October 18, 2019

New York Law Journal / Written by: Harvey M. Stone, Richard H. Dolan

This column reports on several significant representative decisions handed down recently in the U.S. District Court for the Eastern District of New York. Judge Jack B. Weinstein released a defendant from incarceration pending Supreme Court review of his petition for certiorari, where Weinstein had granted habeas relief, the Second Circuit had reversed, and there were compelling medical reasons requiring defendant's presence to help his wife. Judge I. Leo Glasser declined to dismiss claims against the City of New York, Brooklyn District Attorney Charles Hynes and others for malicious prosecution and related misconduct. And Judge Pamela K. Chen dealt with motions to dismiss a variety of §1983 claims by a state court criminal defendant.

Release Pending Review Of Habeas Petition

In United States v. Brown, 07 CR 202 (E.D.N.Y. June 17, 2019), Judge Weinstein granted defendant Brown's motion for release from prison pending resolution of his petition for review in the U.S. Supreme Court.

In 2008, defendant pled guilty to being a felon in possession of a handgun, in violation of 18 U.S.C. §922(g). Though that statute normally carries a maximum sentence of 10 years, Brown was subject to a mandatory minimum of 15 years because he had previously been convicted of three offenses characterized by the government as violent felonies or serious drug crimes.

In 2017, Weinstein granted Brown's petition for habeas corpus, on the ground that two of the prior offenses, for attempted second-degree armed robbery, New York Penal Law §160.10, did not amount to violent felonies. Weinstein reduced Brown's 15-year sentence to 10 years' time served plus supervised release. The Second Circuit reversed, and Weinstein reinstated the original sentence. Still in custody, Brown filed a petition for certiorari with the Supreme Court.

Relying on Federal Rule of Appellate Procedure 23, Brown sought release from custody pending Supreme Court review of his certiorari petition. He emphasized that his wife is having weekly radiation treatments for breast cancer and is scheduled to have a breast surgically removed in mid-July. After that, there will be a period of recovery. Brown expressed a wish to give her physical assistance and moral support during this difficult time. The government opposed Brown's motion but agreed to consider a limited term of release given the wife's medical problems.

When a successful habeas petitioner seeks release pending further review, Rule 23(c) "creates a presumption of release from custody." Hilton v. Braunskill, 481 U.S. 770, 774 (1987). Even when the petitioner has been unsuccessful, Rule 23(b) gives the court discretion to grant release.

There was no need to decide whether Brown is a successful or unsuccessful petitioner. Under either label, Weinstein noted, Brown should be released.

If Brown is an unsuccessful petitioner, the court can order his release in light of the special personal circumstances. Moreover, his Supreme Court petition "presents a substantial question of law." Slip op. 5; see United States v. Thrower, No. 17-445 (2d Cir. April 17, 2019) (staying mandate in a similar case pending Supreme Court review).

If Brown is treated as a successful petitioner, there is nothing to overcome the presumption of release. As Weinstein summed things up: "At least one federal judge-the undersigned-" has found the habeas petition to be meritorious. Slip op. 5. While there is no high likelihood of ultimate success on the merits, "this negative factor is outweighed by other considerations." Slip op. 6. Brown and his family will be "seriously harmed" if he cannot help his wife deal with her medical crisis. A stay will not harm the government. Brown has already served 10 years of his sentence. Nor does he pose a danger to the public.

'Monell' Claims and Malicious Prosecution

In O'Hara v. City of New York, 17 CV 4766 (E.D.N.Y. May 31, 2019), Judge Glasser denied a motion by defendants, including former Kings County District Attorney Charles Hynes, to dismiss claims for conspiracy, malicious prosecution and, under Monell, violations of the United States and New York State Constitutions. The crux of O'Hara's claims, the court noted, is that defendants "orchestrated a politically motivated conspiracy and baseless prosecution designed to neutralize and punish [him] for his political activities against the 'Brooklyn Democratic Machine.'" Slip op. 1-2.

The complaint alleged as follows: O'Hara was a political activist in Brooklyn in the 1980s and 1990s. In 1990 he ran against incumbent Assemblyman James Brennan, a co-defendant here, and declined to drop out of the race despite being requested to do so by the DA's Office, while Hynes was DA. Assemblyman Brennan, along with DA Hynes and other members of the DA's Office, conspired to prosecute O'Hara for election fraud. Unable to produce incriminating evidence, the conspirators agreed to falsify evidence, including testimony. In October 1996, O'Hara was charged with Election Law fraud based on false claims that he did not live in the district in which he voted. In May 1997, O'Hara was found guilty on seven felony counts. His conviction was reversed, and a second trial resulted in a mistrial. In a third trial, the DA's Office got another conviction based on the same false testimony plus newly created incriminating evidence. His conviction was affirmed.

After Ken Thompson was elected DA in 2013, he created a Conviction Review Unit. As a result, on Jan. 12, 2017, the Kings County DA vacated O'Hara's conviction and moved to dismiss the indictment. O'Hara had spent 20 years as a convicted felon, subject to probation supervision, community service, fines, penalties, costs, attorney fees, loss of the right to vote and disbarment.

Glasser rejected defendants' "immunity" claims. DA defendants did not have absolute prosecutorial immunity because their actions in support of the conspiracy were investigative functions, not advocacy functions. Defendants were not entitled to qualified immunity because "no reasonable government official would believe that these actions did not violate clearly established statutory or constitutional rights." Slip op. 14. Assemblyman Brennan and John Keefe, his Chief of Staff, were not entitled to legislative immunity because their actions against O'Hara had nothing to do with legislative activity. No judicial immunity could be conferred on defendant Waite, an attorney with the State Board of Elections, for his alleged conduct in investigating O'Hara's residence and intimidating witnesses.

Glasser upheld O'Hara's §1983 claim for malicious prosecution, finding sufficient the allegations that all defendants "played an active role in the initiation and continuation of the criminal proceedings against him" and that "the proceedings were terminated in a manner indicating O'Hara's innocence when his conviction was vacated and his indictment was dismissed." Slip op. 15. Defendants had no probable cause to "arrest, indict, or prosecute O'Hara for voting out of residence" and they acted out of malice. Slip op. 15-16. Glasser declined as well to dismiss plaintiff's conspiracy claims.

Defendants fared no better with respect to O'Hara's Monell claims against the City. The complaint alleged many examples of DA Hynes acting as a New York City policymaker, causing his Office to maintain "an unlawful policy and custom of conducting illegal and unethical acts, ..." Slip op. 18. Hynes allegedly failed to supervise or discipline his ADAs and investigators.

Glasser dismissed as time barred O'Hara's claims for abuse of process, retaliation, fabrication of evidence and selective prosecution. (Plaintiff has moved to reconsider the dismissal of his fabrication of evidence claim following McDonough v. Smith, __ S. Ct. __, 2019 WL 2527474 (June 20, 2019), which held that such a claim accrues when proceedings terminate in defendant's favor.)

Finally, Glasser struck the DA defendants' reply brief because it contained new arguments and attached new documents.

1983 Claims-Detention and Recordings in Detention

In Roland v. City of New York, 19 CV 2240 (E.D.N.Y. June 4, 2019), Judge Chen dismissed certain civil rights claims brought by a state court criminal defendant, and allowed others to proceed.

Plaintiff Harry Roland filed a pro se complaint, alleging that his constitutional rights were violated during his post-arrest detention at Brooklyn Central Booking (BCB) and criminal trial. He sued the City of New York, Queens County District Attorney Eric Gonzalez, the judge who presided over his arraignment, four BCB officers, and a Rikers Island investigator, Josette McClean.

Alleging that his arraignment had been deliberately delayed in retaliation for his refusal to submit to an iris scan or DNA sample, Roland sued the judge and the four BCB defendants under 42 U.S.C. §1983 and the Fourth Amendment. The claim against the judge was dismissed pursuant to judicial immunity. The claims against the four BCB defendants were permitted to proceed, as the complaint's allegations that the arraignment was delayed four days pursuant to a retaliatory policy were sufficiently plausible to survive a pleading motion.

Roland also alleged that recordings of telephone calls he had participated in while awaiting trial at Rikers Island were turned over to the Kings County District Attorney's Office at trial in violation of his Fourth and Sixth Amendment rights. He sued The City of New York, Queens County District Attorney Gonzalez, and McClean on these claims. Chen dismissed the Fourth Amendment claim against District Attorney Gonzalez and Investigator McClean because the complaint did not adequately allege their personal involvement in the alleged violation (Slip op. 7-8). Chen upheld the Fourth Amendment claim against the City. Although the New York State Court of Appeals recently held that recording a prisoner's calls and sharing them with law enforcement did not violate the Fourth Amendment, People v. Diaz, 33 N.Y.3d 92 (2019), the law is less clear in the Second Circuit. Monitoring and recording inmate calls for security purposes is clearly authorized, but the Circuit "has never addressed the question of whether those recordings may then be shared with prosecutors without a warrant or subpoena, for the purpose of providing evidence for past crimes." Slip op. 10. As the complaint alleged that the tapes were shared with prosecutors without a warrant or subpoena, and without even any review by the Rikers Island staff, the Fourth Amendment claim was sufficient to survive a motion to dismiss.

Roland's Sixth Amendment claim against the City, District Attorney Gonzalez and investigator McClean based on an alleged violation of his right to counsel through the shared recordings did not survive. There was no allegation that the City had prompted particular replies from him, and allegations that it acted as a mere "listening post" were insufficient to plead a Sixth Amendment right-to-counsel violation. Slip op. 11.

HARVEY M. STONE and RICHARD H. DOLAN are partners at Schlam Stone & Dolan. Bennette D. Kramer, a partner of the firm, assisted in the preparation of the article.