Pietra v. State

• Decision Date: 09 June 1988
• Citation: 530 N.Y.S.2d 510,526 N.E.2d 1,71 N.Y.2d 792
• Parties: , 526 N.E.2d 1 Anthony Della PIETRA et al., Respondents, v. STATE of New York, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 510

530 N.Y.S.2d 510

71 N.Y.2d 792, 526 N.E.2d 1

Anthony Della PIETRA et al., Respondents, v. STATE of New York, Appellant.

Court of Appeals of New York.

June 9, 1988.

Robert Abrams, Atty. Gen. (Michael S. Buskus, O. Peter Sherwood and Peter H. Schiff, Albany, of counsel), for appellant.

James M. Hartman and Philip G. Spellane, Rochester, for respondents.

OPINION OF THE COURT

HANCOCK, Judge.

Claimants have recovered a judgment against the State for damages to their business resulting from actions of the New York State Organized Crime Task Force in illegally entering and searching their premises; seizing books, records and other property; and retaining them for a prolonged period of time. The conduct of the State agents in invading these claimants' rights, we have previously held, was without any statutory or other authority (see, Matter of B.T. Prods. v. Barr, 44 N.Y.2d 226, 236, 405 N.Y.S.2d 9, 376 N.E.2d 171). The principal issue presented by the State in its appeal is whether, notwithstanding this lack of authority, it may assert absolute prosecutorial or quasi-judicial immunity for the acts of its agents. For the reasons which follow, we hold that it may not. Moreover, in view of the undisturbed findings of bad faith, we also conclude that the State's assertion of qualified immunity here is unavailing.

I

Barry Tuttle and claimant Anthony Della Pietra were co-owners of claimant B.T. Productions, Inc., which operated a dinner theater in East Rochester, New York. Although the business was doing well, the partners had a falling out over how it should be run. When Della Pietra took over sole operation of the business and tried to make Tuttle sell him his interest, Tuttle, apparently out of spite, went to the Task Force and reported that the business was engaged in organized crime.

Based in part on an affidavit signed by Tuttle, the Task Force obtained a search warrant and seized the bulk of the theater's books and records. After trying repeatedly to recover them, Della Pietra and B.T. Productions commenced a CPLR article 78 proceeding seeking a writ of prohibition vacating the search warrant and compelling return of the items seized. The Appellate Division granted the petition and issued the writ ( Matter of B.T. Prods. v. Barr, 54 A.D.2d 315, 388 N.Y.S.2d 483). We affirmed, holding that due to "the absence of any statutory authority to obtain a search warrant, it is clear that the Task Force lacked the power to make such an application, and thus the court exceeded its jurisdiction in issuing the warrant" (44 N.Y.2d 226, 236, 405 N.Y.S.2d 9, 376 N.E.2d 171, supra). Nearly two years after the seizure of claimants' property, it was returned to them. They were never indicted or prosecuted. No evidence against them was ever presented to a Grand Jury or other accusatory authority.

In the Court of Claims, claimants presented proof that the illegal search and seizure and the surrounding adverse publicity caused their customers to stay away and ultimately forced B.T. Productions into bankruptcy. The court found the State responsible and assessed damages in the amount of $777,000. The Appellate Division was modified, adding interest from the date the claim was filed, and otherwise affirmed. We now affirm.

II

The State contends that no recovery should have been allowed because, contrary to the holdings of the lower courts, the Task Force's conduct in obtaining and executing the search warrant was either prosecutorial or quasi-judicial in nature and, therefore, entitled to absolute immunity ( see, Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128; Tarter v. State of New York, 68 N.Y.2d 511, 510 N.Y.S.2d 528, 503 N.E.2d 84; Tango v. Tulevech, 61 N.Y.2d 34, 471 N.Y.S.2d 73, 459 N.E.2d 182; Schanbarger v. Kellogg, 35 A.D.2d 902, 315 N.Y.S.2d 1013, appeal dismissed 29 N.Y.2d 649, 324 N.Y.S.2d 1033, 273 N.E.2d 321, cert. denied 405 U.S. 919, 92 S.Ct. 944, 30 L.Ed.2d 789). We disagree.

In the usual case where the government professes entitlement to absolute sovereign immunity, no question arises concerning the authority of its officials to act ( see, e.g., Arteaga v. State of New York, 72 N.Y.2d 212, 218, 532 N.Y.S.2d 57, 527 N.E.2d 1194; Tango v. Tulevech, supra, 61 N.Y.2d at 41-42, 471 N.Y.S.2d 73, 459 N.E.2d 182). The sole question, ordinarily, is whether the official actions constitute discretionary conduct which sufficiently manifests the attributes of judicial decision-making to merit full immunity ( Arteaga v. State of New York, supra, 72 N.Y.2d at 217, 532 N.Y.S.2d 57, 527 N.E.2d 1194; Tarter v. State of New York, supra, 68 N.Y.2d at 518-519, 510 N.Y.S.2d 528, 503 N.E.2d 84; Santangelo v. State of New York, 101 A.D.2d 20, 28-29, 474 N.Y.S.2d 995). Where, however, the official "has stepped outside the scope of his authority" ( Teddy's Drive In v. Cohen, 47 N.Y.2d 79, 82, 416 N.Y.S.2d 782, 390 N.E.2d 290), and acted in the clear absence of all jurisdiction or without a colorable claim of authority, there is plainly no entitlement to absolute immunity, even if the underlying acts are prosecutorial or quasi-judicial in nature ( see, Rudow v. City of New York, 822 F.2d 324, 327-328 Ybarra v. Reno Thunderbird Mobile Home Vil., 723 F.2d 675, 678 Prosser and Keeton, Torts § 132, at 1058-1059 ). Thus, if, as claimants contend, the Task Force acted without any colorable claim of authority, the State would not be entitled to absolute immunity, even if its acts would otherwise have been considered quasi-judicial in nature and for that reason deserving of full protection.

With few exceptions, the Legislature has delegated the responsibility for prosecuting persons accused of crime solely to the District Attorney, the public officer entrusted with the general prosecutorial authority for all crimes occurring in the county where elected (see, County Law §§ 700, 927; Matter of Darvin M. v. Jacobs, 69 N.Y.2d 957, 959, 516 N.Y.S.2d 641, 509 N.E.2d 336; see also, Matter of Turecamo Contr. Co., 260 App.Div. 253, 257, 21 N.Y.S.2d 270). The Attorney-General, by contrast, is given no general prosecutorial authority and, except where specifically permitted by statute (see, e.g., General Business Law §§ 358, 692; Executive Law § 70-a), has no power to prosecute criminal actions ( see, Matter of B.T. Prods. v. Barr, 44 N.Y.2d 226, 236, 405 N.Y.S.2d 9, 376 N.E.2d 171; supra; People v. Di Falco, 44 N.Y.2d 482, 485-486, 406 N.Y.S.2d 279, 377 N.E.2d 732; People v. Rallo, 39 N.Y.2d 217, 221-223, 383 N.Y.S.2d 271, 347 N.E.2d 633). Similarly, the Task Force, as an arm of the Attorney-General and a creature of the State, "has no power other than that given it by the Legislature" ( Matter of B.T. Prods. v. Barr, supra, 44 N.Y.2d at 236, 405 N.Y.S.2d 9, 376 N.E.2d 171; see, People v. Di Falco, supra, 44 N.Y.2d at 486, 406 N.Y.S.2d 279, 377 N.E.2d 732; Governor's Mem in support of Executive Law § 70-a, reprinted in 1970 McKinney's Session Laws of N.Y., at 3142).

The Legislature enacted Executive Law § 70-a for the specific purpose of creating an agency capable of investigating and prosecuting multicounty organized criminal activity, a duty which local prosecutors were unable to perform satisfactorily "because of their limited resources and restricted geographical jurisdiction" (see, Legislative Findings, L.1970, ch. 1003, § 1 ). This exceptional grant of prosecutorial authority to the Task Force was not self-executing and it was subject to specific...