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TAYLOR v. KAVANAGH

June 26, 1980

RODNEY TAYLOR, Plaintiff,
v.
MICHAEL KAVANAGH, Defendant.



The opinion of the court was delivered by: GRIESA

This is a pro se action under 42 U.S.C. § 1983 for alleged violation of plaintiff's civil rights. Plaintiff is a paroled state prisoner. He seeks to set aside a criminal conviction which followed his guilty plea in a state court. He also seeks compensatory and punitive damages. Defendant is the Assistant District Attorney who prosecuted plaintiff's state court criminal case.

Defendant moves for judgment on the pleadings. Plaintiff moves for summary judgment. Defendant's motion is granted. Plaintiff's motion is denied. The action is dismissed.

 I.

 Plaintiff was arrested on October 9, 1974 and indicted on December 20, 1974 on charges of third degree burglary and attempted third degree grand larceny. He was again arrested on August 14, 1975 for third degree burglary and criminal possession of a controlled substance.

 On June 9, 1976 plaintiff entered a plea of guilty in the City Court of Kingston to the third degree burglary charge in the indictment of December 20, 1974. It was agreed that this plea would be in satisfaction of all charges in that indictment, and also in satisfaction of the charges involved in the August 14, 1975 arrest.

 By the time of the guilty plea the charges relating to the August 14, 1975 arrest were being considered by a grand jury, but an indictment had not yet been returned.

 On June 7, 1977 plaintiff moved to vacate his guilty plea on the grounds:

 
(1) That, during the plea bargaining and in court at the time of the guilty plea, Kavanagh had represented to him and to the court that the second grand jury had actually returned an indictment, whereas no such indictment had yet been issued;
 
(2) That Kavanagh had indicated he would not abide by an alleged promise not to make a sentence recommendation.

 The motion to vacate the guilty plea was denied.

 Plaintiff was sentenced on February 9, 1978 to an indeterminate term of six years imprisonment with a minimum term of five years. At the time of the sentencing Kavanagh made a sentence recommendation.

 Plaintiff appealed his conviction to the Appellate Division, Third Department. On September 28, 1978 the Appellate Division issued an opinion, holding that any incorrect representation about the status of the second grand jury proceeding was harmless error, but that the failure of the prosecutor to honor the promise about sentence recommendation required that plaintiff be resentenced. People v. Taylor, 64 A.D.2d 998, 408 N.Y.S.2d 835.

 For some reason, the record is not clear as to what occurred on the resentencing. However, presumably ...


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