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In re Application of Warner

Supreme Court, Albany County

December 23, 2015

In the Matter of the Application of Sean Warner, Petitioner, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules
Eric T. Schneiderman, as Attorney General of the State of New York, Respondent.

          Murphy Meyers, LLP Attorneys for Petitioner By: Cheryl Meyers Buth, Esq.

          Eric T. Schneiderman Attorney General of the State of New York (By: George Michael Zimmermann, Assistant Attorney General, of Counsel) Attorney for Respondent

          David A. Weinstein, J.

         This Article 78 petition challenges a determination of the Office of the New York State Attorney General (the "OAG" or "Attorney General") made by letter dated May 18, 2015, terminating the State's provision of a defense to petitioner Sean Warner in a federal civil lawsuit pursuant to Public Officers Law ("POL") § 17. This case is one of three parallel proceedings. The other two, brought by Keith Swack and Matthew Rademacher, [1] are addressed in separate opinions also issued today. The petitioners were all correction officers assigned to Attica Correctional Facility ("Attica") at the time of the events that are at the genesis of these proceedings.

         The facts underlying this proceeding are as follows:

         On January 17, 2012 Warner, Swack, Rademacher and a fourth individual were named as defendants in an action initiated by plaintiff George Williams in New York State Supreme Court, Kings County by Summons with Notice (the " Williams action") (Petition ["Pet."] ¶ 7). Williams alleged that the defendants assaulted him on August 9, 2011, while he was incarcerated at Attica. In a letter from the OAG dated March 8, 2012, the State agreed to assume the cost of Warner's defense and that of his co-defendants in the Williams action (id. ¶ 10; see Answer ["Ans."] Ex. B). The letter noted that the Attorney General had "not investigated all the facts and circumstances" of the matter, and "reserve[d] the right at any time to terminate, withdraw, revoke and disclaim any and all obligations of the State" undertaken by the letter (id. at 2).

         Upon defendants' demand, Williams filed a verified complaint dated March 22, 2012 (Pet. Ex. A). The complaint alleged that on the day in question, "without justification" defendants delivered multiple kicks and punches to Williams' head and body, slammed him against a wall, threw him down the stairs and shouted racial epithets at him (id. ¶¶ 11 - 14). The complaint also stated that the defendants submitted false reports about the incident, which resulted in disciplinary charges being filed against Williams, and sanction imposed on him (id. ¶¶ 16-20). Williams' pleading set forth causes of action under 42 USC § 1983, and for battery and intentional infliction of emotional distress.

         Defendants removed the Williams action to federal court, where it was stayed due to the pendency of a criminal indictment brought against them in Wyoming County [2] (see Pet. Ex. A). The civil case was ultimately transferred to the United States District Court for the Western District of New York [3] (see Pet. ¶ 14).

         The original indictment was dismissed, and a new one filed against Warner, Swack and Rademacher on January 22, 2013. The indictment set forth five counts against Warner arising out of the alleged August 9, 2011 assault on Williams: Gang Assault in the First Degree, Tampering with Physical Evidence, Official Misconduct, and two counts of Offering a False Instrument for Filing in the First Degree. The first three counts also charged Swack and Rademacher with the same offenses (Pet. Ex. B).

         The Gang Assault charge alleged that the three correction officers "caused serious physical injury" to Williams, with intent to do so (id.). The substantive portion of the Official Misconduct charge read in its entirety as follows:

"At said time and place KEITH SWACK, SEAN WARNER, & MATTHEW RADDEMACHER [sic] committed an act relating to their office but constituting an unauthorized exercise of his official function, knowing that such act is unauthorized" (id.).

         Official Misconduct is a Class A misdemeanor (see Penal Law § 195.00[1]).

         At defendants' request, the District Attorney provided a bill of particulars containing further detail on the allegations in the indictment. The original bill did not reference the Official Misconduct Charge, and by subsequent Decision and Order the Court directed the prosecutor to give further specificity as to that count. The prosecutor responded by characterizing the Official Misconduct allegation as follows: "the Defendants engaged in the unauthorized use of physical force upon the victim" (Ans. Ex. C).

         On March 2, 2015, Warner pled guilty to a single count of Official Misconduct, in satisfaction of the entire indictment. The complete colloquy regarding the conduct to which he admitted was as follows:

"The Court: Are you Sean Warner, the named Defendant in Indictment 6852?
Mr. Warner: Yes, sir.
The Court: And do you admit that you were in Wyoming County on or about August 9th, 2011?
Mr. Warner: Yes, sir.
The Court: And at that date, time and place, did you commit an act relating to your office but constituting an unauthorized exercise of your official functions, knowing that such act was unauthorized, and that the unauthorized act was removal of a baton from State grounds?"
Mr. Warner: Yes, Sir" (Pet Ex. C at 15-16).

         Warner then entered a plea of guilty, after which his attorney asked the Court to clarify that Warner was employed as a public servant on August 9, 2011. He confirmed that this was true (id. at 16).

         Warner was sentenced to a conditional discharge and, as a result of the plea, resigned his position as a correction officer.

         Following Warner's conviction, the OAG notified him by letter dated May 18, 2015 that it would no longer provide him a defense in the Williams action (Pet. Ex. D). It made that determination on two grounds.

         First, it noted that section 17 only covers acts or omissions "which occurred or [are] alleged to have occurred while the employee was acting within the scope of his public employment duties" (id. at 2). According to the letter, "[t]he nature of the conduct to which Mr. Warner pled and which by his own admission constitutes a crime cannot be said to be within the scope of his employment" (id.).

         Second, the letter stated that Warner had "admitted to an intentional wrong doing" (id.). It asserted that the duty to indemnify under Section 17 does not apply to injuries resulting from intentional wrongdoing, and "[w]here the State has no legal obligation to indemnify, it has no obligation to defend" (id., citing Matter of Sharrow v State of New York, 216 A.D.2d 844, 846 [3d Dept 1995]).

         Petitioner then commenced this Article 78 proceeding, by which he seeks an order "enforcing his rights under Public Officers Law section 17, compelling the [S]tate to rescind the position it took in its May 18, 2015 letter..., [and] paying for the cost of defense in Williams v Warner, et al.... " (Pet. at 19-20). The petition avers, among other things, that the Court in the Williams action has rejected defendants' application for a stay ...

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