This precludes by definition (PL 155.05)

Defendants are each charged with the crimes of Grand larceny in the Second Degree and Falsifying Business Records in the First Degree. The indictment alleges that between September 1975 and December 1976, the defendants, acting in concert, stole monies in excess of $1500.00 from a Park Psychiatric Center, and that they also, acting in concert and with intent to defraud in order to commit the crime of larceny, made false entries upon the business records of the Park, to wit, monthly time and work attendance forms.

A Suffolk County Criminal attorney said that the Park is a mental hygiene hospital operated by the State of New York and defendants were employees during the relevant period.

The substance of the larceny charge is that Klein submitted time and attendance sheets showing that she worked certain hours for which she was paid, whereas, in fact, she was then attending nursing school at another location and that defendants by approving and submitting these inaccurate and false “business records”.

Until October 1977, defendant was employed as a Mental Hygiene Therapy Aide. In September 1975 she was accepted at the School of Nursing at Central Islip Psychiatric Center and thereupon applied to her charge nurse and with her consent to the Chief of Service for a duty schedule which would include weekend work and thereby permit attendance at classes during a portion of the work week, a practice apparently indulged in with other employees. When this request was denied, she requested and received an assignment to another unit in the hope that it would more readily permit an accommodating schedule.

When these practices came to the attention of the hospital, via an anonymous telephone call and letter, a notice of discipline was served on each of the defendants in accordance with the provisions of a collective bargaining agreement between an Employees Association and the State of New York. Thereafter, in accordance with the contract provisions, separate arbitration proceedings were initiated as to each defendant.

A 36 page report by the arbitrator concluded that while there may have been carelessness, a failure to follow clear written directions and perhaps incompetence, defendant “Was not guilty of conspiracy to steal from and defraud the State “.

The report further concluded that the work schedule claimed by defendants was not unique in the institution and that the State did not prove that Laura Klein “did not work 40 hours a week or use valid leave credits to reach 40 hours.” “(T)he evidence Strongly supports the probability that defendant worked her time as claimed, rather than the opposite.”

The award had become final since no application was made within 90 days after its delivery to vacate or modify it.

Collateral estoppel simply means that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot be litigated between the same parties in any future law suits. Threshold questions are whether there is an identity of issues and an identity of parties.

“the rule of collateral estoppel in criminal cases is not to be applied with the hypertechnical and archaic approach of a 19th century pleading book, but with realism and rationality.”

The identity of issue is easily resolved by the arbitrator’s findings that the defendant Klein was not engaged in a wrongful taking of the property from the State. This precludes by definition (PL 155.05) a conviction for larceny or for the falsifying of records to conceal that crime.

The identity of parties is a slightly more difficult issue. The defendant Klein was not a party to the arbitration proceeding when this report was issued. But that is a matter of form rather than substance. Defendant was charged with acting in concert with Klein and the arbitrator logically dealt with the underlying charge of larceny before determining whether Overton participated in it. Accordingly he made specific findings in favor of Klein. Further, a ruling favorable to an indictee should be extended under the doctrine of collateral estoppel to a co-indictee, where a contrary holding would present a classic example of unfairness.

An examination of the facts in this case with the realism and rationality suggested by the Court, leads inevitably to the conclusion that there is an identity of issues and parties.

Arbitration has the sanction of law and the finality of a judgment. Article 75 CPLR. It has been held that “every award (in arbitration) rendered in compliance with all legal requirements is a complete, final and binding determination of a controversy which may not be disturbed, unless the statutory grounds for doing so exist”.

The policy of the State is to encourage the use of arbitration as a vehicle for the determination of labor grievances involving public employees. It is noted parenthetically that this policy extends to disputes involving employees of non-profit hospitals.

“Security of person and property requires that determinations in the field of administrative law should be given as much finality as is reasonably possible.”

An extension of the foregoing legal principles to the case at bar permits of a holding that an award in a bona fide arbitration proceeding can be the basis for invoking the doctrine of collateral estoppel under the constitutional requirements of the Fifth Amendment and principles of fundamental fairness.

It could have been argued that the defendants should not choose their forum and opponent and thereby avoid indictment and thereupon criminal charges. But the defendants did not opt for arbitration. It was mandated by contract and initiated by the State. Nor were the defendants put in a more favorable position with respect to the quantum of proof necessary to prove the charges against them. In the arbitration, the employer was unable to prove by even a fair preponderance of the evidence that there was a wrongful taking or that business records were falsified. The People in a criminal case, relying upon the same witnesses who testified at the arbitration would have to prove the charges against the defendants beyond a reasonable doubt.

The issue tried at arbitration was not collateral but directly related to the question of guilt or innocence. The outcome of the criminal charges herein uniquely turned upon the prevalent labor practices previously litigated by the persons most familiar with them.

The Court concludes that the People are estopped from relitigating the time and attendance issues, and the findings of the arbitrator are determinative of the issue of wrongful taking.

Since the People are estopped from introducing evidence of the alleged larceny which forms the basis for the indictment against each of the defendants, it would be palpably unfair to subject them to the expense and ordeal of a trial which by reason of the ruling herein must be resolved in their favor.

The power to dismiss the indictment in the interest of justice provides a suitable vehicle for an appropriate disposition of this case. The motion to dismiss pursuant to CPL 210.40 is therefore granted.

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