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SMITH v. GRIBETZ

March 6, 1997

JAMES F. SMITH, Plaintiff, against HONORABLE KENNETH GRIBETZ, District Attorney, Rockland County, THE OFFICE OF THE DISTRICT ATTORNEY, ROCKLAND COUNTY, NEW YORK, ORANGE & ROCKLAND UTILITIES, INC., JOHN AND JANE DOES I THROUGH X, EDWIN STIER and STIER, ANDERSON & MALONE, Defendants.


The opinion of the court was delivered by: CONNER

 CONNER, Senior D.J.:

 Plaintiff James F. Smith brings this action pursuant to 42 U.S.C. § 1983. Plaintiff initially alleged violations of his constitutional rights by the former district attorney of Rockland County, New York, Kenneth Gribetz ("District Attorney"). *fn1" Plaintiff subsequently filed an amended complaint in which he named as additional defendants the Office of the Rockland County District Attorney; plaintiff's former employer, Orange and Rockland Utilities, Inc.; the law firm of Stier, Anderson & Malone; and Edwin Stier, a partner in that firm (hereinafter Orange and Rockland Utilities, Mr. Stier, and his law firm are collectively referred to as the O&R Defendants).

 Plaintiff contended that the defendants violated 42 U.S.C. § 1983 by engaging in actions that deprived him of his rights under the Fifth, Sixth, and Fourteenth Amendments. In addition, plaintiff asserted pendent state law claims of malicious prosecution and abuse of process against the O&R Defendants. Subsequently, plaintiff settled his claims against the O&R Defendants, and these claims are no longer before the court. The District Attorney and the Office of the District Attorney ("D.A. Defendants") now move to dismiss plaintiff's complaint for failure to state a claim upon which relief may be granted.

 BACKGROUND

 Plaintiff served as the chief executive officer and chairman of the board of Orange & Rockland Utilities, Inc ("O&R"). In August 1993, a vice-president of O&R was arrested and charged with criminal misconduct relating to her employment at O&R. Shortly thereafter, Judge Ingrassia, the administrative judge for the ninth judicial district of New York, ordered a special investigative grand jury impaneled to investigate any criminal conduct involving O&R or its employees. In late August 1993, Smith initiated the appointment of a Special Committee of the Board of Directors to oversee an internal investigation at O&R. The Special Committee eventually retained the law firm of Stier, Anderson & Malone to conduct the investigation.

 On October 7, 1993, O&R terminated plaintiff's employment and entered into a cooperation agreement with the District Attorney's Office pursuant to which O&R agreed, inter alia, to provide the District Attorney with unfettered access to all of O&R's relevant corporate records as well as to any evidence and analysis produced by Stier, Anderson & Malone in the course of its investigation. In exchange for O&R's cooperation, the District Attorney agreed not to file criminal charges against O&R.

 In March 1994, O&R filed a civil action in Rockland County Supreme Court alleging that plaintiff misused approximately $ 366,000 in corporate funds and property. Shortly thereafter, Justice Miller compelled arbitration of O&R's claims pursuant to a provision in plaintiff's employment contract. On March 21, 1994, the grand jury indicted Smith. That same grand jury returned a superseding indictment on June 12, 1994, charging Smith with twenty-four counts of larceny and falsifying business records. Each count stems from Smith's alleged improper use of corporate funds and property for personal purposes. The indictment charged Smith with the misappropriation of a total of approximately $ 45,000.

 In a motion dated July 20, 1994, Smith moved before Rockland County Court Judge Robert Meehan to dismiss the indictment on the grounds that the grand jury had been denied exculpatory information about Smith and that it was impermissibly biased against him. *fn2" Moreover, plaintiff claimed that the conduct for which he was indicted was not criminal, that he was a victim of selective prosecution, and that O&R had improperly influenced the district attorney's decision to proceed against him. Judge Meehan denied plaintiff's motion on October 19, 1994. Smith then applied to the Appellate Division for a Writ of Prohibition, which was denied, and to the Court of Appeals for leave to appeal, which was also denied.

 On December 1, 1994, plaintiff again moved for a dismissal of the indictment, repeating many of his previous allegations. Judge Meehan denied this motion on February 10, 1995. Also on that date, Judge Meehan granted Smith's motion to preclude the State's introduction at trial of evidence of uncharged crimes. After the case was transferred to Justice Colabella, plaintiff moved to dismiss the indictment on the ground that he had been prejudiced by the District Attorney's submission to the grand jury of evidence of uncharged conduct. On May 3, 1995, Justice Colabella, having examined the grand jury minutes, concluded that no grand jury misconduct had occurred.

 On April 6, 1995, plaintiff commenced this civil rights action seeking damages and an order enjoining the New York State criminal proceeding against him. We denied plaintiff's request for injunctive relief and observed that plaintiff "raised each of his federal constitutional arguments in a motion to dismiss the indictment that was included in his Omnibus Motion made before Judge Meehan in Rockland County Court. . . . We have no doubt that plaintiff has been afforded a full and fair opportunity to air his federal constitutional claims in New York state court." Opinion and Order dated May 26, 1995, at 10-11. However, we also denied a motion by the District Attorney to dismiss and ordered that plaintiff's action be placed on this court's suspense docket pending the resolution of the criminal prosecution in state court.

 Plaintiff's criminal trial commenced on June 5, 1995. Shortly thereafter, Justice Colabella, based on statements of a witness during cross-examination, found that the State had failed to disclose potentially exculpatory material and directed the State to provide plaintiff with that material immediately. On August 15, 1995, after denying plaintiff's motion for a trial order of dismissal, Justice Colabella acquitted plaintiff of all charges. In mid-September, plaintiff filed an Amended Complaint with this court in which he named the Rockland County District Attorney's Office, O&R, the Stier law firm, and Edwin Stier as additional defendants.

 DISCUSSION

 I. The District Attorney Defendants' Motion ...


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