Bradford v. Lefkowitz

• Citation: 240 F. Supp. 969
• Parties: Robert L. BRADFORD, Plaintiff, v. Louis J. LEFKOWITZ, Defendant.
• Decision Date: 29 April 1965
• Court: U.S. District Court — Southern District of New York

240 F. Supp. 969

Robert L. BRADFORD, Plaintiff, v. Louis J. LEFKOWITZ, Defendant.

United States District Court S. D. New York.

April 29, 1965.

Robert L. Bradford, pro se.

Louis J. Lefkowitz, Atty. Gen. of New York, pro se, Joel Lewittes, Asst. Atty. Gen., of counsel.

LEVET, District Judge.

The defendant, Louis J. Lefkowitz, individually and as Attorney General of the State of New York (hereinafter "Lefkowitz") has moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure in this action for false imprisonment.

PREVIOUS PROCEEDINGS

1. On December 3, 1964, Lefkowitz was served by the plaintiff, Robert L. Bradford (hereinafter "Bradford"), with a summons and complaint dated December 2, 1964.

2. In this complaint Bradford seeks damages under Title 42 U.S.C. § 1983 (Civil Rights Act), charging that he was unlawfully imprisoned by the defendant in the Manhattan House of Detention and in the City Correctional Institute on Rikers Island from August 12, 1960 to December 6, 1962, without any valid judgment of conviction or commitment. No diversity of citizenship is alleged.

3. On December 21, 1964, defendant Lefkowitz moved to dismiss the complaint pursuant to Rule 12(b) of the Federal Rules of Civil Procedure on the ground that it failed to state a claim upon which relief could be granted since the defendant as the Attorney General of the State of New York is immune from suit with respect to acts which he performed in the scope of his duties as a quasi-judicial officer of the State of New York.

4. After argument on January 5, 1965, by a memorandum-order dated January 20, 1965, Judge Bonsal of this court denied this motion but stated:

"* * * without prejudice to defendant's moving for summary judgment under Rule 56, supplying the Court, in support of its motion with an affidavit detailing plaintiff's plea of guilty, his sentence and confinement."

THE COMPLAINT

The plaintiff invokes jurisdiction of this court under Sections 1331(a) and 1343(3) (4) of Title 28, United States Code, and Section 1983 of Title 42, U.S.C. and under the due process of law clause of the Fourteenth Amendment.

The gist of the complaint is false imprisonment¹ at the Manhattan House of Detention for Men and at the New York City Correctional Institution on Rikers Island, Bronx, New York, from August 12, 1960 to December 6, 1962, without valid judgment of conviction, etc.

The plaintiff charges that defendant acted as an agent of the State of New York as Attorney General under color of the laws of the State of New York and under the authority of said laws and as an officer of the State of New York as Attorney General.

Plaintiff alleges a good reputation and seeks damages from the alleged unlawful acts in the sum of $5,000,000.

As expanded by plaintiff's affidavits, there are two periods of alleged false imprisonment:

(1) Prior to arraignment plaintiff was arrested on August 12, 1960 and remained at Manhattan Detention Headquarters for Men. He was not arraigned until August 18, 1960, allegedly in violation of Section 579 of the New York Code of Criminal Procedure and Section 1844 of the Penal Law of the State of New York, McKinney's Consol.Laws, c. 40.

(2) After a plea of guilty on three counts and sentences on each, plaintiff was imprisoned at the New York City Correctional Institution for Men (formerly the New York City Penitentiary) from June 1, 1961 to December 6, 1962.

The background of this case is as follows:

(1) On August 11, 1960, plaintiff, together with a codefendant, Bradford Audio Corporation, was indicted in the former Court of General Sessions. This indictment, among other things, accused plaintiff and the Bradford Audio Corporation of violations of the New York General Business Law, McKinney's Consol.Laws, c. 20, Article 23-A, commonly known as the Martin Act.

(2) On April 11, 1961, plaintiff and the Bradford Audio Corporation pleaded guilty to counts Sixth, Eighth and Ninth of the indictment in the former Court of General Sessions where plaintiff appeared with counsel, one Irving J. Roth, Esq.

(3) On May 31, 1961, plaintiff was sentenced by the former Court of General Sessions (Postel, J.) to the New York City Penitentiary for a term of one year on each of said three counts, to be served consecutively.

(4) Pursuant to this judgment of conviction, which was never appealed by the plaintiff, plaintiff was confined to the New York City Correctional Institution for Men from June 1, 1961 to December 6, 1962.

(5) No appeal or other proceeding to vacate the sentence was ever taken.

I.

THE POST-CONVICTION SENTENCE SERVED JUNE 1, 1961 TO DECEMBER 6, 1962

Bradford's opposing affidavit submitted upon this motion does not dispute the above-mentioned indictment but alleges that this indictment was procured and signed by the defendant Lefkowitz.

Bradford also alleges that before the selection of the jury had been completed on April 11, 1961 and before any evidence had been taken he withdrew his plea of not guilty and pleaded guilty to counts Sixth, Eighth and Ninth of the indictment, allegedly upon the "express promise on the part of defendant herein that (1) Counts 1, 2, 3, 4, 5, 7, 10 and 11 thereof would be dismissed; that (2) imposition of sentence on said Counts 6, 8 and 9 would be suspended; and (3) upon the express threat that if he did not so plead, maximum penalties would be inflicted upon plaintiff herein on all counts, if convicted."

At a conference of counsel and court held on March 30, 1965, the plaintiff, pro se, withdrew Nos. 2 and 3 above. Consequently, the only claim now left is No. 1 above stated. (Actually, the other counts, 1, 2, 3, 4, 5, 7, 10 and 11, were dismissed.)

Bradford states, as conceded by defendant, that the court, after the plea of guilty, sentenced plaintiff to one year on each of said counts Sixth, Eighth and Ninth to run consecutively.

Plaintiff then alleges that the aforesaid promise was falsely made and that the pleas of guilty aforementioned were fraudulently procured by defendant by deceit, fraud, misrepresentation, etc. Just what the deceit, fraud or misrepresentation in fact was does not appear.

However, plaintiff concedes that he served time under counts Sixth, Eighth and Ninth of the indictment to which he had pleaded guilty, i. e., from June 1, 1961 to December 6, 1962.

Plaintiff alleges that subdivisions 3 and 8 of Section 359-e and Section 352-c of the General Business Law of the State of New York violate the due process clause of the Fourteenth Amendment to the United States Constitution and that the judgment and sentences therefore are nullities and further that subdivision 3 of the said law was retroactive and violated the ex post facto prohibition of the United States Constitution since the statute was not in effect until October 1, 1959 and the alleged crimes were committed on or about April 1959.

Bradford also adds in his affidavit (although it appears nowhere in his complaint) a claim that in a civil action in the Supreme Court of the State of New York, County of New York, the People of the State of New York sought an injunction against him restraining him from selling securities in the State of New York and that the defendant Lefkowitz was attorney for the plaintiff in said action and that the complaint in said action specifically charged him with violation of subdivision 3 of Section 359-e and that he pleaded guilty to no other subdivision or section of said Article 23-A or any other statute of the State of New York.

There is no evidence that defendant or his assistant tricked the plaintiff or that any right of plaintiff was violated with respect to plea or sentence.

A supplemental affidavit of plaintiff, sworn to April 16, 1965, received by the court, recites the following:

1. Repeats facts in reference to the arrest;

2. Gives some hearsay statements as to what his attorney, Roth, told him the presiding judge had said;

3. That finally Roth "brought a proposal that if plaintiff would plead guilty to three counts, the defendant would dismiss the remaining 8 counts." (This was in fact done.) This, then, is the reduced extent of any claim by plaintiff as to what occurred at court.

4. Then plaintiff goes on to charge:

(a) That the statutes under which he was indicted were void and unconstitutional;

(b) That the court had no jurisdiction to accept a plea or pronounce judgment;

(c) That plaintiff had not violated the law;

(d) That defendant knew or should have known that the statutes were unconstitutional and void; that defendant "tricked plaintiff into pleading guilty to three void counts and statutes upon his promise to dismiss eight other counts." (Just how this was done is not stated.)

The plaintiff also submitted an affidavit, sworn to April 8, 1965, by Irving J. Roth, the attorney who represented him in the state criminal proceeding. Roth states as follows:

"My present best recollection is that during the picking of the jury and after several jurors had been selected there was a conference at the bench and a discussion took place between the Assistant Attorney General MILLUS, the Trial Court and myself as to the possibility of terminating the said prosecution by a plea of guilty. I do not recall who suggested the conference but I know that it was not initiated by me because at all times prior to the trial the said Assistant Attorney General had always insisted that he would not consent to a guilty plea involving anything less than several misdemeanor counts including a felony count to cover the entire indictment, which I knew the said ROBERT L. BRADFORD would never consider.

"At the outset of the said conference, the said Assistant Attorney General was still insistent on a guilty plea to several misdemeanor counts including a felony count to cover the entire indictment, which I rejected without consultation with the said ROBERT L. BRADFORD, who at the time was in the detention pen adjoining the Trial Part Courtroom.

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