Taylor v. Hansen, 85-CV-1643.

Citation731 F. Supp. 72
Decision Date27 February 1990
Docket NumberNo. 85-CV-1643.,85-CV-1643.
PartiesBruce TAYLOR, Plaintiff, v. Jon HANSEN, Individually, Carl Van Wagenen, Individually, the County of Ulster, Defendants.
CourtU.S. District Court — Northern District of New York

Andrea Moran, Kingston, N.Y., for Bruce Taylor.

Horigan Horigan Pennock & Lombardo, Amsterdam, N.Y., for County of Ulster, Thomas V. Blaber, of counsel.

Robert Abrams, Atty. Gen. of State of N.Y., Albany, N.Y., for Jon Hansen and Carl Van Wagenen; Paul D. Silver, Asst. Atty. Gen., of counsel.

MEMORANDUM-DECISION AND ORDER

McCURN, Chief Judge.

Introduction

The plaintiff, Bruce Taylor, brought suit pursuant to 42 U.S.C. § 1983,1 against the County of Ulster, New York; the Ulster County District Attorney's Office; the New York State Police; Francis Vogt, the county district attorney; two assistant district attorneys; and Jon Hansen and Carl Van Wagenen, who are members of the New York State Police. Among other things, the plaintiff alleges that the defendants violated his right to due process of law when they conspired to have defendants Hansen and Van Wagenen present perjured testimony and to withhold exculpatory evidence at plaintiff's trial on charges of criminal sale of a controlled substance in the third degree. N.Y. Penal Law § 220.39. Plaintiff alleges that his felony conviction was obtained as a result of this perjured testimony and the withholding of evidence.

Background

Plaintiff's claims arise out of his arrest for the sale of drugs at P & G's Bar in New Paltz, New York, on the evening of March 15, 1974. Defendant Hansen testified at trial that on that evening, acting as an undercover officer, he went to P & G's Bar to attempt to arrange a drug sale. Hansen stated that he offered to purchase heroin from Mary Lou Lynch, who then walked four to six feet away from Hansen and spoke to the plaintiff. According to Hansen, Lynch then returned and asked for $25.00, which Hansen gave to her. Hansen stated that "she walked back over to Bruce Taylor and handed him the money and he handed her something." Hansen stated he had a clear view of this transaction. Hansen testified that Lynch returned with a glassine envelope. The contents of this envelope, upon laboratory analysis, was heroin.

Hansen initially testified that he was alone in the bar on that evening, but later stated that he was accompanied by Peter Lozito, whom he described as a voluntary police informant. Defendant Van Wagenen, who was not present at the bar that evening, also testified that Lozito was a voluntary police informant. Lozito's identity was not disclosed to the defense before trial, and his participation in the drug transaction first became known during Hansen and Van Wagenen's testimony at trial.

Hansen's testimony regarding the drug transaction was contradicted by the testimony of plaintiff and Lynch, who was a co-defendant at trial. Lynch testified that she obtained the heroin for Hansen, but that the plaintiff did not participate in the sale. Lynch stated that she obtained the drugs from another woman in a bathroom at the bar, through an arrangement with a drug dealer known as "Spanish Joe" Martinez. Lynch also testified that Lozito was with Hansen in the bar. Plaintiff testified that, although he was present in the bar on March 15, 1974, and spoke to Martinez, he barely knew Lynch and did not sell drugs to or through her that evening.

Plaintiff was convicted and sentenced to a prison term of six years to life. Plaintiff maintained his innocence, however, and prevailed upon the United States Attorney's Office in the Southern District of New York to conduct a grand jury investigation into the circumstances surrounding his conviction. Testimony was taken before the grand jury in 1978, including testimony from Lozito, the police informant. Lozito testified that while he was incarcerated in Ulster County Jail for drug sale and weapons possession charges in 1974, he was visited "four or five times" by a Sam Miller and defendant Van Wagenen, both members of the New York State Police Bureau of Criminal Investigation. According to Lozito's testimony, the two offered to have him released from jail if he would help them effect the arrests of certain specified individuals, including plaintiff. Lozito testified that he was released from jail when he agreed to cooperate, and was contacted about a week later to meet Miller and defendant Van Wagenen "on a back road," where he was introduced to defendant Hansen. Lozito stated that he was instructed to assist them in procuring heroin sales. He further testified:

Q: And they showed you a picture of Bruce Taylor?
A: Yeah.
Q: What did they say about Bruce Taylor?
A: That this is one guy that they want.
Q: And did they say anything to you at that time about how they were going to get Bruce Taylor?
A: They said either one way or the other, they would get him.
Q: And did they explain what they meant by either one way or the other?
A: I can't recall. Direct.
Q: What did you understand them to mean when they said that?
A: Well, they had it in for this Bruce Taylor. Either I set them up or they do it another way, I guess. In his own words.

Lozito further testified that he assisted defendant Hansen with various drug sales, and that he was with Hansen on the evening of March 15, 1974 at P & G's Bar. Lozito testified that he was sitting at a table in the bar with Hansen, and he did not witness a sale made by plaintiff. He further testified that defendant Hansen would not have been able to see such a sale either, because of plaintiff's location in the bar, and the number of people in the bar. This would corroborate the testimony of the plaintiff and of Lynch, who testified that she obtained the drugs from another individual in another area of the bar, and that the plaintiff did not participate in the sale.

Hansen and Van Wagenen testified at trial that Lozito was not under arrest at the time he assisted the defendants, a fact contradicted by Lozito's testimony before the grand jury and by arrest records presented by the plaintiff. As previously mentioned, both defendants also characterized Lozito as a "voluntary" informant, although Lozito testified that he felt compelled to cooperate with defendants in setting up a drug sale with the plaintiff. According to Lozito, Miller and Van Wagenen told him "if I didn't help them, they would make the convictions stick, and because of my police records before, in turn, I did help them." Hansen's account of the alleged sale also differs significantly in several other respects from those of Lozito, Lynch and the plaintiff.

Following the grand jury hearings, plaintiff moved to have his conviction vacated on the ground that new evidence presented by Lozito's testimony showed that his conviction was obtained by the use of perjured testimony and the withholding of evidence, namely, the identity and presence during the drug sale of Lozito. Plaintiff's conviction was ultimately vacated in December 1984 in Ulster County Court by presiding Judge Joseph Traficanti, Jr. Judge Traficanti found that members of the State Police, including defendant Van Wagenen, had met with Lozito in jail; that Lozito was indeed released from jail to assist in narcotics investigations, contrary to the testimony of defendants Hansen and Van Wagenen; that Lozito was present at the alleged drug sale which was the basis of Taylor's conviction; that Lozito's identity was not disclosed to the plaintiff; and that Lozito, although present at the criminal trial, did not testify, and "could well have supplied the inculpatory or exculpatory evidence to provide the jury with the full facts." Judge Traficanti stated that the failure of defendants Hansen and Van Wagenen to disclose evidence concerning Lozito was "grossly negligent," and, "considering the importance of Lozito's involvement in the buy and the fact that his testimony may well have been considered by the jury as corroborative of the co-defendant Lynch's exculpatory testimony regarding the defendant, the defendant was greatly prejudiced by the suppression of the identity of the informant and his true criminal status at the time of his cooperation with the police." State of New York v. Taylor, Ulster County Court, December 26, 1984.

After his conviction was vacated, plaintiff commenced the instant suit. This court has previously dismissed the complaint and a subsequent amended complaint as to all of the defendants except Hansen and Van Wagenen.2 Now before the court is the motion of defendants Hansen and Van Wagenen for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Defendants Hansen and Van Wagenen maintain that they are absolutely immune from claims under Section 1983 as prosecution witnesses. Moreover, defendants argue that plaintiff's allegations of an extra-judicial conspiracy between the witnesses and the district attorney's office to suborn perjured testimony and withhold Lozito's identity are not supported by proof sufficient to defeat a motion for summary judgment.

Discussion
I. Witness Immunity

The Supreme Court held in Briscoe v. LaHue, 460 U.S. 325, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983), that police officers are absolutely immune from liability under 42 U.S.C. § 1983 for testifying falsely at trial. The holding in Briscoe is grounded on the common law rule that witnesses were absolutely immune from liability for claims arising out of their testimony at trial. Briscoe, 460 U.S. at 330-31, 103 S.Ct. at 1112-13. This common law rule was based on the belief that "the paths which lead to the ascertainment of truth should be left as free and unobstructed as possible." Id. at 333, 103 S.Ct. at 1114. The rationale behind the doctrine is that, without absolute immunity, a witness may be reluctant to testify at all, or may feel compelled to withhold or shade certain testimony in favor of the opposing party, for fear of a retributory lawsuit. Id.; see also White v. Frank, 680 F.Supp. 629, 633...

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