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ISIDORE ZIMMERMAN v. CITY NEW YORK ET AL. (12/09/66)

SUPREME COURT OF NEW YORK, SPECIAL TERM, NEW YORK COUNTY 1966.NY.44199 <http://www.versuslaw.com>; 276 N.Y.S.2d 711; 52 Misc. 2d 797 December 9, 1966 ISIDORE ZIMMERMAN, PLAINTIFF,v.CITY OF NEW YORK ET AL., DEFENDANTS J. Lee Rankin, Corporation Counsel (Jack Cherrill and Irwin H. Haupt of counsel), for City of New York, defendant. Harry H. Lipsig for plaintiff. Thomas C. Chimera, J. Author: Chimera


Thomas C. Chimera, J.

Author: Chimera

 This is a motion by the defendant, the City of New York, to dismiss the complaint against it on the ground that each of the causes of action is insufficient in law.

The action is for false arrest and imprisonment, malicious prosecution, conspiracy, and an unidentifiable cause of action sprinkled with allegations of false accusation against plaintiff.

Broadly stated, plaintiff complains that certain false, misleading and incompetent evidence was intentionally and maliciously assembled and presented by representatives of the County of New York with intent to effect plaintiff's arrest and to procure his conviction and imprisonment regardless of plaintiff's actual innocence, and, that the "representatives" of said county were the District Attorney and his assistants (including a New York City police officer assigned to the District Attorney's office) all of whom wrongfully effected the arrest and procured the indictment, conviction, sentence and imprisonment of said plaintiff. Specifically -- that there was actual concealment of evidence by an Assistant District Attorney of the County of New York in the criminal prosecution against plaintiff -- for all of which the City of New York should be held liable.

The record reveals and it is uncontradicted that in 1937, plaintiff, by order of an Assistant District Attorney of New York County, was arrested and, with four others, charged with murder. He was indicted, subsequently tried and convicted and sentenced to death (People v. Zimmerman, 279 N. Y. 707); later his sentence was commuted to life imprisonment.

In 1959, plaintiff's application in the nature of coram nobis was denied. The denial was unanimously affirmed by the Appellate Division in 1961. On or about January 11, 1962, the Court of Appeals (People v. Zimmerman, 10 N.Y.2d 430, revg. 12 A.D.2d 753) reversed the order of the Appellate Division and sustained the "writ" on the ground that at the trial, a witness for the prosecution falsely denied upon cross-examination that he had made any statements in the presence of a District Attorney's stenographer more than a week before the trial, when, in fact, he had previously made such statements and they contained material inconsistencies. The Court of Appeals remanded the plaintiff for a new trial, stating among other things that "the failure of the prosecutor to make any effort to correct this falsehood and to afford the court or defense counsel an opportunity to examine those statements, which were in his possession, in effect, amounted to a suppression of such material and prejudiced the defendant in his right to a fair trial".

Subsequently, on February 2, 1962, on the recommendation of the District Attorney, the indictment was dismissed by order of the court. The District Attorney's recommendation was predicated upon plaintiff's youth at the time of the alleged commission of the crime charged, his long period of imprisonment, and upon the fact that important witnesses for the prosecution appeared to have repudiated their original testimony.

Thus, while neither the remand for new trial nor the subsequent dismissal was in fact and in law a determination as to the guilt or innocence of plaintiff -- for what it is worth -- the latter did constitute a "favorable prior determination." This would be an indispensable element of the tort of malicious prosecution in the classic sense, although generally not necessary to a finding of false arrest (false imprisonment and unlawful detention) or any of the other alleged wrongful conduct charged.

The suggestion in the city's brief that a District Attorney in the exercise of his official duties as such is an ad hoc representative of the State is conclusively disposed of in Fisher v. State of New York (10 N.Y.2d 60) in which the Court of Appeals speaking on page 61, clearly met the issue head-on in the following language: "As the Appellate Division said in the Ritter case, the District Attorney is in a sense part of the judicial system of the State and prosecutes criminal causes in the name of the People of the State but he does not act as a State officer or employee in any such sense as would make the State liable for his wrongdoing."

The question whether the County of New York, as a named defendant, has been properly served or is otherwise in default is of no consequence to this decision in view of the appearance and defense of the Corporation Counsel in behalf of defendant the City of New York, of which the County of New York is a subdivision.

The District Attorney is a quasi-judicial officer acting for the State in criminal matters, including criminal investigations and prosecutions within his county. (Manceri v. City of New York, 12 A.D.2d 895, and cases cited therein; N. Y. Const., art. XIII, § 13, subd. [a]; County Law, § 700, subd. 1; § 927; Matter of Prentice v. Gulotta, 13 Misc. 2d 280; People v. Dorsey, 176 Misc. 932; People v. Neff, 121 App. Div. 44, affd. 191 N. Y. 286; Matter of McDonald v. Goldstein, 191 Misc. 863, affd. 273 App. Div. 649.)

Assistant District Attorneys appointed by District Attorneys are authorized to perform such duties pertaining to the office as may be directed by the District Attorney (County Law, § 702, subd. 2; § 930).

Municipal police officers, assigned to the office of a District Attorney and assisting the District Attorney in the performance of his duties, become ad hoc representatives of the District Attorney and are clothed with such immunity as may be available to the District Attorney himself (cf. West v. Prudential Ins. Co. of America, 34 F. 2d 449; Schauf v. City of New York, 23 Misc. 2d 585).

As such quasi-judicial officer, the District Attorney as well as all persons acting under his direction and control are immune from civil suit for an official act performed by them in the investigation and prosecution of the crime with which plaintiff was charged, even if it be assumed that they acted maliciously to the injury and damage of plaintiff. (Cf. Barr v. Matteo, 360 U.S. 564; Yaselli v. Goff, 12 F. 2d 396, affd. Per Curiam 275 U.S. 503; Howard v. Lyons, 360 U.S. 593; Salomon v. Mahoney, 271 App. Div. 478, affd. 297 ...


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