New York State Court of Claims

New York State Court of Claims

STEEL v. THE STATE OF NEW YORK, #2002-016-011, Claim No. 100531, Motion Nos. M-63001, CM-63484


Where the judge at a hearing re-sentenced defendant on only one of two concurrent felony counts, with the longer term surviving, and the transcript unambiguously reflected same, the mistake in transmitting the paperwork was ministerial and the State cannot successfully interpose immunity as a defense against the claimants who were attacked by defendant after his release thirteen years too early.

Case Information

LINDA STEEL, as Administratrix of the Estate of Michelle Brey, Deceased
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):
Claimant's attorney:
Parker & Waichman, P.C.By: Jerrold S. Parker, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Alan B. Berkowitz, AAG
Third-party defendant's attorney:

Signature date:
January 28, 2002
New York City

Official citation:

Appellate results:

See also (multicaptioned case)


On September 26,1998, Franklin Scruggs raped Stephanie Dillon, and two weeks later raped and murdered Michelle Brey. These crimes occurred at a time when Scruggs should have been incarcerated in a state correctional facility, but had been mistakenly released following his re-sentencing on one of two terms of imprisonment he was serving concurrently. Claimants and defendant each here move for summary judgment.
I. The Facts
In September of 1990, Scruggs was sentenced to concurrent 20-year to life terms for two felony convictions, Assault II and Reckless Endangerment I (Steel affirm, exh I). The Second Department in 1994 vacated the sentence on the reckless endangerment conviction and sent it back to the court below for re-sentencing because such crime cannot serve as a predicate for sentencing as a persistent violent felony offender under Penal Law §70.08. People v Scruggs, 201 AD2d 514, 607 NYS2d 410 (2d Dept 1994). The second degree assault count does support a sentencing determination as a persistent violent felony offender.

On October 16, 1997, Scruggs was re-sentenced in County Court in Suffolk to 3 ½ to 7 years. It is clear from the transcript of the proceeding that Scruggs was being re-sentenced only on the reckless endangerment charge, and that the 20-to-life sentence for Assault II was unaffected. (Def affirm, exh E). Judge Joel Lefkowitz ruled:
Reckless Endangerment in the First Degree, you're hereby sentenced to a period of imprisonment having a maximum of seven years and a minimum of three and one-half years to run concurrent to the sentence you're presently serving. [Id., pp 7-8].

At the hearing, counsel for both sides had the same understanding as to what was happening:

Presently before the Court is the resentencing only on the count of the Reckless Endangerment and the defendant's sentence of twenty-five (sic) to life still remains that was on the Assault in the Second Degree. [Id., the assistant district attorney at pp 4 and 5].
Judge, there is a determination that's been upheld that Mr. Scruggs on the charge of Assault in the Second Degree is serving a twenty-years-to-life sentence and so I would ask your Honor to sentence him to the minimum under this charge . . . [Id., defense counsel at p 6].

In the court room, the part clerk, Joseph Soler, was responsible for making notations on the file jacket and court calendar that would reflect the hearing proceedings. At his deposition, Mr. Soler read out the entries, which were abbreviated on the forms. He read from the file jacket: "10-16-97, re-sentenced three and a half to seven, concurrent." (Steel affirm, exh E, p 27). The actual entry was "10/16/97 Resent 3 ½ - 7 Conc" (Def affirm, exh I).

The calendar is the daily log of a judge's cases. Soler reading from the October 16, 1997 calendar of Judge Lefkowitz: "Re-sent . . . prior felony offender . . . MIN three and one half... MAX . . . seven years . . . Concurrent to sentence . . . Now serving." (Steel affirm, exh H, pp 46-47). The actual entry, in a vertical format, was "Resent PFO Min 3 ½ Max 7 Conc to Sent now serving." (Def affirm, exh G).

The file and the calendar were both sent to the typist assigned to Judge Lefkowitz, Lorraine Blasko, whose title was principal office assistant. Ms. Blasko compared the two before typing the commitment order.[1] Inasmuch as the documents on their face were not inconsistent or otherwise irregular, she did not ask Soler for guidance. Blasko's deposition was submitted by each side, which includes her extensive discussion of what she typed, but the typed commitment order, an exhibit to the deposition was not included with the motion papers.

There is also a document known as a "file insert page," which can accommodate more information than the calendar, and to which information can be transferred from the calendar page. Blasko stated in her deposition that she had never seen a file without an insert, recalled that there was one for Scruggs, but could not remember its contents.[2]

Among the responsibilities of Barbara Bokina, a senior court clerk for the Suffolk County Court, was making sure that what occurred in the courtroom was transposed into the file in a form that others could rely upon. The court file includes the outside folder and the file insert. The data would be on the calendar, file folder, file insert, and where there was a trial, trial minute sheets. After Scruggs' crimes came to light, Ms. Bokina indicated that she was shown the calendar, file folder and commitment order, but not the file insert.

According to Bokina, she looked for the Appellate Division's decision on Scruggs in the court file -- it was not there, and she went ahead and signed the commitment order. Bokina concluded from the information at hand that Scruggs was being re-sentenced on both counts, not just one. When advised after the fact that the re-sentencing was only on the reckless endangerment count, Bokina responded, "Well, where does that show that." (Def affirm, exh K, p 34).

In the past, Bokina had caught errors, when necessary calling judges, court clerks or court reporters, but did not do so in this case because the paperwork was "clear" (id., p 42). At a staff meeting after Scruggs had committed his crimes, and later at her deposition in early 2000, Bokina maintained that if she came across the same paperwork again, she would again approve the same commitment order.

Margaret Wolcott at the time in question was the inmates record coordinator for the Great Meadow Correctional Facility. At her deposition, Ms. Wolcott testified that part of her duties was to interpret commitment orders for the 650 inmates at Great Meadow and calculate the time left to be served. What Wolcott saw with respect to Scruggs was a valid new commitment order signed by the clerk of Suffolk County indicating that the inmate had been re-sentenced on both the assault and reckless endangerment charges. Wolcott went to her computer, entered in the 3 ½ to 7- year term for each, and concluded that these new sentences "put him past his conditional release date, which I think might have been April of ‘97" (def affirm, exh D, p 57).

Wolcott reviewed the order, noting that his new sentence was technically consistent with that meted out to second felony offenders, namely that the minimum time was exactly half the maximum. However, she did not have the sentencing minutes in her possession.[3] Wolcott's sentence reviews were not subject to direct supervision. Rather when she had a question on the calculation of a sentence, Wolcott could check with either a lawyer in the counsel's office or with the office of sentence review.[4]
II. Immunity
Defendant's arguments on immunity are essentially that:

i. The acts or omissions at issue are not ministerial.

ii. Such non-ministerial acts or omissions are governmental as against proprietary in nature, and thus entitled to immunity (unless a special relationship can be demonstrated).

iii. In any event, the acts or omissions are cloaked with judicial immunity.

The minutes of the sentencing hearing before Judge Lefkowitz are unequivocal. The judge's decision was transmitted from part clerk (Soler), to court typist (Blasko), to court commitment clerk (Bokina) and then to the Corrections Department's records coordinator (Wolcott). What occurred, concedes defendant, was "akin to a game of telephone"[5] - - with a distinctly different message emerging at the far end of the chain of communication. Once Judge Lefkowitz had re-sentenced Scruggs, there was no place for the "exercise of reasoned judgment which could typically produce different acceptable results . . . " Tango v Tulevech, 61 NY2d 34, 41, 471 NYS2d 73, 77 (1983). Transmitting and implementing Judge Lefkowitz's decision was a ministerial act or sequence of acts admitting of only one result.

That Judge Lefkowitz's decision of October 16, 1997 should lead to only one result is not affected by the fact there were multiple actors, multiple steps and multiple documents. Nor is it affected by the possibility that the file insert page never existed or was lost somewhere along the process, or that the employees should have waited until they had the Appellate Division's order and the sentencing minutes. As to the transcripts, it was explained by Ms. Blasko in her deposition testimony that it was her job to arrange payment to court reporters, but she handled them in a batch - - 40 or 50 sets of minutes were mailed to various correctional facilities when the facilities sent a list of inmates.

The Court of Appeals in Tango immunized the actions of a probation officer in permitting two children to accompany their mother out-of-state over the objections of her ex-husband. There was an existing judgment awarding the mother permanent custody and a modification thereon, which was un-notarized and equivocal. Officer Tulevech not only examined the documents, but conferred with both the parents, visited the children and inspected them for signs of abuse.

In Boland v State of New York, 218 AD2d 235, 249, 638 NYS2d 500, 508 (3d Dept 1996), the failure of an employee of the State's Central Registry for Child Abuse and Maltreatment to transmit her report to the Child Protective Unit of Oneida County, rather than Ontario County, was held to be a ministerial act to which immunity does not attach.[6]

Defendant here maintains that the poor design of a ministerial system is itself a discretionary act entitled to immunity, citing only Southworth v State of New York, 62 AD2d 731, 405 NYS2d 548 (1978), aff'd 47 NY2d 874, 419 NYS2d 71 (1979).[7] This theory places the defendant in the position of having to argue just how poorly things were set up:

- "[T]he system was not structured to catch an error in communication between the court

room clerk and the commitment order clerk . . . [There was] a flaw in this system . . ." [Def 5/9/2001 mem of law, p 6].

- "Efforts by claimant to paint the mistaken commitment order as a typist's error, must fail. Plainly, this error was a systemic problem." [Id., p 21]

- "Due to the flawed system for processing commitment orders, many problems existed." [Id., p 22].

To accept defendant's theory that a straightforward transmittal function was established pursuant to some reasoned judgment, and thus beyond the realm of the ministerial, is at odds with the Tango decision, which focuses on whether a compulsory result obtains. The release of Scruggs did not involve the kind of policy considerations explained by Haddock v City of New York, 75 NY2d 478, 484-85, 554 NYS2d 439, 443 (1990):
Governmental immunity under the decisional law of this State does not attach to every act, but when official action involves the exercise of discretion or expert judgment in policy matters, and is not exclusively ministerial, a municipal defendant generally is not answerable in damages . . . Whether absolute or qualified, this immunity reflects a value judgment that - - despite injury to a member of the public - - the broader interest in having government officers and employees free to exercise judgment and discretion in their official functions, unhampered by fear of second-guessing and retaliatory lawsuits, outweighs the benefits to be had from imposing liability for that injury . . . Indeed, the very basis for the value judgment supporting immunity . . . becomes irrelevant where the municipality. . . [[8] ] exercises no judgment or discretion.

In fact, defendant made no submission to try to show that the method in place for the transmittal and implementation of a re-sentencing order was selected pursuant to a judgment with regard to personnel, operational or financial resources and capabilities. See Weiss v Fote, 7 NY2d 579, 200 NYS2d 409 (1960).

In sum, the acts or omissions of the defendant were ministerial in nature. Governmental immunity is thus removed from this case as an issue. Lauer v City of New York, 95 NY2d 95, 99-100, 711 NYS2d 112, 115 (2000). It becomes unnecessary to classify the acts or omissions as governmental or proprietary[9]; and if governmental, whether a special relationship exists.[10]
As to judicial immunity, defendant relies principally upon Weiner v State of New York, 273 AD2d 95, 97, 710 NYS2d 325, 327 (1st Dept 2000):
Concededly, it has been held by some courts that judicial immunity does not apply to "ministerial" acts . . . However, we take the view that the question of whether the act of a court employee is immune from suit does not rest on whether it is discretionary or nondiscretionary. On the contrary, judicial immunity applies to all acts of auxiliary court personnel that are basic and integral parts of the judicial function unless those acts are done in the clear absence of all jurisdiction . . . [citations and quotation marks omitted]

In Weiner, Family Court personnel processed and filed a pro se petition from claimant's former husband. Section 216-c of the Family Court Act divests clerks of any power to regulate the content and filing of such a petition to ensure that a judge, not a clerk, determines its legal sufficiency. 273 AD2d at 97, 710 NYS2d at 326, citing the McKinney's Practice Commentaries. The judge, working off what she later realized was a petition patently inconsistent with the extant custody order, issued a warrant for the arrest of claimant. When the mistake was recognized, Weiner was released from confinement.

The Weiner facts are distinguishable. The court clerk there adhered to the direction of the Family Court Act and uniformed officers then followed the warrant issued by a judge in taking Ms. Weiner into custody. Here, Judge Lefkowitz's sentencing decision on Scruggs was not implemented as decided. Such facts do not implicate judicial immunity under Weiner. See also, Sindram v Suda, 986 F2d 1459 (DC Cir 1993).

In view of the foregoing, defendant's immunity arguments on the subject facts do not persuade. Accordingly, this matter shall be decided on the basic principles of negligence.
III. Negligence
The motion papers, which I have reviewed, consist of the following:

A. On behalf of claimant Steel (for Bray):

1. A Notice of Motion and Affirmation in Support with exhibits A though M, respectively:

the Claim, Answer and Bill of Particulars; portions of the depositions of Blasko, Soler, Conroy, Bokina and Anthony Mayers (a State parole officer); Scruggs' rap sheet and inmate profile; Wolcott's 9/12/97 letter to Conroy; a copy of People v Scruggs, 201 AD2d 514; and portions of the deposition of Wolcott.

2. An Affirmation in Opposition to Defendant's Cross-motion and In Reply to Defendant's Opposition.

B. On behalf of claimant Dillon (whose request for summary judgment on liability was denominated a cross-motion, but given a motion number by the Office of the Clerk of the Court): 1. A Notice of Cross-Motion and Affirmation in Support with exhibits A through D -- the Claim, Answer, Bill of Particulars and one page from Scruggs' plea hearing on May 6, 1999. Further, the Dillon Affirmation states that it wishes to incorporate the facts and arguments from the Steel Affirmation because of the identity of the liability issues (page 3).
  1. 2. An Affirmation in Opposition to defendant's cross-motion and In Further Support of Dillon's cross-motion which contain a Memorandum of Law, with exhibit A (a newspaper article).
C. On behalf of defendant:
  1. 1. Notice of Cross-Motion and Affirmation with exhibits A though O, respectively:
Scruggs' rap sheet; a copy of People v Scruggs, 201 AD2d 514; Wolcott's 9/12/97 letter to Conroy; the Wolcott deposition; October 16, 1997 sentencing minutes; the Conroy deposition; October 17, 1997 court calendar; the Soler deposition; a file jacket photocopy; depositions of Blasko, Bokina and Meyers, the autopsy report of Brey; the police report of the death of Brey; and Dillon's deposition. Also included is a Memorandum of Law.

2. Defendant's Memorandum of Law in Reply to Claimants' Opposition to Defendant's Cross-Motion for Summary Judgment.
The submissions of counsel are extensive and bear out the considerable amount of work they have expended on their motions. With that said, the matter can be better comprehended by having counsel appear personally for oral argument. Accordingly, decision on claimants' motions and that portion of defendant's cross-motion concerning negligence, not immunity, is held in abeyance pending oral argument, which Chambers will schedule.

January 28, 2002
New York City, New York

Judge of the Court of Claims

[1] In fact, two commitment orders were typed by Blasko, the second one correcting the date from 1987 to 1997.
[2] Left unchallenged by defendant was the representation in Steel's Affirmation that the file insert was requested in discovery, not provided by defendant and now "apparently can't be found." (Page 5, unnumbered footnote).
[3] Note that the paperwork - - sans the minutes - - generated by the October 16, 1997 re-sentencing hearing changed Wolcott's view she had held a month earlier as to Scruggs' resulting status. See the September 12, 1997 letter Wolcott wrote when she had only the decision of the Appellate Division as a guide (Steel affirm, exh K). That letter displayed her familiarity with the 1994 Second Department decision which unmistakably re-sentenced Scruggs on only one of the two 20-to-life terms.
[4] The latter entity may not have been up and running when Wolcott received the Scruggs file. She testified at her July 21, 2000 deposition that it had been established a few years before. (Compare pages 25 and 63 of her ebt, def affirm, exh D).
[5] Defendant's Memorandum of Law (May 9, 2001), page 23.
[6] Ultimately, claimant Boland could not show proximate cause. 176 Misc 2d 625, 673 NYS2d 508 (1998), affd 263 AD2d 801, 693 NYS2d 748 (3d Dept 1999).
[7] Southworth arose from a vehicular accident involving a driver with a record of alcohol- related violations who was issued an interim license under an experimental program for persons with poor driving records.
[8] This portion of the quoted material without the ellipses reads, "where the municipality violates its own internal rules and policies and exercises no judgment or discretion." (Italics added).
[9] See, for example, Sebastian v State of New York, 93 NY2d 790, 698 NYS2d 601 (1999); Miller v State of New York, 62 NY2d 506, 478 NYS2d 829 (1984).
[10] Cuffy v City of New York, 69 NY2d 255, 513 NYS2d 372 (1987).