Caminito v. City of New York

• Decision Date: 10 February 1965
• Citation: 45 Misc.2d 241,256 N.Y.S.2d 670
• Parties: Santo CAMINITO, Plaintiff, v. The CITY OF NEW YORK, Defendant.
• Court: New York Supreme Court

Page 670

256 N.Y.S.2d 670

45 Misc.2d 241

Santo CAMINITO, Plaintiff, v. The CITY OF NEW YORK, Defendant.

Supreme Court, Special Term, Kings County, Part I.

Feb. 10, 1965.

Harry H. Lipsig, Maurice Edelbaum, New York City, for plaintiff, Murray L. Lewis, Marvin Luboff, New York City, of counsel.

Leo A. Larkin, Corp. Counsel, New York City, for defendant, William F. Miller, Rockville Centre, James V. Mistretta, Brooklyn, of counsel.

WALTER R. HART, Justice.

Plaintiff moves for summary judgment.

The complaint purportedly alleges four causes of action wherein features of the first two causes are intermingled with each other and with the remaining causes. The first cause of action, which purportedly alleges primarily a cause of action for false arrest and imprisonment, also alleges some elements of a cause for malicious prosecution. The second cause of action is primarily predicated on the theory of malicious prosecution. The third cause of action sounds in conspiracy. The court is at a loss to comprehend what plaintiff attempts to add to the first three causes of action by the fourth cause of action set forth in the complaint.

From the affidavits and official documents and records adduced, the following undisputed facts appear:

On or about February 16, 1941, at about 8:45 p. m., one Murray Hammeroff was shot during the course of a holdup by two men near Stillwell and 25th Avenues in Brooklyn. The culprits escaped in a car being operated by a third man. Hammeroff described his assailants before he died. Thereafter, the police over a period of several months picked up a great number of suspects, interrogated and released them.

On Sunday, May 11, 1941, plaintiff, Santo Caminito, was brought to a police station at about 6:00 p. m. At about the same time there were taken into custody two other men, Frank Bonino and Charles Noia. It was claimed at the trial that the latter two were the actual assailants while plaintiff was the driver of the getaway car.

Commencing about 9:00 p. m. on Sunday, May 11, 1941, plaintiff was continuously interrogated by five or six police officers over a period of five hours until 2:00 a. m. the following morning, Monday, May 12, 1941. At 3:00 a. m. on Monday, May 12th, plaintiff was locked in a cell in which there were no bed, blankets, spring or mattress, but only a wooden bench. At 10:00 a. m. on Monday, May 12th, the questioning was resumed. The interrogation continued all day, with several detectives each taking turns.

During this period members of plaintiff's family, his friends, and an attorney retained by the family called at the station house where plaintiff was detained and tried to get information concerning his whereabouts. The police officers knew these facts but kept him incommunicado. Other than the police and the District Attorney, no one was permitted to see him until he was arraigned, 40 hours after being taken into custody.

During the afternoon of Monday, May 12th, two women and a man were brought in to face the plaintiff. He was not told that they were detectives. Each falsely pretended to identify him as the person who was sitting at the wheel of the automobile at the time of the shooting which occurred in connection with the holdup. About 9:00 p. m. on Monday, May 12th, 27 hours after having been taken into custody, he signed a confession. About 2:30 or 3:00 a. m. the following morning, Tuesday, May 13th, plaintiff was first placed under arrest. He was brought to a Magistrate later that same day, more than 40 hours after having first been taken into custody. The police officers knew that the courts were open during this period for the purpose of arraignment of persons charged with crime.

Plaintiff had never been previously arrested or convicted.

The same or similar treatment was accorded the plaintiff's alleged accomplices, Bonino and Noia.

It is undisputed that the only evidence tending to connect plaintiff with the crime was the confession extorted from him. Plaintiff was thereafter indicted by the Grand Jury on or about June 11, 1941. Other than the involuntary confession, the Grand Jury minutes fail to contain a scintilla of evidence to establish any nexus between the plaintiff and the homicide. In fact, upon the trial before Judge Brancato in February of 1942, the court charged the jury that the confessions (made by plaintiff, Bonino and Noia under similar circumstances) were the sole evidence in the case to inculpate the defendants in that action, and that if they believed them to be involuntary, they were to acquit. Plaintiff, together with Noia and Bonino, was convicted of murder in the first degree with a recommendation of mercy on March 2, 1942 and was sentenced to life imprisonment.

The judgment of conviction was affirmed by the Appellate Division (People v. Caminito, 265 App.Div. 960, 38 N.Y.S.2d 1019) and by the Court of Appeals (291 N.Y. 541, 50 N.E.2d 654). Applications for leave to reargue were denied (297 N.Y. 882, 79 N.E.2d 277; 307 N.Y. 686, 120 N.E.2d 857). Certiorari was denied by the United States Supreme Court on August 14, 1954, with two justices dissenting (348 U.S. 839, 75 S.Ct. 46, 99 L.Ed. 662).

On November 3, 1954, an order to show cause was signed by Judge James T. Foley of the United States District Court for the Northern District of New York bringing on an application to show cause why a writ of habeas corpus should not issue. On January 11, 1955 Judge Foley denied the application for the writ (United States ex rel. Caminito v. Murphy, 127 F.Supp. 689).

Thereafter, an appeal was taken to the United States Court of Appeals for the Second Circuit from the order denying the plaintiff's application for the writ of habeas corpus. On May 11, 1955, that court unanimously reversed the order of Judge Foley. In reversing the District Court, the United States Court of Appeals made the findings of fact set forth at the outset of this memorandum, observing that they were undisputed, and stated (United States ex rel. Caminito v. Murphy, 2 Cir., 222 F.2d 698, at pp. 700-701):

'These facts make it clear that the trial did not measure up to the standards prescribed by the due process clause of the 14th Amendment. The confessions obtained by these loathsome means were no more evidence than if they had been forged. Absent, then, any admissible evidence of guilt, the trial judge should have dismissed the indictment or directed a verdict of acquittal. To jail a man convicted without evidence of guilt is to impose 'involuntary servitude' which, 'except as a punishment for crime,' the Thirteenth Amendment forbids. Only in Erewhon, which recognized 'the crime of being maligned unjustly,' could this conviction be justified.

'Alone or together, neither the unlawful detention for many hours nor the deceit in confronting Caminito with disguised police officers who lied in identifying him would suffice to vitiate the confessions as unconstitutionally obtained. But those factors did aggravate the following unconstitutional practices which--even in the absence of those factors--rendered the confessions inadmissible: (a) The police interrogated him almost continuously for 27 hours, with but a brief interval for rest in a cell so badly equipped as to make sleep virtually impossible for a man already harried by the questioning. (b) During this long period, the police, in effect, kidnapped him: They kept him incommunicado, refusing to allow his lawyer, his family, and his friends to consult with him.'

Subsequent to the reversal of the District Court, and on May 20, 1955, an order was made by Judge Foley granting the petition for a writ of habeas corpus and directing that the plaintiff be discharged from the custody of the Warden of Auburn Prison and that he be placed in the custody of the Commissioner of Corrections of the City of New York for such further proceedings as justice may require upon the indictment.

Thereafter, a motion was made returnable at the County Court on May 31, 1955, to dismiss the indictment on the ground that the evidence (without the contaminated confession) was insufficient in law, or, in the alternative, to release the plaintiff on bail. Decision on the motion to dismiss the indictment was reserved pending an application by the People to the United States Supreme Court to review the determination of the United States Court of Appeals. The plaintiff was released on bail.

After the United States Supreme Court denied certiorari (350 U.S. 896, 76 S.Ct. 155, 100 L.Ed. 788), the motion to dismiss was renewed before Mr. Justice Joyce and was granted (N.Y.L.J., May 28, 1956, p. 12, col. 2). The decision on the companion motion on behalf of the defendant Noia is reported in People v. Noia, 3 Misc.2d 447, 158 N.Y.S.2d 683. The People appealed from Judge Joyce's order of dismissal to the Appellate Division, which reversed the order, holding that the indictment was sufficient since the sufficiency of the evidence before the Grand Jury had to be determined on its face; and that irrespective of the inadmissibility of the confession at the trial, the indictment was based on sufficient proof (People v. Caminito, 4 A.D.2d 697, 163 N.Y.S.2d 699). The Appellate Division, in reversing, stated (p. 698, 163 N.Y.S.2d pp. 700-701):

'As it is conceivable, however unlikely, that on a new trial proof independent of respondent's confessions may be adduced which will be sufficient to warrant his conviction, there should be a new trial.'

The court, however, specifically directed that on a new trial, the confession be excluded irrespective of any proof which might otherwise be offered to show that such confessions had in fact been voluntary. Plaintiff appealed to the Court of Appeals, and the order of the Appellate Division was affirmed (3 N.Y.2d 596, 170 N.Y.S.2d 799, 148 N.E.2d 139).

Thereafter, on May 1, 1963, the People moved for dismissal of the indictment before Mr. Justice Starkey, at which time the Assistant District Attorney stated:

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