Fire Dep’t v. Loscuito
OATH Index No. 509/06 (June 14, 2006)
Respondent firefighter found to have given false testimony in an
MEO 16 interview relating to sexual misconduct in the firehouse.
However, charge that firefighter engaged in sexual acts with a
female in the firehouse is not sustained, due to unreliability of
complainant’s hearsay statements. Charge that respondent
permitted visitor to remain in quarters after-hours is sustained.
Termination of employment is recommended.
____________________________________________________
NEW YORK CITY OFFICE OF
ADMINISTRATIVE TRIALS AND HEARINGS
In the Matter of
FIRE DEPARTMENT
Petitioner
- against ANTHONY LOSCUITO
Respondent
____________________________________________________
REPORT AND RECOMMENDATION
FAYE LEWIS, Administrative Law Judge
This is a disciplinary proceeding brought by the Fire Department pursuant to section 15113 of the Administrative Code. Respondent, Anthony Loscuito, a firefighter, is charged with:
engaging in sexual acts with a female on the premises of Engine 75/Ladder 33 on August 20,
2004 (charge 4); allowing a visitor into Engine 75/Ladder 33 on August 20, 2004, after 10 p.m.
(charge 3); providing false testimony during a Mayor’s Executive Order 16 (MEO 16) interview
on August 25, 2004 relating to misconduct on August 20, 2004 (charges 1 and 2); and, violating
his oath of office and engaging in conduct unbecoming and conduct bringing discredit upon the
Department (charges 5-7).
Trial was held on four dates: March 20, 21, and 28, 2006. Petitioner presented numerous
witnesses: retired Detective Aida Virola, who on August 20, 2004 was assigned to the Sex
Crimes Unit in the Bronx; Investigator Evelyn Delgado, who on August 20, 2004 was a detective
assigned to the Department of Investigation Squad; Jayme Naberzny, the Inspector General for
the Fire Department; George Hicks, an auto mechanic assigned to the Fire Department;
-2firefighters Mathew Bruckner and Brian Gill, both assigned to Engine 75 on August 20, 2004;
and Captain John Stark, who until his transfer on August 21, 2004 was assigned to Engine 75.
Respondent testified in his own behalf and also presented the testimony of firefighter Edward
Brown, the Bronx trustee for the Uniformed Firefighters Association. Additionally, petitioner
presented tapes and transcripts of interviews conducted by the Inspector General, pursuant to
MEO 16, of former firefighter Tony DeLuca, mechanic Hicks, and respondent (Pet. Exs. 16, 17).
Respondent presented a tape and transcript of a second MEO 16 interview of Mr. DeLuca (Resp.
Ex. I). The parties stipulated to the introduction of portions of transcripts of a deposition taken of
Jennifer Swanton by the Corporation Counsel, following Ms. Swanton’s filing of a notice of
claim dated November 16, 2004 alleging that she was raped at the firehouse (Pet. Exs. 37 a-d).1
Neither party produced Ms. Swanton as a witness at trial, although respondent served a subpoena
for her testimony upon the attorney who represented her in the deposition (Resp. Ex. O).2 The
record was closed on March 30, 2006, following submission of several post-trial exhibits.
For the following reasons, I find that respondent gave false and misleading MEO 16
testimony regarding the events of August 20, 2004, and that he permitted Ms. Swanton to remain
in the firehouse after hours. I find that petitioner has failed to prove that respondent engaged in
sexual activities with Ms. Swanton. I recommend that respondent’s employment be terminated.
1
Respondent had originally made an application to this tribunal for the issuance of a subpoena duces tecum to
compel the production of these deposition minutes, to which the Fire Department objected. By memorandum
decision dated January 6, 2006, although finding the minutes likely to be extremely relevant to respondent’s defense,
I denied this application, because the applicable statute, General Municipal Law section 50-h, provides that the
minutes are not to be produced for “public inspection” except upon “court order” and OATH is an administrative
tribunal which is not considered a “court” under section 2 of the Judiciary Law. Fire Dep’t v. Loscuito, OATH
Index No. 509/06, mem. dec. (Jan. 6, 2006). Thereafter, respondent sought an order in Supreme Court, New York
County, compelling compliance with a subpoena for the minutes, and Justice Rolando Acosta ordered disclosure of
portions of the minutes to respondent’s counsel, subject to redaction of personal identifying information relating to
the complainant, as well as any information relating to sexual conduct involving persons not the subject of the
OATH proceeding or not involving the events of August 20, 2004. Justice Acosta also ordered that the transcript
not become part of the court file or OATH file except if placed under seal. In the Matter of Firefighter Anthony
Loscuito, Index No. 100707/06 (Sup. Ct. N.Y. Co. Feb. 15, 2006). Accordingly, Exhibit 37a-d was accepted into
evidence, but placed under seal. Consequently, attached to this report and recommendation is a “confidential
addendum,” to be reviewed only by the Commissioner and the parties, which contains an analysis of the deposition
minutes as relevant. The minutes are hereby returned to the Fire Department as part of the record in this case.
2
It is unclear whether service upon this attorney constituted good service upon Ms. Swanton, since he represented
her in a different proceeding. See Bianca v. Frank, 43 N.Y.2d 168, 173, 401 N.Y.S.2d 29, 31 (1977); N.Y. CPLR §
2103(b).
-3ANALYSIS
As a preliminary matter, the following should be noted. First, although Ms. Swanton, the
complainant in this matter, has filed a notice of claim alleging rape, the Fire Department does not
now claim that the respondent, or for that matter any firefighter at Engine 75, engaged in a rape
of the complainant on August 20, 2004. The complainant had reported in a phone call made to
911 on August 20, that she was raped by four firemen at a firehouse in the Bronx (Pet. Ex. 18, at
18). She then told the EMS workers who responded to her call that she had had consensual sex
with a male friend, after which three other firemen had raped her (Pet. Ex. 18, at 19; Pet. Ex. 32).
Thereafter, the Engine 75/Ladder 33 firehouse was “locked down” and firefighters sequestered in
the kitchen and later moved as a group to another firehouse while crime scene investigators
swept the house for evidence.3 The Bronx District Attorney promptly concluded on August 20,
2004, after interviewing the complainant, that there was no force involved and that the
complainant’s actions were “voluntary” (Pet. Ex. 6).
The Inspector General then went on to conduct its investigation, concluding as a result
that “inappropriate sexual activity” had occurred within the firehouse on the night in question,
between the complainant and three firefighters: respondent and former firefighters Tony DeLuca
and Christopher Waugh (Pet. Ex. 18, at 23). DNA analysis established that Mr. DeLuca’s DNA
alleles matched the DNA alleles found on a swab taken from the complainant’s person and
underwear (Resp. Ex. B1). However, there was no DNA match for respondent (Resp. Ex. B2).
There was also no physical evidence linking respondent to any sexual activity with the
complainant, despite the complainant’s claim that he gave her a glass of water to drink and used
a pillowcase to clean himself after engaging in various sexual acts. That notwithstanding, the
complainant consistently claimed that a person she knew as “Luigi” was one of the firefighters
who had sex with her in the firehouse in the early morning hours of August 20, 2004.
Respondent admitted that that was his nickname and there was no evidence that anyone else in
the firehouse had that nickname. The complainant, however, identified a photograph of a
firefighter other than respondent as “Luigi” (Pet. Ex. 13, at 000052).
Mr. DeLuca provided MEO 16 testimony indicating that respondent had met Ms.
Swanton on the date in question, and that Ms. Swanton had told him thereafter that she and
3
Trustee Brown testified that he arrived at the firehouse upon hearing of the rape allegation, and instructed the
firefighters not to make any statements until counsel arrived (Tr. 520-21).
-4respondent had had sex. In an MEO 16 interview on August 25, 2004, respondent denied, not
only having sex with Ms. Swanton, but ever meeting her, talking with her, or even knowing that
she was in the firehouse.
With regard to the other firefighters, Mr. DeLuca resigned, and Mr. Waugh was
terminated after an OATH hearing at which he was found to have refused to answer questions
during an MEO 16 interview. See Fire Dep’t v. Waugh, OATH Index No. 678/05 (Dec. 1,
2004).
I
Much of petitioner’s case was presented through the hearsay statements of Ms. Swanton,
which came in mainly through the testimony of retired detective Virola and former detective
Delgado. By about 10:30 a.m. on August 20, Detective Virola had responded to St. Vincent’s
Hospital in Staten Island, where Ms. Swanton had been taken by the EMS workers. Detective
Virola testified that she was only able to briefly question the complainant at the hospital. She
asked the complainant to identify the men involved. Ms. Swanton related that they were TJ
DeLuca, Luigi, Waugh, and the “probie” (or probationary officer), but she clarified that she did
not have sex with the “probie” (Tr. 41; Pet. Ex.1). Detective Virola confirmed from one of the
doctors at the hospital that Ms. Swanton had been examined, and that the doctors had found no
evidence of trauma, but had found an “excessive” amount of semen in her vaginal area (Tr. 38;
Pet. Ex. 4). She also spoke to the complainant’s mother, who indicated that her daughter has
bipolar disorder and takes medication for depression, and that she had asked her daughter to
“please tell the truth” when her daughter said she had been raped (Pet. Ex. 3).4
Detective Virola was present at a more in-depth interview conducted with Ms. Swanton
by ADA Borgstedt at the Bronx Special Victims Squad at about 3:30 p.m. on August 20. In
essence, according to Detective Virola, Ms. Swanton stated the following at this interview. She
met Mr. DeLuca over the internet and had many phone conversations with him prior to August
20, mostly involving “phone sex.” They agreed to meet at the firehouse in the early morning of
August 20, to wear firemen’s bunker gear and have sex. Ms. Swanton told ADA Borgstedt that
that she wanted to have sex because she was depressed and her children were with their father.
The record establishes that Ms. Swanton’s father was also interviewed, by a Detective O’Keefe, who wrote in her
aided report that she interviewed Ms. Swanton’s father on August 20, 2004, who said that Ms. Swanton had told him
upon her arrival home on the morning of the 20 th that she had gone to meet a man in a firehouse in the Bronx, that he
had left the room, and that his friends had then come in the room and forced her to have sex. Ms. Swanton’s father
related that Ms. Swanton called the rape crisis hotline after this conversation (Pet. Ex. 31b).
4
-5She also said that she had been hospitalized for a major depression triggered by the September
11, 2001, terrorist attacks, and that she felt sorry for firefighters and police officers. After going
to a club in Sayreville, New Jersey with a female friend, she called Mr. DeLuca on her cell
phone, who gave her directions to the firehouse. Once at the firehouse, she was met by Mr.
DeLuca, who led her to the parking lot adjacent to the firehouse, where she parked her car. She
walked inside a side door, into the firehouse, and met three other men, whom she identified as
Waugh, Luigi, and a “probie.” She and Mr. DeLuca then had consensual sex in a dim and cold
room. Thereafter, Mr. DeLuca left, to get something to eat. Waugh entered the room, sat next to
her, and had oral sex with her. Luigi then entered the room, and engaged in vaginal intercourse
and oral sex with her. He attempted to engage in anal sex with her as well, but she said “no,”
and he stopped, and then masturbated into a pillowcase. This was the same pillowcase that Ms.
Swanton had used to wipe herself after having sex with Mr. DeLuca, who had also used this
pillowcase to clean himself (Tr. 43-47, 96, 106; Pet. Exs. 5-6). When she was ready to go home,
Mr. DeLuca came in with the “probie” that she had met earlier. Mr. DeLuca asked her, “how
about doing a probie?” and the probie replied, “I’m up for it.” However, by that time, Ms.
Swanton just wanted to leave (Tr. 114; Pet. Ex. 5). As noted above, it was after this interview
that the District Attorney’s Office decided not to prosecute, finding the sexual encounters to be
consensual (Tr. 47). The District Attorney’s Office noted as well that Ms. Swanton had been
hospitalized for depression and took “numerous” medications, including serious anti-seizure and
anti-depressant drugs (Pet. Exs. 5, 6).
Detective Virola noted that although she did not smell
alcohol on Ms. Swanton’s breath, she seemed “a little bit off” (Tr. 100), “a little bit irrational, a
little upset, a little, maybe drugged” (Tr. 123).
The Inspector General’s office had been part of the massive response to the firehouse
following the 911 call, and had sent representatives to St. Vincent’s Hospital as well, but had not
been permitted to be present during the ADA’s interview of the complainant at Bronx Special
Victims. However, once Detective Virola informed Detective Delgado, and her supervisor,
Sergeant Pena, of the decision not to prosecute, the Inspector General’s office took a more active
role in the questioning of the complainant, presenting her with 38 photographs of firefighters
provided by the Fire Department, and asking her to “pick out the individuals that were involved
in the incident” (Tr. 212, 250, 252, 274). Ms. Swanton selected four photographs. She said that
she was “definite” as to two of the photographs, which she identified as photographs of TJ
-6DeLuca (Pet. Ex. 13, 000051) and “Luigi” (Pet. Ex. 13, 000052). She professed uncertainty as to
two of the photographs, which she identified as “possibly” those of Christopher Waugh (Pet. Ex.
13, 000053) and the “probie” (Pet. Ex. 14, 0000054). In truth, photograph 000054 is not a
photograph of the “probie,” who was later identified, correctly, as Mathew Bruckner. And photo
000052 is not of respondent, who admitted that he has the nickname, “Luigi,” but of firefighter
Brian Gill, who is not known as “Luigi” and who testified in this proceeding that he was asleep
during most of the evening of August 19-20 (Tr. 214, 217).
Detective Delgado testified that she did not ask Ms. Swanton if Luigi had any identifying
features, and that Ms. Swanton never provided a physical description of Luigi. Nor did Ms.
Swanton ever refer to Luigi as Loscuito. The questioning did not continue because Ms. Swanton
was very tired, having been up all night, and wanted to go home (Tr. 214, 217, 284).
Detective Delgado conducted a much more thorough interview of Ms. Swanton four days
later, at Seton Bayley Hospital in Staten Island, to which Ms. Swanton had admitted herself
because she was depressed and very upset (Tr. 218). Ms. Swanton acknowledged having met
Mr. DeLuca about six months prior to August 19, via the Internet, having communicated with
him via the Internet and the phone. On August 19, in the afternoon, Mr. DeLuca called her and
told her to come to the firehouse, stressing that she should arrive late, after 2:00 or 3:00 a.m., so
that the chief would be asleep. She complied with this instruction, leaving for the firehouse after
first spending from approximately 9:00 p.m. to 2:00 a.m. socializing in a New Jersey club with a
friend, and spending some additional time thereafter with friends outside the club (Tr. 218, 287;
Pet. Ex. 15). In addition to calling Mr. DeLuca for directions, she called 911 for directions. 5 As
she had told Detective Virola on August 20, Ms. Swanton stated that Mr. DeLuca met her
outside and directed her to a side door of the firehouse. By contrast to her August 20 statement,
however, Ms. Swanton recalled meeting two, not three, additional firefighters at that time –
namely, Luigi and Waugh. As on August 20, she indicated engaging in a variety of sexual acts
with TJ, Waugh, and Luigi, in that order, in a downstairs lounge. The encounters took place in
private, with the door to the room closed. By her account, the sexual activity with DeLuca lasted
about ten or fifteen minutes; he then got dressed and left the room. About two minutes later, Mr.
Waugh entered the room, she performed oral sex on him, which took about a minute; he then left
5
The record established that the call to 911, which was then transferred to 311, was made at 4:12 a.m. (Tr. 296;
Resp. Ex. D).
-7the room, leaving Ms. Swanton kneeling on the floor. About a minute later, according to the
complainant, Luigi entered the room (Tr. 218, 220, 287, 315; Pet. Ex. 15).
As to Luigi, Ms. Swanton told Detective Delgado that he had brought her a glass of water
and some chocolate chip cookies upon entering the room and that he had also used her keys to
remove a Fire Department patch from a white captain’s shirt that was hanging on the wall in the
room. Then, according to Ms. Swanton’s description, Luigi pulled down his pants to his knees,
exposing his penis. He was already wearing a condom (Pet. Ex. 15; Tr. 319). Her description of
the sexual activity in which they then engaged paralleled the description that she gave on August
20, except for certain extra detail pertaining to Luigi, which is described in Detective Delgado’s
aided report (Pet. Ex. 15), and discussed below, at 15.
Ms. Swanton also identified “crime scene photographs” that Detective Delgado showed
her on August 24, that depicted the downstairs lounge room, including a number of couches as
well as a white lieutenant’s shirt hanging on the wall6 (Tr. 220-21, 226; Pet. Exs. 7-12). She
indicated that it was in this room that she had had sex, and that she had used a different couch
with each firefighter (Tr. 226). Ms. Swanton also told Detective Delgado on August 24th that,
before she left the firehouse, she asked Mr. DeLuca for $20 for a hotel room, which he said he
did not have (Pet. Ex. 220). It was plain to Detective Delgado that she was particularly annoyed
at Mr. Waugh, who she kept referring to throughout the interview in a sexually derogatory
manner (Tr. 225, 319). Ms. Swanton told Detective Delgado that Waugh had said something to
insult her, but did not provide details (Tr. 227).
As one of petitioner’s witnesses, firefighter Bruckner lent corroboration to Ms.
Swanton’s claim that she was at the firehouse, and that she met TJ, Waugh, and the man she
knew as Luigi. Firefighter Bruckner testified that he had been assigned to Engine 75 for about
nine months on August 19-20, 2004. He was catching some sleep in the early morning hours of
August 20, in a bunk room on the top floor of the firehouse, to which he had returned after
returning from his last run of the evening, at 3:24 a.m. on August 20. He was awakened by TJ
Deluca, who told him to go to the downstairs lounge room in the sub-basement (the same room
that Ms. Swanton described). He complied because he was a “probie” and thought he was being
woken up to do some “probie” activity, although he had never been woken up like that before
6
According to Captain Stark, the shirt had been worn by a former firefighter, since promoted to captain and
transferred from the firehouse, in a bar after a day of digging at the World Trade Center site. It had red lipstick
marks on it and was put on the wall after the lieutenant left, as a momento of his tenure (Tr. 149-53).
-8(Tr. 500). However, he never reached the lounge because, after he went down the interior steps
to the lounge, he saw a number of people in the hallway, including DeLuca, Waugh, respondent,
and a woman, whose relative positions he had earlier indicated in a photograph (Tr. 466, 477-78;
Pet. Ex. 28). 7 After some prompting, firefighter Bruckner added that he had seen respondent
and the woman walking out of the lounge as he came down the steps (Tr. 467). According to
firefighter Bruckner, DeLuca introduced him to the woman as “Matt” and also introduced the
woman to him, although he could not remember her name (Tr. 478). He acknowledged that the
woman asked if he was a “probie,” and that he said he was. Firefighter Bruckner testified that he
then left the hallway, because he was a probationary firefighter, and he did not think he should
be in that situation. He professed to have gone back to the top-floor bunk room, to sleep, until
about 8:00 a.m. the next morning (Tr. 480). He acknowledged being in the hallway only for “a
matter of seconds” (Tr. 478), in “medium light” (Tr. 476), but maintained, steadfastly, that he
was certain of whom he saw (Tr. 478, 485). He denied that Mr. DeLuca asked the woman if she
wanted to “do a probie” (Tr. 486) and denied that he ever asked for sex (Tr. 487). He described
the woman as being fully dressed and indicated that she was not crying and did not seem upset
(Tr. 486).
As noted earlier, Mr. DeLuca provided sworn statements at two different MEO 16
interviews. During both interviews, he acknowledged that Ms. Swanton visited the firehouse on
August 20, and described the circumstances leading up to that visit. However, in the first
interview, on August 25, 2004, he denied having sex with Ms. Swanton and said that she had left
the firehouse after having used the bathroom on the apparatus floor (the street-level floor where
the house watch is located and where the engine, truck, and battalion are parked), 8 and having
been shown the basement area and the firehouse by Mr. Waugh. He also denied that firefighter
Loscuito was present at any time (Resp. Ex. I). By contrast, at the very beginning of the second
interview, held on August 26, 2004, Mr. DeLuca said that he wanted to recant most of his prior
testimony regarding what occurred at the firehouse, but that he stood by his testimony about the
circumstances leading up to her visit. He was assured by DOI that it would not refer the matter
7
Firefighter Bruckner did not identify the woman as Ms. Swanton, although the record establishes that she was the
only woman present in the sub-basement that morning.
8
The schematic of the apparatus floor level was introduced into evidence as Pet. Ex. 25 and indicates the location of
the bathroom.
-9for a perjury investigation so long as he gave a “candid” and “complete” description of what
transpired on the 20th (Pet. Ex. 17, at 2).
Firefighter DeLuca went on to provide the following account in his second interview.
He had had a series of phone calls with Ms. Swanton on the evening of August 19, 2004, during
which she engaged in banter of a sexual nature, indicated her intent to come to the firehouse after
leaving a bar in New Jersey, and asked for directions. He was assigned the house watch post,
which he assumed after returning from the ladder’s last run of the morning at about 3:00 a.m.9
Shortly thereafter, he greeted George Hicks, a mechanic assigned to the Fire Department, who
arrived at the firehouse to fix two damaged tires on the engine, which had been put out of service
slightly earlier because of a blow-out on a run. Respondent came to the house watch and spoke
to the mechanic and perhaps to the light duty firefighter who had arrived to assist the mechanic.
Then respondent walked around the firehouse, returning intermittently to the house watch.
Firefighter DeLuca denied telling respondent that Ms. Swanton would be arriving imminently at
the firehouse (Pet. Ex. 17, at 41-57).
Ms. Swanton arrived and parked on Cameron Place, across the street from the firehouse.
Mr. DeLuca greeted her outside, and after a brief conversation of a sexual nature, she entered the
firehouse through the front door and went to use the bathroom behind the house watch. Mr.
DeLuca told Mr. Waugh, who had also had phone conversations with Ms. Swanton, both that
night and in the months leading up to it, that Ms. Swanton had arrived, and then Mr. Waugh and
Ms. Swanton had a brief discussion, in the doorway of the bathroom, about bunker pants. At
some point Mr. DeLuca saw respondent walking around the apparatus floor, and introduced him
to Ms. Swanton as “Luigi.”
Respondent then left Ms. Swanton’s presence; according to
firefighter DeLuca, both he and respondent spent a lot of time walking back and forth to the
house watch area, because the mechanic and the off-duty firefighter were in the house and there
was concern that they not notice the presence of Ms. Swanton.
Because of this concern, Mr. DeLuca suggested to Mr. Waugh that they move to the subbasement landing below, and the men also told Ms. Swanton that she had to move her car from
off Cameron Place to the side parking lot (not visible from the house watch). As related by
9
Captain Stark testified that the engine was put out of service at about 3:00 a.m. but that the ladder was later called
for another run (Tr. 134-36). The DOI investigative report on the incident indicates that the ladder responded to an
alarm shortly after 3:00 a.m., from which DeLuca returned at approximately 3:20 a.m. (Pet. Ex. 18, at 13-14).
- 10 firefighter DeLuca, after Ms. Swanton moved her car, she and Mr. DeLuca had vaginal
intercourse and oral sex in the sub-basement lounge. He left the room; she followed him out;
and then they encountered Mr. Waugh. He engaged Ms. Swanton in a conversation about bunker
gear and she said that she wanted to have sex with him. Mr. DeLuca then walked back to the
house watch, concerned that the mechanic and his helper might be looking for him. He believed
that he had had some conversation with the light duty firefighter at that time. Mr. Waugh and
Ms. Swanton stayed in the lower level. Mr. DeLuca saw respondent and told respondent that he
had “got laid” (Pet. Ex. 17, at 86). Respondent expressed surprise, commented negatively on
Ms. Swanton’s physical appearance, and walked away toward the downstairs area. He returned
and said that Ms. Swanton wanted cookies. Mr. DeLuca told respondent to get her cookies.
Respondent then left. Mr. DeLuca thought that he had gotten Ms. Swanton a glass of milk or
water, because he saw her shortly thereafter with a glass (Pet. Ex. 17, at 87-88).
After
respondent left, Mr. DeLuca went upstairs to get firefighter Bruckner. He wanted to introduce
Ms. Swanton to firefighter Bruckner, because firefighter Bruckner was “very quiet” and he
thought that perhaps Ms. Swanton would “shock him” (Pet. Ex. 17, at 89). He woke up
firefighter Bruckner from the second floor bunk room and told firefighter Bruckner to come with
him. The two men then walked to the sub-basement lounge.
When they got there, Mr. Waugh was standing with his back to the lounge, propping the
door open. Ms. Swanton was in the room, sitting on one of the couches. Respondent was also in
the room, closer to another couch. Ms. Swanton was fully dressed, with her feet on a couch, and
a blanket around her. Respondent, too, was fully dressed (Pet. Ex. 17, at 93, 94). Someone
introduced firefighter Bruckner as the “probie.” Ms. Swanton wanted to know if firefighter
Bruckner was wearing bunker pants; firefighter Bruckner shook his head and walked away.
After he left, Ms. Swanton suggested that she have sex with firefighter Bruckner, but by then Mr.
DeLuca wanted Ms. Swanton to leave. She wanted to sleep at the firehouse, because it was late
and she was tired. He told her that was not possible, and she asked for money for a hotel. Mr.
Waugh commented disparagingly upon that request. Mr. DeLuca then “turned back” into the
room and told Ms. Swanton that she couldn’t ask for money, that people didn’t know how to
“take that,” and that they did not have that much money (Pet. Ex. 17, at 96). With that, Mr.
DeLuca walked Ms. Swanton to her car. Because she was concerned about how to get home,
they decided that she would stay on the cell phone with Mr. DeLuca until she reached the
- 11 expressway. Mr. Waugh went to sleep, while respondent stayed awake for a while, at one point
remaining in the house watch with Mr. DeLuca while Mr. DeLuca was on the phone with Ms.
Swanton (Pet. Ex. 17, at 97).
Ms. Swanton called back several times on her way home, once to indicate that she
wanted to see Mr. DeLuca again, despite his protestations that he would be assigned to the
Republican Convention and probably would be unable to see her for a while, and at least one
other time in which she commented on the events of the evening. In terms of these comments,
she said that she had sex with Luigi (Pet. Ex. 17, at 102, 103). Mr. DeLuca was not consistent as
to whether she also made a comment about Luigi’s penis, although he testified at one point that
she had made a favorable comment (Pet. Ex. 17, at 101, 102). She also commented negatively
on Mr Waugh’s anatomy, and complained that Mr. Waugh had made her feel like a “whore” and
that Mr. DeLuca had better talk to him (Tr. 103).
According to Captain Stark, on the morning of August 20, Mr. DeLuca told him, upon
questioning, that there had been “an incident” with a woman in the firehouse. Mr. DeLuca
denied that there was a rape, and said that there had been an “incident” with a woman at a car on
the curb. Captain Stark asked who else was involved, and DeLuca replied, Waugh and Luigi (Tr.
141).
Mr. DeLuca denied providing these names to Captain Stark in his MEO testimony,
insisting instead that Captain Stark had told him that they had three names as being involved in
the rape – a “doctor,” an “aide,” and DeLuca (Pet. Ex. 17, at 112- 113).10
Respondent denied having any contact with Ms. Swanton on the morning of the 20th, or
even knowing that she was in the firehouse. He testified that at about midnight on August 19-20,
he went into the television room next to the house watch, which is located on the same floor as
the apparatus, and is where he usually sleeps.11 He lay down on one of the couches, watched
some television, and fell asleep. He woke up to go on a number of runs and returned after each
run. According to respondent, two other firefighters, Brian Gill and Eddie Riley, were also
sleeping in this room. Respondent thought they might have gone into the room earlier than him,
because they had more seniority and thus would have been able to turn in rather than complete
any tasks that needed to be completed around the firehouse (Tr. 561-64). Respondent marked on
a photograph the couch on which each firefighter was sleeping, and indicated that it was
10
DeLuca testified that he did not believe that either Loscuito or Waugh went by either of these names (Pet. Ex. 17,
at 110), and this testimony was never amplified or explained.
11
This room is marked on the schematic as “training room No. A 5” (Pet. Ex. 25).
- 12 customary for each firefighter to return to their same couch (Tr. 570-73; Resp. Ex. P1-3). He
assumed that the other firefighters had returned to the lounge as well after each run, although he
asserted that, after midnight, he does not pay attention: “I just go back into my spot” (Tr. 574).
Respondent indicated that he awoke in the middle of the night to the sound of the
mechanic’s air gun, which the mechanic uses to take the lug nuts off the tires before changing
them. He knew the sound from living next to a mechanic and having a friend who is a mechanic.
Only he got up, not the other men in the room. Respondent professed, though, to be a “light
sleeper” at the firehouse, because he is a junior man and wanted to be sure he “stepped up and
took care of . . . anything that needed to be done” (Tr. 579-80). He walked through the house
watch, up to the mechanic, who was working under the rig. He asked the mechanic if he wanted
something to eat or drink, and questioned why he was changing the front tire, since it was the
rear inside tire that was blown out. The mechanic was surprised and upset, and said he needed to
make a phone call. Respondent thought that he needed to call either the dispatcher or the offduty fireman, who had already left the house with the tire truck (Tr. 581, 636). Respondent then
used the bathroom and returned to the lounge where he had been sleeping. He did not stop in
the house watch, where the mechanic was using the phone (Tr. 582-85).
Respondent denied ever hearing of Ms. Swanton prior to this date, having any
conversations with firefighters Waugh or DeLuca about a woman who liked to engage in “phone
sex,” hearing reference to a “crazy bitch” or “fucking freak,” or hearing that a visitor would be
coming to the building in the early morning hours of August 20, 2004 (Tr. 558, 585, 628).
Further, he denied knowing that Ms. Swanton was in the building on August 20, 2004,
interacting with her in any way, or engaging in any type of sexual activity with her (Tr. 600-01).
Finally, respondent asserted that he had remained asleep in the television room until he woke up
in the morning. He testified that the firefighters were all called to the apparatus floor at about
8:30 a.m. and informed by Captain Stark that a woman had alleged that she had been the victim
of a gang rape in the firehouse. At that point they were instructed to remain in the kitchen,
where a police officer was stationed (Tr. 590). Respondent remained in the kitchen until
relocated with all the other firefighters to an adjoining firehouse (Tr. 590). He denied ever going
to the lower level lounge to try to clean it up (Tr. 590). He acknowledged that his nickname is
“Luigi” and that the shirt that he wore on August 19-20 had white stitching which read,
“Loscuito” (Tr. 556-58).
- 13 Respondent provided MEO testimony on August 25, 2004, which is alleged by petitioner
in charges one and two to have been false and misleading with regard to his conduct on August
20, 2004. In his recorded testimony (Pet. Ex. 16), respondent provided a version of the events of
August 19-20 which was generally, but not always consistent with his testimony at trial. As he
did at trial, respondent contended that he went to bed about midnight on August 19-20, in the
television room/lounge located on the apparatus floor.12 He believed Brian Gill and Eddie Riley
to be present in the lounge as well, and recalled laughing with Gill at Saturday Night Live (Pet.
Ex. 16, at 44-45). He recalled, as he did at trial, lying down after the last run of the evening.
Firefighters Gill and Riley were already in the room. He was unable to sleep, but got up to use
the bathroom (Pet. Ex. 16, at 52-54). On the way to the bathroom, he noticed that the mechanic
was on the apparatus floor. He went to the mechanic and informed him of the problem with the
rear tire, offered him coffee or water, and then went back to sleep in the apparatus floor lounge,
where firefighters Gill and Riley were still sleeping. He stayed there until about 8:15 a.m. the
next morning (Pet. Ex. 16, at 56-57). Respondent denied ever leaving that room until the
morning. Further, he denied seeing a woman in the firehouse on August 20, having any contact
of any type with a woman in the firehouse on August 20, and, more specifically, having
intercourse or oral sex with a woman in the firehouse on August 20 (Pet. Ex. 16, at 57).
After being given a perjury warning (Pet. Ex. 16, at 58-60), and a short break, respondent
was shown a photograph, which he identified as the sub-basement lounge. Respondent denied
ever entering the sub-basement lounge at any time on August 20, 2004; more specifically, he
denied engaging in a variety of sexual acts in the lounge, or touching a woman on a couch in the
lounge (Pet. Ex. 16, at 62). Further, he denied ever speaking to either Mr. DeLuca or Mr. Waugh
prior to 8:00 a.m. on August 20, 2004 (Pet. Ex. 16, at 62-63), or, more generally, ever speaking
with anyone prior to 8:00 a.m. about a woman (Pet. Ex. 16, at 65). He claimed to have spent the
entire time between 3:00 a.m. and 8:00 a.m. in the apparatus floor lounge (Pet. Ex. 16, at 66).
He denied that anyone ever told him that a woman was expected at the house, and denied that
either firefighter DeLuca or firefighter Waugh ever told him that there was a woman at the
firehouse (Pet. Ex. 16, at 82). He also asserted that, prior to being told the next morning that
there was an allegation of gang rape, no one had ever told him that there was sexual activity in
To prevent confusion, this will be referred to as the “apparatus floor lounge,” while the sub-basement lounge and
downstairs lounge referred to by Mr. DeLuca, firefighter Bruckner, and Ms. Swanton will be referred to as the “subbasement lounge.”
12
- 14 the firehouse (Pet. Ex. 16, at 74). Respondent also denied washing clothes or a pillowcase on the
morning of August 20, 2004, or removing a pillowcase from the firehouse, or knowing if anyone
else had washed clothes or a pillowcase or removed them from the firehouse (Pet. Ex. 16, at 77).
He admitted that his nickname was “Luigi” and that he did not know of anyone else at the
firehouse with that nickname (Pet. Ex. 16, at 70).
II
As a preliminary matter, much of this case rests on hearsay – either of Ms. Swanton or
Mr. DeLuca. Hearsay statements are admissible in a disciplinary proceeding, but they must be
scrutinized carefully in order to determine if they are “so substantially reliable and probative that
a reasonable inference of the existence of a fact may be culled therefrom.” Police Dep’t v.
Ayala, OATH Index No. 401/88, at 5 (Aug. 11, 1989) (citations omitted), aff’d sub nom., Ayala
v. Ward, 170 A.D.2d 235, 565 N.Y.S.2d 114 (1st Dep't 1991). “Clearly, the more central the
hearsay is to an agency’s case, the more serious the question of basic fairness and the more
critical the question of reliability may become.” Calhoun v. Bailar, 626 F.2d 145, 150 (9th Cir.
1980), cert. den., 452 U.S. 906, 101 S.Ct. 3033 (1981).
Although Ms. Swanton’s hearsay statements are inconsistent in some major respects, it is
indisputable that she was at the Engine 75/Ladder 33 firehouse that night and at the very least
engaged in sexual activity with Mr. DeLuca, given that his DNA matched DNA taken from Ms.
Swanton’s person and undergarments. Further, the record establishes that Ms. Swanton was not
only at the firehouse, but also present in the sub-basement lounge room. Ms. Swanton described
this lounge and the entrance to it in a manner consistent with the description provided by Captain
Stark (Tr. 131-32, 185-86). She also told Detective Delgado that respondent had given her a
patch from a white captain’s shirt hanging on the wall, which was consistent with Captain
Stark’s testimony that the white lieutenant’s shirt displayed on the wall in the sub-basement
lounge was missing a patch (Tr. 149-53; Pet. Ex. 11-12). The Inspector General reported,
moreover, that Ms. Swanton had an Engine 75 patch which she turned over during the
investigation (Pet. Ex. 18, at 17).
It is also clear that, in every statement given by Ms. Swanton in which she identified the
firefighters with whom she had sexual activity, she included “Luigi,” that respondent goes by the
nickname “Luigi,” and that no other firefighter in the house is known to have that nickname.
There was no plausible explanation offered as to why Ms. Swanton would name “Luigi” if he
- 15 had not been one of the firefighters whom she met that morning. Respondent’s hypothesis that
some other firefighter must have used that nickname, to keep himself out of trouble (Tr. 629),
was unconvincing, particularly in light of Mr. DeLuca’s MEO 16 statement in which he recalled
introducing respondent to Ms. Swanton as Luigi and firefighter Bruckner’s testimony that he saw
respondent together with a woman. Although Ms. Swanton identified a photograph of firefighter
Gill as being “Luigi,” Mr. DeLuca’s MEO 16 statement and firefighter Bruckner’s testimony
make clear that Loscuito, not Gill, was the “Luigi” whom Ms. Swanton met that night. That Ms.
Swanton identified two photographs incorrectly (one as being “Luigi” and the other as being
Bruckner) serves only to highlight that she had some difficulty recalling faces, and to illustrate
the general unreliability of photo identification. See generally, United States v. Wade, 388 U.S.
218, 228, 87 S.Ct. 1926, 1933 (1967) (“The vagaries of eyewitness identification are wellknown; the annals of criminal law are rife with instances of mistaken identification”).
However, although I conclude based upon this record that respondent met Ms. Swanton
on August 20, 2004, in the firehouse, and interacted with her in some fashion, near the subbasement lounge, there are a number of major inconsistencies in Ms. Swanton’s statements
which raise serious questions as to the reliability of her assertion that she and respondent
engaged in a variety of sexual activities. As noted earlier, although Ms. Swanton alleged rape,
initially by four firemen and then by three firemen, the District Attorney declined to prosecute
and deemed the sexual activity to be consensual. A careful review of the reports of Detectives
Delgado and Virola indicates that Ms. Swanton did not allege that any firefighter forced her to
engage in sexual activity; for example, while she described respondent as “flipping her over”
and then attempting to have anal intercourse with her, she acknowledged to both detectives that
he desisted when asked to do so (Pet. Ex. 5, 15). Yet it was undisputed that Ms. Swanton
subsequently filed a civil lawsuit against the City, alleging rape (Tr. 19). The minutes of the 50h deposition reveal additional inconsistencies with Ms. Swanton’s prior statements, some of
which are significant, but as the minutes are under seal, these inconsistencies are discussed in a
separate, confidential addendum to this report, which is provided only to the Commissioner and
counsel.
Apart from the inconsistencies in Ms. Swanton’s statements as to respondent, she was
inconsistent as to whether she met firefighter Bruckner twice, as she told Detective Virola on the
afternoon of August 20, 2004, or only once, as she told Detective Delgado six days later. More
- 16 critically, Ms. Swanton’s mother’s statement, to Detective Virola, that her daughter has bipolar
disorder and that she told Ms. Swanton to “please tell the truth” when she said she had been
raped, suggests that Ms. Swanton’s ability and/or willingness to recount events truthfully had
previously been compromised, and may have been compromised that night. Additionally, Mr.
DeLuca’s testimony that Ms. Swanton was angry because she believed that Mr. Waugh had
insulted her after she asked for money for a hotel room, which request was rejected, could
plausibly have provided an impetus for Ms. Swanton to make false claims regarding the events
of that morning.
Moreover, as to the purported sexual activity, there was no corroborating physical
evidence. Despite a thorough search of the firehouse, including the lockers of the respondent,
Bruckner, DeLuca, and Waugh, the glass which respondent purportedly gave to Ms. Swanton
was never found.
Nor did investigators find the pillowcase upon which the firefighters,
including respondent, allegedly cleaned themselves. And, despite the evidence indicating that
the downstairs lounge had been freshly mopped, including a bottle of what appeared to be
cleaning solution found in the lounge (Tr. 311, 384-90; Pet. Ex. 23), there was no evidence tying
respondent to any attempt to clean up the lounge or to discard the pillowcase or glass in question.
Thus, considering some of the major inconsistencies in Ms. Swanton’s prior statements,
and the other evidence suggesting that her ability to tell the truth as to exactly what transpired
may have been impaired, I find that her statements, in and of themselves, constitute an
insufficient basis on which to sustain the charge that respondent engaged in sexual acts with Ms.
Swanton. The question becomes then, whether there is enough additional, reliable evidence
sufficient to sustain this charge.
Mr. DeLuca’s MEO16 statements, discussed above at 8-11, would, if credited, establish
that he told respondent that he had just had sex with Ms. Swanton, that respondent, upon hearing
that, headed toward the sub-basement lounge, only to return shortly later to complain that Ms.
Swanton wanted cookies and water, and to then vanish after Mr. DeLuca told him to get her
cookies and water. It would establish as well that when he returned to the sub-basement lounge,
upon getting firefighter Bruckner, the door to the lounge was open and respondent was sitting in
the room, fully dressed on one of the couches, with Ms. Swanton sitting on the other couch, and
Mr. Waugh standing with his back to the lounge.
- 17 Mr. DeLuca’s MEO16 interview of August 26, 2004 was a statement against interest, and
as such seemed generally credible. See People v. Maerling, 46 N.Y.2d 289, 295 , 413 N.Y.S.2d
316, 320 (1978) (“Simply stated, in the case of declarations against interest, the theory is that
such assurance flows from the fact that a person ordinarily does not reveal facts that are contrary
to his own interest. Therefore, the reasoning goes, absent other motivations, when he does so, he
is responding to a truth-revealing compulsion as great as that to which he would likely be
subjected if cross-examined as a witness”). Although DOI conditioned its promise not to seek
perjury charges against Mr. DeLuca upon his “candid and complete” testimony on August 26
(Pet. Ex. 17, at 2), I could discern no reason for Mr. DeLuca to lie, in particular, about
respondent, or respondent’s interactions with Ms. Swanton.
Clearly, given the DNA results, Mr. DeLuca had sex with Ms. Swanton. There is every
reason to believe he did so in the sub-basement lounge, given Mr. Bruckner’s testimony placing
him just outside the lounge. Mr. DeLuca’s testimony that he saw respondent and Ms. Swanton
in the sub-basement lounge, with Mr. Waugh propping the door open, is consistent with
firefighter Bruckner’s testimony that he saw respondent, Ms. Swanton, Mr. DeLuca, and Mr.
Waugh in the hallway outside the lounge. It is apparent from the record that Mr. Bruckner went
downstairs by himself to the lounge, after having been told to do so by Mr. DeLuca. Even
though Mr. Bruckner answered “yes” when asked at one point in cross-examination whether he
had gone downstairs with Mr. DeLuca (Tr. 483), he testified quite unequivocally on direct that
he never reached the room because he was “met by other people in the hallway,” including Mr.
DeLuca (Tr. 466).
Moreover, that respondent would be in the sub-basement lounge is entirely consistent
with the scenario related by Mr. DeLuca in which he told respondent that he had had sex with
Ms. Swanton, that respondent then walked toward the sub-basement lounge, returned and said
that Ms. Swanton wanted cookies, and then left again, after Mr. DeLuca told him to get Ms.
Swanton the cookies.
Further, given the physical layout of the firehouse, it was entirely
convincing that Mr. DeLuca would choose the sub-basement lounge as the place to which to
bring Ms. Swanton, so that her presence would not be noticed by either the mechanic, the helper,
or Captain Stark (Tr. 131-32, 142-43, 173, 175-178, 185).
Thus, I find Mr. DeLuca’s hearsay statement that he saw respondent and Ms. Swanton in
the sub-basement lounge to be reliable, and I credit it, as I do firefighter Bruckner’s testimony
- 18 that he saw respondent, Waugh, DeLuca, and the woman in the hallway outside the lounge. I do
not, however, credit firefighter Bruckner’s testimony, noted on 7-8 above, that he saw
respondent and Ms. Swanton coming out of the sub-basement lounge, because, initially, as he
had during the MEO 16 interview, firefighter Bruckner testified only that he saw respondent and
Ms. Swanton in the hallway (Tr. 507-08; Pet. Ex. 18, at 17).
However, the fact remains that neither Mr. DeLuca nor firefighter Bruckner were present
in the lounge with Ms. Swanton and respondent. Even if Mr. DeLuca’s double hearsay statement
that Ms. Swanton told him that she had sex with respondent is credited, the source of that
statement is Ms. Swanton, and the reliability of her statements is questionable. Neither Mr.
DeLuca nor Mr. Bruckner was competent to testify about whether Ms. Swanton engaged in
sexual activity with respondent, which Ms. Swanton asserted, but respondent denied.
Ultimately, the matter boils down to whether Ms. Swanton’s uncorroborated hearsay accusations
are to be credited over respondent’s denials.
There is reason to question respondent’s credibility about what exactly occurred on the
morning of August 20. Respondent denied ever seeing Ms. Swanton that evening, or even
knowing of her presence in the firehouse. Both Mr. DeLuca’s MEO 16 statements and Mr.
Bruckner’s testimony contradict that assertion, as does Ms. Swanton’s identification of “Luigi”
as one of the men with whom she had sex. Moreover, respondent’s claim that he slept in the
downstairs lounge all night, except for going on runs, and the chance encounter with the
mechanic, was not persuasive, given Mr. Bruckner’s testimony, as well as Mr. Deluca’s detailed
MEO 16 testimony about his various encounters with respondent on the morning of August 20,
Such detail is a factor which may, and in this instance, did, enhance the reliability of hearsay
statements. See, e.g, Dep't of Correction v. Rocchild, OATH Index No. 318/90, at 22 (Feb. 6,
1995), aff’d, NYC Civ. Serv. Comm’n Item No. CD 90-115 (Dec. 20, 1990).
Moreover, Mr. DeLuca’s MEO 16 statements were corroborated in significant aspects by
Mr. Hicks’ testimony, both at trial and in his August 26, 2004, MEO 16 sworn statement (Pet.
Ex. 27). As noted, at 9 above, Mr. DeLuca said that after he initially greeted Mr. Hicks,
respondent then spoke to Mr. Hicks and perhaps the light duty firefighter, and that respondent
then walked around the firehouse, returning intermittently to the house watch area. Mr. Hicks
testified that the firefighter who had greeted him was in bunker gear, which Mr. DeLuca
acknowledged wearing on August 19-20, during house watch (Pet. Ex. 17, at 71). He then
- 19 testified that two firemen approached him, and that the smaller of the two firemen, (admittedly,
respondent) told him that the right rear tire was leaking (Tr. 429). According to Mr. Hicks, he
went to use the house watch phone to call his supervisor to let him know that the light duty
firefighter had left. He did not see anyone in the house watch at that time, although he testified
that he saw the fireman who had initially greeted him on the phone on the apparatus floor, and
saw the other two firefighters (the one who had approached him when he learned about the right
rear tire) talking to each other on the apparatus floor (Tr. 430). Mr. Hicks provided a somewhat
similar account during his MEO 16 interview, indicating that when he went to call his supervisor
about the flat rear tire, the house watch was empty, but he saw the firefighter who had told him
about the flat tire, whom he described as a “short…skinny…young guy,” talking on the house
phone (Pet. Ex. 17, at 10-12).
This testimony is consistent with Mr. DeLuca’s MEO 16
statement that both he and respondent spent some time walking back and forth to the house
watch, and inconsistent with respondent’s testimony that he went promptly to bed after speaking
to the mechanic.
Mr. Hicks also testified that about twenty or thirty minutes later, at about 4:30 or 5:00
a.m., after he had finished changing the rear tire, he went to wash his hands in a slop sink near
the apparatus floor bathroom, and noticed two firefighters walking behind him, coming from the
direction of an entrance to a staircase and walking in the direction of the house watch area.
According to Mr. Hicks, the smaller of the two firefighters was the same firefighter who told him
about the flat tire (Tr. 445). This was consistent with Mr. Hicks’ MEO 16 statement that a
fireman in bunker gear and the “smaller guy” had walked by him while he was washing up at the
slop sink, before he left the firehouse, heading from the stairwell toward the direction of the
house watch (Pet. Ex. 27, at 15). Although Mr. Hicks identified a photograph of Brian Gill, not
respondent, as the smaller firefighter (Tr. 440-444, Pet. Ex. 13, at 4), he was not shown a
photograph of respondent, but rather shown the four photographs that had been shown to Ms.
Swanton, namely those of DeLuca, Waugh, Gill, and an unnamed fourth firefighter (Pet. Ex. 13).
Thus, his identification of Gill is worthy of very little weight, and is far less reliable than his
testimony that the smaller firefighter whom he saw at about 4:30 or 5:00 a.m. was the same
firefighter who told him about the flat tire.
In addition, respondent’s testimony about why he just happened to wake up on the
morning of August 20 was undercut by the inconsistency between his trial testimony that he
- 20 heard the mechanic’s air gun and his MEO 16 testimony which did not mention the air gun but
only a need to use the bathroom. Respondent also appeared to be bolstering his testimony by
asserting, not only that he slept in the downstairs lounge all night, but that he watched television
in the downstairs lounge, specifically Saturday Night Live, with Brian Gill and Eddie Reilly (Pet.
Ex. 16, at 44-45), which Brian Gill denied, testifying instead that he watched the Olympics with
Mr. Reilly and that no one else was in the room at the time (Tr. 355-56). As I credited Mr. Gill’s
testimony, I concluded that respondent made this claim in order to lend credence to his claim that
he slept in the downstairs lounge all night.13 Finally, respondent’s claim of innocence with
regard to 1998 guilty plea to a misdemeanor drug possession charge was not indicative of candor
(Tr. 543-48, 614-15).
In sum, I did not credit those portions of respondent’s testimony in which he claimed to
have remained in the apparatus floor lounge after talking to the mechanic and to have never met
Ms. Swanton. I find that it is fair to infer on this record that respondent was in the sub-basement
lounge of the firehouse with Ms. Swanton for a limited period of time during the morning of
August 20. However, the fact that respondent lied about seeing or interacting with Ms. Swanton
does not lend itself to a fair inference that he engaged in sex with her, as there may be other, less
insidious, reasons for his denials. At most, his denials could give rise to a suspicion, but a
suspicion is not the equivalent of proof, and is not a sufficient basis upon which to sustain a
charge of misconduct under the Administrative Code. See Francis v. Transit Auth., 112 A.D.2d
994, 492 N.Y.S.2d 803 (2d Dep’t 1985); Ridings v. Vaccarello, 55 A.D.2d 650, 390 N.Y.S.2d
152 (2d Dep’t 1976); Transit Auth. v. Dugger, OATH Index No. 794/91 (May 14, 1991) (in
cases based on circumstantial evidence, the inferences sought to be drawn must be based on
proven facts).
This tribunal has long held that “where an agency fails to establish essential elements of
its case, it may not rely upon inconsistencies in a respondent’s testimony, or even a lack of
credibility, to substitute for proof.” Dep’t of Juvenile Justice v. Clements, OATH Index No.
1198/06, at 9-10 (Apr. 24, 2006) Dep’t of Correction v. Cancel, OATH Index Nos. 1085/05 and
Firefighter Gill did not, however, refute respondent’s claim that he slept in the apparatus floor lounge. Firefighter
Gill testified that he did not see respondent return to the apparatus floor lounge after the last run and did not see him
in that lounge until about 8:00 a.m. the next morning. However, firefighter Gill also said that he did not see Mr.
Reilly return to the apparatus floor lounge after the last run, although Mr. Reilly apparently did so. Further, Mr. Gill
acknowledged that he would not have known whether respondent came into the room while he was sleeping (Tr.
366).
13
- 21 1087/05, at 11 (Aug. 11, 2005); Dep’t of Sanitation v. Amoto, OATH Index Nos. 420/05 &
421/05, at 10 (June 17, 2005); Dep't of Transportation v. Mendez, OATH Index No. 384/05,
at 14 (Jan. 19, 2005); Bd. of Educ. v. Fuccio, OATH Index No. 924/01, at 30-31 (June 21, 2001),
aff’d, NYC Civ. Serv. Comm’n Item No. CD03-37-SA (Apr. 11, 2003); Police Dep’t v. Duane,
OATH Index No. 1891/99 (July 21, 1999); Police Dep’t v. Miller, OATH Index No. 513/92, at 7
(Mar. 2, 1992); Police Dep’t v. Brown, OATH Index No. 943/97 (June 20, 1997); Police Dep’t v.
Schmidlein, OATH Index No. 244/89, at 27-28 (Feb. 9, 1990).
Here, given the lack of physical evidence linking respondent to Ms. Swanton, petitioner’s
proof as to whether respondent had sex with Ms. Swanton in the sub-basement lounge hinges
entirely upon the hearsay of Ms. Swanton. The reliability of that hearsay, therefore, is critical.
For many reasons, her statements simply lack sufficient indicia of reliability. As discussed
above, she has made varying claims with respect to the sex, asserting first that she was raped, by
four people, then three people, then giving an account which the District Attorney deemed to
involve consensual sex, then filing a lawsuit and claiming rape by two people. In short, her
statements have varied depending upon who she was talking to, and when. She was taking a
significant amount of medication, some for bi-polar disorder, at the time of the incident, and her
own mother expressed reservations about whether she was telling the truth. Detective Virola
characterized her as a “little bit irrational, a little upset, a little, maybe drugged.” Moreover,
although Detective Virola did not notice the odor of alcohol about Ms. Swanton, she had been in
a club for some five hours prior to leaving for the firehouse, a place in which one might
ordinarily have an alcoholic drink. She has an obvious financial motive, given the filing of her
lawsuit, to shade the truth, and it was apparent from Mr. DeLuca’s MEO 16 interview that she
was angered by a comment made to her by Mr. Waugh. In addition, her 50-h deposition reveals
some significant relevant inconsistencies, specifically as to the man she called Luigi, which are
discussed in this confidential memorandum. In sum, on this record, it is difficult to tell which
portions of her statements are truthful and which are not. Had petitioner presented Ms. Swanton
as a witness at trial, respondent could have cross-examined her and her credibility could have
been fully assessed. As petitioner chose not to do so, I can not find that Ms. Swanton’s hearsay
statements, presented through the statements and testimony of Detectives Delgado and Virola,
constitute a preponderance of credible evidence that she and respondent engaged in sexual
activity on August 20, 2004.
- 22 Accordingly, I find that petitioner has failed to prove charge 4, and that portion of
charges 5-7 which relate to charge 4.
III
Although I have found that petitioner has failed to prove charge 4, I find that respondent
gave false and misleading MEO testimony regarding the events of August 20, 2004, as alleged in
charges 1 and 2, by falsely testifying that: he remained in the apparatus floor lounge the entire
night of August 19-20, except for going on runs and speaking to the mechanic; he did not see a
woman in the firehouse; he never spoke to Mr. DeLuca or Mr. Waugh in the firehouse prior to
8:00 a.m., and thus neither Mr. DeLuca nor Mr. Waugh ever told him that there was a woman at
the firehouse, or that there had been sexual activity in the firehouse. This testimony is discussed
above, at 13-14. Accordingly, charges 1 and 2 are sustained. However, because petitioner did
not prove that respondent engaged in sexual activity with Ms. Swanton, I do not find that
respondent gave false and misleading testimony by denying that he engaged in such sexual
contact.
With regard to the other charges, for the reasons already discussed, I find petitioner has
sustained charge 3, which alleges that respondent allowed a visitor on fire department property
after 2200 hours (10:00 p.m.), in violation of Rule 19.2.1, prohibiting “social assemblages,” and
indicating that visitors are not to be permitted to remain in quarters after 10:00 p.m. Although it
was Mr. DeLuca, not respondent, who let Ms. Swanton into the firehouse at some point after
4:00 a.m., the record established that respondent was aware of Ms. Swanton’s presence inside the
firehouse, and that had some interaction with her, in violation of this rule.
Charge 5, which alleges that respondent engaged in conduct unbecoming, is sustained to
the extent that it alleges a violation of Charges 1-3 (false statements, allowing a visitor on
premises after 10:00 p.m.).
Charge 6, which alleges that respondent brought discredit upon the Department, is
sustained to the extent that it alleges a violation of Charges 1-3 and Charge 5, but not insofar as it
alleges a violation of Charge 4 (engaging in sexual activities), which was not sustained.
Charge 7, which alleges that respondent violated his oath of office, is sustained to the
extent it alleges a violation of Charges 1-3, 5, and 6, but not as it alleges a violation of Charge 4.
- 23 FINDINGS AND CONCLUSIONS
1. Respondent provided false and misleading testimony
during a Mayor’s Executive Order 16 interview on August
25, 2004 relating to misconduct on August 20, 2004, as
alleged in charges 1 and 2.
2. Respondent allowed a visitor to remain in Engine
75/Ladder 33 on August 20, 2004, after hours, as alleged in
charge 3.
3. Petitioner did not prove by a preponderance of the credible
evidence that respondent engaged in sexual acts with a
female on August 20, 2004, as alleged in charge 4.
4. Respondent violated his oath of office and engaged in
conduct unbecoming and conduct bringing discredit upon
the Department, as alleged in charges 5-7, except insofar as
charges 5-7 allege a violation of charge 4.
Therefore, charges 1, 2, and 3 are sustained. Charge 4 is not sustained and should be
dismissed. Charges 5-7 are sustained in large part.
RECOMMENDATION
Having made these findings, I requested and received a copy of respondent’s disciplinary
abstract.
It indicates that respondent was appointed as a firefighter on October 28, 2001.
Thereafter, he was disciplined for failing to report a 2003 arrest for criminal possession of a
controlled substance. He agreed to a suspension of 90 days pay and two years’ drug testing.
Petitioner has requested that I recommend that respondent be terminated from office.
Although I have found the hearsay proof lacking as to whether respondent had sex with Ms.
Swanton, I agree that respondent’s misconduct merits termination. Respondent was questioned
at length by the Inspector General, under oath, about the circumstances of August 19-20, 2004,
and he repeatedly lied, not only about whether he had any contact or interaction with Ms.
Swanton, but also about whether he was aware that she was in the firehouse. Respondent's lack
of integrity constitutes an egregious breach of trust which cannot be condoned. Given that
neither his tenure with the Department, nor his disciplinary history, constitute compelling
mitigation, termination is the only appropriate penalty here, and so I recommend. See Fire Dep’t
v. Waugh, OATH Index No. 678/05 (Dec. 1, 2004) (termination for refusing to answer questions
- 24 during an MEO 16 interview relating to the events of August 19-20, 2004); Dep’t of Correction
v. Melendez, OATH Index Nos. 237/05 and 240/05, at 15 (Aug. 25, 2005), (termination
recommended for short-tenured officer found guilty of making false statements in a report and in
an MEO 16 interview); Dep’t of Correction v. Wilder, OATH Index No. 1636/00 (June 20, 2001)
(termination of correction officer for lying under oath at an investigatory interview); Mayoral
Executive Order No. 16, section 4(c) (July 26, 1978) (requiring employees to cooperate fully
with the Commissioner and agency Inspector Generals at the risk of termination of employment).
Faye Lewis
Administrative Law Judge
June 14, 2006
SUBMITTED TO:
NICHOLAS SCOPETTA
Commissioner
APPEARANCES:
ROBERT MULLEN, ESQ.
ROBERT GIGANTE, ESQ.
Attorneys for Petitioner
PAUL LONDON, ESQ.
Attorney for Respondent