People v. James

717 N.E.2d 1052 (1999)

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Nature of the Case

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Facts

D, his partner, and acquitted co-defendant David Tarquini, Lizette Lebron, Debra Gillians, and Joyce Sellers were all New York City Transit Police officers assigned to District One under the command of Lieutenant Michael Gordon. They were all personal friends. In 1990, Gordon was assigned to help draft an examination scheduled to be given near the end of the year to those Transit Police officers seeking promotion to the rank of sergeant. D, Tarquini, Lebron, and Gillians were all preparing to take the promotional examination. Gordon set up by telephone a meeting for late Saturday night to be attended by D, Lebron, Tarquini, and Gillians at which the contents of the promotional examination would be disclosed. The telephone conversation between Gordon and Lebron was inadvertently recorded on Lebron's telephone without the knowledge of either party. At trial, Lebron testified that she was present at the October 20 midnight study session at Gordon's apartment, along with D, Tarquini, and Gillians. At that meeting, Gordon distributed various questions that were ultimately included on the promotional examination, and Lebron and the others each copied the questions, which they took with them. Lebron's live-in boyfriend, Transit Police Detective John Lohan, returned from a weekend away, discovered evidence of Lebron's visit to Gordon's home and, in questioning Lebron about it, was told that Gordon had made a sexual overture toward her that night. In an angry confrontation between Gordon and Lohan the next day, the cheating session was accidentally disclosed to Lohan. Gordon called Lebron, asking that she not turn over her notes of that session to Lohan but rather give them to D or Joyce Sellers. That call also was taped without the knowledge of either Gordon or Lebron. The examination was given on February 2, 1991. D took the examination. Shortly thereafter, an investigation was launched concerning allegations of cheating on the test. When that investigation became public, Lebron delivered photocopies of the examination materials that she had copied, along with the tapes of her telephone conversations with Gordon, to the Department's Internal Affairs Bureau. Lebron taped over certain conversations which she claimed were personal in nature and irrelevant to the investigation. She also taped over at least one conversation with Gordon, allegedly by accident. The examination was eventually invalidated, and a substitute examination was given. D's rankings on the technical knowledge section of the examination dropped significantly below the performance on the 1991 examination. D was indicted for six counts of perjury based upon those sworn denials. The October 20 recorded conversation between Gordon and Lebron concerning the intended meeting of the exam takers at Gordon's home later that evening was admitted in evidence under the state of mind exception to the hearsay rule, and the October 24 recorded call in which Gordon asked Lebron to dispose of her notes was introduced as a declaration against penal interest. D was convicted and appealed. The appellate division affirmed and D appealed.