Seabrook v. Johnson

• Decision Date: 05 May 1997
• Citation: 660 N.Y.S.2d 311,173 Misc.2d 15
• Parties: Norman SEABROOK, as President of Corrections Officers' Benevolent Association, Inc., et al., Petitioners, v. Robert T. JOHNSON, as District Attorney of Bronx County, et al., Respondents.
• Court: New York Supreme Court

Page 311

660 N.Y.S.2d 311 173 Misc.2d 15 Norman SEABROOK, as President of Corrections Officers'
Benevolent Association, Inc., et al., Petitioners,
v.
Robert T. JOHNSON, as District Attorney of Bronx County, et
al., Respondents. Supreme Court, Bronx County. May 5, 1997.

Page 313

Dienst & Serrins, L.L.P., New York City (James M. Moschella, of counsel), for petitioners.

Robert T. Johnson, pro se, and Stanley Kaplan, New York City, for Robert T. Johnson and another, respondents.

JOSEPH N. GIAMBOI, Justice.

In this proceeding brought pursuant to Article 78 of the CPLR, the petitioners seek an order pursuant to CPLR 7803(2) prohibiting respondents Robert T. Johnson, as District Attorney, and the District Attorney's office, of Bronx County, from performing or taking any further acts or proceedings to prosecute petitioners on the indictments and the charges contained therein upon the grounds that petitioners are immune from criminal prosecution and are being deprived of their right against compelled self-incrimination as secured by the Fifth and Fourteenth Amendments to the Constitution of the United States and by Article I, Section 6 of the New York Constitution. Petitioners further request that the Court set the matter down for a hearing pursuant to CPLR 7804(h) to determine: (1) if evidence obtained under threat of job forfeiture was used to obtain the indictment against the Correction Officers; (2) if evidence derived from the compelled testimony was used to focus on the petitioners; (3) if evidence derived from the compelled testimony was used to prepare the witnesses and testimony for the Grand Jury; and (4) if the compelled testimony was used in violation of various ruling of the United States Supreme Court. Respondents cross-move, pursuant to CPLR 7804(f), for an order dismissing the petition on the objection in point of law that petitioners fail to demonstrate a clear legal wrong. In the event that the cross-motion is denied, respondents state their intention to exercise their right to serve an answer to the petition. The petitioners' application and respondents' cross-motion are decided as set forth below.

Petitioner Norman Seabrook is the elected President of the Correction Officers' Benevolent Association, Inc. which is the collective bargaining representative for approximately 10,000 Correction Officers employed by the City of New York and the Department of Correction of the City of New York. It is alleged in the petition that petitioners John

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Mickel, John Barnes, Douglas Brophy, Henry Neil, and Maurice Gilliard are permanently appointed civil service Correction Officers who, under threat by the Department of Correction of job forfeiture, were compelled to provide evidence against themselves. It is further alleged that this evidence was then provided by the Department of Correction to the District Attorney of Bronx County who used that information to obtain indictments against the five officers in Supreme Court, Bronx County.

Petitioner Brophy was indicted on July 9, 1996 for the charges of assault in the third degree, falsifying business records in the first degree, and offering a false instrument for filing in the first degree. Petitioners Gilliard and Mickel were each indicted on September 20, 1996 for the charges of assault in the third degree, falsifying business records in the first degree, and offering a false instrument for filing in the first degree. On October 2, 1996, petitioner Neil was indicted for the charges of falsifying business records in the first degree and offering a false instrument for filing in the first degree. On October 4, 1996, petitioner Barnes was indicted for the charges of assault in the third degree, falsifying business records in the first degree, and offering a false instrument for filing in the first degree.

It is petitioners' contention that the above indictments were the direct result of compelled evidence obtained, under threat of job forfeiture, during a departmental investigation conducted by the...