New York Criminal Lawyer Blog
The claimant who is now 54 years old, has a long history of drug abuse and a lengthy criminal history, consisting primarily of drug crime offenses. Lapidus dropped out of school in the seventh or eighth grade because she was having problems at home, and began using speed and heroin as a teenager. Following a stay in a rehabilitation facility in the late 1970s, the claimant was able to stop using drugs for a period of about nine years. However, toward the end of 1987, after both of her parents became seriously ill and passed away, Lapidus began misusing the valium pills which had been prescribed to her for depression and insomnia. Her drug use then escalated to include heroin possession.
A New York Criminal Lawyer said that on November 14, 1987, the claimant was arrested with a codefendant, on charges, of assault, burglary, and robbery. At the time of this offense, the codefendant was her boyfriend. The victim of the offense was a former boyfriend had ended a relationship with several months earlier. A Bronx Criminal Lawyer said that, two days after her arrest, claimant was arraigned in the Criminal Court of the City of New York and released on her own recognizance. She and the codefendant were subsequently charged, in a 12-count indictment, with multiple offenses including assault in the second degree. When the claimant failed to appear for arraignment on the indictment, a bench warrant was issued. Codefendant was thereafter arraigned on the indictment on April 5, 1988, and he alone proceeded to trial in December 1988. At the conclusion of the codefendants trial, the jury found him guilty of assault in the second degree and, he was sentenced to an indeterminate term of 1½ to 4½ years of imprisonment. Although the claimant did not participate in the trial and was not tried in absentia, a part clerk mistakenly recorded on the court file jacket that she had been found guilty of the identical charge and sentenced on the same date as codefendant. This incorrect information was entered into the court’s computer system, and was reported to the New York State Division of Criminal Justice Services (hereinafter DCJS), the agency responsible for maintaining the criminal histories of individuals arrested in this state. Thus, the purported 1989 assault conviction became part of the claimants criminal record.
In the years following her arrest for the assault of her former boyfriend, claimant was arrested 14 additional times, and convicted of a number of misdemeanor offenses and violations. On August 25, 1997, claimant was arrested and subsequently indicted in New York County for criminal sale of a controlled substance in the third degree (drug possession). Following a jury trial, she was convicted of the charged offense. Prior to sentencing, the People filed a predicate felony statement alleging that on January 9, 1989, Lapidus had previously been convicted of the felony of assault in the second degree in Kings County. When the claimant appeared for sentencing on the New York County indictment on January 13, 1998, she was arraigned on the predicate felony statement, and advised of her right to controvert any of the allegations in the statement and to challenge the constitutionality of her alleged prior conviction. However, when asked if the allegations set forth in the predicate felony offender statement were true, claimant answered “yes,” and stated that she did not wish to challenge the constitutionality of her prior conviction. She was then adjudicated a second felony offender and was sentenced, in accordance with the prosecutor’s recommendation, to a term of 4½ to 9 years of imprisonment. The sentence imposed was the minimum permissible term for a second felony offender convicted of a class B felony.
Upon being sentenced, claimant was transferred to the custody of the New York State Department of Correctional Services (hereinafter DOCS) at the Bedford Hills Correctional Facility (hereinafter Bedford Hills). Shortly after Lapidus arrived at Bedford Hills, DOCS employees reviewed her criminal history, which included the purported 1989 conviction erroneously reported to DCJS. By letter, Bedford Hills’ inmate record coordinator asked the Clerk of the Kings County Supreme Court to forward the commitment order relating to the purported 1989 conviction. In response to this inquiry, , a sentence clerk prepared a “duplicate” commitment order, and forwarded it to DOCS. The “duplicate” commitment order indicated that Lapidus had been convicted of assault in the second degree on January 9, 1989, and sentenced to an indeterminate term of 1½ to 4½ years of imprisonment.
DOCS, relying upon the duplicate commitment order, calculated the total term of imprisonment that claimant would be required to serve and included the term of 1½ to 4½ years purportedly imposed upon her for the 1989 assault conviction. Upon adding this apparently undischarged term to the term imposed for claimants 1998 drug conviction, the DOCS determined that the total term of imprisonment that she would be required to serve was 6 to 13½ years.
On May 4, 2004, she was resentenced, on her 1998 conviction of criminal sale of a controlled substance in the third degree, to an indeterminate term of 1 to 3 years of imprisonment as a first time offender. Claimant was released from custody that same day, having been imprisoned for more than six years.
About eight months after her release, claimant filed the instant claim against the State, essentially alleging that the negligence of State employees had caused her to be incarcerated for more than five years longer than she should have been. The claimant alleges that these negligent acts caused her to be wrongfully adjudicated a second felony offender based upon a nonexistent assault conviction. The claimant further alleges that this wrongful adjudication resulted in her being sentenced as a second felony offender and that her sentence of imprisonment, when calculated by the New York State Department of Correctional Services, was further improperly enhanced when the sentence for the nonexistent assault conviction was added consecutively to her sentence as a second felony offender.
A Brooklyn Criminal Lawyer said that, claimant moved for summary judgment on the issue of liability, arguing that through a series of failures of care and omissions, court employees had prepared state records that resulted in her incarceration for a crime of which she had never been convicted, and an increased term of imprisonment for a crime of which she had been convicted.
The State countered by cross-moving, for summary judgment dismissing the claim. In support of the cross motion, the State argued that the claim should be dismissed for a number of reasons, including governmental immunity and lack of a duty of care. The State further maintained that it could not be held liable for the alleged negligence of its employees because claimant’s own conduct was the proximate cause of her extended incarceration.
The Court of Claims denied claimant’s motion for summary judgment on the issue of liability, and granted that branch of the State’s cross motion which was for summary judgment dismissing the claim. Concluding that the claimant’s intervening act of failing to controvert the predicate felony offender statement filed against her was the superseding cause of her injuries. Lapidus now appeals.
The issue in this case is whether the State can potentially be held liable with the threshold issue of whether the alleged acts of negligence committed by the state employees are cloaked with immunity.
The court in deciding the case, said that, more than 75 years ago, the State surrendered its sovereign immunity for the negligence of its employees when it enacted the Court of Claims Act. Nevertheless, “other recognized limitations still govern the tort liability of municipal officers” including governmental immunity, which attaches where the alleged negligent conduct giving rise to the claim involves a discretionary act requiring the government employee to exercise reasoned judgment.
The Court said that, the doctrine of governmental immunity does not, however, shield the State from liability for an employee’s negligent performance of his or her ministerial duties. Thus, appellate courts have held that the State is not immune from liability for the negligent acts of court employees in performing their everyday, ministerial duties.
For example, a judgment against the State was upheld in National Westminster Bank, USA v State of New York, where the Bronx County Clerk, acting in his role as Clerk of the Supreme Court, failed to timely docket a judgment obtained by the claimant in Nassau County. As a result of the Clerk’s failure to properly record the judgment, the judgment debtor was able to convey his parcel of land in the Bronx free from the claimant’s lien. In affirming the judgment in favor of the claimant, the Appellate Division, First Department, reasoned, that the State was not insulated from liability for the Clerk’s negligent failure to properly and timely record the subject judgment because the recording of judgments was a ministerial act.
In the case at bar, the primary acts of negligence alleged to have resulted in claimant’s erroneous adjudication as a second felony offender were committed by the part clerk, who incorrectly recorded both the jury verdict against codefendant and the sentence imposed upon him on the line of the court file designated for claimant. Since the accurate recording of a verdict rendered by a jury and a sentence imposed by a court do not require the conscious exercise of discretion, these duties are ministerial in nature, and the State may not be shielded from liability for the negligent performance of them. Similarly, the sentence clerk who later prepared a duplicate commitment order for the sentence purportedly imposed in 1989 without consulting the court file, which would have revealed that only codefenant went to trial and was sentenced in 1989, was also performing a ministerial duty, for which the State may not be immunized.
Although “ministerial negligence” is not cloaked with immunity, it does not automatically provide a basis for the imposition of liability. “Rather, a ministerial wrong `merely removes the issue of governmental immunity from a given case’. Thus, to hold the State liable for negligence, a claimant must establish the elements of a negligence claim, which are the existence of a duty, a breach of that duty, and that such breach was a proximate cause of the events which produced the injury.
With regard to the issue of duty, case law demonstrates that court employees have a duty to exercise due care in performing their ministerial duties, and that there is “ample authority for imposing liability upon the State based upon the negligent performance of a ministerial act”. Indeed, the negligence of court employees formed the basis for imposing liability upon the State in the three cases discussed above in connection with the issue of governmental immunity.
Turning to the disputed issue of legal causation, claimant contends that the court erred in finding, as a matter of law, that her failure to controvert the predicate felony statement filed against her in 1998 constituted an intervening, superseding event which disrupted the causal link between the alleged negligence of the court employees and her service of an excessive period of imprisonment. More specifically, claimant argues that her failure to controvert her status as a second felony offender cannot be viewed as an intervening act because her actions at sentencing were set in operation by the negligence of the part clerk who created the nonexistent felony conviction and sentence. In this regard, she asserts that no harm could have befallen her if the false records had not been created. Lapidus further contends that her statements admitting her predicate felon status were understandable given her lack of education, the years of substance abuse which had ravaged her mind and body, and her mistaken belief that she had been convicted of the 1987 assault in her absence. She also maintains that in determining whether her responses to the second felony offender inquiry were foreseeable, the court should have considered all of the unique facts surrounding the purported intervening event, including her motivation and physical condition.
In response, the State does not specifically discuss the concept of superseding causation, upon which the court relied in granting that branch of its cross motion which was for summary judgment dismissing the complaint. Rather, the State maintains that the court correctly held that any errors committed by its employees were not a proximate cause of any excessive period of confinement. In support of its position, the State submits that it was not the natural and probable result of the prosecutor’s and court’s mistaken recital to Lapidus in 1998 that she had a prior felony conviction that she would then admit that she had, in fact, been convicted of the prior predicate felony rather than controvert the existence of the prior conviction. The State also focuses on the issue of foreseeability, maintaining that Lapidus’s conduct in falsely concealing that she did not have a prior felony conviction was so improbable and unexpected as to be unforeseeable, and that “[h]aving chosen to `game’ the system on a gamble that the length of incarceration would be less if the court did not know the truth,” claimant should not be heard now to complain.
Under New York law, the issue of foreseeability is usually analyzed in considering whether one member of society owes a duty of care to another. In expressing the classic formulation of the role of foreseeability in negligence law Chief Justice Cardozo wrote that “the risk reasonably to be perceived defines the duty to be obeyed.” Thus, absent a foreseeable injury there is no duty, and absent a duty there is no negligence. “Foreseeability of risk is an essential element of a fault-based negligence cause of action because the community deems a person at fault only when the injury-producing occurrence is one that could have been anticipated”.
However, foreseeability also plays a key role in the doctrine of superseding causation. An intervening act, by either the plaintiff or a third party, may, in some circumstances, sever the causal connection between the defendant’s conduct and the plaintiff’s injury, and constitute a superseding event which relieves the defendant of liability. “In such a case, liability turns upon whether the intervening act is a normal or foreseeable consequence of the situation created by the defendant’s negligence. If the intervening act is extraordinary under the circumstances, not foreseeable in the normal course of events, or independent of or far removed from the defendant’s conduct, it may well be a superseding act which breaks the causal nexus”.
In order to constitute a superseding event severing the causal connection between the defendant’s alleged negligence and the plaintiff’s injury, the intervening act must be a new and independent force, which was not set in motion by the defendant’s own wrongful acts. Furthermore, for the plaintiff’s conduct to constitute a superseding cause, the plaintiff’s “negligence must be more than mere contributory negligence, which would be relevant in apportioning culpable conduct. Rather, such conduct, in addition to being unforeseeable, must rise to such a level of culpability as to replace the defendant’s negligence as the legal cause of the accident”.
Applying these principles to the highly unusual facts of this case, the Court finds that the Court of Claims erred in granting that branch of the State’s cross motion which was to dismiss the claim upon the ground that Lapidus’s failure to controvert her status as a second felony offender at her 1998 sentencing for criminal sale of a controlled substance in the third degree was, as a matter of law, an intervening, superseding act which broke the causal chain between the alleged negligence of court employees and her imprisonment for an excessive period. This is not a case where the alleged intervening act, as a matter of law, was independent of and divorced from the original negligence. Rather, as claimant argues, she never would have been placed in the position of having to admit or deny that she was a predicate felon had not a court employee mistakenly recorded on her court file that she had been convicted of assault in the second degree and sentenced to a term of imprisonment for that crime. Thus, the conduct alleged to be an intervening act flows from the original alleged negligence of the part clerk, and not, as the State asserts, from “the prosecutor’s and courts mistaken recital to claimant in 1997 that she had a prior felony conviction.” Furthermore, in deciding the issue of superseding causation as a matter of law, the court failed to take into account the fact that it was the alleged negligent preparation of a duplicate commitment order by the sentence clerk subsequent to claimant’s adjudication as a second felony offender which led DOCS to recalculate her sentence to include the 1½ to 4½ year term which supposedly had been imposed upon her for the nonexistent assault conviction. However, an argument can be made that the causal link between the alleged negligence of the sentence clerk who prepared the duplicate commitment order and claimant’s service of an increased period of imprisonment could not have been severed by an act which occurred prior to the alleged negligence.
Accordingly, the case at bar is not one in which superseding causation can be determined to exist as a matter of law because it cannot be said, as a matter of law, that the plaintiff’s injuries were caused by independent conduct which operated upon but did not flow from the defendant’s alleged negligence.
The Court concludes by observing that the facts presented herein constituted a “perfect storm” of events which unfortunately culminated in claimant’s service of a period of incarceration which was undeniably far over and above the sentence that she would have received, had the inclination of the trial court and the prosecutor toward imposing the minimum legal sentence been exercised within the boundaries of the law applicable to a first felony offender, and not the harsher limits required under the second felony offender statute. Indeed, the fact that claimant was ultimately sentenced to a term of 10 days under the 1987 assault in the second degree charge, and resentenced to a term of 1 to 3 years, nunc pro tunc, on the 1998 criminal sale of a controlled substance in the third degree conviction, clearly supports this conclusion. Whether and to what extent she should be permitted to recover damages for the excessive period of incarceration she was required to serve is an issue that ultimately must be resolved by the Court of Claims, in its role as trier of fact, after both parties have had an opportunity to make full evidentiary presentations at trial.
In light of our determination, the Court need not reach Lapidus’s additional contention that the court erred in awarding the State summary judgment because DOCS employees voluntarily assumed a duty to investigate the accuracy of the duplicate commitment order, and breached this assumed duty by failing to conduct their investigation with due care. Accordingly, the order is modified, on the law, by deleting the provision thereof granting that branch of the defendant’s cross motion which was for summary judgment dismissing the claim, and substituting therefor a provision denying that branch of the cross motion; as so modified, the order is affirmed.
If you have been convicted of a drug crime and improperly sentenced due to the court employee’s negligence, you will need the help of a Bronx Criminal Attorney to explain to you the legal options in criminal law. Bronx Drug Crime Attorney at Stephen Bilkis and Associates can represent your case.