed to prove the charges by a preponderance of the credible evidence.

ANALYSIS

The Commission alleges that on November 9, 2006, during a $2 fare dispute, respondent said “Fuck Jew” to Mr. Gross, who is Jewish, then moved his car back and forth to prevent Mr. Gross from leaving the car, threw three objects at Mr. Gross once he fled the car, chased him on foot, pushed him down, then stomped on his religious hat, and caused his eyeglasses to break when they fell off as Mr. Gross hit the ground. Mr. Gross claims long-term psychological trauma, a permanent scar on his knee, as well as redness on the left side of his face near his eye where, he testified, respondent had hit him with a battery, an item respondent allegedly threw at him. Respondent denies all of these serious allegations. Except for the parties’ agreement that there was a fare dispute and that Mr. Gross fled the car on foot, with respondent in pursuit at some point, also on foot, and that a family member of Mr. Gross’ sought $2,000 from the Brooklyn Car Service to drop his charges against respondent, all the facts were in dispute in this matter. Respondent defends by saying he would not have overreacted in such a violent and deeply insulting way for a $2 fare dispute; that Mr. Gross refused to pay the full $24 fare on the pretext that he was late, even though respondent had told him at the start of the ride that Mr. Gross lacked sufficient time to make his appointment; that respondent would not have jeopardized his 17-year career serving the Jewish community or his family by mistreating a passenger as alleged; that Mr. Gross damaged a parked car when he opened the passenger door to flee and respondent chased him only because both men had to answer for the damage Mr. Gross had done; and that Mr. Gross misunderstood what respondent had said to him and then embellished his story for purposes of recovering money as a result of this incident. This is a case in which the only certainty is that the full truth is elusive, with the parties offering sharply differing versions of the incident. After weighing the heavily disputed evidence, however, I find that the explanation given by respondent is the more credible of the two accounts for the reasons set forth below.

In a revocation proceeding, the Commission bears the burden of proof, and must establish its charges by a preponderance of the credible evidence. See Taxi and Limousine Comm’n v. Egalite, OATH Index No. 1542/00, at 5 (Aug. 4, 2000), aff’d by Comm’n (Feb. 27, 2001); Taxi and Limousine Comm’n v. Singh, OATH Index No. 280/99, at 4 (Sept. 22, 1998). A preponderance has been defined as “‘the burden of persuading the trier[] of fact that the existence of a fact is more probable than its non-existence.’” Prince, Richardson on Evidence, 3-206 (2002 ed. Lexis 2007) (citation omitted). See also Dep’t of Correction v. Tavarez, OATH Index No. 1273/02, at 5 (Nov. 21, 2002) (where the evidence is equally balanced, the burden is not met); Taxi and Limousine Comm’n v. Gebremengist, OATH Index No. 198/88 (Oct. 6, 1988) (where evidence was unclear charges were dismissed).

Resolution of the sharply disputed facts here depends on an assessment of the witnesses’ relative credibility. Taxi and Limousine Comm’n v. Blake, OATH Index No. 1138/94, at 4 (Aug. 22, 1994). “There is no more fundamental nor often more difficult task for a trier of fact than the resolution of a controversy between two parties based solely on an assessment of their respective credibility. No magic formula exists to separate with certainty truth from fiction in a witness’ account.” Taxi and Limousine Comm’n v. Singh, OATH Index No. OATH Index No. 984/07, at 4 (Jan. 26, 2007), citing Dep’t of Correction v. Hansley, OATH Index No. 575/88, at 19 (Aug. 29, 1989). In making credibility determinations, this tribunal has often considered “witness demeanor, consistency of a witness’ testimony, supporting or corroborating evidence, witness motivation, bias or prejudice, and the degree to which a witness’ testimony comports with common sense and human experience.” Dep’t of Sanitation v. Menzies, OATH Index No. 678/98, at 2-3 (Feb. 4, 1998), aff’d, NYC Civ. Serv. Comm’n Item No. CD 98-101-A (Sept. 9, 1998). There was in this record a motive for the complainant to exaggerate this incident to enhance a monetary claim, and respondent certainly had strong reason to defend himself against the possible loss of his livelihood. After weighing the testimony of the two protagonists in this case, together with the documentary proof with all its contradictions, and the undisputed testimony of two employees of the car service that Mr. Gross was seeking a monetary recovery from this incident, and assessing whether the testimony comports with common sense and human experience, I am unable to conclude that it is more likely than not that respondent committed the acts of which he stands accused. Singh, OATH 984/07 (charges dismissed for insufficient proof); Singh, OATH 280/99 (failure by agency to meet its burden of proof); Taxi and Limousine Comm’n v. LeCoin, OATH Index No. 1037/91 (Dec. 9, 1991) (complaints were incredible). Cf. Taxi and Limousine Comm’n v. Elbstamey, OATH Index No. 976/07 (Jan. 8, 2007) (charges sustained); Taxi and Limousine Comm’n v. Kharoufi, OATH Index No. 1277/07 (Mar. 12, 2007) (charges sustained).

Mr. Gross testified that on November 9, 2006, he called the Brooklyn Car Service (Tr. 24, 69), which he habitually used, and checked with the dispatcher, who told him the fare for the trip he wanted to take would be $22, to go from 10th Street and Wythe Place to Avenue N and East 18th Street in Brooklyn (Tr. 14, 67). Respondent then picked up Mr. Gross and drove him to his destination, also in Brooklyn, without incident (Tr. 14). Mr. Gross testified that when he entered the car, he gave respondent his destination, but said nothing about the fare the dispatcher had quoted to him, nor did the two men in the car discuss the fare until they reached the destination (Tr. 67, 70). At the end of the ride, though, Mr. Gross claims, he tendered $22 to respondent, who suddenly replied “Fuck Jew, $24” (Tr. 14, 34). Mr. Gross could not recall whether respondent asked for the money, but he testified that he gave respondent $22. According to Mr. Gross, $22 was the entire fare, in his view, and there was no custom of tipping the driver, so the $2 difference was not about a tip (Tr. 24-25). Mr. Gross had no recollection of whether “$24” meant that the driver wanted a fare of $2 more than Mr. Gross offered and testified that he had “no clue” why the driver said $24 (Tr. 24-25). Mr. Gross testified that, fearing that he would be assaulted (“I mean I don’t know what will be next, maybe a knife;” “you want I should stay there and get, die on the spot?”), he opened the passenger’s rear, right side door and moved to flee the car, but that as he opened the door, respondent began moving the car back and forth for a minute’s time to prevent his exit (Tr. 22, 34). Mr. Gross was then able to get out, and stated that the respondent opened the driver’s side door and “was trying to get after me, so I started to run” on the sidewalk (Tr. 15). At this point, respondent allegedly threw three items at Mr. Gross: first a full, soft plastic water bottle that hit him in the back, then a stone that hit him in the back, and finally a “heavy battery,” perhaps the size of a radio or cell phone battery, that hit him on the left side of his face, near “my eyes” (Tr. 15-17). Mr. Gross testified that he gave the battery “to the cops . . . while they arrested [respondent,] while they cuffed him” (Tr. 18). Asked on cross-examination if the District Attorney had possession of the battery and the other items he claimed were thrown at him, respondent answered by saying he did not understand the question. After the question was repeated, he asked “What do you mean possession?” (Tr. 94), but he never answered the question. Respondent allegedly threw these items from a standing position in the gutter while Mr. Gross was running away (Tr. 16).

Mr. Gross also claimed that respondent next pushed him to the ground by pushing him in the back, without explanation as to how respondent reached him from a standing position, even though Mr. Gross had been running. Mr. Gross claims further that when he fell, “my knee and my face got bleeded [sic], and swelling. And I was shocked, I got, I couldn’t, I didn’t know where I am. Like two minutes, I started to scream, I didn’t know what was going on over there. I felt like I’m dying, I don’t know what’s happening over there” (Tr. 17-18). Mr. Gross described his religion as Orthodox Jewish, and testified that he always wears a suit, a hat, a yarmulke, and glasses (Tr. 18). In the fall, he claimed, his glasses broke and his hat fell off (Tr. 18). According to Mr. Gross, respondent also smashed or stomped with his foot on Mr. Gross’ religious hat, using force, as if dancing on it, and threw his yarmulke to the gutter (Tr. 18-19). Mr. Gross explained that his religious hat is a very important religious symbol to him, that he wears it when he goes to synagogue or to parties, and that his attire “should be nice” (Tr. 22-23). Mr. Gross displayed during the hearing, on the request of petitioner’s counsel, a quarter-sized, somewhat red, faded mark on his left knee, stating that it was “much worser” and that that doctor “said this will stay forever. It can’t come out,” meaning this was a scar (Tr. 19). Respondent testified that Mr. Gross fell while running. This red mark is consistent with a fall and scraped knee and does not prove that respondent pushed Mr. Gross and caused him to fall.

According to Mr. Gross, people “came around” and respondent “started to run away to his car, to go back to his car, what was in the middle of the gutter. And the police came” (Tr. 20). Mr. Gross testified that a neighbor “who saw that, who lived on the first floor,” called the police (Tr. 20). No name of this neighbor was divulged at the trial, and petitioner neither identified nor called any other witnesses who could corroborate Mr. Gross’ account, even though a throng had gathered where Mr. Gross fell (Tr. 139-40). There was no suggestion that the agency asked Mr. Gross to identify the people who gathered to help him. Mr. Gross testified that the police interviewed both respondent and Mr. Gross and arrested respondent (Tr. 20).

Asked to describe any long-lasting injuries resulting from this incident, Mr. Gross cited the mark on his knee and residual redness on his face, which he described as “a little bit still red” (Tr. 20-21). He added that he “got affected as a traumerized [sic], and I need to go for therapy,” still needs therapy and owes “a lot of money” for psychotherapy (Tr. 19-23, 25). The bill he submitted after the hearing is from one Barry Bodek, Psychotherapist, with offices on Central Park West and in Brooklyn, in the amount of $2,382.50. The invoice reads: “FOR PROFESSIONAL SERVICES: Balance Update,” as of December 31, 2006, but shows no particular dates on which Mr. Gross saw the therapist (Pet. Ex. 5). The document is inconclusive because it does not show whether respondent began visiting this therapist before this incident or for what dates he was billed. The invoice is submitted to show that in the seven weeks following this incident, from November 9 to December 31, 2006, respondent was billed more than $2,000 for psychotherapy services rendered in that period. That is not what the bill shows, however. It is not at all clear that Mr. Gross saw this therapist during the relevant seven-week period; if he did so, the average charge could have been $340 per visit, but the invoice is so vague that I find it does not corroborate Mr. Gross’s testimony that the mental trauma he claims from this incident resulted in this bill. The bill tends to show only that Mr. Gross has seen a therapist, but the causal link to the charged misconduct of respondent is missing. The document does not prove that the bill is exclusively related to this incident. Mr. Gross, on cross-examination, stated that he did not go to the hospital after the incident, but went the same day to a medical doctor in Brooklyn. There was no receipt offered in evidence for such a contemporaneous visit (Tr. 96-99). Had there been a doctor’s visit, apart from the psychotherapist’s bill, it should have been easy to obtain documentation of that visit of November 9, 2006, but the agency produced none.

The complaint and arrest reports omitted essential allegations that Mr. Gross made in the hearing of this matter, and threw his testimony into serious doubt. Significantly, although Mr. Gross testified that the police interviewed him at the scene and that he told police about the anti-Semitic aspects of the incident (“I tell them the whole story,” Tr. 94), none of these important allegations appeared in the contemporaneous police documentation. The “whole story” would have included the anti-Semitic invective and the stomping of Mr. Gross’ religious hat. Not only were the key details missing from the arrest and police reports, these reports actually contradicted Mr. Gross’ account here in important respects: The police records said only: “AT T/P/O C/V[2] states suspect punched him on his left side of the face causing swelling and redness. C/V also states suspect pushed him to the ground causing a laceration to his left knee” (Joint Ex. 2, emphasis supplied). There is no mention of respondent having bombarded Mr. Gross with three objects, no water bottle, no battery and no rock, even though respondent testified that he told the police he got hit by the battery, which he said he handed to the police (Tr. 94). The police documents list under weapon used: “none” (Joint Ex. 2). Instead, the allegation recorded by the police was that respondent punched Mr. Gross in the face. A punch is very different from being hit from a distance with a hard object. There is, therefore, a flat contradiction in police records about the essential nature, extent and circumstances of the incident. One would have expected a hate crime, stomping a religious hat and verbal harassment based on deriding a victim’s religious affiliation, to have been recorded by the police. The police reports thus raise questions about the accuracy and credibility of Mr. Gross’ testimony.

On cross-examination, Mr. Gross was so vague as to raise more questions about the credibility of his claims, and to give the distinct impression that he was exaggerating both the event and his injuries. Questions that called for more detail than his basic account, or for perceptions he had not already given on direct testimony, he deflected by saying he could not recall, did not know, or did not understand the question. He could not recall whether the car stopped at the corner or middle of a block, or how long it took from the time he exited the car to the time he picked himself up from the sidewalk, stating that he was “so overwhelmed” (Tr. 25-26, 92). He contradicted himself at times, as if unsure how to answer to best advantage: As to whether he started walking or running from the car, he said: “I started running. I walked and then I run” (Tr. 26). Asked by petitioner’s counsel if he was a fast runner, Mr. Gross plainly answered “Yes,” then stated, “I don’t understand, I’m confused, what is the question?” When the question was repeated, he answered, “I don’t know,” then later added “I’m only so quick, I’m sorry, I’m not a, you know, running the marathon over there. . . . I run a little, no . . . no, I’m not too good running actually” (Tr. 102-03). As he was supplementing his answer, he hesitated, until he seemed to realize that the better answer for his case was that he was not a good runner, because, under that theory, respondent could throw objects at him from a standing position near the car and yet catch up and push him down because Mr. Gross would not have gotten far even if he was running. By the end of his answer, he had reversed himself 180 degrees, and yes became no. He said he had “no clue” where respondent got the three objects Mr. Gross alleged respondent threw at him (Tr. 27). The net effect of this testimony was that Mr. Gross’ story did not add up, and it was unlikely that respondent both stood by the car and threw hard objects at him and then, after the delay of throwing the objects, gave chase on foot, caught up with Mr. Gross and deliberately pushed him down.

Mr. Gross denied and did not recall that respondent told him to wait because respondent was going to call the police to settle the matter of Mr. Gross’ hitting and damaging a parked car with respondent’s car door. Nor could Mr. Gross recall at another point whether respondent’s car was moving when Mr. Gross was leaving the car (Tr. 28-30), though he had also said it was moving when he tried to exit (Tr. 22, 34). Nor could Mr. Gross remember exactly who called the police (Tr. 29-30). On redirect, Mr. Gross was vague about where he was going and whether he was late: “I was going to see someone” (Tr. 32). But he denied telling respondent that he had to be at an appointment (Tr. 32). Mr. Gross admitted that respondent did not mistreat him during the trip: “No” (Tr. 33). Mr. Gross could offer no theory of provocation in the dealings between the men leading up to the fare dispute that would have caused respondent to blurt a hateful epithet at him “[a]ll of a sudden” over a $2 difference in their expectations of what the proper fare was (Tr. 34). Asked why he would not simply call the taxi base he used often if he had a problem with a specific driver, Mr. Gross answered “I don’t know, what was the question, I’m sorry?” (Tr. 34-35).

Mr. Gross denied knowing who David Gross is. Asked if he has a cousin, a brother or any other relative whose name is David Gross, Mr. Gross answered “I don’t know.” Asked further, “Well, what do you mean you don’t know?,” he said, “I have a lot of cousins” (Tr. 71). This testimony was evasive at best. According to the credible testimony of Augustin Olivo and Rafael Rodriguez, two employees of Brooklyn Car Service, colleagues of respondent, a David Gross identified himself as Sami Gross’ uncle when he placed up to 20 phone calls to the company in the two weeks following the incident. On behalf of Sami Gross, David Gross demanded a $2,000 money settlement to drop the charges (Tr. 109-122). Messrs. Olivo and Rodriguez were asked to conduct the negotiations because they spoke more English than their boss, Valentino Parata (Tr. 111-14). David Gross and the car service negotiated that figure down to $1,200, and the car service insisted upon having a settlement done in the presence of an attorney, because of the police involvement and the legal proceedings pending, but the caller refused, and the car service aborted discussions, refusing to make any deal or pay any money without appropriate legal representation. Mr. Olivo testified that he could not be sure whether the caller was Sami or David Gross, because the negotiations were held on the phone, but he did not trust the caller and wanted legal representation for the company. Mr. Olivo grew tired of negotiating with the caller and Mr. Rodriguez took over the negotiating for the car service (Tr. 109-122). It is undisputed that David Gross, claiming to be Sami Gross’ uncle or representative, “used to call all the time” (Tr. 122). He called Mr. Rodriguez and threatened to call all the local newspapers and publish stories that the car service employs dangerous people, and said he would do whatever he could to close or do damage to the car service (Tr. 120). In addition to the 10 or 20 calls from David Gross to Mr. Olivo, David Gross called Mr. Rodriguez five or six times in a two-week period. It was always David Gross who called the car service seeking a monetary settlement, not the service that sought out David Gross (Tr. 121). The owner tired of these calls for money and dropped the matter about three weeks after the incident (Tr. 122).

Sami Gross’ denials and cagey answers about these calls and even the identity of David Gross were not believable. Asked, “Did you have your cousin, David Gross, call Brooklyn Car Service on your behalf to try to negotiate getting money from them because of this alleged incident, yes or no?,” Mr. Gross replied, “I don’t remember” (Tr. 72). He stated that he told friends and family “the story” and “they said they’re going to deal with that, don’t worry.” Asked, “So, did one of your family members tell you that they negotiated to receive $2,000 from Brooklyn Car Service?,” Mr. Gross responded, “They told me they’re going to take care from this” (Tr. 72). Pressed for what that meant to him, he added, “It means from me that I should not be worried and I should not do nothing, they’re going to deal with that” (Tr. 73). These answers came across as a series of evasions to avoid admitting that Mr. Gross’ family sought money for him from the car service to drop the charges. He did not deny the fact of the negotiation, but simply refused to supply forthright answers on the subject. Although Mr. Gross personally spoke with the District Attorney’s office and the Commission staff about this case and set up his own doctor’s appointments, he testified that family members told him they were going “to take care from me” and were the same family members (including someone named Emily) from whom Mr. Gross said he borrowed money to pay for a new religious hat and eyeglasses (Tr. 73-75). It did not make sense that Mr. Gross was able to take charge of his other legal complaints and health care, but knew absolutely nothing about negotiations on his behalf for a monetary settlement with the car service. Asked how he supports himself and what he does for money, Mr. Gross, who has never held a job, said “I don’t know” (Tr. 75). This response also made no sense.

Mr. Gross could not recall what denomination of bills, five, ten or twenty dollar bills and singles, he gave the driver to add up to $22 (Tr. 80-81). Mr. Gross at first admitted that when he exited the car, there were parked cars between respondent’s vehicle and the curb (Tr. 82), but swiftly changed his answer on cross-examination. Asked if he had to be careful not to hit a parked car, Mr. Gross did not answer directly. Instead, he said “I opened the door” (Tr. 82). He testified that even though there were parked cars along the entire block where respondent stopped, respondent was moving the car back and forth as Mr. Gross exited (Tr. 82-83). Having testified that “[i]t was a whole block of parked cars by the curb,” where respondent stopped, Mr. Gross, hearing questions that cast doubt on whether respondent really would have moved the car back and forth with parked cars nearby, then stated that he did not know if there were parked cars all along the curb where respondent had stopped (Tr. 83).

According to Mr. Gross, people gathered round after he fell to the ground, his hat having fallen to the side and his glasses cast in front of him. He said that he screamed while he was down, and that even though he cannot see well without his glasses, he somehow, nonetheless, saw respondent stomping on his hat, people gathering, and respondent running away in the gutter (Tr. 90-91). I find this story that respondent was stomping on Mr. Gross’ religious hat in the midst of a Hasidic neighborhood in the open in daylight, where his actions could be seen by all who lived in this area that respondent had served for nearly 20 years, to be improbable.

Although petitioner’s counsel tried to minimize the evasiveness of Mr. Gross’s answers by emphasizing that Yiddish is Mr. Gross’ first language (Tr. 102), the agency consistently indicated that there was no need for a Yiddish-English translator (Tr. 77-78, 102-03), and Mr. Gross, asked on re-direct if he had some difficulty understanding the cross-examination questions, replied in the negative: “Not really, you know, most of them I understood” (Tr. 102). He also testified that he understands English (Tr. 67). Even assuming that agency counsel is correct, and English is Mr. Gross’ second language and he should be given the benefit of the doubt when he appeared to be refusing to answer questions (Tr. 77-78), Mr. Gross testified that he understood the questions, and he made himself understood. Even with the protracted repetition of questions for Mr. Gross’ benefit that became the norm at the hearing, I find that his answers were indeed evasive and that he understood the questions he was deliberately avoiding.

I do not minimize Mr. Gross’ subjective perceptions of his own suffering. However, throughout his testimony, Mr. Gross tended to overstate the harm he said was done to him. For example, he testified that when his friends saw the allegedly damaged hat, “they started to laugh” and he was “embarrassed from that” (Tr. 23). It is hard to accept that any true “friends,”[3] especially those who share his religious beliefs and history, would actually taunt Mr. Gross for having suffered an incident involving religious bias. Even if they had initially teased him without knowing about this incident, it is not believable that they would continue to taunt him once he explained what he perceived occurred as a bias crime aimed against the same religion he shared with friends in synagogue. Mr. Gross also claimed at the hearing that he still has a fear of using taxis: “Even when I see a taxi they stop, I have a fear” (Tr. 22). He added that his friends laugh at him when he refuses to go with them in taxis, and then he must “stop and explain them the whole story what happened, and I’m embarrassed about it” (Tr. 22).

That Mr. Gross’ friends would have taunted him about coming to synagogue with a disheveled hat and also about his refusal to take taxis with them socially since this incident was hard to believe, if these are truly his friends who share his beliefs. He testified further that respondent “ruined him” and that he was so “traumerized” that he has needed psychotherapy ever since. There was no provocation shown in Mr. Gross’ testimony that would have elicited the awful insults respondent supposedly hurled at him, immediately upon seeing that the fare was $2 short. There was no conversation even alleged to have led to such a hateful overreaction, and I find it unlikely that the driver responded so to the supposed offer of $22. Mr. Gross testified that respondent, whose first words to him were allegedly the cited invective, said no other bad words to him after that: “No” (Tr. 23).

Mr. Gross is 31 years old and has been taking cabs and vehicles for hire in New York City for about 15 years, since he was a teenager. He testified that he never before filed a complaint with the Commission and never before had a problem with a driver (Tr. 21). According to the computerized police complaint report (Joint Ex. 2), EMS personnel treated Mr. Gross (“EMS #1029), but he refused to go to the hospital (Tr. 22). Petitioner did not present the emergency technician or the police officers as witnesses or produce any EMS report. Mr. Gross testified, as if he had not yet bought a new hat: “I’m supposed to buy a new one, it cost me like $180,” but then said he was wearing the new one at the hearing (Tr. 23). On request of agency counsel, Mr. Gross submitted, after the hearing, only after respondent’s counsel challenged the sufficiency of the proof, what appears to be the front and back of a business card of Selco Hatters Inc. in Brooklyn. On the back, there is a handwritten note in which “Dec” is crossed out and the date “Nov 21, 06” is written, after which the note reads: “Mr. Sami bought a hat paid $115,” and the signature is illegible (Pet. Ex. 5). This document was not an invoice and did not line up with the testimony of a $180 cost, which is $65 or 57% more than the amount on the hatter’s card. The $180 Mr. Gross cited in his testimony is an amount greatly inflated when considered against the care Mr. Gross took in insisting that he not be overcharged $2 on the carfare he placed in issue here. The document also raised some questions about the date, which was crossed out, and signature, which was illegible, that tended to minimize its probative value.

Mr. Gross also claimed he had to buy new glasses, which cost him “like $200” (Tr. 23). The bill Mr. Gross submitted after the hearing, at agency counsel’s request only after respondent’s counsel challenged the sufficiency of the case in chief, from Minzer’s Optical Inc. in Brooklyn, dated November 21, 2006, was for $159 for a pair of rimless eyeglasses (Pet. Ex. 5). The date, name and address lines on the invoice appear to be completed in a different handwriting from that of the rest of the form, and the amount does not match Mr. Gross’ testimony. Mr. Gross recalled the cost of his glasses in his testimony as more than $40 greater than the amount reflected on the receipt he later submitted. The testimony as to the cost of the eyeglasses was thus inflated 26% over the amount in his receipt. This testimony about damages seems unreliable, just as it was with respect to the cost of the hat, when measured against the documentation later submitted by Mr. Gross. He testified that he had to go to his friends to borrow money for the glasses, the hat, and added also his suit, “like a poor person. You know, I have to explain to them. And I feel my whole self-dignity got ruined” (Tr. 23). Mr. Gross had not submitted his receipts for the hat and eyeglasses to the Commission prior to the hearing (Tr. 74). Only after being challenged for not submitting corroborating documentation of Mr. Gross’ expenses (Tr. 97-98), petitioner submitted receipts for eyeglasses and a hat, with an affidavit of Mr. Gross after the hearing, but provided no receipt for a new suit (Pet. Ex. 5). (It was undisputed that the psychotherapy bill was in Commission counsel’s possession at the first hearing session, but not offered in evidence until after the therapy claim was challenged by respondent’s counsel at the second session on March 14th.) It is as likely as not that if Mr. Gross tripped and fell during this incident and his glasses and hat were damaged, he could have purchased a new hat and glasses for that reason, or for any reason if he needed or wanted new items at or after the time of the incident. With the evidence about the interaction between Mr. Gross and respondent disputed in virtually every respect, and serious questions about the reliability of Mr. Gross’ version of the events, the causal connection between Mr. Gross’ alleged injury and respondent’s conduct was missing or weak at best.

While Mr. Gross had difficulty recalling important details throughout his testimony, respondent, by contrast, had clear, specific recollections of their conversation as Mr. Gross entered the car. Respondent has been affiliated with Brooklyn Car Service for 17 years and has had his for-hire vehicle license for nearly 14 years (Tr. 123). Respondent was dispatched to pick up Mr. Gross at 10th Street and Wythe Place on November 9, 2006. He testified that the dispatcher gave him the location for pick-up, but not the fare, because the base need not set prices during rush hour and the dispatcher knows that respondent is “very knowledgeable” about the prices (Tr. 123-6). Respondent picked up Mr. Gross at 10:38 a.m. Mr. Gross told him to take him to East 18th Street and Avenue N, and told respondent he had an appointment at 11:00 a.m. Respondent informed Mr. Gross that there was insufficient time to reach that destination by then. According to respondent, Mr. Gross said it was “okay” and respondent should do his best. Upon arrival, Mr. Gross asked the fare, and respondent said $24. Mr. Gross said, “no,” and that he was only going to pay $20 because he arrived late to his appointment. Respondent countered by reminding Mr. Gross that he, Mr. Gross, was already late when he entered the car. At that point, according to respondent, Mr. Gross said he was not going to pay at all and “wanted to run” (Tr. 124).

Respondent told Mr. Gross he wanted to call the dispatcher so that the dispatcher could give Mr. Gross the price. But instead of waiting for a call to the dispatcher, Mr. Gross “quickly opened the door and ran out” without giving respondent the money (Tr. 126). Mr. Gross opened the door “with a lot of force” (Tr. 131) and hit a car that was parked, damaging the rear light on that car. Respondent told Mr. Gross to wait because respondent was going to call the police and Mr. Gross would have to “respond for this” (Tr. 124). Mr. Gross started to run on the sidewalk, and respondent began to chase him on the street. As they both ran, respondent “was telling him, stop, stop, we’re going to call the police” (Tr. 131). Respondent testified further that Mr. Gross tripped on his own feet and fell to the ground. The closest respondent got to him was four feet, because a man was there when he fell, one Terrence Hall. Hall told respondent he should not get any closer, “we’re going to call the police. If you leave, then you could get into trouble . . . don’t go anywhere, I saw what happened and I can help you” (Tr. 125, 127). Mr. Hall, whom respondent had never seen before, called the police (Tr. 127). Respondent, heeding this advice, went and sat on the trunk of his car and waited for the police to come. People began to gather. Mr. Gross was “bleeding from the face” (Tr. 125). Mr. Hall gave respondent two business cards, one for respondent and one for an attorney if necessary. Mr. Hall’s address in Hempstead, New York, phone and fax numbers were printed on the back of the business card of a private investigator located in Jamaica, New York. The name “Terrence Hall” was handwritten on the back of this card above the typed contact information in Hempstead. It is not entirely clear whether Mr. Hall was an investigator or simply wrote his name on a card that he had in his possession. Respondent testified that Mr. Hall identified himself as a private investigator; respondent produced one of these cards at the hearing and gave the other to his criminal attorney (Tr. 127-28; Resp. Exhibit A).

Although respondent tried to explain his side of the story to police, a crowd gathered, all dressed similarly to Mr. Gross, and the people began pressuring the police officer to arrest respondent, whom the police promptly removed in handcuffs (Tr. 125, 129). The parties stipulated that Mr. Gross is from the Hasidic community and there was no dispute that respondent drove for a car service that served that community and was sensitive to the needs of that group (Tr. 140-41). Respondent testified that Mr. Gross called a man who arrived in a minivan and another man emerged from the building where Mr. Gross fell (Tr. 129). According to respondent, Mr. Hall protested that he could not believe the police were arresting respondent, but police disregarded what Mr. Hall was saying. Respondent was not allowed to complete his account at the scene of the incident. He was detained more than eight hours at the police station. It was not until four hours after the arrest that respondent got a chance to tell the police that Mr. Gross had hit a parked car with respondent’s car door. The person who interviewed respondent at the precinct had no paper and was not writing anything down (Tr. 125-26). About 8:00 p.m., the police took respondent to court and released him from there (Tr. 125). Diligent efforts by respondent’s attorney in this matter, by calling and sending an investigator to find Mr. Hall for purposes of calling him as an eyewitness, were fruitless (ALJ Ex. 1).

Respondent credibly denied that he ever threw anything at Mr. Gross: “I never threw anything at the man” (Tr. 126, 135). He also denied pushing him to the ground: “No, I never got near him, I never laid a hand on him. And he only fell because he tripped on maybe his feet” (Tr. 126-27). Respondent similarly denied that he ever stepped or stomped on Mr. Gross’ hat (Tr. 127). Respondent did not notice any damage to Mr. Gross’ hat at the scene of the incident, but he was able to see that at the precinct, Mr. Gross was “giving his testimony and he was wearing his hat and his glasses” then (Tr. 136).

On cross-examination, respondent calmly denied that he was angered when Mr. Gross offered only $20 of the $24 fare respondent thought was due: “No, I just told him we’re going to call the dispatcher and the dispatcher can tell you how much it is . . . . No, because I’ve been working with the same people for 17 years now and they understand. And when I told him, well, we’ll call the dispatcher, I thought that he would accept that, but instead, he did the opposite and he ran out” without paying (Tr. 130). Respondent also calmly and sensibly denied saying “Fuck Jew” to Mr. Gross: “I didn’t have any reason to insult him, we were simply debating a price” (Tr. 130). Nor did Mr. Gross direct any offensive language to respondent (Tr. 130). Respondent also denied being angry that Mr. Gross ran from the car: “No, I simply wanted him to respond or be responsible for the damage that he did to the other vehicle that was parked because if the owner of that vehicle saw that my vehicle hit it, that person would have written down my plate number and I would have been held responsible” (Tr. 131). Explaining why he was not bothered “even the tiniest bit by anything that happened,” respondent, again, calmly explained that he had no reason to curse Mr. Gross:

A. We have -- I never get bothered, because the company that I work for has a good relationship with them and with the community and we have rules. And we’ve been told that if one of these people doesn’t want to pay you, just let them go. And we’ll get their number on the caller ID and we’ll call the synagogue and the synagogue will respond to that person.

Q. So, your base[’]s policy is if they don’t . . . pay, let them go, is that correct?

A. That is the policy. Also, on the weekend, they’re not allowed to touch money, so if they call for a ride to a hospital or someplace, we are supposed to pick them up and take them and allow them to take them without paying. And then we’re supposed to call the base, let them know that this person used the transportation, then the base pays us and they call the synagogue and take care of it that way.

Refusing to concede that by chasing Mr. Gross, he was violating company policy to allow riders to withhold payment and have the company recoup the fare, respondent, again, calmly and reasonably explained that he chased respondent, not for the fare, but to “protect[] my responsibility as far as the damage that he caused to the other car” (Tr. 132). Respondent never had a chance to get the license plate of the damaged car because he was arrested and was unable to follow up with that concern. He told a police officer at the scene that he wanted the police to check that parked car because it was damaged, and that officer told the one who handcuffed respondent to look into it. The second officer said he would, but respondent heard nothing further about that. His own vehicle was not damaged (Tr. 136). I discount respondent’s blanket denial that he was bothered, because these events that he described were irksome. Even assuming respondent was trying at the hearing to minimize any irritating effect Mr. Gross might have had on him, assuming Mr. Gross refused to pay the full fare and damaged another car, I find that there was insufficient provocation to provide a basis to believe that respondent was moved to take the extraordinarily hateful actions charged here, even if Mr. Gross’ behavior “bothered” or worried him on some level.

Although respondent was arrested for third degree assault with intent to cause physical injury, in violation of Penal Law section 120.00, a Class A misdemeanor, respondent pleaded

guilty to disorderly conduct, a violation under Penal Law section 240.20,[4] and received a conditional discharge, his record to be sealed in one year (Joint Ex. 3) . I have marked a certified copy of the plea allocution as Petitioner’s Exhibit 4. He did not admit to any particular misconduct in the Brooklyn Criminal Court proceeding, where he was represented by a different attorney. The attorney there stated that he was authorized to enter the plea for respondent to this violation, and respondent waived further allocution, admitting no facts. Therefore, this plea sheds little light on the facts at issue here, except with respect to respondent’s consistent denial that he damaged Mr. Gross’ hat. The two-page transcript reflects a summary proceeding based entirely on conclusions, not facts. It is noteworthy, however, that although the Assistant District Attorney and respondent’s counsel discussed on the record the possibility of restitution of $90 for Mr. Gross’s hat, restitution for the hat was expressly excluded from the plea agreement. Where, as here, a guilty plea to the violation of disorderly conduct sheds little or no light on the facts in the civil administrative proceeding, there is a review of the specific record at issue and there may be a limit to the preclusive effects of such a guilty plea and conviction because collateral estoppel is a “‘flexible doctrine which can never be rigidly or mechanically applied.’” Police Dep’t v. Arnold, OATH Index No. 377/07, mem. dec., at 3 (Aug. 22, 2006), citing Gilberg v. Barbieri, 53 N.Y.2d 285, 292-93, 441 N.Y.S.2d 49, 51-52 (1981) (minor suits involving noncriminal offenses “are illustrative of the type of determination which, under accepted common-law principles, should not be held conclusive in later cases” because such matters are not fully litigated). Accordingly, the “application of collateral estoppel doctrine involves a realistic inquiry into the nature of the prior litigation.” Arnold, at 3. In response to cross-examination, respondent offered a perfectly rational and pragmatic explanation for his plea. His answer tended to exculpate him, and to emphasize that he had admitted no facts in Criminal Court. The record of the plea, which the Commission obtained at my request, confirmed this. Asked in cross-examination why, if he was 100 per cent innocent of the criminal charges, he pleaded guilty to a violation in Criminal Court, respondent answered as follows:

Well, I would like to explain something, I’m a father, I have a wife, I have three kids. I was told that the whole process was going to take approximately about a year. Mr. Hardekopf suspended my license . . . I only worked for this company for the last 17 years. By order of the Court, Mr. Hardekopf had to suspend my license, and I haven’t been working. How am I -- how was I supposed to support my family? So, then I pleaded guilty to a misdemeanor [sic] [5] in criminal court so that I could get my license back and I could go back to work and I could continue supporting my family, but not because I was guilty.

(Tr. 132-35). This answer rang true and provided a sensible and poignant explanation for the summary disposition of the more serious criminal charge as a violation to be sealed within a year, with a conditional discharge, and the resultant restoration of respondent’s license.

It is impossible to know with certainty what really happened on November 9, 2006. But, on this record, I find respondent’s account more consistent with logic and human experience than the complainant’s. I have no doubt that Mr. Gross heard, at a minimum, the word “Jew,” from respondent, allegedly preceded by an expletive, but it seems more likely that with the respondent’s heavy Spanish accent that was evident the few times he spoke English in the hearing room, and the limits of Mr. Gross’s English, that Mr. Gross misheard or misinterpreted what he heard. And Mr. Gross’ testimony was full of inconsistencies. During cross-examination about whether the battery he said respondent threw at him was in the possession of the District Attorney, Mr. Gross asked for clarification of the word “possession” in English (Tr. 94). Yet, earlier in the hearing, he fully understood that same word when he answered “yes,” that he was in “possession” of receipts for his hat and eyeglasses (Tr. 79). Nor was it believable that respondent, who was so concerned with being responsible for damage to another vehicle, would have moved his own car back and forth for a minute while Mr. Gross was trying to flee. Such reckless conduct could have damaged both respondent’s vehicle and the parked cars nearby. Indeed, Mr. Gross, having conceded that there were parked cars next to respondent’s vehicle on the entire block where the respondent stopped, changed his testimony upon hearing questions that rendered such alleged conduct by respondent implausible, and promptly stated that he did not know if there were parked cars on that block at all.

In the argument about the fare, it is unlikely that this driver, who routinely served the Hasidic community in Brooklyn for 17 years and worked for the same car service without incident, would have flown off the handle and insulted Mr. Gross’ religion over a $2 fare dispute, or even a $24 fare dispute. It is more likely that respondent’s pronunciation of the English word “you” was heard as “Jew.” The alleged insult, “Fuck Jew,” is an odd locution if one supposes a descriptive insult; despite questions from the petitioner’s attorney that would modify the phrase at issue to “Fucking Jew,” Mr. Gross consistently repeated “Fuck Jew” in his testimony, using the term “Fuckin’ Jew” only once at the hearing (Tr. 14, 15, 24, 30, 33, 34, 69, 70). Respondent credibly denied getting angry or using any insulting language. His counsel suggested in closing that maybe he said “Fuck you,” an insult in the imperative form, but hastened to add that respondent denied this and that we do not know what was actually said (Tr. 142-43). Respondent’s counsel offered that “[m]aybe he said something else that sounded like [what] Mr. Gross is alleging. We don’t know” (Tr. 143). From what I find is a very fundamental misunderstanding based on the language barrier between the two men flowed both a criminal charge against respondent and this civil administrative action.

Even the interpreter had difficulty during the cross-examination when Mr. Gross said “Fuck Jew.” The interpreter, who was not the same interpreter from the first session, did not understand the phrase and questioned whether she heard and should translate “Fuck you,” prompting both counsel and me to repeat the different phrases that each of us had heard (Tr. 69). There is no reliable evidentiary basis in the record to support counsel’s suggested alternative explanation (that perhaps respondent really said “Fuck you”).[6]

I have no doubt that Mr. Gross is sincere in believing that what he heard was a deep insult. However, the Commission has not proved by a preponderance of the credible evidence that respondent actually hurled such a vile insult at Mr. Gross, or was sufficiently provoked to jeopardize his livelihood in such fashion. Moreover, the injuries, both physical and mental, alleged to have resulted from this incident are thrown into question by (a) the contemporaneous police reports (Joint Ex. 2), which contradict and omit the heart of Mr. Gross’ allegations and testimony here, and record nothing of the anti-Semitic aspects of the alleged misconduct or the objects respondent allegedly threw at Mr. Gross; (b) the interest or motivation to embellish the alleged injuries, as demonstrated by the undisputed, dogged efforts by a close relative of Mr. Gross’ who made 20 or more calls to the car service soon after the incident, offering to drop legal proceedings in exchange for $2,000, but who refused to do so in the presence of attorneys;[7] (c) Mr. Gross’ attempts to recover alleged damages in this proceeding when he asked agency counsel if he could get money back for his hat and other damages and wanted agency counsel to present his bill to the tribunal (Tr. 98); and (d) a series of evasive answers by the complainant that detract significantly from the petitioner’s case.

Mr. Gross’ perception that he was insulted verbally in a vicious way explains his willingness to appear and testify and go to the trouble of producing receipts after respondent’s counsel complained of the lack of corroborating, documentary proof. But the implausible aspects of his testimony and his keen personal interest in seeing some monetary recovery provide a motive to embellish and exaggerate both the cause and extent of his claimed injuries. Respondent has a countervailing motive to protect his livelihood and reputation, but it beggars belief that he would have jeopardized all of this by verbally harassing and physically assaulting his passenger for a few dollars, in the open in a Hasidic community that was his clientele, when he knew his employer had methods of recovering unpaid fares quietly, after the fact, by virtue of the company’s long-standing business ties in the area. Both parties claimed to have summoned the police. If respondent had done that of which he stands accused, he would not have called and calmly awaited the police. It is more likely that when Mr. Gross opened the passenger door and hit and damaged a parked car, respondent was worried about being held responsible for that damage and later calmly awaited police, only to be hauled off in handcuffs when neighbors urged police to arrest him after they saw Mr. Gross fallen on the sidewalk. Mr. Gross says respondent pushed him down; respondent asserts that Mr. Gross tripped and fell. There is insufficient proof here, on a swearing contest, to accept the allegation that respondent flew into a rage and pelted Mr. Gross with hard objects and then pushed him down. There was nothing in respondent’s demeanor at the hearing to suggest that he was violent, quick to anger, temperamental or abusive, or had ever behaved in such a manner. Respondent was not irascible at the hearing, but seemed quietly indignant at having been charged with these serious allegations, which he credibly denied.

Respondent’s detailed, logical and sensible testimony stood in contrast to the complainant’s contradictory, overstated, vague and guarded testimony. I find that it is more likely than not that Mr. Gross, sincerely believing that he had been insulted on religious grounds, probably because of a misunderstanding of the import and pronunciation of what respondent was saying to him, disputed the fare using the pretext that respondent made him late, and fled for multiple reasons: the likely misperceived but nonetheless frightening insult, the fare dispute, and the damage to the parked car. Having felt harmed, Mr. Gross then did what he could to try to recover money for his troubles. There were too many gaps in Mr. Gross’ story, and the documentation did not tend to prove his damages. Rather it raised some questions about the timing and reasons for which he apparently incurred expenses. There was no proof of any expense for a new suit nor any documentation of the claimed medical consultation on the date of the incident. The allegedly damaged hat, eyeglasses, and suit were never produced. It also made no sense that respondent would have had the time and resources to find and throw a water bottle, a rock and a battery from a standing position by his vehicle, and then be able to run and catch Mr. Gross, who testified at first that he was a fast runner, then thought better of it, and said he was not such a good runner. Even if respondent could physically have accomplished all of this, it is not believable that he would do so, thereby risking his career and jeopardizing his entire livelihood and his family, even assuming that Mr. Gross ran away and paid nothing. At the heart of the complainant’s story is the notion that upon being offered $22 for the fare, the respondent “all of a sudden,” with no harsh words preceding this that would have provoked such a strong, immediate and vicious reaction, simply hurled the invidious insult, “Fuck Jew $24,” an odd phrase that made no sense. Indeed, the two men did not speak for most of the ride once the arrival time and destination were identified. It is more likely that respondent wanted to call the dispatcher to mediate the $2 fare difference.

The unfortunate misunderstanding here triggered events that quickly spun out of control, and the allegations were of the most serious nature. But the evidence was insufficient to prove them and, on the whole, unconvincing.

FINDINGS AND CONCLUSIONS

Petitioner failed to prove that on November 9, 2006, respondent, verbally harassed, assaulted, and imprisoned passenger Sami Gross, or that he destroyed Mr. Gross’ personal property.

THEREFORE:

I find that petitioner failed to prove by a preponderance of the evidence the charges against respondent. Accordingly, pursuant to rules of the Commission, 35 RCNY section 8-02(d), the charges are dismissed.

Joan R. Salzman

Administrative Law Judge

April 11, 2007

SUBMITTED TO:

MATTHEW W. DAUS

Commissioner

APPEARANCES:

MARC T. HARDEKOPF, ESQ.

Attorney for Petitioner

CYNTHIA D. FISHER, ESQ.

Attorney for Respondent

-----------------------

[1] The hearing commenced on February 7 with the direct testimony of Mr. Gross and a brief cross-examination by respondent, who appeared pro se on that date. The matter was adjourned by consent to March 7, 2007, a date deliberately chosen to succeed respondent’s related Criminal Court matter then set for February 28, 2007 (Tr. 37), to enable him to secure the services of an attorney, on condition that Mr. Gross appear for cross-examination only by telephone the second time. Due to a misunderstanding generated by respondent’s limited English and miscommunications with a drivers’ association, respondent believed he had retained counsel for the March 7th date, but, despite his payment to the association, had not effectively done so. A brief adjournment to March 14, 2007, was granted over the objection of petitioner and the hearing was completed on that date with respondent represented by counsel (Tr. 43-61). Under the new Rules of Conduct for Administrative Law Judges and Hearing Officers of the City of New York, 48 RCNY Appendix A, § 100.3(A)(8), effective February 13, 2007, administrative law judges, “shall take appropriate steps to ensure that any party not represented by an attorney or other relevant professional has the opportunity to have his or her case fully heard on all relevant points,” and must “ensure that any steps taken in fulfillment of the obligations of this paragraph are reflected in the record of the proceeding.” Among the practices encouraged by this rule are “making referrals to resources that may be available to assist the party in the preparation of the case,” “providing brief information about the nature of the hearing,” including “how the hearing will be conducted,” and “modifying the traditional order of taking evidence.” The record reflects that among the steps I took to ensure that respondent had the opportunity to have his case heard fully were allowing him time to secure legal counsel, obtaining, in accordance with OATH procedures, a translator for all proceedings, and allowing continued cross-examination of the complaining witness after respondent hired an attorney. I also saw that petitioner had its case fully heard, by allowing petitioner, following the close of the March 14, 2007 hearing session, to submit documentary evidence concerning Mr. Gross’ claim that he incurred medical expenses for therapy sessions, as well as receipts for his claimed expenses in replacing his hat and eyeglasses. I requested that petitioner obtain a copy of a plea allocution in Criminal Court in the related matter that might shed light on the allegations (Tr. 96-100, 106-07). Petitioner did so and I have included the transcript of the allocution in the record as Petitioner’s Exhibit 4. In addition, I have marked the March 22, 2007 cover letter of Marc T. Hardekopf, Esq., and the attached Affidavit of Sami Gross, sworn to March 18, 2007, with the documents appended, as Petitioner’s Exhibit 5. The record was held open until March 22, 2007, when petitioner filed the additional documents, and reopened again, on the request of respondent’s counsel to make additional efforts to locate an eyewitness, until March 29, 2007 (Tr. 137-56). Emails reflecting respondent’s counsel’s request for time to locate this witness and to have comments on the receipts submitted by the agency after the hearing, together with the written closings, have been marked as ALJ Exhibit 1. Despite diligent efforts, the witness could not be found. The request for post-hearing comments was granted and the record held open again briefly, until April 9, 2007, to enable each side to submit written, supplemental closing arguments limited to comments on the newly submitted documents. (ALJ Ex. 1).

[2] The abbreviation “T/P/O” appears to mean “time and place of occurrence,” and “C/V” appears to mean “crime victim.”

[3] Among the definitions of “friend” are: “a person attached to another by feelings of affection or personal regard; person who is on good terms with another; a person who is not hostile; a member of the same nation, party, etc.; a person whom one knows, likes, and trusts; a person with whom one is allied in a struggle or cause; a comrade.” Unabridged (v 1.1); American Heritage Dictionary, .

[4] Section 240.20 of the Penal Law provides:

A person is guilty of disorderly conduct when, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof:

1. He engages in fighting or in violent, tumultuous or threatening behavior; or

2. He makes unreasonable noise; or

3. In a public place, he uses abusive or obscene language, or makes an obscene gesture; or

4. Without lawful authority, he disturbs any lawful assembly or meeting of persons; or

5. He obstructs vehicular or pedestrian traffic; or

6. He congregates with other persons in a public place and refuses to comply with a lawful order of the police to disperse; or

7. He creates a hazardous or physically offensive condition by any act which serves no legitimate purpose. 

Disorderly conduct is a violation.

[5] This testimony was followed by a stipulation of counsel that the plea was to a violation, not a misdemeanor (Tr. 135).

[6] Neither side asked respondent to read a list of words beginning with the letter “Y” in English; that might have been helpful, if respondent could be induced to speak spontaneously as he normally would in English, but the pronunciation assertion came late in the proceedings, by way of closing argument only. Respondent’s counsel did not concede by any means that respondent cursed Mr. Gross, an act that would have been verbal harassment in any event.

[7] Significantly, the Commission’s counsel conceded that “probably somebody did call the base requesting money on behalf of Mr. Gross” and did not challenge this defense. Rather, counsel conceded that the witnesses to this demand for money were “probably telling the truth,” but counsel contended that it would not be inappropriate to seek damages if there were in fact misconduct that led to harm to a victim (Tr. 146). Counsel’s general point about seeking appropriate damages is diminished here because the complainant’s receipts for damages he claimed to have sustained were questionable and his representative refused to document any settlement of his various claims against respondent through attorneys, as requested by the car service, which was, understandably, demanding a formal legal resolution to a set of legal problems set in motion by Mr. Gross’ complaints.

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