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June 25, 1992

PETER J. PINAUD, Plaintiff,
COUNTY OF SUFFOLK, a municipal entity, JAMES CATTERSON, in his official capacity as District Attorney of the County of Suffolk, PATRICK HENRY, DAVID FREUNDLICH, JOHN HOLOWNIA, KEVIN FITZGERALD, PATRICK J. O'CONNELL and MARK COHEN, Defendants.

The opinion of the court was delivered by: LEONARD D. WEXLER

 WEXLER, District Judge

 In the above referenced case, Peter J. Pinaud ("plaintiff"), a resident of Florida, brings suit under 42 U.S.C. § 1983 against current and former Suffolk County Assistant District Attorneys David Freundlich ("Freundlich"), John Holownia ("Holownia"), Kevin Fitzgerald ("Fitzgerald"), Patrick J. O'Connell ("O'Connell") and Mark Cohen ("Cohen") (collectively "district attorney defendants"); former and current Suffolk County District Attorneys Patrick Henry ("Henry") and James Catterson; and the County of Suffolk ("County") (collectively "defendants"). Plaintiff alleges that defendants violated his rights under the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments through a conspiracy that lasted from August 1983 to November 1988 and that allegedly included the following acts: (1) filing false criminal charges against plaintiff for Possession of Stolen Property in the First Degree in violation of former New YorkPenal Law § 165.50 ("Possession"); (2) coercing plaintiff to plead guilty to one count of Possession by raising his bail from $ 10,000 to $ 250,000; (3) filing false criminal charges of Bail Jumping in the First Degree ("Bail Jumping") against plaintiff and using that as an excuse to violate his plea agreement; (4) making false and misleading statements to the United States Bureau of Prisons (the " Bureau") in order to persuade the Bureau to rescind federal sentencing credit that had been awarded to plaintiff as a result of his having served a state prison term in violation of his plea agreement; (5) improperly arranging plaintiff's transfer from a federal prison to the Suffolk County Jail at Riverhead (the "Riverhead Jail") for state proceedings which never took place; and (6) unnecessarily transporting plaintiff between the Riverhead Jail and the Hauppauge Courthouse on days when his case was not even on the Court calendar in an attempt to coerce him into pleading guilty to the Possession and/or Bail Jumping charges. Plaintiff limits his claims regarding the above-mentioned acts to defendants' out-of-court acts and decisions. Plaintiff also brings related state claims of fraud, false arrest, intentional infliction of emotional distress and prima facie tort.

 Now before the Court are defendants, motions to dismiss and for summary judgment pursuant to Rules 12 and 56 of the Federal Rules of Civil Procedure. For the reasons stated below, defendants, motions are granted in part and denied in part.


 The following material facts are derived from plaintiff's amended complaint. On May 28, 1982, federal agents, pursuant to a proper search warrant, searched plaintiff's residence and found evidence proving that he had committed federal tax crimes. However, plaintiff was not indicted on those charges until February 6, 1985.

 In 1983, plaintiff was working for an automobile body shop which adjoined an automobile salvage yard. Pursuant to section 415-a of the New York Vehicle and Traffic Law, Suffolk County Police searched the salvage yard without a warrant and found stolen cars and car parts. As a result of this investigation, in August 1983, plaintiff was indicted by a Suffolk County Grand Jury and charged with three counts of Possession as well as nine lesser offenses.

 Plaintiff filed a motion to suppress the evidence obtained as a result of the warrantless search and a hearing on that motion was held in April 1984. Plaintiff alleges that as a result of a decision in the case of People v. Pace, 101 A.D.2d 336, 475 N.Y.S.2d 443 (2d Dep't 1984), aff'd, 65 N.Y.2d 684, 491 N.Y.S.2d 618, 481 N.E.2d 250 (Ct. App. 1985), decided after plaintiff's suppression hearing was held but before a decision was rendered, it appeared that evidence against plaintiff would be suppressed and the strength of the case against him would be substantially weakened. Consequently, in early May, 1984, the District Attorney's Office asked plaintiff to plead guilty to one count of Possession and plaintiff refused.

 Plaintiff alleges that as a direct result of this refusal, on May 3, 1984, O'Connell, Freundlich and Henry made an out-of-court decision that O'Connell would go to court and, on the basis of information that had long been known to them, request that plaintiff's bail be raised from $ 10,000 to $ 250,000. The Supreme Court, Suffolk County granted the application for a bail increase and plaintiff was incarcerated at the Suffolk County Jail between May 3, 1984 and May 7, 1984 because he could not raise the additional bail.

 Under these circumstances, on May 7, 1984, plaintiff pled guilty to one count of Possession under the following plea agreement: (1) he would be sentenced either to a term of one to three years or to a term of one and one half to four years; (2) sentencing by the Suffolk County Court would be delayed six months so that plaintiff would first be sentenced by the United States District Court for the Eastern District of New York on the anticipated federal, tax-related charges; (3) plaintiff's state sentence would run concurrent with the anticipated federal sentence; (4) plaintiff would serve his time in a federal prison; and (5) plaintiff's bail would immediately be reduced to $ 10,000 so that he could be released from jail.

 Pursuant to the above-described plea agreement, on May 7, 1984, the Suffolk County Court directed plaintiff to return to court for sentencing on November 7, 1984 and specifically stated that he need not appear for a presentencing hearing scheduled for June 15, 1984. However, by a letter that was apparently sent to plaintiff in mid-May 1984, the Suffolk County Court directed plaintiff to appear at the June 15, 1984 hearing. When plaintiff failed to make that appearance, O'Connell (allegedly pursuant to an out-of-court decision made by Henry, Freundlich and O'Connell) obtained an indictment against plaintiff from a Suffolk County Grand Jury on the charge of Bail Jumping. The Grand Jury was not apprised of the May 7, 1984 Order which stated that plaintiff need not return to court before November 7, 1984.

 On October 16, 1984, plaintiff was arrested for Bail Jumping. The following day, the Suffolk County Court dismissed that charge but also revoked plaintiff's plea agreement, sentenced him to two and one-third to seven years on the Possession charge, and immediately remanded him to state prison.

 On October 31, 1984, plaintiff was indicted in the Northern District of New York on four counts of filing false claims for income tax refunds. On January 14, 1985, he entered a plea of guilty to two tax counts and on March 13, 1985, he was sentenced to two concurrent terms of forty-four months each, consecutive to the state sentence.

 On February 6, 1985, plaintiff was indicted in the Eastern District of New York on sixteen tax counts. On May 9, 1985, he pled guilty to two counts and on July 30, 1985, he was sentenced to two concurrent terms of three years each, to run consecutive to the state sentence and consecutive to the Northern District sentence.

 In January 1985, plaintiff, then a state prisoner, was transferred to federal custody where he remained until October 1985. During that time, plaintiff alleges that he believed he was receiving federal credit for his state sentence.

 In March of 1986, plaintiff filed a motion in Suffolk County Court seeking to vacate his state sentence on the ground that the plea agreement had been violated. The motion was denied in August 1986. However, on July 6, 1987, the Appellate Division reversed that decision and vacated the conviction. People v. Pinaud, 132 A.D.2d 580, 517 N.Y.S.2d 560 (2d Dep't 1987). Unfortunately, by February 6, 1987, plaintiff had already completed serving his entire state sentence and was therefore transferred to the Federal Correction Institute at Otisville, New York ("Otisville") to begin serving his federal terms.

 Plaintiff requested that the warden at Otisville grant him credit toward his federal sentences for the 828 days that he had spent serving his subsequently vacated state sentence which had delayed the commencement of his federal sentences. On August 26, 1987, the warden granted plaintiff the credit he requested.

 Subsequently, however, the Bureau of Prisons rescinded the credit, allegedly due, in part, to a conversation between Cohen and the Bureau on September 11, 1987, in which Cohen falsely stated that the district attorney's office was appealing the Appellate Division decision in People v. Pinaud. In fact, the district attorney's office had merely applied for leave to appeal to the Court of Appeals. Such leave was subsequently denied on October 20, 1987. People v. Pinaud, 70 N.Y.2d 802, 522 N.Y.S.2d 120, 516 N.E.2d 1233 (Ct. App. 1987).

 On October 27, 1987, plaintiff filed a writ of habeas corpus in the United States District Court for the Southern District of New York claiming that under applicable case law he was entitled to receive credit toward his federal sentences for the time he served on the vacated state sentence. On November 2, 1987, the District Court dismissed his petition and that dismissal was subsequently affirmed by the Second Circuit in a 2-1 decision. Pinaud v. James, 851 F.2d 27 (2d Cir. 1988).

 In February 1988, plaintiff was transferred from Otisville to the Allenwood Federal Prison Camp ("Allenwood"), where his movements were much less restricted. At that time, however, O'Connell, pursuant to the Appellate Division Order of July 6, 1987, determined to proceed in the Suffolk County Court with further proceedings regarding plaintiff's vacated sentence. O'Connell then began to arrange to have plaintiff transferred from Allenwood to the Riverhead Jail so that he could make appearances in the Suffolk County Court.

 Plaintiff contends that it was not necessary for him to make any appearances in the Suffolk County Court unless that court were to deny his three pending motions to dismiss the indictments on the Possession and Bail Jumping charges. Moreover, because plaintiff preferred to remain in Allenwood, his counsel arranged with O'Connell to allow him to remain at Allenwood as long as his motions were not decided.

 Thereafter, plaintiff alleges that Henry and Holownia, in order to harass plaintiff into pleading guilty to the vacated charges, removed O'Connell from the case, assigned it to A.D.A. Glenn Gruder, and ordered him to arrange to have plaintiff transferred to the Riverhead Jail. However, plaintiff's counsel contacted Gruder and he agreed that a transfer was not required at that time.

 Thereafter, Henry and Holownia replaced Gruder with A.D.A. William Condon, who was also ordered to arrange to have plaintiff transferred to the Riverhead Jail. Plaintiff's counsel explained the situation to Condon and he too agreed that a transfer was not required at that time.

 Thereafter, during the summer of 1988, Holownia replaced Condon with Fitzgerald and ordered him to arrange to have plaintiff transferred to the Riverhead Jail. Yet again, plaintiff's counsel explained the situation and Fitzgerald too agreed that a transfer was not required at that time. Nevertheless, on unusually short notice, Fitzgerald subsequently arranged for such a transfer.

 While plaintiff was in the Riverhead Jail in September and October 1988, his case was not on the Suffolk County Court calendar. Nevertheless, Henry and Holownia allegedly arranged to have plaintiff frequently transported by bus, in chains, from the Riverhead Jail to the Hauppauge Courthouse where he was kept in damp, overcrowded holding cells. This practice, known as "Bullpen Therapy," was allegedly used by unscrupulous prosecutors to coerce defendants to plead guilty.

 By Order dated October 19, 1988, the Suffolk County Court granted two of plaintiff's motions to dismiss, and the Possession and Bail Jumping charges were dismissed "in the interest of justice" pursuant to CPL § 210.40.

 Plaintiff was held in the Riverhead Jail for three more weeks before he was returned to Allenwood. He was released from Allenwood on February 22, 1989.

 On March 16, 1990, plaintiff filed a claim in the New York State Court of Claims, pursuant to the Court of Claims Act, seeking relief as a person who had been wrongfully imprisoned. On October 12, 1990, his claim was denied because the vacatur of the conviction by the Appellate Division on July 6, 1987 and the subsequent dismissal of the charges by the County Court on October 19, 1988, were not based on the grounds enumerated in the Court of Claims Act.


 Although the defendants deny the substantive allegations in plaintiff's amended complaint, such allegations are accepted as true for the purposes of this motion. See Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). At this time, defendants raise four main defenses: (1) absolute immunity for acts undertaken by the district attorney defendants within the scope of their prosecutorial duties; (2) statute of limitations; (3) failure to satisfy all the elements for a claim based on malicious prosecution; and (4) failure to file a notice of claim against the County.

 A. Absolute Immunity

 In order to assure "the vigorous and fearless performance of the prosecutor's duty that is essential to the proper functioning of the criminal justice system," Imbler v. Pachtman, 424 U.S. 409, 427-28, 47 L. Ed. 2d 128, 96 S. Ct. 984 (1976), prosecutors are entitled to absolute immunity to § 1983 claims for their prosecutorial activities that are "intimately associated with the judicial phase of the criminal process. . . ." Id. at 430. Moreover, when the actions of a prosecutor are subject to absolute immunity, a supervising prosecuting attorney is also ...

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