HENNESSY v. STATE OF NEW YORK, #2008-015-504, Claim No. 112277
Following a trial on the issue of liability, claim for false imprisonment and
negligence was dismissed. Bench warrant for claimant's arrest was valid on its
face and confinement was therefore privileged. Additionally, Judge's alleged
negligence in issuing the warrant was immune from liability. Even if conduct
complained of was performed by Court personnel it was integral part of the
judicial process and deserving of judicial immunity.
Footnote (claimant name)
STATE OF NEW YORK
Footnote (defendant name)
FRANCIS T. COLLINS
Friedman, Hirschen & Miller, LLPBy: Carolyn B. George, Esquire
Honorable Andrew M. Cuomo, Attorney General
Dennis M. Acton,
EsquireAssistant Attorney General
May 22, 2008
See also (multicaptioned
This claim proceeded to trial on the issue of liability on February 19, 2008.
Claimant Colin Hennessy alleges that the defendant was negligent in failing to
notify him of a scheduled court appearance regarding a criminal matter in Albany
City Court on December 1, 2005. As the result of the claimant’s failure
to appear in court, a bench warrant was issued and the claimant was arrested on
February 9, 2006 and confined until his release on February 10, 2006.
Claimant was 21 years of age at the time of trial. He testified that he was
arrested in September 2005 and charged with felony robbery and assault. He
retained Michael Magguilli, Esq. as his criminal defense attorney and entered a
plea of not guilty. The witness testified that each time a future court
appearance was scheduled he was notified of the date by either the Judge or Mr.
On February 9, 2006 the claimant was in a motor vehicle accident while driving
his father’s car on Madison Avenue in Albany, New York. According to the
claimant’s testimony, the vehicle he was driving was struck by another
vehicle which thereafter left the scene of the accident. He drove approximately
one mile to Sage College where his girlfriend resided. While he was at his
girlfriend's dormitory room, two police officers and a public safety officer
from the college arrived. After speaking to the officers for approximately
twenty minutes the claimant was initially told that he was free to leave.
Instead, at approximately 11:30 p.m. on February 9, 2006 he was arrested on a
bench warrant issued upon his failure to appear in Court. The claimant was
released from custody on February 10, 2006 at approximately 10:00 a.m. He
testified that the felony charges arising from the September 2005 arrest were
ultimately reduced to a violation.
Claimant testified that he was not aware that he had missed a court appearance.
He testified that every time he went to court in relation to the criminal
charges pending against him he was given a card with the date of the next
scheduled appearance indicated thereon and that he considered court appearances
On cross-examination the claimant testified that after the motor vehicle
accident, which occurred at approximately 9:00 p.m., he drove to Washington Park
and inspected his vehicle. He then went to Sage College on New Scotland Avenue
in Albany. The police arrived at his girlfriend's dormitory room between 10:30
and 11:00 p.m. Although the claimant testified that the other vehicle involved
in the accident had left the scene, he never called police to report the
Rachel Barkley, the claimant’s girlfriend, was next called to testify.
Ms. Barkley testified that she currently attends the State University of New
York at Albany. She resided at Sage College in Albany and had been dating the
claimant for approximately two years at the time of his arrest in February 2006.
Ms. Barkley testified that the claimant arrived at her dormitory on the evening
of February 9, 2006. Approximately one hour later the police and campus
security arrived and questioned claimant concerning his possible involvement in
an earlier automobile accident. The officers took the claimant outside and when
Ms. Barkley exited the building approximately ten minutes later she observed the
claimant being taken away by the police in handcuffs.
Daniel Hennessy, the claimant’s father, was called to testify as the
claimant's next witness. Mr. Hennessy testified that in the Fall of 2005 the
claimant resided with him and his wife in Defreestville, New York. Mr. Hennessy
testified that he attended all court appearances with his son and Mr. Magguilli,
his son’s lawyer. According to Mr. Hennessy his son was notified of
future court dates by the receipt of a card given to him by a Court Clerk with
the date and time of the next appearance indicated thereon. He testified that
such notification was never received by mail. According to the witness,
his son’s last court appearance was in September or October 2005.
Sometime in the Fall of 2005 the witness called Mr. Magguilli to inquire as to
the status of his son’s case because it seemed to be languishing. As of
February 2006 he did not know the date of the claimant's next scheduled court
Mr. Hennessy went to the police station following his son’s arrest on
February 9, 2006. There he was advised that his son had been involved in an
automobile accident and was arrested on a bench warrant relating to a missed
court appearance. The witness was unaware that his son had missed a court
appearance. With the assistance of Mr. Magguilli, the claimant was released to
his father's custody at approximately 10:00 a.m. on February 10, 2006.
Michael Magguilli, Esq. was the claimant’s next witness. Mr. Magguilli
testified that he was admitted to the New York State Bar in January of 1982. He
is currently employed as the Town Attorney for the Town of Colonie, New York and
was previously engaged in the private practice of law. Mr. Magguilli also
served as a part-time public defender in Albany County, New York. In the Fall
of 2005 he was retained by claimant with regard to serious criminal charges
brought against him and appeared in Albany City Court on his behalf on September
28, 2005 and October 12, 2005, at which time the matter was given a
“control date” of December 1, 2005. Mr. Magguilli testified that
he requested a control date instead of an adjournment because the District
Attorneys’ office had not yet decided whether the matter would be
transferred to County Court for a potential felony indictment. The witness
testified that no appearance was required on a control date. Mr. Magguilli
first learned that a bench warrant had been issued for the claimant when he
received a telephone call from the claimant’s father in February 2006. He
appeared in court on behalf of the claimant and secured his release from police
The witness testified that sometime after December 2005 the felony charges
then pending against the claimant were reduced to a misdemeanor. A
Prosecutor’s Information received in evidence (Exhibit 14) reflects that
the claimant was formally charged with assault in the third degree (Penal Law,
§ 120.00 ), a class A misdemeanor, on December 13, 2005. According to
Mr. Magguilli, under these circumstances it is customary for the court or the
District Attorneys’ Office to contact a criminal defendant in order to
advise him that the case will remain in Albany City Court (Police Court) and set
a new appearance date.
Mr. Magguilli reviewed Exhibit 10, a transcript of the proceedings in Albany
City Court on February 10, 2006, and testified that the transcript was in error
to the extent it indicates he stated “Last we heard [the case] was set
down on calendar for review” (see Exhibit 10, p. 2). Rather, Mr.
Magguilli testified that he actually said “Last we heard [the case] was
sent down to County for review”. Notably, this appears to be consistent
with Mr. Magguilli’s next statement on the record for February 10, 2006:
"The last District Attorney I spoke to, it was our impression the case was still
in County Court being reviewed. We were never notified it was sent to this
Court. I understand there is a warrant and ask the Court to release my
client” (Exhibit 10, p. 2)."
Mr. Magguilli explained that Police Court is loud and the statements are
On cross-examination Mr. Magguilli testified that he has a specific
recollection that on February 10, 2006 he advised the presiding judge that the
case was “sent down to County for review”. He testified that the
transcript received as Exhibit 10 is incorrect in relating that the case was
"set down on calendar for review". He asked for a control date rather than an
adjournment because, according to Mr. Magguilli, a control date avoids the
necessity of a court appearance where a case is still under review for
indictment by a grand jury. Mr. Magguilli acknowledged that the term
“control date” is not a defined term, but a matter of common usage
in Police Court where he has practiced for twenty years. He testified that
although the court generally telephones counsel before issuing a bench warrant,
no one called him regarding the issuance of the bench warrant for the
claimant’s arrest on December 1, 2005.
On redirect examination Mr. Magguilli testified that a control date is set to
allow time for a determination regarding whether or not the case would be
presented to a grand jury for indictment on felony charges or whether the
criminal defendant would be charged with a misdemeanor. Mr. Magguilli
explained that jurisdiction in the City Court is limited to misdemeanors and
that felonies are handled in the County Court. According to Mr. Magguilli as of
December 1, 2005, the date the bench warrant was issued, the charges against the
claimant remained felonies. A Prosecutor's Information charging the claimant
with assault in the third degree - a misdemeanor - was served on December 13,
2005 (Exhibit 14).
Janice Cellucci was the claimant’s last witness. Ms. Cellucci testified
that she is the Chief Clerk in the Albany City Court, Criminal Part, and
appeared pursuant to a subpoena duces tecum issued to the Albany City Court.
She testified that Exhibit 16 is the Albany City Court calendar for December 1,
2005. The document reflects that the criminal matter involving the claimant was
listed as number 16 on the calendar. She testified that she reviewed court
records in response to the subpoena and the records did not contain
correspondence to either the claimant or Mr. Magguilli regarding a scheduled
court appearance on December 1, 2005.
This concluded the claimant’s case in chief.
The defendant called the Honorable William Carter to testify on its behalf.
Judge Carter testified that he is an Albany City Court Judge in the criminal
part. Judge Carter testified that according to Exhibit 6, a copy of the Albany
City Court file, the claimant’s criminal case was adjourned on September
28, 2005 and again on October 12, 2005. The matter next appeared on the
calendar on December 1, 2005 which Judge Carter described as "an appearance
date" scheduled at the request of the defendant (claimant herein) and without
the consent of the District Attorney's Office. The witness testified that the
court file further reflects that the defendant failed to appear in court on
December 1, 2005 and a bench warrant was issued for his arrest. Judge Carter
stated that he is familiar with the term "control date" and that both parties
were required to appear in Albany City Court on December 1, 2005.
On cross-examination Judge Carter testified that a calendar is generated for
each court date and that the name of each defendant scheduled to appear should
appear on the calendar although this is not always the case. Upon review of the
transcript of the proceedings for October 12, 2005 (Exhibit 8) the witness
testified that although defense counsel requested a control date of December
1, 2005 the record does not reflect the consent of the District Attorney. Where
the District Attorney stands silent, as was the case on October 12, 2005
involving Mr. Hennessy, consent to the request for a control date is not
assumed. According to Judge Carter:
"The Control date . . . is a felony control date that the attorney asks for in
the hopes that the District Attorney will make a motion to the Court to reduce
the felony to a misdemeanor. All parties have to be present for that."
The witness testified that as is noted with regard to other entries contained
in Exhibit 6, the defendant (claimant) was required to appear except where his
attendance was specifically excused.
Judge Carter testified that he decides whether or not a bench warrant should be
issued for a defendant’s failure to appear in court. A defense attorney
is sometimes, but not always, contacted by telephone prior to the issuance of a
warrant. The witness testified that pursuant to CPL 550.10 a defendant may be
summoned to court by way of either notification or the issuance of a bench
This concluded the trial testimony.
To the extent the claim can be read to include a cause of action for false
arrest or imprisonment it must fail.
establish a cause of action for false arrest or imprisonment a claimant must
show "(1) that the defendant intended to confine him, (2) the [claimant] was
conscious of the confinement, (3) the [claimant] did not consent to the
confinement and (4) the confinement was not otherwise privileged..."
(Broughton v State of New York
, 37 NY2d 451, 456 ), cert
denied sub nom. Schanbarger v Kellogg
, 96 S Ct 277 ).
"[W]here a facially valid order issued by a Court with proper jurisdiction
directs confinement, that confinement is privileged . . . and everyone
connected with the matter is protected from liability for false imprisonment"
(Holmberg v County of Albany
, 291 AD2d 610, 612 , lv denied
98 NY2d 604 ; see also Nuernberger v State of New
, 41 NY2d 111 ; Harty v State of New York
, 29 AD2d 243
27 NY2d 698 ; Salzano v Town of
, 300 AD2d 716 ). Inasmuch as it is undisputed both that
the bench warrant was facially valid (see
CPL 550.10) and that the Albany
City Court had preliminary jurisdiction of the matter (see
10.30 ), liability cannot be predicated on the theory of false arrest or
To the extent the claim is predicated on a negligence theory of liability, the
Court finds that the defendant is immune from liability for the conduct of Judge
Carter in issuing the bench warrant authorizing the claimant's arrest. The
doctrine of judicial immunity is deeply rooted in the common law and is
“necessary to assure that judges, advocates and witnesses can perform
their respective functions without harassment or intimidation” (Butz v
Economou, 98 S Ct 2894, 2913 ). The doctrine is extremely broad.
“Acts performed in excess of jurisdiction are still subject to the
privilege and it is only those acts performed in the clear absence of any
jurisdiction over the subject matter that fail to come under the umbrella of
immunity” (Harley v State of New York, 186 AD2d 324, 325 ,
appeal dismissed 81 NY2d 781 ). It appears to be undisputed that
preliminary jurisdiction over the criminal charges brought against the claimant
properly rested in the Albany City Court (see CPL § 10.30 ).
In similar circumstances, it has been held that a Judge is immune from
liability. For example, in Rosenstein v State of New York (37 AD3d 208
) even conduct which was allegedly "malicious or corrupt" such as a
Housing Court Judge allegedly changing the date of trial without notifying the
claimant in order to grant a default judgment in favor of a landlord was cloaked
with absolute immunity (id. at 208-209). In Salzano v Town of
Poughkeepsie (300 AD2d 716 ), the Appellate Division, Third Department
held that a Town Judge was immune from liability for the inadvertent failure to
revoke a bench warrant following the plaintiff’s appearance in court.
Perhaps most closely analogous to the facts in the instant matter are those in
Word v City of Mount Vernon (65 AD2d 622 , lv denied 47 NY2d
706 ) where a City Court Judge directed that a bench warrant be issued
upon the mistaken belief that the plaintiff had failed to appear in court. The
Appellate Division affirmed dismissal of the complaint, holding that the
doctrine of judicial immunity protected the defendant from liability.
Concerning the instant matter, accepting for the sake of argument that Judge
Carter was mistaken with regard to the need to appear on the control date, or
that the matter was erroneously scheduled for an appearance when it should have
been scheduled for a control date, the Judge is protected from liability under
the doctrine of judicial immunity.
As to the acts of Court personnel, “[t]he common law provide[s] absolute
immunity from subsequent damages liability for all persons – governmental
or otherwise – who [a]re integral parts of the judicial process”
(Mosher-Simons v County of Allegany, 99 NY2d 214, 220 , quoting
Briscoe v LaHue, 460 US 325, 335 ; see also Swain v State
of New York, 294 AD2d 956 , lv denied 99 NY2d 501 
[Allegedly negligent acts of the court and its clerk in the assignment of
appellate counsel were cloaked with judicial immunity]). The cloak of judicial
immunity exists not only for the protection of judges but also to protect other
persons who are integral parts of the judicial process.
Prior to the decision of the Court of Appeals in Mosher-Simons v County of
Allegany, supra, some courts held that ministerial acts performed by
a judicial officer were not subject to absolute immunity (see
Lombardoni v Boccaccio, 121 AD2d 828 ; Sassower v Finnerty ,
96 AD2d 585 ). In Mosher-Simons, however, the Court of Appeals
found such a distinction unnecessary where the conduct complained of was an
integral part of the judicial process (see Mosher-Simons v County of
Allegany, 99 NY2d at 221, n 4). It is therefore clear that the
determination of whether the defense of judicial immunity applies depends not
upon whether the conduct at issue is discretionary or ministerial, but upon
whether or not it was performed as an integral part of the judicial function.
The point was succinctly stated by the First Department in Weiner v State
of New York (273 AD2d 95, 97 ):
"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 non-discretionary. 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’
” (internal quotation marks and citations omitted).
Thus, liability may not be founded on the allegation that Court personnel
failed to notify the claimant or his attorney of the next court appearance date
- arguably a ministerial function - as such conduct is an integral part of the
judicial process and therefore protected by the cloak of judicial immunity. To
hold otherwise would undermine the beneficial public policy supporting
application of the rule. The common law recognized that “controversies
sufficiently intense to erupt in litigation are not easily capped by a judicial
decree. The loser in one forum will frequently seek another . . . . Absolute
immunity is thus necessary to assure that judges, advocates, and witnesses can
perform their respective functions without harassment or intimidation.”
(Butz v Economou, 98 S Ct 2894, at 2913 ).
Distinguishable from the facts in this case are those in Schwandt v State of
New York (4 Misc 3d 405 ). In Schwandt, Judge Sise held that
City Police Court Clerks were negligent in failing to communicate the
cancellation of an arrest warrant to the police. The court distinguished
Weiner v State of New York, supra, stating:
"Here. . . the acts of the clerks were not the preparation of judicial process
– for example the preparation of the warrant itself – rather, the at
issue act was the transmittal of the already recorded cancellation to the police
department. The judicial decision-making process had ended leaving the clerks
with the ministerial duty to transmit information about a concluded proceeding
to ensure an individual’s liberty would not be jeopardized. The
transmittal of information, or the failure to do so, on these facts is not an
integral part of the judicial process which would warrant application of
judicial immunity [citations omitted] (Schwandt v State of New York, 4
Misc 3d 410-411)."
Here, unlike the facts in Schwandt, the judicial decision making process
had not ended and the alleged failure to notify the claimant or his attorney of
the need to appear on the next court date was an integral part of the judicial
process (cf. Steel v State of New York, 307 AD2d 919 
[erroneous transmittal of sentencing information was not an integral part of the
judicial process]. Accordingly, the doctrine of judicial immunity immunizes the
defendant from liability for the conduct complained of in this case.
Dismissal of the claim is also appropriate, on the merits, irrespective of the
issue of judicial immunity. The claim alleges that court personnel negligently
failed to notify the claimant or his attorney of the necessity to appear in
court on the December 1, 2005 "control date". The evidence adduced at trial
indicates that claimant’s attorney, Mr. Magguilli, believed the matter was
placed on the Albany City Court calendar as a control date to (i) provide the
District Attorney time to determine whether the charges would be reduced to
misdemeanors or tried as felonies in the County Court and (ii) avoid the
necessity of an appearance in court had that determination not been made by the
December 1, 2005 control date.
The proof establishes that the term "control date" is undefined and finds its
meaning in the custom and usage of the Albany City Court. Mr. Magguilli cites
his experience practicing in Albany City Court as the basis of his understanding
that no appearance is required in court on a control date. Judge Carter,
sitting in the Criminal Part of Albany City Court was, however, quite clear in
his statement cited earlier herein that both parties are required to appear on a
control date. To the extent the court must choose which interpretation of the
term is correct the court finds that Judge Carter's testimony concerning the
meaning of the term in Albany City Court is most credible. Upon such a finding
it is clear that there can be no negligent failure to provide the claimant
notice of his duty to appear as the transcript of the October 12, 2005
proceedings (Exhibit 8) makes clear not only that Mr. Magguilli had notice of
the December 1, 2005 control date but that the date was selected at Mr.
Magguilli's request. In this regard the transcript contains the following:
"The Court: Colin Hennessy.
Mr. Hennessy: Hello, Your Honor.
Mr. Magguilli: Judge, I've spoke with Mr. Lynch on this matter and I was
wondering if I could have a control date of December 1st. This case has gone up
The Court: December 1st.
Mr. Magguilli: Thank you, your Honor.
The Court: Your [sic] welcome.
Mr. Hennessy: I appreciate it."
Mr. Magguilli's mistaken understanding that a control date did not require an
appearance does not constitute a ground for the imposition of liability upon the
State. There would be no basis for liability on the facts of this case even if
the Court accepted Mr. Magguilli's testimony that no appearance was required on
the December 1, 2005 control date. Judge Carter is immune from liability for
the issuance of the bench warrant as discussed earlier herein and there could be
no negligent failure by court personnel to provide notice that the claimant was
required to appear where the claimant's own proof, if believed, would establish
that no such appearance was required.
The Court finds that the conduct of both Judge Carter and Albany City Court
personnel fell within the scope of judicial immunity and may not, therefore,
serve as a basis for the imposition of liability upon the defendant. Moreover,
the Court finds that, in any event, the claimant failed to establish the
defendant’s negligence by a preponderance of the credible evidence.
Based on the foregoing, the claim is dismissed. All motions not decided herein
are denied as moot.
Let judgment be entered accordingly.
May 22, 2008
Springs, New York
HON. FRANCIS T. COLLINS
Judge of the Court of
. Specifically, the claim alleges that the
claimant was “falsely arrested, detained and imprisoned” and that
the defendant was negligent “in failing to maintain accurate and correct
court files; and in negligently training and supervising court personnel, such
that neither claimant nor his attorney [were] notified of a court appearance,
resulting in the issuance of a bench warrant for claimant” (see
Exhibit 1, claim ¶ 5, p.2).
. Additionally it appears that the claimant
was arrested and confined by the Albany City Police for whose conduct the State
may not be held liable.