New York State Court of Claims

New York State Court of Claims
HUNT v. THE STATE OF NEW YORK, #2005-016-010, Claim No. 101841

Claim was dismissed where Claimant who was sexually assaulted in a New York City Jail failed to prove that the State was responsible therefor. REVERSED; Liability found 36 AD3d 511 1st Dept 1/23/07)
Case Information
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):

Alan C. Marin
Claimant’s attorney:
John D. B. Lewis, Esq.By: Gary E. Divis, Esq. (Of Counsel)
Defendant’s attorney:
Eliot Spitzer, Attorney GeneralBy Victor J. D’Angelo, Esq., AAG
Third-party defendant’s attorney:

Signature date:
February 14, 2005
New York

Official citation:

Appellate results:
REVERSED; Liability found 36 AD3d 511 (1st Dept 1/23/07)
See also (multicaptioned case)

This is the decision on liability following the trial of the claim of Kenneth Hunt alleging that he was sexually assaulted while being held at the Manhattan Detention Center (MDC). Mr. Hunt maintains that he should have been placed in protective custody.
Hunt was arraigned on Tuesday, September 15, 1998 in Manhattan Criminal Court after being arrested at the restaurant where he worked in lower Manhattan. Since he was unable to make bail, a securing order, also known as a “commit card,” Form 299, was prepared (cl exhs 1 and 3). Under the heading “Court Action,” a line was filled out for September 15, 1998, which included the name of the judge, the conditions of bail, and the date of the next appearance, September 18.
John Hayes, the chief clerk of the New York County Criminal Court, testified that in Criminal Court, a court officer enters the information on the commit card. Lt. Robert Miglino, who in 1998 was a sergeant in the arraignment part in Manhattan Criminal Court, testified that the practice was to have a court officer “on commits” standing next to the judge. The commit card contains this preprinted language:
To the Commissioner of Correction of the City of New York: By Order of the Judge presiding in the Calendar Part, the defendant named above be and hereby is committed to your custody until 9:30 a.m. of the adjourned date, at which time you shall deliver him to the adjourned part, unless he be released on bail or otherwise in accordance with the law.

Lt. Miglino and Captain Fred Sporrer of the City Department of Correction (DOC) testified that the commit card stays with DOC except when the detainee is in court. Captain Sporrer explained that after an individual who cannot make bail is arraigned, the Department takes custody of him. The securing order or commit card, said Sporrer, is: “basically what we hold the inmate on and that’s our basic document we use to start the initial classification.”
The copy of Hunt’s commit card that is in evidence contains eight lines of entries through a court appearance on January 12, 1999 (cl exh 3). On the top right of this side of the card is written, “Protective Custody”; no date accompanies the entry, nor was there any testimony on when it was written. On the lower right of this side of the card is a four-line section for Remarks; it is blank on Hunt’s card. Messrs. Hayes, Miglino, and Sporrer each testified that when “protective custody” is entered on the commit card, it is customarily written in the Remarks section, but there is no rule or directive to that effect.
Once in the custody of the Department of Correction, the next step is an intake screening interview, recorded on the Arraignment and Classification Risk Screening Form, which for Mr. Hunt was done on the morning of Tuesday, September 15 (def exh A). The form contains information on the individual’s health, the name of a contact in case of an emergency and any special needs. What is elicited here will determine a detainee’s housing assignment.
Hunt was not assigned to any special housing, but placed in the general population of the Manhattan Detention Center. According to Part E of the screening form, Hunt stated that he was homosexual and had always been assigned protective custody when he was previously incarcerated. Part E was consistent with the testimony of both Sporrer and claimant as to what the latter had said at the time. Capt. Sporrer, on the stand, explained that, without a court order, this was not enough to support a request for protective custody.
There is also another category of housing known as gay housing. When asked about gay housing, Hunt replied that “ I’d heard the term” and strongly denied having requested same.
Hunt testified that following the intake interview at MDC on September 15, and before his next court appearance on September 18, he was sexually assaulted “several times.” On September 18, while waiting for his case to be called, Hunt informed his lawyer, Crystal West, what had happened to him. Ms. West made a request for protective custody, which was granted by Judge Gabriel W. Gorenstein (cl exh 1; see also cl exh 4).
Hunt testified about another sexual assault that took place September 21. Claimant recalled that he called his lawyer the next day, told her of the assault and said that he was still being housed with the general population. On September 25, Ms. West spoke over the phone to Security Captain German Ocasio of the Manhattan Detention Center, who testified that counsel told him her client had been sexually assaulted. Claimant was then placed in protective custody later that day.
The State, or other public entity charged with the custody of inmates or detainees, is under a duty to use reasonable care to protect these individuals from foreseeable risks of injury, including assaults from other inmates. Sanchez v State of New York, 99 NY2d 247, 754 NYS2d 621 (2002). At trial, counsel for claimant requested that he be permitted to amend the pleadings to narrow Mr. Hunt’s claim, basing it only upon the September 21 sexual assault. For our purposes here, it will be assumed that the September 21 assault is the only one for which recovery is sought.
The placing of Hunt in MDC’s general population following the intake interview of September 15 was a decision made by an employee of the City of New York. The defendant State of New York had no involvement in this determination, which in any event was not challenged as violative of applicable procedure.
On September 18, defendant returned to court and on motion of Ms. West, Judge Gorenstein granted protective custody, which was indicated by a notation on the Record of Court Action: “Protective Custody” was written in the space for Court Action and the judge initialed it (cl exh 1). Claimant’s exhibit 7 is a document with a caption entitled “Order for Protective Custody” and signed (or initialed) by Judge Gorenstein; it is dated September 24. The warden, or other appropriate officer, of the Manhattan Detention Center was ordered to place Kenneth Hunt in protective custody during the pendency of his incarceration. When Captain Sporren was shown this document, together with the commit card and the notice of a right to a hearing to contest the assignment (cl exh 9), he concluded that Hunt was placed in protective custody on September 24. In fact, as we have seen, that was done on September 25.
In any event, assuming that the September 18 action by Judge Gorenstein was an order directing protective custody, claimant has not set forth any detail how the order was administratively processed and transmitted, and how acts or omissions of the State resulted in the New York City Department of Correction failing to place Hunt in protective custody until September 25. C.f. Steel v State of New York, Ct Cl dated January 28, 2002 (unreported Interim Order, claim nos. 100531 & 100814; motion nos. M-63001, M-64618, and CM-63484, Marin, J.), affd 307 AD2d 919, 762 NYS2d 883 (2d Dept 2003). The only piece of evidence potentially implicating any such act or omission by the State was the writing of “protective custody,” presumably by a court officer, an employee of the defendant, on the top right of the commit card, instead of in the Remarks section. Such does not sufficiently demonstrate the State’s responsibility for Hunt remaining housed with the general population of the Manhattan Detention Center until September 25.
Claimant points to the testimony of psychiatric social worker Carol Gore. Ms. Gore recalled that claimant met with her in her office at MDC on September 19, and she telephoned a Captain Green who told her that Hunt’s paperwork did not indicate a court-ordered protective custody status. Based on Gore’s testimony of what Green told her about Hunt’s paperwork, claimant concludes that the court officer on September 18 failed to enter protective custody on the card when Judge Gorenstein directed same. (Cl Brief pp. 21-22). To this trier of fact, such conclusion is not persuasive.
*** In view of the above, claimant has not proven that any act or omission by the defendant resulted in the failure of the Department of Correction of the City of New York to move claimant from the general population to protective custody in its Manhattan Detention Center prior to the September 21 assault. Such is a necessary element to defendant’s culpability; lacking it, the claim of Kenneth Hunt (no. 101841) is dismissed.


February 14, 2005
New York, New York

Judge of the Court of Claims

[1] Cl exh 3, p.2. See CPL §180.10.6. The format of capitalizing words in the various court documents has been modified for this Decision.
[2] On Item F1, next to the inquiry, “Do any documents indicate suicide watch and/or protective custody,” the “no” box was checked.” See also claimant’s exhibit 9.