On appeal from the Waterfront Commission of New York Harbor, No. RL-5107-W.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Payne and Reisner.
William F. Donoughe, Jr. (defendant) appeals from an August 11, 2011 final administrative action of the Waterfront Commission of New York Harbor (Commission) revoking his registration as a warehouseman, following an administrative hearing. The revocation was based on his having "harvested marijuana plants" at two different locations in New York (Brooklyn and Manhattan), offenses which would have been disqualifying factors had he committed them prior to applying for registration. For the reasons that follow, we affirm.
The following pertinent evidence was introduced at defendant's administrative hearing. Since 1977, defendant worked in the refrigeration department at Port Newark Maintenance and Repair, a position requiring that he be registered with the Commission. After an extended investigation of possible indoor marijuana farming in New York City, agents of the Federal Drug Enforcement Agency (DEA) discovered two "grow houses," one in a warehouse on Jay Street in Brooklyn, and the other in a large apartment on Canal Street in Manhattan. They arrested Gary Cangelosi, who admitted his participation in the large-scale growing operation, which involved over 150 plants at each location. Cangelosi implicated defendant and two other men, Anthony Rispoli and Peter Monteforte, who worked on the New York/New Jersey waterfront, as well as Vincent Rispoli, the owner of the Manhattan grow house. Facing a lengthy federal prison term, Cangelosi eventually pled guilty to drug charges and agreed to cooperate with the Commission in its administrative prosecution of defendant, Monteforte and Anthony Rispoli.
At the Commission hearing, Cangelosi gave detailed testimony concerning the marijuana growing operation at the grow houses in Brooklyn and Manhattan. While he could not remember the street name or address in Brooklyn, he gave a very detailed description of the location of the warehouse where the marijuana was grown, and an equally specific description of the warehouse itself and the room where the plants were kept. He also gave a specific description of the Canal Street premises, which was divided into an apartment with living space and a large open room used to grow the plants. Cangelosi spent a great deal of time at the Canal Street grow house, because he also lived there for three years.
According to Cangelosi, he participated in the marijuana growing operation for about seven years, from 2000 to the date of his arrest in 2007. He testified that he saw defendant harvesting marijuana twice at the Brooklyn location and more than twenty times at the Canal Street location. Cangelosi described the process of harvesting the marijuana, and explained that he and defendant were given one to two ounces of the drug as payment whenever they participated in a harvest.
The principal DEA investigator, Gaetano DiPasquale, testified that after he discovered the grow houses and arrested Vincent Rispoli and Peter Monteforte, he participated in "proffer sessions" with each man. During the sessions, they both provided information in the hope that the United States Attorney's office would offer them a favorable plea bargain. According to DiPasquale, both Rispoli and Monteforte told him that defendant was one of the people who helped harvest the marijuana.
Monteforte received a relatively short prison term. When he appeared at the Commission hearing as Donoughe's co-defendant, he offered no defense to the Commission's action and his counsel indicated that Monteforte would invoke his Fifth Amendment right against testifying. Vincent Rispoli, who was serving a five-year prison term, did not appear at the hearing. Donoughe's attorney obtained a subpoena from the administrative judge and served it on the Federal Bureau of Prisons in an attempt to obtain Rispoli's testimony at the hearing. However, according to the attorney, the warden at the prison at which Rispoli was incarcerated would not honor the Commission's subpoena. At the oral argument of this appeal, counsel conceded that he made no attempt to enforce the subpoena or to obtain Rispoli's testimony by video or by taking a de bene esse deposition at the prison.
Defendant did not testify at the hearing. Instead, he relied on the sworn statement he provided to the Commission during its investigation. In that statement, which was introduced in evidence at the hearing, he denied any involvement in the marijuana growing operation.
In a report and recommendation issued April 20, 2011, the administrative judge found that although Cangelosi was an unsavory character, his testimony was specific and credible. He also found that DiPasquale's hearsay testimony corroborated Cangelosi's testimony. However, the judge recommended that the Commission suspend defendant's registration for six months instead of revoking his registration. In its final decision, the Commission determined that his registration should be revoked because his continued "presence" on the waterfront presented "a danger to the public peace or ...