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January 24, 1980

MATTHEW J. TROY, JR., Plaintiff, against THE PEOPLE OF THE STATE OF NEW YORK, Defendants.

The opinion of the court was delivered by: PRATT


On December 21, 1979, plaintiff filed a complaint along with an order to show cause seeking preliminary relief from this court against execution of a state court sentence. Upon agreement of the parties the order to show cause was adjourned to January 16, 1980, and later to February 6, 1980, at which time the court was also to hear argument on defendant's motion to dismiss, made orally at the December 21, 1979 initial hearing on the order to show cause. On Monday, January 21, 1980, the Appellate Division of the State Supreme Court affirmed plaintiff's state court sentence, and execution of sentence was set to begin on Friday, January 25, 1980. Plaintiff applied for a stay of execution of sentence to Judge Meyer of the New York Court of Appeals, who will hear argument on Friday morning, January 25, 1980. Plaintiff then asked this court for expedited consideration of his order to show cause and, accordingly, the February 6, 1980 argument was held yesterday at 5:00 p.m. Based on the argument and the papers submitted, and for reasons set forth below, plaintiff's motion for preliminary relief is denied and defendant's motion to dismiss is granted.


 From 1964 through 1976, plaintiff handled the accounts of some thirty estates in the capacity of executor or attorney. The Internal Revenue Service began to investigate plaintiff's dealings with some of these estates around 1974. In February, 1976, defendant was subpoenaed to testify before a federal grand jury investigating the accounts of these estates. Before appearing, plaintiff was informed of charges to be brought against him before the grand jury, and was offered a plea agreement with respect to these charges, which he accepted. The terms of the plea offer and agreement were reduced to writing in a "Memorandum Agreement" dated May 6, 1976. The Memorandum Agreement outlined the nature of the federal investigation into plaintiff's transactions with the estates, and the relationship between these transactions and plaintiff's federal income tax returns for 1970, 1971, and 1972. The agreement then called for plaintiff to waive indictment and plead guilty to one count of a three count felony information to be filed, each count to involve income tax violations. The one count guilty plea was to be in full satisfaction of "all criminal charges that could have been brought by the United States Attorney for the Eastern District of New York against Mr. Troy with respect to the aforesaid financial activities and transactions". The other two counts were to be dismissed upon sentencing.

 The Memorandum Agreement stated that "all promises and understandings between the parties are embodied in this agreement". However, it appears that after the signing of the agreement, the Assistant United States Attorney in charge of the investigation promised plaintiff that certain information resulting from the investigation would not be disclosed to other investigative authorities. Plaintiff was particularly concerned at that point with possible prosecution by state authorities for his transactions with the estates. "(The Assistant U. S. Attorney) related that no consideration was given by the federal government as to any state charges or grand larcenies and, that no promises were made to Troy concerning any state charges, even though the topic did continually come up." Report of Hon. Howard Jones to the Appellate Division, at 8 (Ex. Q attached to the complaint). However, even if no formal "promises" were made, the Assistant United States Attorney did later state, in public, that a state prosecution based on plaintiff's transactions with the estates would be "inappropriate". July 15, 1977 decision of Hon. Howard Jones, at 4 (Ex. 4 attached to the complaint).

 On July 2, 1976, plaintiff pleaded guilty to one count of the criminal information, before the late Judge Judd of this court. On September 29, 1976, plaintiff appeared for sentencing before the undersigned, to whom the case was assigned after the death of Judge Judd. A sentence of two years imprisonment (two months to be served in a jail type institution, with the remainder of the imprisonment suspended), five years probation, and a $ 5,000 fine was imposed. At sentencing, the undersigned made the following statement:

In making my determination, however, I have attempted to confine my consideration to the fact that we are dealing here solely with a tax violation. I have not considered the source of the funds, which were declared on the tax return. I have not considered the well, I view the circumstances of how that money was obtained to be the concern of other authorities than myself. That must be considered and disposed of in whatever way they may think appropriate. Minutes of sentencing, p. 22.

 After Mr. Troy was sentenced on the one income tax count, the other two counts of the information were dismissed at the request of the government. No other statements or actions at the sentencing dealt with future prosecution of Mr. Troy by state authorities for crimes connected with his handling of the estates.

 In January, 1977, a Queens County grand jury returned an indictment charging Mr. Troy with four counts of grand larceny second degree, each connected with his handling of certain of the above-mentioned estates. On April 27, 1977, Mr. Troy moved to have the indictment dismissed based on various grounds: (1) Double jeopardy under the United States Constitution, based on the fact of his previous prosecution and conviction in federal court; (2) Double jeopardy under the New York State Constitution and Article 40 of the New York Criminal Procedure Law; (3) Untimeliness of prosecution; (4) Insufficient evidence before the grand jury; and (5) General interests of justice. The state court justice to whom the motion was made considered each claim in detail and, in a well-reasoned and thorough opinion, found each claim to be without merit. July 15, 1977 decision of Justice Howard Jones (Ex. 4 attached to the complaint).

 On July 29, 1977, Mr. Troy instituted a proceeding in the Appellate Division of the State Supreme Court under Article 78 of the New York Civil Practice Laws and Rules, in which he sought an order in the nature of a writ of prohibition, directing Justice Jones to prohibit further prosecution of the state's case against him. The Appellate Division, on February 9, 1978, remitted the proceeding to the trial term for a trial of certain factual issues. Trial was held and on March 17, 1978, Justice Howard Jones submitted his "Report to the Appellate Division", Ex. Q attached to the complaint in this case. Based on this report, which was accepted by the Appellate Division as correct, the Appellate Division held that Article 40 of the CPL did not bar prosecution under any of the four counts of the state indictment. Order with attached decision slip, issued July 17, 1978 (Ex. R attached to the complaint in this case).

 On October 10, 1979, plaintiff pleaded guilty to the grand larceny indictment. On November 29, 1979, he was sentenced to a term of imprisonment of 26 weekends, to begin on December 1, 1979 and run through May 29, 1980. Execution of the sentence was stayed to December 29, 1979 pending an appeal from the conviction to the Appellate Division. As explained in the first paragraph of this memorandum and order, there followed the filing of this action on December 21, 1979, the adjournment of plaintiff's order to show cause and defendant's cross-motion to dismiss, and, most recently on January 21, 1980, the affirmance of Mr. Troy's conviction by the Appellate Division of the Supreme Court.


 At the outset, the court is met with the problem of interpreting plaintiff's enigmatic complaint. In violation of the FRCP, the complaint fails to set forth any jurisdictional grounds, and also fails to specify any claim entitling plaintiff to relief. The closest thing to a cause of action alleged in the complaint occurs in the fifth paragraph:

Upon information and belief, by dismissing said Article 78 Proceeding at the Appellate level, the defendant violated the Constitutional rights of the plaintiff as set forth in the Fifth and Fourteenth Amendments thereto. (The Briefs and Arguments of the Plaintiff as ...

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