STEEL v. THE STATE OF NEW YORK, #2002-016-011, Claim No. 100531, Motion Nos.
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.
LINDA STEEL, as Administratrix of the Estate of Michelle Brey, Deceased
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
ALAN C. MARIN
Parker & Waichman, P.C.By: Jerrold S. Parker, Esq.
Eliot Spitzer, Attorney GeneralBy: Alan B. Berkowitz, AAG
January 28, 2002
New York City
See also (multicaptioned
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.
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
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
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
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
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.
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
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
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.
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
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
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"
- - 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
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
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
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.
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
, 62 AD2d 731, 405 NYS2d 548 (1978), aff'd
47 NY2d 874, 419
NYS2d 71 (1979).
This theory places the
defendant in the position of having to argue just how poorly things were set
- "[T]he system was not structured to catch an error in communication between
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
- "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. . .
] 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
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
; and if governmental, whether a
special relationship exists.
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
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.
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,
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
2. An Affirmation in Opposition to Defendant's Cross-motion and In Reply to
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).
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. Notice of Cross-Motion and Affirmation with exhibits A though O,
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
City, New York
HON. ALAN C. MARIN
Judge of the Court of Claims
In fact, two commitment orders were typed by
Blasko, the second one correcting the date from 1987 to 1997.
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).
Note that the paperwork - - sans
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.
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).
Defendant's Memorandum of Law (May 9, 2001),
Ultimately, claimant Boland could not show
proximate cause. 176 Misc 2d 625, 673 NYS2d 508 (1998), affd
801, 693 NYS2d 748 (3d Dept 1999).
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
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
See, for example, Sebastian v State of New
, 93 NY2d 790, 698 NYS2d 601 (1999); Miller v State of New York
62 NY2d 506, 478 NYS2d 829 (1984).
 Cuffy v City of New York
, 69 NY2d
255, 513 NYS2d 372 (1987).