# Petition — Rao v. New York

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1980
- **Citation:** 449 U.S. 982

## Text

Supreme Court, U.S.
rLi eo

80 “371 SEP8 1980

GMUCHAEL RODAK, JR., CLERK

IN THE ‘

Supreme Court of the United States

October Term, 1980

PAUL P. RAO,
Petitioner,

STATE OF NEW YORK.

Petition for a Writ of Certiorari to the Court of
Appeals of the State of New York.

Paut P. Rao, Jr.
Attorney for Petitioner
210 East 61st Street
New York, N. Y. 10021
(212) 964-8866

Questions Presented.

Petitioner filed a claim against the State of New York
under §8 of the Court of Claims Act for his malicious
prosecution on a two count perjury indictment which was
dismissed without trial since his constitutional and civil
rights had been violated due to the illegal, pernicious and
outrageous, seven-month pre-investigative and subsequent
five-month investigative activities of the former Special
Prosecutor of the State of New York and his deputies. The
questions thereby arising are:

1. Whether the state of New York can raise the /mbler-
Pachtman defense of absolute immunity for illegal pre-
investigative and unlawful investigative activities of its
former Special Prosecutor whereby petitioner was,
without probable cause, initially earmarked as a target of
an unlawful prosecutorial scheme which intolerably in-
volved the conceded commission of numerous crimes by
the office of the Special Prosecutor for a twelve-month
period and led to a Special Grand Jury proceeding that en-
tailed petitioner’s waiver of immunity and the giving of
testimony because of a preplanned deception by the
Special Prosecutor, all of which subsequently resulted in
his being coercively threatened with a perjury indictment
and arrest if he refused to equip himself with electronic
recording devices to manufacture criminal charges in
nonrelated and nonexistent matters as against other judges
and public officials he personally knew, so that his refusal
finally culminated in said perjury indictment and mali-
cious prosecution for a period of three years.

ll.

2. Whether petitioner has a claim for compensatory
damages against the State of New York for being un-
lawfully and perniciously investigated, threatened with
indictment, arrested, indicted and maliciously prosecuted
for three years with the result that his health was gravely
impaired and his reputation widely defamed due to his
being deprived of his constitutional and civil rights by the
agents of the former Special Prosecutor of that state.

lil.

Table of Contents.

Page
Cen UME ok 64 405X054 44 s'e o hea baween i
I 5 Seas eens pane aaen cna en 1
ey TP ere ere rr Cr ee bes 2
Constitutional Provisions Involved............... 2
eee Per errs rT rere re 3
REP EP ee PO ee yr rT ern Tae y 9
Reasons for Granting the Writ................... 14
RINE s 6 a0 ers cots be ee es 25
Appendix A (Opinion of the Court of Claims) ..... Al
Appendix B (Opinion of the Appellate Division,
ee GS hk og 6s <5 Ga bh eS Bl
Appendix C (Opinion in People v. Rao, 425 N. Y. S.
ee RE CUE Sivas s40 rh cha ctnerewis Cl
TABLE OF CASES.
Aloe v. MioGrame, S45. CR. ZEIGE occ ccccceesisaess 22
Bivens v. Six Unknown Named Agents of the Fed-
eral Bureau of Narcotics, 456 F. 2d 1339 (2nd
ee Ee Pree Te er eer Tyree rere 22

Briggs v. Goodman, 569 F. 2d 10 (D. C. Cir.
1977), cert. denied 437 U.S.904........... 14

iv.

Page

Bronston v. United States, 409 U.S. 352 (1973) .... = 11
Broughton v. State, 373 N. Y. S. 2d 87, 37 N. Y. 2d

PT ee err rrr er rere 15

Flaks v. Koegel, 504 F. 2d 702 (2nd Cir. 1971)...... 15
Forsyth v. Kleindienst, 599 F. 2d 1203 (3rd Cir.

as kek Oe A eee we een 14

Galella v. Onassis, 487 F. 2d 986 (2nd Cir. 1973).... 22

Gregorie v. Biddle, 177 F. 2d 579 (2nd Cir. 1949)... 18

Imbler v. Pachtman, 424 U. S. 409, 96S. Ct. 409 . 14, 19,
20, 23

Kletschka v. Driver, 411 F. 2d 436 (2nd Cir. 1969) .. 22

Lee v. Williams, 617 F. 2d 320 (2nd Cir. 1980) ..... 14
Neely v. Doyle, 403 F. 2d 123 (2nd Cir. 1973) ...... 15
Nigrone v. Murtagh, 46 A. D. 2d 343, 362 N. Y. S.
ee en re er eee 10
Olmetead ¥. U.S., 277 U.S. 435 2... cee sccccces 17
People v. Rao, 425 N. Y. S. 2d 122 (1980) ......... 17
Rao v. State of New York, 425 N. Y. S. 2d 888
ACT 54 COR aKVMOSDRAAONA RK OCR RRS Ss 2
Stevens v. Marks, 383 U. S. 234, 86S. Ct. 788...... 25

United States v. Archer, 486 F. 2d 670 (2nd Cir.
hoe ia Ca re. Cae eeba baad be 5

Page
United States v. Archer, 672 F. 2d 670 (1973) ...... 24
United States v. Classic, 313 U.S. 299 ............ 22
United States v. Russell, 411 U.S. 423............. 17

United States v. White, 401 U.S. 475,91 S.Ct.1122 25

Yaselli v. Goff, 12 F. 2d 396 (2nd Cir. 1926) ...... 18, 23

No.

IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1980.

PAUL P. RAO,
Petitioner,
v,

STATE OF NEW YORK.

Petition for a Writ of Certiorari to the Court of Appeals
of the State of New York.

The petitioner, Paul P. Rao, prays that a writ of cer-
tiorari issue to review the judgment of the Court of Ap-
peals of the State of New York rendered in these pro-
ceedings on June 12, 1980.

Opinions Below.

The Court of Appeals denied petitioner’s motion for
leave to appeal without opinion. The opinion of the Court

2

of Claims of the State of New York is unreported and ap-
pears at Appendix A, infra, pages Al to Al9. The Ap-
pellate Division, Third Department, affirmed the judg-
ment of the Court of Claims of the State of New York at
425 N. Y. S. 2d 888, and this opinion appears at Appendix
B, infra, pages B1 to B8.

Jurisdiction.

The judgment of the Court of Appeals of the State of
New York was entered on June 12, 1980. This petition for
certiorari was filed less than 90 days from the date
aforesaid. The jurisdiction of this Court is invoked under
28 U.S. C. §1257(3).

Constitutional Provisions Involved.
Constitution of the United States, Amendment IV:

‘*The right of the people to be secure in their
persons, houses, papers and effects, against unrea-
sonable searches and seizures * * *,’’

Constitution of the United States, Amendment V:

‘*No person * * * shall be compelled in any
criminal case to be a witness against himself * * *
without due process of law.’’

Constitution of the United States, Amendment XIV §1:

‘** * * nor shall any state deprive any person of life,

liberty, or property without due process of law
“* m

3

Statement of Facts.

Petitioner is an active Federal Judge of the United
States Customs Court since 1948, having been Chief Judge
from 1965 to 1971.

In September, 1972, former Governor Nelson A.
Rockefeller of the State of New York issued a number of
Executive Orders which superseded the duly elected
district attorneys, authorized the empaneling of Extraor-
dinary Special Grand Juries for the five counties of New
York City, the appointment by the Attorney General of
the State of New York of Maurice Nadjari as Special Pros-
ecutor and assistants for the purpose of investigating and
prosecuting corruption in the criminal justice system of
the City of New York. Several of the duly elected District
Attorneys objected to being superseded by Maurice Nad-
jari, especially District Attorney Frank S. Hogan of New
York County, who informed the Governor and the At-
torney General of New York State that he would prosecute
any illegal and unlawful acts committed in the County of
New York by the Special Prosecutor.' Consequently, Nad-
jari commenced his illegal, intolerable and malicious ac-
tivities against the petitioner in a different county, Kings
County.

One Loretta Errico, who had been previously convicted
for a felony, was arrested for bribery on April 3, 1973, by
the New York City Department of Investigation in con-
junction with the State Special Prosecutor. She was inter-
rogated by officials from both agencies and agreed to co-
operate so as to avoid prosecution. On her person was a

'**Hogan Again Hits Governor over Nadjari,’’ N.Y.L.J.,
December 8, 1972, at page 1, column 6; N. Y. Times, October 12,
1972, at page 1, column 3.

4

pocket telephone book which contained many names and
numbers, one of which was the name of petitioner and the
telephone number of the United States Customs Court.
(The telephone number was not that of petitioner’s private
chambers or of his non-published home number, but one
which could be found in the telephone directory.) Errico
falsely informed her interrogators that she was a good
friend of petitioner. (The tape and transcript of her only
conversation with petitioner on November 12, 1973,
categorically evidenced that she had not seen him in over
40 years.) Errico untruthfully claimed that she was the
godmother of one of petitioner’s daughters. (This state-
ment was admitted by her under oath during a trial of peti-
tioner’s son in October of 1977 to have been a lie.)
Without verifying any of her assertions the Special Prose-
cutor then opted to believe Errico’s final remark that she
was in an ideal position to attempt to have the petitioner
intercede for her in judicial matters. Thus, without prob-
able cause, the Special Prosecutor engaged in
preinvestigative activities designed solely for the peti-
tioner.

From February, 1973 through August, 1973, Errico
would either call or visit the Customs Court in unsuc-
cessful attempts to speak to or obtain an appointment to
see petitioner. Although this itself placed the Special
Prosecutor on notice that she was not in fact a close friend
of the petitioner, the undercover operation continued.
Then on September 8, 1973, petitioner’s wife died and Er-
rico, on September 11, 1973, the day of the funeral, op-
portunistically called petitioner’s chambers to personally
express her condolences to his secretary, falsely claiming
that she had been a dear friend of petitioner’s wife. She
again requested an appointment to see the petitioner and
the secretary informed her to call back.

5

Aniticipating Errico’s success in obtaining an appoint-
ment with her next call, the Special Prosecutor, on
November 1, 1973, concocted a simulated robbery and ar-
rest which was to be exploited by Errico when she saw the
petitioner. This was done regardless of the fact that a
similar scheme was concocted by the court in the case of
U. S. v. Archer, 486 F. 2d 670 (2nd Cir. 1972), wherein the
Special Prosecutor filed a brief amicus curiae on behalf of
the chastised government.

The preinvestigative scenario called for one Stephen
Wilkowski, a probationary police officer from the New
York City Police Academy, to assume the alias ‘‘Vitale’’
and to become the purported perpetrator of a fake armed
robbery against one Morton Hirsch. To manufacture this
non-existent crime, the Special Prosecutor violated seven
penal laws of the State of New York: falsely reporting an
incident (reporting the bogus crime to a law enforcement
agency knowing it to be false), §240.60; making an ap-
parently false statement (the felony complaint misled
public servants in their performance of official duties),
§210.40; forgery (falsifying a fraudulent New York City
Police Department record, spuriously indicating two prior
arrests and one conviction for ‘‘Vitale’’), §170.10;
possessing a forged instrument (the New York City Police
Department record), §170.25; offering a false instrument
for filing (the perjurious felony complaint and fraudulent
fingerprint record), §175.35 and criminal impersonation,
§190.25. Moreover, all of the county judges and county
prosecutors from Kings, before whom the ‘‘Vitale’’ case
was and would be processed were never advised of the
manufactured nature of the case, thereby obstructing
them in their official performance of governmental func-
tions in violation of §195.05.

6

On November 8,1973, one week after the pre-investi-
gative period wherein the manufactured crime was con-
summated, Errico called petitioner’s chambers. The
secretary, recalling Errico’s prior call of condolence over
the death of petitioner’s wife who she claimed was a dear
friend of hers, made a November 12, 1973 appointment
for Errico to see the petitioner. On that day, she was
briefed by the Special Prosecutor’s office and electron-
ically equipped for the purpose of secretly recording her
conversation with petitioner as the investigative period
began.

In the five-minute conversation she had with petitioner,
Errico stated that she had not seen him in approximately
40 years and falsely informed petitioner that a son of dear
friends of hers was in trouble and she needed advice. Peti-
tioner told her that as a federal judge he could not give
legal advice but that his son was an attorney and if she
desired to consult him, his secretary would call and ar-
range an appointment for her. He also stated that one
should have an attorney who knows the judge.? Conven-
iently, the explanation of that remark was not recorded
and these words eventually were to be taken out of con-
text. At Errico’s request petitioner’s secretary telephoned
his son and Errico left. This was the only time that peti-
tioner saw or spoke to Errico; he never saw.or spoke with
Stephen ‘‘Vitale.”’

Although the tape was patently non-incriminating and
clearly evidenced that Errico had lied as to her close
friendship wiih the petitioner and her being the godmother
of petitioner’s daughter, the Special Prosecutor persisted
in his undercover operation and sent Errico to see peti-
tioner’s son on the same day. Being electronically

Articles written on the importance of knowing the judge include
DeConcini, Evo, ‘‘Know Your Judge,’’ Case & Comment, May-June,
1948, and Mendelson, Irving ‘‘Criminal Cases,’’ Practising Law Insti-
tute, 1945, pages 9-21.

>

equipped, she consulted his son who thereafter saw Vitale
and undertook to represent him. From November 12, 1973
through March, 1974, the ‘‘Vitale’’ case was processed
through the unsuspecting criminal justice system of Kings
County by unknowing prosecutors and Judges.

Then on Novembe: “2, 1973, still in pursuit of develop-
ing some criminal act by petitioner or his son, the Special
Prosecutor in furtherance of his investigative scheme per-
mitted ‘‘Vitale’’ to be indicted by a deceived Kings County
Grand Jury on the perjured testimony of the bogus com-
lainant Hirsch and the pretended arresting officer
presented by an uninformed Kings County Assistant
District Attorney. This indictment caused the violation of
four more penal laws of the State of New York: tampering
with witnesses (Hirsch and the arresting officer in the
Grand Jury), §215.10; perjury (testimony of Hirsch and
the arresting officer in the Grand Jury), §210.15 and
swearing falsely to mislead a public servant (the local
district attorney), §210.10. All this illegality evidenced of-
ficial misconduct by the Special Prosecutor and his agents
in violation of §195.00.

Pe..odically, from November 12, 1973 to March 10,
1974, Errico would telephone the Customs Court being
unable to speak to or see the petitioner. Toward the end of
the day of March 11, 1974, petitioner’s son notified
‘*Vitale’’ in the presence of his law associate, Sal Nigrone,
that he was withdrawing from the case since ‘‘Vitale’’ had
demanded on that day that petitioner’s son should fix the
case. Petitioner’s son notified the Kings County District
Attorney’s Office on the morning of March 12, 1974, as to
the illegal demand and also notified the trial court on
March 13 by a personal appearance. Petitioner’s son was
officially permitted to withdraw. All in the scheme by the

8

Special Prosecutor had also involved him in a violation of
§105 (conspiracy) and a violation of criminal solicitation,
§100.05.

The Special Prosecutor’s original plan of enticing peti-
tioner and his son into a substantive crime had totally
failed but with pernicious tenacity Errico was sent by him
to the petitioner’s son’s law office on March 13 and 14,
1974, to unsuccessfully urge him to continue with the case
lest ‘‘Vitale’s’’ parents do her bodily harm. Moreover, on
March 13, Errico spoke to petitioner’s secretary imploring
her to urge the petitioner to have his son continue with the
case. All of these efforts to prolong the investigative ac-
tivities of the Special Prosecutor failed.

The Special Prosecutor then determined to exploit his
Special Grand Jury for purposes of creating the ap-
pearance of a perjury charge in order to use the threat of a
perjury indictment against the petitioner, his son and his
son’s law associate. Thus, in hope of commandeering
them into his troops of informers, on April 8, 1974, an
assistant Special Prosecutor notified petitioner’s son that
his appearance was needed before a Special Grand Jury in
Kings County on April 10 being falsely told that his
testimony was required as against ‘‘Vitale’’ because of
‘*Vitale’s’’ illegal demand upon him that he had reported
to the Kings County District Attorney’s Office and to the
trial court. Petitioner’s son’s law associate, Sal Nigrone,
was also requested to testify on April 12, being falsely told
that his testimony was needed on April 14 as against
‘*Vitale’’ since he was in petitioner’s son’s law office the
day ‘‘Vitale’’ made the illegal demand. The petitioner
himself, on April 15, was likewise requested to appear
being falsely told that his testimony was needed on April
17 as against Errico. The petitioner, his son and his law
associate all waived immunity and testified without being

9

told that the ‘‘Vitale’’ case was a hoax, that they were
targets and that there were tape recordings.

On May 13, 1974, petitioner and his son were directed to
appear at the office of the Special Prosecutor where they
were informed by Assistant Special Prosecutor Michael
Brown that unless they agreed to be electronically
equipped and cooperate with the Special Prosecutor in
creating cases that would be concocted by the Special
Prosecutor’s office as against judges and public officials
they knew, they would be indicted for perjury. Refusing to
succumb to such unjustifiable intimidation they were told
to surrender themselves the next day at 9:00 a.m.

On May 14, 1974, petitioner, his son and law associate
surrendered themselves, were taken into custody and were
fingerprinted, being under a two, seven and one-count in-
dictment, respectively. They were denied a copy of their
indictments and were driven in a private police car to the
police station where photograhers, TV cameras, radio and
newspaper reporters had been alerted and were waiting.
Afterwards, they were returned in custody and were still
denied a copy of the indictment. The Special Prosecutor
held a press conference and read the indictments to the
reporters. Later in the afternoon, they were mugged and
again were refused a copy of the indictment. Still in the
custody of the detectives, they were taken before Justice
Murtagh and for the first time obtained a copy of the in-
dictment.

Legal History.
On June 21, 1974, a motion was made to summarily

dismiss the three indictments in the Appellate Division,
Second Department, solely on the ground of prosecutorial

10

misconduct. By a 3-2 vote the Court denied the motion on
December 13, 1974 (46 A. D. 2d 343, 362 N. Y. S. 2d 513).
However, the Court stated:

‘*Such a perversion of the criminal justice system
by an over-zealous prosecutor is illega), outrageous
and intolerable and we condemn it * * *. The
Special Prosecutor * * * is not above the law * * *”’
(45 A. D. 2d 343, 347, 348).

On April 3, 1974, an appeal to the Court of Appeals was
dismissed merely on procedural grounds. The Court held
that it was without jurisdiction to pass upon the merits (36
N. Y. 2d 421) since the decision by the Appellate Division
was an interlocutory order. Nevertheless the Court stated:

‘‘There are those who believe that the alleged
prosecutorial misconduct * * * is so egregiously in-
excusable that the criminal actions spawned by that
conduct should be summarily terminated’’ (36 N.
Y. 2d 421, 425).

On May 19, 1975, acomplaint for declaratory judgment
and for injunctive relief was brought in the United States
District Court for the Southern District of New York. Fed-
eral Judge Lloyd F. MacMahon dismissed the cornplaint
on October 1, 1975, as a matter of comity, holding that all
claims could be raised in the State criminal courts. But
Judge MacMahon said:

‘‘There can be no question that the defendant’s
conduct as Special Prosecutor in simulating the set-
ting for the perjury indictments of the plaintiffs
was foul, illegal, and outrageous.”’

A notice of appeal from Judge MacMahon’s decision
was filed in the United States Court of Appeals for the

1]

Second Circuit on October 28, 1975. This appeal was
withdrawn without prejudice by reason of a decision
rendered by Justice John Murtagh on December 2, 1975,
where he dismissed the three indictments. Justice Murtagh
stated:

‘‘The main element of a perjury charge under
Article 210 of the Penal Law is a ‘false statement’
allegedly made by a defendant. With respect to
each count of the indictments, the evidence
presented to the Grand Jury as to this main element
of the crime is in complete violation of the rules of
evidence.”’

On July 20, 1976, the Appellate Division in 53 A. D. 2d
904, 386 N. Y. S. 2d 441, reversed the decision of Justice
Murtagh, solely because the Special Prosecutor had not
been given an opportunity to be heard on the issue con-
sidered by the court in arriving at its decision. Judge Mur-
tagh died and the indictments were assigned to Justice
Leonard H. Sandler. Motions to dismiss on the grounds of
legal insufficiency, defective Grand Jury proceedings and
in the interest of justice were made. On March 15, 1977,
Justice Sandler dismissed the two count indictment against
petitioner stating:

‘‘* * * As to Judge Rao, it is clear that the indict-
ment must be dismissed. The evidence with regard
to him was tenuous at best, quite apart from the
substantial issue raised that it did not squarely con-
tradict his testimony (cf. Bronston v. U. S., 409 U.
S. 352 [1973]).

‘** * * Coupled with the fact that the evidence
contains no intimation of any misconduct on his
part, I very much doubt that the Grand Jury would
have voted the indictment if the evidence had been
presented properly.”’

12

The Special Prosecutor notified petitioner’s attorneys that
the decision would not be appealed. The other two indict-
ments were assigned to Justice Leon Polsky who, on May
10, 1977, dismissed the one-count indictment as to peti-
tioner’s son’s law associate on the basis of an unnecessary
delay in the sealing of one tape which lent itself to an op-
portunity for tampering. Two days later, on May 12, 1977,
petitioner filed a claim against the State of New York for
malicious prosecution which violated his 4th, Sth and 14th
Amendment rights. The claim was duly answered and the
State subsequently filed a motion to dismiss or for sum-
mary judgment.

On August 12, 1977, Judge Polsky dismissed one of the
seven counts of petitioner’s son’s indictment, refusing to
re-examine the ‘‘substantiality’’ of the ‘‘issues’’ because
three years had elapsed from the time of the indictment.
Consequently the case of petitioner’s son went to trial on
October 4, 1977. After the state’s case the court dismissed
one count and on October 15, 1977, the jury returned a
verdict acquitting him of four of the remaining five counts
of perjury in the first degree. A motion was made to set
aside the verdict as to the remaining count and to dismiss
the indictment. The motion was denied by Justice Polsky
on March 22, 1978. However, he reduced the conviction to
third degree perjury holding that the testimony found to
be false was not material to the Grand Jury investigation.
Petitioner’s son was sentenced to an _ unconditional
discharge, and an appeal was taken.

On January 10, 1979, the motion for summary judg-
ment as to petitioner’s claim against the State of New
York was granted by Judge Jerome F. Hanifin of the New
York State Court of Claims. Judge Hanifin held that the
**Special Prosecutor approached his task with a stunning
disdain for the State’s criminal justice system’’ and stated
**that his actions in fabricating the Vitale robbery and in

13

making a presentation to the Special Grand Jury in almost
complete disregard for the rules has been variously
characterized as absolutely intolerable, pernicious, a
perversion of the criminal justice system, a perversion of
the rules of evidence.’’ Yet the Court refused to recognize
petitioner’s cause of action, stating that ‘‘No rights of the
petitioner were violated,’’ but instead, ‘‘that the rights of
every man, woman and child in the state were violated.’’
The Court further stated:

‘*It is somewhat anomalous that claimant wishes
to recover damages in this Court from the citizens
of this state who were, in fact, victims of the acts of
which he complains. Claimant complains of police
tactics and rightfully so. However, those tactics
were part of an intentional plan to abuse the laws
and legal system of this State. In other words, the
State itself was the victim, along with its citizens
and the claimant.”’

On February 25, 1980, the Appellate Division of the
Second Department, by a 3-1 decision, dismissed the re-
maining misdemeanor count against petitioner’s son and
included in its decision a comprehensive review of all in-
dictments. The Court stated that ‘‘vigilante justice’? was
‘‘abhorrent to our concept of jurisprudence.’’ It also
noted that there was ‘‘no evidence’’ as to ‘‘corruption
within the criminal justice system.’’ Moreover, the Court
pointed out that the Special Prosecutor ‘‘withheld * * * ex-
culpatory tapes from the Extraordinary Grand Jury’’
which ‘‘corroborated’’ testimony before it and ‘‘con-
tradicted’’ the testimony of the prosecution’s witnesses. In
short, the appearance of perjury was perniciously created.

The court commented on the ‘‘monstrous and patently
illegal’’ actions of the Special Prosecutor both prior to and
during the Grand Jury proceedings. It added that the

14

misconduct of the Prosecutor was committed in order to
‘*satiate his appetite for indictments against [petitioner’s
son] and the two other defendants’’ [petitioner and peti-
tioner’s son’s law associate]. It referred to that ‘‘miscon-
duct’’ as being ‘‘calculated, insidious and pervasive.’’ The
Special Prosecutor notified petitioner’s son’s attorneys
that the decision would not be appealed.

Then on March 20, 1980, the Supreme Court, Appellate
Division, Third Department, never addressing itself to the
ground upon which Judge Hanifin granted summary judg-
ment, affirmed the decision as against the petitioner in his
suit against the State, saying that the Special Prosecutor
had ‘‘probable cause’’ to indict and enjoyed ‘‘absolute im-
munity.’’ Finally, on June 13, 1980, the Court of Appeals
denied the petitioner leave to appeal.

Reasons for Granting the Writ.

This petition should be granted since the questions of
law which it presents are novel and of public importance.
Moreover, Jmbler v. Pachtman should be clarified in
order to resolve the conflict between the District of Co-
lumbia, Second and Third Circuits, as to the test to apply
to determine whether a prosecutor’s actions fall within the
investigatory or judicial phase of a prosecution. In Briggs
v. Goodman, 569 F. 2d 10 (D. C. Cir. 1977), cert. denied
437 U. S. 904, the Court held that ‘‘the crucial inquiry
concerns the nature of the official behavior challenged’’ so
that the investigative function may embrace acts even
when performed after the commencement of judicial pro-
ceedings. In Lee v. Williams, 617 F. 2d 320 (2nd Cir.
1980), the Court held that the type of the harm suffered, if
of a constitutional magnitude, such as invasion of privacy,
is the determining factor. In Forsyth v. Kleindienst, 599 F.
2d 1203 (3rd Cir. 1979), the Court held that if the pros-
ecutorial function was intimately related to the judicial
process, there would be absolute immunity.

15

The State of New York has permitted itself to be sued
for malicious prosecution. Thus Broughton v. State, 373
N. Y. S. 2d 87, 37 N. Y. 2d 451, has enumerated the
elements for such a cause of action: [1] a criminal prosecu-
tion instituted or continued by the defendant against the
claimant (petitioner was indicted on May 14); [2] termina-
tion of the proceeding in favor of the accused (on March
15, 1977, the indictment against petitioner was dismissed);
[3] absence of probable cause for the proceeding (the two
decisions dismissing petitioner’s indictment as well as the
decision which referred to the petitioner and dismissed
petitioner’s son’s indictment clearly substantiate this
point); and [4] malice (the description of the conduct of
the Special Prosecutor by all the courts as being ‘‘illegal,’’
‘‘outrageous,’’ ‘‘intolerable,’’ ‘‘monstrous’’ and ‘‘pat-
ently illegal,’’ ‘‘malicious and in disregard for the rule of
law,’’ and that ‘‘transgressions were committed by the
representatives of the then Special Prosecutor in order to
satiate his appetite for indictments against [petitioner’s
son] and the two other defendants [petitioner and peti-
tioner’s son’s law associate]’’ evidence that the actions of
the Special Prosecutor, in the words of Flaks v. Koegel,
504 F. 2d 702, 707 [2nd Cir. 1971], were ‘‘wanton and
willful’? as well as ‘‘egregious or approbrious,’’ so as to
establish that the prosecutor ‘‘deliberately and with malice
participated in a scheme to deprive petitioner of his
rights,’’ Neely v. Doyle, 403 F. 2d 123, 128 [2nd Cir.
1973]).

It is ironic that the Appellate Division, Third Depart-
ment, on March 20, 1980, affirmed the dismissal of the
civil cause of action by Judge Hanifin stating that if the
claimant could establish ‘‘that there was not a full and
complete statement of facts to the grand jury that indicted
or that the prosecutor falsified evidence against the claim-
ant or withheld information which might have affected the
result’? then the action would not have been dismissed.

16

For one month prior to the publication of that decision,
namely on February 25, 1980, the Appellate Division of
the Second Department, which had the criminal matter
before it on three separate occasions categorically stated
that based upon additional information imparted to that
court ‘‘the criminal background of a principal witness for
the people (before the Special Grand Jury) was deliber-
ately concealed by the use of deceptive acts’’ and that ‘‘ex-
culpatory evidence’ namely, ‘‘crucial tapes’’ were
‘*knowingly withheld,’’ so that a gross and unfair decep-
tion was practiced upon the Special Grand Jury.

The Appellate Division, Third Department, did not ad-
dress itself to the rationale of the decision of Judge
Hanifin. The reason was obvious, for when a person is in-
dicted he in fact suffers damages singular to him,
regardless of the fact that in theory all of society is injured
by an attack on the law itself. It is the petitioner who was
the target of an ‘‘illegal,’’ ‘‘pernicious,’’ and
‘*outrageous’’ scheme; it is the petitioner who was charged
with a crime, arrested and mugged; it is the petitioner who
was unable to perform his judicial function as a federal
judge; it is the petitioner whose health was gravely ruined
through angina pectoris; it is the petitioner whose il-
lustrious reputation was defamed—it was not any other
person in the state. To hold that petitioner was not dam-
aged other than as a citizen of the State, since all citizens
were theoretically damaged, defies logic.

Javert type techniques in the pre-investigative and in-
vestigative stages of a prosecution, which recklessly tram-
ple upon basic Constitutional guarantees and deliberately
violate statutory laws, while intentionally ravaging con-
stitutional rights which Americans hold most precious
must not be perpetrated with impunity. To sanction such
wanton misconduct would have a chilling effect on proper

17

law enforcement and result in the erosion of the Constitu-
tion. Thus the tort of malicious prosecution indeed pro-
tects the personal interest of freedom from unjustifiable
litigation. Prosser, Torts, 4th Edition, §119. Simply
stated, as the court pointed out in People v. Rao, 425 N.
Y. S. 2d 122 (1980), ‘‘what is evident in this case is miscon-
duct of law enforcement so calculated, insidious and per-
vasive as to require as a matter of due process the vacating
of the indictments.’’ Cf. United States v. Russell, 411 U.
S. 423, 431-432. For as noted by Mr. Justice Brandeis in
Olmstead v. U. S., 277 U. S. 435, 485:

**Decency, security and liberty alike demand that
government officials shall be subjected to the same
rule of conduct that are commands to the citizen.
In a government of laws, existence of the govern-
ment will be imperilled if it fails to observe the law
scrupulously. Our government is the potent, the
omnipresent leader. For good or for ill, it teaches
the whole people by its example. Crime is con-
tagious; if the government becomes a law breaker it
breeds contempt for laws; it invites every man to
become a law unto himself; it invites anarchy. To
declare that the administration of the criminal law
the end justifies the means, to declare that the
government may commit errors in order to secure
the conviction of a private individual, would bring
horrible retribution. Against that pernicious doc-
trine this Court should resolutely set its face.’’

Significantly, the pernicious nature of the prosecution
against petitioner is patently invalid when one evaluates
the basis for which the preinvestigative period began. Er-
rico, a prior felon, who had been arrested for a recent
bribery, had in her possession the name and general court
house number of the petitioner; all of which was ob-
tainable from a New York Telephone Directory. Then,

18

based upon two falsehoods, namely her statement that she
was a good friend of the petitioner and that she was the
godmother of petitioner’s daughter, neither of which were
verified, her last assertion that she could successfully have
the petitioner intercede for her in a judicial matter, was
eagerly given credence. Irrespective of the fact that for a
five month period thereafter, she was unable to obtain an
appointment to see the petitioner, which was clear notice
that she indeed was not a good friend of the petitioner,
and merited verification as to her claim of being the god-
mother of petitioner’s daughter, the bogus Vitale case was
manufactured. This bogus case spawned the violation of
the penal laws heretofore mentioned and was commenced
three weeks after the death of petitioner’s wife, which
event presented an opportunity fcr Errico to get an ap-
pointment to see the petitioner.

Such peremptory action based on the acceptance of a
report from a private citizen, can find no sanction in the
prescribed powers and duties of a prosecution attorney.
When a prosecuting attorney proceeds upon such a course,
‘the does so at the same peril as does the unofficial
citizen’’ (see Yaselli v. Goff, 12 F. 2d 396, 405 (2nd Cir.
1926), aff’d 275 U. S. 503 (1927).

The Court in Gregorie v. Biddle, 177 F. 2d 579, 581 (2nd
Cir. 1949), held:

‘*‘What is meant by saying that the officer must
be acting within his power cannot be more than
that the occasion must be such as would have
justified the act, if he had been using his power for
any of the purposes on whose account it was vested
in him.”’

The information received by Errico was ‘‘the occasion’’
which prompted the action taken by the defendants in

19

processing a sham case through the criminal justice
system. However, that ‘‘occasion’’ was totally insufficient
to justify the action taken. Moreover, even if the informa-
tion was of such a character as to warrant that the ‘‘occa-
sion’’ justified that some action be taken, nevertheless,
there could be no justification for the nature of the very
action which was in fact taken—namely, violations of the
penal laws of New York State.

There can be no doubt that a state prosecutor when act-
ing within the scope of his duties in initiating and pursuing
a criminal prosecution has absolute immunity. But the
Supreme Court in its most recent pronouncement as to ab-
solute immunity held that such immunity attaches when
‘‘activities were intimately associated with the judicial
phase of the criminal process’’ and does not relate to
‘*these aspects of the prosecutor’s responsibility that cast
him in the role of an administrator or investigative officer
rather than that of advocate.’’ Jmbler v. Pachtman, 424
U. S. 409, 96 S. Ct. 984, 995.

The unique facts of the instant case specifically relate to
the exception carved out by the Supreme Court in Jmbler,
supra, 96 S. Ct. at 995:

‘It remains to delineate the boundaries of our
holding. As noted, supra, at 7, the Court of Ap-
peals emphasized that each of respondent’s
challenged activities was an ‘integral part of the
judicial process.’ 500 F. 2d at 1302. The purpose of
the Court of Appeals’ focus upon the functional
nature of the activities rather than respondent’s
status was to distinguish and leave standing those
cases, in its circuit and in some others, which hold
that a prosecutor engaged in certain investigatory
activities enjoys not the absolute immunity

20

associated with the judicial process, but only a
good faith defense comparable to the policeman’s.
See Pierson v. Ray, 386 U. S., at 557, 87S. Ct., at
1219. We agree with the Court of Appeals that re-
spondent’s activities were intimately associated
with the judicial phase of the criminal process, and
thus were functions to which the reasons for ab-
solute immunity apply with full force. We have no
occasion to consider whether like or similar reasons
require immunity for those aspects of the pros-
ecutor’s responsibility that cast him in the role of
an administrator or investigative officer rather than
that of advocate. We hold only that in initiating a
prosecution and in presenting the State’s case, the
prosecutor is immune from a civil suit for damages
under Sec. 1983 [footnotes omitted].’’

Moreover, in Jmbler, supra, 96 S. Ct. at 995, note 33,
the Court held:

‘*We recognize that the duties of the prosecutor
in his role as advocate for the State involve actions
preliminary to the initiation of a prosecution and
actions apart from the courtroom. A prosecuting
attorney is required, constantly, in the course of his
duty as such, to make decisions on a wide variety of
sensitive issues. These include questions of whether
to present a case to a grand jury, whether to file
an information, whether and when to prosecute,
whether to dismiss an indictment against particular
defendants, which witnesses to call and what other
evidence to present. Preparation, both for the in-
itiation of the criminal process and for a trial, may
require the obtaining, reviewing and evaluation of
evidence. At some point, and with respect to some
decisions, the prosecutor no doubt functions as an
administrator rather than as an officer of the court.

21

Drawing a proper line between these functions may
present difficult questions, but this case does not
require us to anticipate them.’’ (Emphasis added.)

The facts of this case unequivocally establish that the
reliance by the defendant on absolute immunity is totally
misplaced. The pre-investigative and investigative conduct
which led to the indictment of petitioner did not involve
‘the initiating of prosecution’’ or ‘‘presenting the state’s
case’’ but instead concerned ‘‘functions of an ad-
ministrator rather than as an officer of the court.’’

For prior to petitioner’s first and only meeting with Er-
rico on November 12, 1973, which was the initial and only
contact he had relative to his indictment, ‘‘unlawful,”’
‘*intolerable’’ and ‘‘outrageous’’ conduct was perpetrated
by the agents of the defendant. In violation of their sworn
duty to uphold the Federal and State Constitutions they
engaged in transgressing the specified sections of the New
York State Penal Law mentioned above. These
preliminary activities as to the arrest and arraignment of
Vitale, were obviously performed to create a pre-
investigative tool, which could be exploited in the pursuit
of an investigation of petitioner, which hopefully would
lead to his indictment for a substantive crime. Obviously
this illegal, pernicious and foul conduct was not an in-
tegral part of the judicial process. It was not even in-
vestigative per se, it was pre-investigative. Since Jmbler
does not cloak investigative activities with immunity, a
fortiori, it does not cloak pre-investigative conduct with
immunity. Therefore the defendant has forfeited the
defense of absolute immunity.

After Errico saw petitioner on November 12, 1973, she
called his chambers on numerous occasions being unable
to speak with or see him. Then during the investigative

22

period between November 12, 1973 and March 14, 1974,
while petitioner’s son represented Vitale, the defendant
engaged in additional conduct which was not part of the
judicial process and which violated the penal laws of the
State and the constitutional and civil rights of petitioner.
In order to obtain an indictment of Vitale on November
22, 1973, Patrolman Cosgrove and the bogus victim
Hirsch testified before an unsuspecting Kings County
Grand Jury, without the District Attorney knowing that
the Vitale case was a sham.

The actions of the agents of defendant were certainly
beyond the outer perimeters of their line of duty. Bivens v.
Six Unknown Named Agents of the Federal Bureau of
Narcotics, 456 F. 2d 1339, 1343 (2nd Cir. 1972). Their
behavoir was obviously not within the ‘‘scope’’ of their
‘lawful authority,’’ Galella v. Onassis, 487 F. 2d 986, 993
(2nd Cir. 1973), and was not an isolated incident but a per-
sistent pattern of misconduct, Alee v. Medrano, 94S. Ct.
2191, 2200. Such misconduct epitomizes that which the
Court stated in U. S. v. Classic, 313 U. S. 299, 326:

‘‘* * * Misuse of power possessed by virtue of
state law and made possible only because the
wrongdoer is clothed with the authority of state
law, is action taken ‘under color of’ state law.”’

Thus, ‘‘through the use or misuse of a power derived
from a state,’’ Kletschka v. Driver, 411 F. 2d 436, 448
(2nd Cir. 1969), the ‘‘defendants engaged in malicious
conspiratorial action at odds with the proper discharge of
their official duties’’ (p. 450).

The processing of the bogus Vitale case, through an un-
suspecting criminal justice system, which case included an
indictment based on perjured testimony before an unin-

23

formed Grand Jury and local District Attorney, is not the
activity of a Special Prosecutor ‘‘in the performance of
duties imposed upon him by law’’ (Jmbler, supra, at 991).
The commission of crimes by a Special Prosecutor in the
pre-investigative and investigative stages, clearly
establishes that which the court held in Yaselli v. Goff, 12
F. 2d 396, 406 (2nd Cir. 1926), aff’d 275 U. S. 503 (1927)
(per curiam), that he ‘‘acted outside the duties which were
specifically devolved upon him.’’

Justice White observed in his concurring opinion in Jm-
bler, 96 S. Ct. at 998:

‘*Accordingly, the question whether a prosecutor
enjoys absolute immunity from damage suits or
only a qualified immunity, depends upon whether
the common law and reason support the proposi-
tion that extending absolute immunity is necessary
to protect the judicial process.”’

Considering then the nature of the pre-investigative and
investigative conduct of defendant, the claim should not
have been dismissed, since as was noted by Justice White
in Imbler, 96 S. Ct. at 1000, ‘‘it is by no means true that
such absolute immunity is necessary or even helpful in
protecting the judicial process.’’ For as Justice White also
stated (Imbler, 96 S. Ct. at 1001):

‘‘one would expect that the judicial process would
be protected—and indeed its integrity
enhanced—by denial of immunity to prosecutors
who engaged in unconstitutional conduct.”’

Granted there is a legitimate concern that a potential
charge of wrongdoing against a prosecutor would cause
his ‘‘energy and attention”’ to be ‘‘diverted from the press-
ing duty of enforcing the criminal law’’ (Jmbler, 96 S. Ct.

24

at 425), this concern is not applicable to ‘‘outrageous,”’
‘‘intolerable,’’ ‘‘pernicious’’ and ‘‘foul’’ violation of
numerous criminal laws.

It should be noted here, that the Archer decision of July
12, 1973, was published four months prior to the
manufacturing of the Vitale case on November 1, 1973.
The U. S. Court of Appeals for the Second Circuit in U. S.
v. Archer, 672 F. 2d 670, 672 (1973), categorically con-
demned strikingly similar conduct of a less unlawful
nature, holding that it ‘‘went beyond any prosecutorial
role.’’ Judge Friendly, in writing for an unanimous court
at page 677, referred to the ‘‘arrogant disregard’”’ of those
who claimed that their ‘‘conduct did not infringe the rights
of complaining parties’’and his expressed ‘‘hope’’ that
‘*the lesson’’ of the Archer case would ‘‘obviate the
necessity’’ of future decisions was callously disregarded by
Special Prosecutor Nadjari. Most significantly the office
of the Special Prosecutor had appeared as amicus curiae in
the Archer case and although the modus operandi it sup-
ported was condemned that office nevertheless repeated it
four months later.

When petitioner’s son had withdrawn from the case and
because no substantive crime had been committed, the
agents of the defendant then concocted the scheme of lur-
ing the petitioner to testify by stating that his testimony
was needed as against Errico. This presented them with a
two-edged sword, either threaten the petitioner with a per-
jury indictment so as to coerce him to assume the role of a
wired informer to create matters against persons he knew,
or if he should refuse, to so pervert the grand jury pro-
ceedings as to create the appearance of perjury. To ac-
complish this, the petitioner, when he waived immunity,
was not advised that the Errico-Vitale matter was a fan-
tasy, was not advised that he was a target of the investiga-
tion and wasnot advised that there were secret tape record-

25

ings. All of this was not in accordance with the concept of
the Fifth Amendment as mentioned in Stevens v. Marks,
383 U. S. 234, 86 S. Ct. 788, 794, that the ‘‘state may not
substitute for the privilege against self-incrimination a
scheme * * *’’ so that the concurring opinion stated, 86 S.
Ct. 788, 795, ‘‘a state in exacting a waiver of the privilege
should turn square corners * * *.”’

The treachery in successfully foisting Errico upon peti-
tioner, so that she could record his conversation for the
Special Prosecutor, which would be partially presented to
a subverted Special Grand Jury, has a chilling effect on the
Fourth Amendment protection of verbal communication
enunciated in U. S. v. White, 401 U. S. 475, 91 S. Ct.
1122. For the unique circumstances which led to the decep-
tive invasion of the petitioner’s privacy in his judicial
chambers, coupled with the deliberate violation of penal
laws by the Special Prosecutor which preceded it, rendered
those chambers a constitutionally protected area. The peti-
tioner had a reasonable expectation of privacy from such
an unjustifiable intrusion based on an unsuccessful en-
trapment scheme involving a consistent pattern of illegal
activities and a consistent pattern of violation of the Penal
Code of the State of New York by the Special Prosecutor.

Conclusion.

For these reasons, a writ of certiorari should issue to
review the judgment of the Court of Appeals of New
York.

Respectfully submitted,
PAUL P. RAO, JR.,
Counsel for Petitioner,
210 East 61st Street,
New York, N. Y. 10021

September 4, 1980.

Al

PRESENT: HON. JEROME F, HANIFIN,

Judge
STATE OF NEW YORK
COURT OF CLAIMS
PAUL P. RAO,
Claimant
-vVs- MEMORAN DUM-= DEC IS ION
and ORDER

STATE OF NEW YORK
Claim # 61123
Motion # M-20647
Cross Motion XM-20717

APPEARANCES:

For the Claimant: WULF & LEVINE, ESQS.
BY: Ramsey Clark, Esq. of
counsel

For the State: HON, LOUIS J. LEFKOWITZ
Attorney-General
BY: Robert G. Farrell, Esq.
Assistant Attormey-
General of counsel

HANIFIN, J.

This is a motion pursuant to section 17

A2

of the Court of Claims Act for an Order granting
Claimant permission to take the examination before
trial of Louis J. Lefkowitz, Attorney General of

the State of New York, certain named Special Assist-
ant State Prosecutors of the State of New York, one
Joseph Phillips, not further identified, and certain
individuals that the Claimant wishes to examine as
witnesses, to wit: Maurice Nadjari, former Special
Prosecutor and Deputy Attorney-General of the State
of New York, and T. Stegman, an officer who arrested
the Claimant.

The State moves for an Order dismissing the
Complaint on the grounds that the Court lacks juris-
diction of the subject matter of the Claim and of
the person of the Defendant, and that the Claim
fails to state a cause of action. In the alterna-
tive, the State seeks an Order granting summary
judgment.

At oral argument, Claimant's motion for dis-

covery was adjourned sine die.

A3

The facts which give rise to this Claim
have been the subject of extensive court proceedings
and are not in serious dispute.

In September of 1972, then Governor Rocke-
feller issued Executive Order No. 55 which author-
ized the empaneling of an Extraordinary Special
Grand Jury and the appearance before that Grand Jury
of the Attorney-General of the State of New York or
his assistants and deputies, to investigate alleged
corruption in the criminal justice system of the City
of New York. In furtherance of that goal, State
Attorney-General Lefkowitz designated Maurice H.
Nadjari as Special Prosecutor and Deputy Attorney-
General of the State of New York.

In an apparent effort to ferret out corrup-
tion, the Special Prosecutor decided to fabricate a

1
crime to infiltrate the criminal justice system.

1 The idea apparently occurred to him after he filed
a brief amicus curiae in United States v_ Archer, 486
F 2d 670 (2d Cir., 1972) wherein a similar scheme was
condemned by the Court.

AG

A probationary officer from the Police Acad-
emy, using the name ''Vitale'' was alleged to have
committed armed robbery. A false felony complaint
was lodged against Vitale and he was arrested and
jailed pending arraignment. Bail was eventually set
at $10,000 by a Judge unaware of the ruse. In an
effort to reinforce the scheme, the Special Prosecu-
tor's Office prepared and filed a false criminal
record for Vitale indicating two prior arrests,

Thereafter, the Special Prosecutor sent a
"Mrs. Gatti," an acquaintance of Claimant, and an
undercover agent, to see the Claimant, at that time
a Judge of the United States Customs Court, After
experiencing some difficulty in making an appoint-
net Mrs. Gatti apparently did see the Claimant on
November 12, 1973 and asked his help on behalf of
Vitale. Unknown to the Claimant, Mrs. Gatti recorded
their conversation which apparently lasted no more
than five minutes, |

During his conversation with Mrs. Gatti, the

Claimant, among other things, suggested that Vitale

A5

contact the Claimant's son, Paul P. Rao, Jr., a
practicing attorney.

On November 23, 1973, Vitale was indicted
for robbery and grand larceny by a Kings County
Grand Jury which was unaware, as was the Assistant
District Attorney who presented the case, that no
robbery had ever occurred. Although this Court is
not directly concerned with the course of the fabri-
cated crime in the criminal justice system insofar
as this Claim is concerned, it does appear that
Vitale did, in fact, go to the Claimant's son and
that the son’ represented Vitale in the contrived
criminal proceedings until March of 1974 when he
formally withdrew as counsel.

In April of 1974, Claimant was requested to
appear before the Extraordinary Special Grand Jury
which was investigating whether there had been a con-
spiracy to bribe a Kings County Supreme Court Justice
to influence the outcome of the Vitale case.

Claimant waived immunity and testified: Mrs.

Gatti also testified and the tape recording with the

A6

Claimant was put into evidence. The Special Grand
Jury knew that the Vitale case was a sham.

In May of 1974, Claimant was indicted upon
two counts of perjury.

The first count of the indictment recited:

The evidence adduced before the Grand Jury
also showed that a representative of Vitale
went to see Judge Rao and discussed the bail
problew in Vitale's case.

According to the proof, the defendant told
the representative that the way to handle
the bail problem was to get a lawyer who
knew the judge in the case,

Accordingly, it became material and neces-
sary to question the defendant about his
knowledge of, and involvement in attempts
to' influence the proceedings in and the
outcome of the Vitale case.

On April 17, 1974, the defendant appeared
before the Extraordinary Special Grand Jury
in and for the County of Kings, State of
New York, was duly sworn and gave testimony
concerning the matter under investigation.

Whereupon, the defendant swore falsely when
he denied that he had told someone that the
way to handle the bail problem in the Vitale
case was to "get a lawyer that knows the
judge." |

Whereas in truth and in fact, the defendant
did tell a certain individual that the way
to handle the Vitale bail problem was to
"Set a lawyer who knows the judge."

A7

The second count of the indictment re -
peated the first four paragraphs quoted above and
then continued:

Whereupon, the defendant swore falsely

when he testified that he never told a

certain individual how to handle her prob-

lem in affecting a judge's actions on a

criminal case.

Whereas in truth and in fact, the defendant

did advise a certain individual how to han-

dle her problem in affecting a judge's

actions on a criminal case.

Judge Rao's son and Judge Rao's son's law
partner were also indicted for perjury as a result
of this Vitale fabrication.

On March 15, 1977, the two count indictment
against the Claimant was dismissed by the Hon.
Leonard A. Sandler, a Justice of the Supreme Court.

This Claim, which was filed in the Office of
the Clerk of the Court of Claims on May 17, 1977,
basically alleges that the decision to investigate
and prosecute corruption in the criminal justice

system of the City of New York was the result of a

plan on the part of Rockefeller, Lefkowitz and Nad-

jari to assist Rockefeller in obtaining the Republican

A8

nomination for the Presidency of the United States
and that, presumably in furtherance of that plan,
the Vitale "robbery" was concocted and perpetrated
on the City's criminal justice system. The Claim
further alleges that the Claimant was selected as a
target of the Vitale ruse because he was of Italian
descent and had a national reputation as a public
official. Pointing out that the Special Prosecutor's
Office itself violated the law with iain” the
Claimant alleges that as a result of the actions of
the Special Prosecutor he has been injured in his

name and reputation, suffered disrepute, disgrace

For example, perjury in the first degree (swear-
ing falsely before a Grand Jury) section 210.15
of the Penal Law; perjury in the second degree
(swearing falsely to mislead a public servant)
section 210.10 of the Penal Law; forgery in the
second degree (falsifying public records) section
170.10 of the Penal Law; criminal possession of

a forged instrument section 170.25 of the Penal
Law; making a sworn false statement in the first
degree (intended to mislead a public servant)
section 210.40 of the Penal Law; offering a false
instrument for filing, section 175.35 of the
Penal Law; falsely reporting an incident (report-
ing to a law enforcement agency information known
to be false), section 240.60 of the Penal Law;
and various misdemeanors such as false written
statement, criminal impersonation, official mis-
conduct, obstructing governmental administration,
criminal solicitation, tampering with witnesses
and conspiracy.

A9

and dis! nor; has been obliged to refrain from try-
ing cases im his Court; has otherwise been injured,
affecting his health; and has been up to ridicule,
hatred and contempt by some of his friends, ac-
quaintances and the public for a period of three
years. He, therefore, demands judgment in the sum
of $5,000,000.00 compensatory damage and $20,000,000.00
exemplary damages.

The Claimant has characterized his Claim as

one for "malicious prosecution."

The complete factual background of this
Claim as it appears above is not set forth in the
Claim as filed. Although the Claim is 10 pages long,
it does not, for example, affirmatively allege that
the Claimant testified before the Grand Jury and it
is silent as to the nature of the indictments handed
down by that Grand Jury. The Court, however, has
taken considerable liberty in stating the chronolog-
ical background because it is not in dispute and has
been restated on a number of occasions in judicial

decisions arising out of the criminal proceeding

Al0

against the Claimant and various actions by Claim-
ant in both the Federal and New York State courts

(People v_ Rao, 53 AD2d 904; Matter of Nigrone v

Murtagh, 46 AD2d 343, affd 36 NY2d 421; People v

Rao [Supreme Ct. Kings County, March 15, 1977,

SANDLER, J.]: Rao v_ Rockefeller [US Dist Ct SDNY,

January 26, 1978, BRIEANT, J.]).

Although Claimant sought dismissal of the
indictment on the ground of prosecutorial misconduct,
among other grounds, Justice Sandler actually dis-
missed the indictment because:

The evidence with regard to him was tenuous
at best, quite apart fron the substantial
issue raised that it did not squarely con-
tradict his testimony. (Cf. Bronston v_l.S.
409 U.S. 352 (1973)).
The two counts against him rest on the dubi-
ous assumption that a man then 74 years of
age necessarily remembered, and intentionally
denied, a remark in a brief conversation some
six months earlier, not shown to have had any
significance to him that was preliminary to
recommending a criminal case to his son.
Coupled with the fact that the evidence con-
tains no intimation of any misconduct on his
part, I very much doubt that the Grand Jury
would have voted the indictment if the evi-
dence had been presented properly. (People
v_Rao [Supreme Ct., Kings County, March 15,
1977, SANDLER, J. ], at p. LO).

All

However, Justice Sandler in this same deci-
sion denied the motions of Paul P. Rao, Jr. and his
law partner despite the fact that they both arose
from the same prosecutorial conduct.

Although he dismissed the indictment against
the Claimant, Justice Sandler noted:

It is apparent from my examination of the
Grand Jury minutes that the Special Prose-
cutor and the Extraordinary Special Grand
Jury had a reasonable basis for believing
that an effort may have been made corruptly
to influence the determination of the case
arising out of the simulated robbery, and
could have reasonably believed that each of
these defendants had relevant information.
It is true that the method pursued, which
withheld from these defendants the true
character of the Vitale case, was realisti-
cally more likely to develop charges of per-
jury than the information confirming the
suspected corrupt undertaking, but I cannot
find from the facts before me that "the pro-
ceeding . . . was designed solely, and for
no other valid purpose than, to produce ...
perjury." (at p 7).

The actions of the Special Prosecutor's Office
in fabricating the Vitale robbery and in making a
presentation to the Special Grand Jury in almost
complete disregard for the normal rules of evidence

has been variously characterized as "absolutely in-

Al2

'" "pernicious," "a perversion of the

tolerable,
criminal justice system," “illegal," "outrageous,"

and "intolerable" (Matter of Nigrone v Murtagh,

supra). There is no doubt that the Special Prose-
cutor approached his task with a stunning disdain
for this State's criminal justice system. The ques-
tions before this Court, however, are whether the
actions of the Special Prosecutor's Office as they
were directed against the Claimant were such as to
invoke the jurisdiction of this Court and to give
rise to a meritorious Claim.

The State's negative response to these ques-
tions is based, in part, on the intimately related
concepts of prosecutorial and sovereign immunity.

This Court finds neither immunity an absolute
bar to a Claim for antecedent prosecutorial miscon-

3
duct. The Court's position, following Briggs v

3 See this Court's discussion of these issues in
Cunningham v State of New York, [Claim # 61891,
Motions # M-20701 and M-21435, dated December 29,
1978].

Al3

Goodwin, 569 F2d 10, cert den US » 98 § Ct

3089, (and cases cited therein), is that where a
prosecutor acts as a policeman, or investigator,
removed from the judicial process, he can only

claim the immunity of a policeman. A police in-
vestigator's immunity is only qualified, subject to
the defense of good faith. He may not claim a com-
plete defense under either of the doctrines of judi-
cial or sovereign immunity.

However, the question remains whether the
actions of the Special Prosecutor and his associates
give rise to a viable Claim under the facts herein.

Although the Vitale ruse has been uniformly
condemned by all of the Judges and Justices who have
considered it, it is not entirely clear whether the
condemnation is directly solely to the assault made
on the State's criminal system or whether the con-
demnation includes the actions taken vis-a-vis the
Claimant. |

In Matter of Nigrone v Murtagh, supra, Clai-

mant and others moved in the Appellate Division to

Al4

dismiss their respective indictments pursuant to
subdivision 2 of section 149 of the Judiciary Law.
After discussing the fabricated criminal case in de-
tail, Justice Christ, writing for the majority
(three Justices) stated: "In this case there has
been no violation of any of the defendant's consti-
tutional or otherwise cognizable rights."' The ma-
jority then expressed the hope "that our condemna-
tion of the prosecutorial misconduct in this sui
generis case will suffice to prevent its repetition.
Should the Special Prosecutor disregard the admoni-
tions here expressed, it still remains within the
executive power to take appropriate action." (46
AD2d 349-350).

Although it might be argued that there is
some distinction between the Claimant's rights in a
civil as opposed to a criminal proceeding, it seems
clear that the three Judge majority in the Appellate
Division were of the opinion that the Special Prose-
cutor's investigative misconduct was not such that

this Claimant was damaged in any of his rights.

Al5

Their concern, was, rather, with the integrity of
the criminal justice system.

However, Justice Shapiro, writing for the
dissent (two Justices) concluded that:

The majority also argues that "in this

case there has been no violation of any of

the defendants’ constitutional or other

cognizable rights," but the fact is that

"the pernicious effect of the Special Pros-

ecutor's conduct" (the majority's language)

invaded not only the rights of these de-
fendants but that of every man, woman and

child in this State. (p. 358).

The precise nature of the "rights of the
defendant [s]'' which the dissent felt were violated
was not discussed. In other words, it is not clear
whether the rights of the Claimant which were vio-
lated were those rights which he shared with every
other citizen of this State (to enjoy a sound un-
compromised criminal justice system) or some special

right that he enjoyed by virtue of his being part of

the investigative ruse.

+ But, see Rao v Rockefeller [US Dist Ct, SDNY, Jan-
uary 26, 1978, BRIEANT, J.] where in an action
brought by Claimant under 42 US Code, §1983, Judge
Brieant refused to grant sumnary judgment on behalf
of Nadjari under the same basic facts as alleged
herein because "A perversion of the State criminal
justice system, to plaintiff's detriment, appears to
have occurred."

Al6

In affirming the Appellate Division's denial
of Claimant's motion to dismiss the indictment
against him, the Court of Appeals noted that it was
doing so purely on procedural grounds in that the
Appellate Division's decision was not appealable at

that time (citing, Matter of State of New York v

King, 36 NY2d 59; 62-63). However, the Court noted:

Moreover, in coming to that conclusion no
agreement or disagreement is expressed with
the view of the majority at the Appellate
Division that the only remedy for alleged
antecedent prosecutorial misconduct is solely
by executive action. (Matter of Nigrone v
Murtagh, 36 NY2d 421, 425).

The Court of Appeals did not comment on the
discussion in the Appellate Division decision with
regard to Claimant's constitutional or other cogni-
zable rights.

There is no clue as to what remedies might
be available if the Court of Appeals disagreed with

the view of the majority at the Appellate Division

with regard to antecedent prosecutorial misconduct.

3 A number of obvious possibilities come to mind,
however, such as disbarment or censure,

Al7

As previously stated, this Court has con-
cluded that a civil action against the State of
New York for damages is a remedy in a proper case,
However, the Court further concludes that this is
‘not a proper case. No matter how reprehensible the
actions of the Special Prosecutor were, this Court
agrees with the majority in the Appellate Division
that no rights of the Claimant were violated and
agrees with the dissent in the Appellate Division to
the extent that it concludes that the rights of
every man, woman and child in this State were vio-
lated. It is somewhat anomalous that Claimant wishes
to recover damages in this Court from the citizens
of this State who were, in fact, victims of the acts
of which he complains. Claimant complains of police
state tactics and rightly so. However, those tactics
were part of an intentional plan to abuse the laws
and legal system of this State. In other words, the
State itself was the victim, along with its citizens
and the Claimant. It is, therefore, this Court's

conclusion that Claimant has not shown facts estab-

Alg

lishing a viable Claim against the State based on
prosecutorial/investigative activities.

Further, the purpose of the Grand Jury is
to protect citizens against oppressive governmental
actions. It serves as a buffer between the State
and the individual and is normally in a position to
assess and evaluate the performance of a prosecutor
and his fairness. Here the Extraordinary Special
Grand Jury knew of the Vitale ruse and still indicted.
Although it is unfortunate that they did so, it is
also understandable.°

Finally, to the extent that the actions and
decisions of Rockefeller, Lefkowitz and Nadjari were
politically motivated, they were outside the scope

of their employment (cf. Goodyear Aluminum Products

v State of New York, 12 AD2d 692; Cunningham v State

of New York, supra).

6 it is not this simple, of course, since the Grand
Jury presentation itself was inherently unfair
(see, People v Rao, 53 AD2d 904, dissent of TITONE,J.).
Nonetheless, that presentation was absolutely immune

(Imbler v_Pachtman, 424 US 409).

In Rao v Rockefeller, supra, Judge Brieant held
that such "political ambition" is not actionable,
even where suit is brought directly against the
actor.

Al9

In accordance with the foregoing it is

ORDERED, that the State's motion to dismiss
the Claim on the grounds that the Court lacks juris-
diction of the subject matter of the Claim and of
the person of the defendant be and hereby is DENIED;
and it is further

ORDERED, that the State's motion to dismiss
the Claim on the grounds that it fails to state a
cause of action be and hereby is DENIED; and it is
further

ORDERED, that the State's motion for summary

judgment is GRANTED.

DATED: Binghamton, New York
January 3, 1979

JEROME F, HANIFIN
Judge of the Court of Claims

ENTER:

Bl

SUPREME COURT - APPELLATE DIVISION
THIRD JUDICIAL DEPARTMENT

March 20, 1980 36370

PAUL P, RAO, Appellant
Vv.

STATE OF NEW YORK, Respondent
(Claim No. 61123)

Appeal from a judgment of the Court of
Claims (Hanifin, J.), entered January 30, 1979,
granting the respondent's motion for summary judg-
ment.

The claim alleges malicious prosecution and
arises out of investigations conducted by Special
Prosecutor Maurice Nadjari who, in an effort to un-
cover political corruption, fabricated and staged a

false crime or robbery. The part of the defendant

was played. by an undercover probation officer using

B2

the assumed name of Vitale. The contact was a wo-
man named Gatti who knew the claimant, a Judge of
the U. S. Customs Court, slightly. The robbery
charge was presented by the Kings Gounty District
Attorney's office to a Kings County Grand Jury with-
out the knowledge of either the District Attomey's
office or the Grand Jury that the crime was fictitious.
Pending arraignment and indictment, Vitale even sub-
mitted to jail until bail in the amount of $10,000,
as set by an unsuspecting Justice of the Supreme
Court, could be furnished.

On November 12, 1973, subsequent to the fel-
ony complaint, and prior to indictment, Mrs. Gatti
approached the claimant as to how Vitale could be
helped in his difficulty with the law. This conver-
sation was recorded without the claimant's knowledge.
The substance of the conversation was a recommenda-
tion by the claimant that his son, a practicing New
York City attorney, be contacted to represent Vitale.
The son undertook the representation and succeeded

in obtaining the reduction of bail from $10,000 to

B3

$1,000. He withdrew from the case, however, when
Vitale suggested it be "fixed".

The Special Prosecutor presented a charge
of conspiracy to bribe a Kings County Supreme Court
Justice to influence the outcome of the Vitale case
to the Special Grand Jury for the Extraordinary Term
empaneled to consider the political corruption cas-
es. This Grand Jury was made fully aware that the
Vitale case was a sham. In April, 1974, the claimant
was called before it. He appeared, waived immunity
and testified. In the course of his testimony, he
was asked if he had ever told someone that the way
to handle the bail problem of Vitale was to "get a
lawyer that knows the judge". He denied making such
a statement. He also denied telling Mrs. Gatti how
to affect a judge's actions in a criminal case in an
effort to aid Vitale. These denials, when weighed
against the testimony of Vitale and Gatti and the
tape recordings of various conversations, resulted in
a two-count indictment against the claimant.

The claimant moved initially to dismiss the

B4

indictment for prosecutorial misconduct. The motion
was denied, although the conduct and methods of the
Special Prosecutor were condemned as "illegal",

"outrageous" and "intolerable" (Matter of Nigrone

v. Murtagh, 46 A D 2d 343, 347, affd. 36 NY 2d 421).

On a subsequent motion brought by the son's
law partner, the motion to dismiss was granted as to
all defendants in the interests of justice, but this
dismissal was subsequently reversed on appeal for
lack of a hearing and because the Special Prosecu-
tor had not been permitted to answer the motion (Pe-
ople v. Rao, 53 A D 2d 904).

A subsequent motion before the Extraordinary
‘Special and Trial Term on March 15, 1977 resulted in
a dismissal of the indictment against the claimant
due to the manner in which the evidence had been
presented to the Grand Jury, the witnesses having
been permitted to express their opinions of the truth
or falsity of the claimant's testimony, and because
the examinations of the witnesses consisted chiefly

of leading and prejudicial questions.

BS

On March 17, 1977, the claimant filed his
claim against the respondent for malicious prose-
cution, the sufficiency of which is the subject of
this appeal. To sustain it the claimant has the
burden of showing that the criminal proceeding a-
gainst him was begun in malice, without probable
cause of success, and terminated in his favor (Brough-

ton v. State of New York, 37 N Y 2d 451). That a

criminal proceeding was begun against the claimant
and terminated in his favor is obvious.

The determinative issue is lack of probable
cause, which would permit, but would not require a
jury to infer the existence of actual malice from the
fact there was no probable cause to initiate the pro-
ceeding (Martin v. City of Albany, 42 NY 2d 13, 17).
It is the claimant's contention that the Special Pro-
secutor lacked probable cause to call him before the
Grand Jury, the robbery charge being a sham, and, as
a result of his testimony there, he was wrongfully
indicted. The contention is erroneous. No matter

how the investigation was conducted by the Special

B6

Prosecutor, nothing he did, no matter how offensive,
would license the claimant to commit perjury (Matter

of Nigrone v. Murtagh, supra), and without doubt the

claimant's denieal under oath of the two statements
attributed to him by the other witnesses and the
tape recordings supplied probable cause for his in-
dictment.

The indictment was found by a Grand Jury tiat
knwe that the Vitale case was a ruse. The indictment
was subsequent to and independent of the proceeding
that indicted Vitale, in which the claimant neither
testified nor appeared. The indictment in and of
itself constitutes prima facie evidence of probable
cause. In order to overcome it the claimant must
show that there was not a full and complete statement
of facts to the Grand Jury that indicted, or that the
Prosecutor falsified evidence against the claimant,
or withheld information which might have affected

the result (Johler v. Consolidated Laundries Corp.,

54 A D 2d 632). None of these factors has been dem-

onstrated by the’claimant, no matter how reprehensi-

B7

ble he has shown the conduct of the Special Prose-
cutor to have been. Significantly, the indictment
judicially overcame the first challenge to dismiss
it. When it was finally dismissed, the dismissal
decision of Mr. Justice Sandler specifically stated
that there was a reasonable basis for believing that
an effort may have been made corruptly to influence
the determination of the case arising out of the
simulated robbery and there there was a reasonable
belief that the claimant possessed relevant inform-
ation. The dismissal was not based on lack of prob-
able cause to indict, but rather, on the manner in
which the witnesses were questioned and permitted to
testify.

It ‘ollows that the Grand Jury proceeding
which indicted the claimant was not designed solely
aud for no other valid purpose than to produce per-
jury and, therefore, the lack of probable cause is
absent from the claim as a matter of law.

Furthermore, the dismissal decision having

concluded that a reasonable basis existed for pre-

B8

sentation of the case of corruption, the Special
prosecutor, acting in a quasi-judicial capacity as
an advocate before such Grand Jury, was cloaked in
absolute immunity (Imbler v. Pachtman, 424 U.S. 409,

421-423; Cunningham v. State of New York, 71 A D 2d

181).
Judgment affirmed, without costs.
SWEENEY, J.P., KANE, STALEY, JR., CASEY and

HERLIHY, JJ., concur.

Cl

February 25, 1980
SUPREME COURT : APPELLATE DIVISION

SECOND JUDICIAL DEPARTMENT

lll ll ee ee ee ee ee

THE PEOPLE, etc.,
Respondent ,
-against-
PAUL P. RAO, JR.,
Appellant.
APPEAL from a judgment of the Supreme Court
(LEON B. POLSKY, J.), rendered March 22, 1978 in
Kings County, convicting defendant of perjury in the
third degree, upon a jury verdict.
Saxe, Bacon & Bolan, P.C.
New York, N.Y. (Thomas A,
Bolan, John F, Lang, Roy
R. Kulcsar and Louis Bian-
cone of counsel), for

appellant.

Roderick C. Lankler, Depu-
ty Attorney-General, New

—

C2

York, N.Y. (Thomas A,
Duffy, Jr., and Vincent
Torna of counsel), for
respondent.
7 2£t.O8 &, d; Defendant-appellant appeals from
a judgment of conviction, after a jury trial, of
the crime of perjury in the third degree (one count).
However, on appeal, the conduct of the trial and
the ensuing conviction are overshadowed by the. high-
ly questionabke tactics employed by the then Special
Prosecutor* to obtain a seven-count indictment char-
ging appellant, an attorney, with the crime of per-
jury in the first degree, and similar indictments
against two other defendants. The indictments of the
other defendants have previously been dismissed.
This case has a long, involved and checkered
history. In the latter part of 1974, the three de-
fendants moved in this court to have the charges

dismissed upon the grounds of prosecutorial miscon-

duct. While all three accusatory instruments were

*All references hereafter to the Special Prosecutor
shall mean the prosecutor in office at the time the
acts in question occurred.

ee

C3

sustained by a three to two vote, both the majoricy

and the dissenters strongly condenned the tactics
employed by the Special Proseuctor to obtain them

(see Matter of Nigrone v Murtagh, 46 AD2d 343, affd

36 NY2d 421). In the summer of 1976, this court by
a four to one vote, reversed an order of the Extra-
ordinary Special and Trial Term dismissing the in-
totes and reinstated them solely on the ground
that the Special Prosecutor had not been given an
Opportunity to be heard on the issues considered by
that court sin arriving at its decision (People v
Rao, 53 AD2d 904).

However, developments in the law which have
evolved over the past few years, and additional in-
formation imparted to chis court relating to this
case, not only justify, but mandate, that we review
the case from its inception and re-evaluate the
validity of appellant's indictment. Amongst the
pertinent developments in the law are the following

statements contained in two decisions of the Court

of Appeals, to wit: (a) the dismissal of defendant's

C4

appeal from this court's earlier determination sus-
taining the validity of his indictment (People v

Rao [decided with Matter of Nigrone v. Murtagh],

36 NY2d 421, 426, supra, opn per BREITEL, Ch.J.;
and (b) the affirmance of this court's determination
reversing the conviction and dismissing the indict-

ment of the defendant in People v Tyler (46 NY2d

251, 258-259).

(a) Matter of Nigrone
(People v Rao):

. "Finally, no view is expressed on the
issue raised by petitioner and relied
upon in part by the dissenters at the
Appellate Division that a perjury
prosecution may not lie validly if
the proceeding in which the perjury
occurred was designed solely, and for
no other valid purpose than, to pro-
cuce the perjury. Such an issue,
apart from anything else, would of
necessity involve a question of fact
not disposable on papers submitted on
motion. In any event, the issue must
be raised by defense in the criminal
action and presumably would test the
issue whether an oath was ever validly
administered to petitioner in the pro-
ceeding in which he allegedly perjured
himself." (Emphasis supplied.)

(b) People v Tyler:

A.

C5

"The primary function of the Grand
Jury is to uncover crimes and mis-
conduct in public office for the
purpose of prosecution (see NY Const,
est 2, $6; CPL 190.65, 190.55).

False testimony before the Grand Jury,
then, especially by the holder of
public office, is a grave matter
affecting the public interest and

the administration of justice. It

is not properly a principal aim of
the Grand Jury, however, to ‘create'
new crimes in the course of its pro-
ceedings. Thus, where a prosecutor
exhibits no palpable interest in
eliciting facts material to a sub-
stantive investigation of crime or
official misconduct and substantially
tailors his questioning to extract

a false answer, a valid perjury pro-

secution should not lie (see Brown v
United States, 245 F2d 549, 554).
Since no legitimate investigatory
function is discernible in question-

ing designed primarily or solely to

support a perjury prosecution against

the witness, it cannot be said that

the responsive testimony, albeit false,

frustrates any authorized purpose of

the Grand Jury." (Emphsis supplied.)

FACTS

In the spring of 1973, the Special Prosecutor

concocted a simulated robbery for the ostensible

purpose of infiltrating the criminal justice system

C6

in Kings County. The scenario called for an under-
cover officer, one Stephen Wilkowski, who assumed
the name of Stephen Vitale, to be arrested for the
armed robbery of a businessman of approximately
$8,200. A false felony complaint was lodged against
Vitale. He was fingerprinted, arraigned, and bail
was set at $10,000 by a Judge in Supreme Court, Crim-
inal Term. The latter was unaware that the "crime"
and ensuing proceedings were all a ruse. The Spec-
ial Prosecutor's office also fabricated a false
criminal record for Vitale which indicated that he
had two prior arrests.

Thereafter, the Special Prosecutor directed
Loretta Errico to contact appellant's father, Judge
Paul P. Rao of the United States Customs Court. Mrs.
Errico, who had been arrested for bribery, and who
thereafter agreed to cooperate with the Special
Prosecutor, was an old acquaintance of Judge Rao,
but had not seen him in 40 years. She visited Judge

Rao in his chambers on November 12, 1973. She ur-

gently requested Judge Rao to help Vitale with respect

C7

to his trouble with the law. At the suggestion of
the Special Prosecutor, she falsely told Judge Rao
that Vitale was a son of two friends of hers. Al-
though apparently unaware of the "Vitale" hoax,
she was equipped with a concealed tape recorder by
the Special Prosecutor's office for her visit to
Judge Rao's office. (She was likewise so equipped
on later occasions when she visited appellant at
his law office.) Judge Rao referred her to his
son, appellant Paul P. Rao, Jr., a practising
attorney.

The scenario then changed and the Special
Prosecutor's efforts focused on appellant. Upon
leaving Judge Rao's chambers, Mrs. Errico proceeded
to appellant's law office and arranged to have Vitale
meet him later that day. At the ensuing meeting
appellant agreed to represent Vitale in the pending
"robbery" case. Vitale was wired with a recorder
both on that occasion and at subsequent meetings he
had with appellant in connection with the matter.

On November 23, 1973 Vitale was indicted for

robbery (two counts) and grand larceny (two counts)
by a Kings County Grand Jury. The Grand Jury members
and the Assistant District Attorney who presented
the case were unaware of the contrived nature of
the events unveiled at the proceeding. When Vitale
failed to appear for arraignment on the indictment
the cash bail posted by him was declared forfeit.
Through appellant's efforts the forfeiture was
revoked, the bail money was returned, new bail was
fixed at a lesser amount than originally set and
meaningful inquiry into whether the bail money was
the proceeds of the manufactured robbery was avoided.
The Supreme Court Justices before whom the bail is-
sue was presented likewise did not know that the
"Vitale" robbery case was a charade. Appellant
withdrew from the case as Vitale's attorney in March,
1974. In doing so he at that time advised both the
District Attorney's office and a Supreme Court Jus-
tice that Vitale was seeking to have the sion Steak
In April, 1974 Judge Rao, appellant, and the

latter's law partner or associate, Salvatore Nigrone,

c9

appeared before the Extraordinary Special Grand Jury,

at the Special Prosecutor's request. At the time
that body was purportedly jovectiontias whether
they had nen ak a Judge of the New York
City Civil Court and others to bribe a Kings County
Supreme Court Justice to influence the outcome of
the Vitale case. Unlike the situation in the Kings
County Grand Jury where that body was unaware of the
bogus nature of the Vitale case, the Special Grand
Jury was made aware it was a sham.

Each of the three defendants testified before
the Special Grand Jury under a waiver of immunity.

The undercover agent, Wilkowski (Vitale), and Mrs.

Errico also testified. In addition, surreptitiously-

made tape recordings of conversations engaged in by
all three defendants were placed in evidence.

In May, 1974, Judge Rao was indicted and
charged with two counts of perjury, appellant. was
charged with seven counts of perjury, and Nigrone,
with one count of perjury. In 1977 the indictments

against Judge Rao and Nigrone were dismissed. No

C10

appeal was taken by the Special Prosecutor's of-
fice trom either order of dismissal.

On August 12, 1977 the trial court (POLSKY,
J.), dismissed the fourth count against appellant
on the ground that the information giving rise to
the alleged perjury was derived from the unlawful
use of information obtained from an unsealed tape
which had previously been suppressed. As a result
counts five, six and seven were renumbered four,
five and six, respectively. In addition, recital
of facts in each of the remaining six counts per-
taining to the "hook" conversation were deleted.
Appellant was found guilty, after a jury trial, of
perjury in the first degree under count four of te
indictment. In that count appellant was charged with
testifying falsely before the Extraordinary Grand
Jury that he did not help Vitale in creating a "phony"
story or defense in connection with the bogus robbery
case. On March 22, 1978, the trial court reduced the
verdict to perjury in the third degree (a class A

misdemeanor) and sentenced appellant to an uncondi-

cll

tional discharge.

B. Presentation to Extraordinary Grand Jury

On the second occasion this case was before
this court on appeal, it was demonstrated via the
dissenting opinion that the integrity of the Extra-
ordinary Grand Jury proceeding was seriously com-
promised and perhaps totally subverted by the un-
toward tactics and techniques employed by the two
assistant prosecutors who presented the case against
appellant and the other defendants to that body..

Specifically, the dissenter pointed out, inter alia,

that (1) more than 61 pages of testimony was adduced
by the prosecutor's representatives from leading
questions addressed mostly to the People's two prin-
cipal witnesses Errico and Wilkowski (Vitale); (2)

a voluminous amount of opinion testimony was extracted
from the same two witnesses; (3) coercive and highly
erroneous and prejudicial instructions were given;

and (4) tapes and transcripts were not properly
authenticated before being presented to that body

(People v Rao, 53 AD2d 904, 908-914, supra).

Furthermore, as a result of a reading of the Grand

Jury minutes in connection with this appeal it must

also be noted, as revealed in the following collo-

quy, that one of the assistant prosecutors who con-

ducted the proceeding wrongfully induced and direct-

ed appellant to violate the confidential attorney-

client relationship appellant had with his supposed

client, Vitale:

"a,

ot,

oS

oe

"2,

4 -

a Oe

* *% *You indicated during the course of
some of your meetings with Vitale you
planned a defense to his case.

Yes.

And did you discuss the facts of his case
with him?

Yes, I did.

Would you please tell us what those facts
were, as he told you?

Really, I don t know, I think I would be
jeopardizing Mr. Vitale when he goes to
trial * * *

These proceedings are secret, and we are
not an adjunct of the D.A.'s office, and
they certainly won't be used against Mr.
Vitale.

Are you relieving me of the responsibility
of client-attorney privilege, so I don't

oe. <cqmmume+ seme eo eames one oe

C13 |

get in any trouble with the Bar Associa-
tion?

"Q. Yes, we are.

"A, Are you directing me to answer?

"Q. Yes, we are." (Emphasis supplied.)

C. Facts not previously divulged either to
this court or the Extraordinary Grand
Jury

The issue to which the prosecutors directed most
of their attention and efforts before the Ext raordin-
ary Grand Jury was whether appellant had assisted
Vitale in preparing a perjurious defense to which
the latter would testify at the trial of the bogus
indictment. When questioned on this issue before
that body, appellant stated several times that he
had told Vitale that he was ‘not going to take the
stand. Thereafter, Vitale (Wilkowsk1i) testified be-
fore the same body that appellant had told him he

should testify to a false story, to wit, that at the

time and location of the staged robbery he (Vitale)
had been looking for a job in nearby factories and
had become the object of homosexual advances by the

(bogus) complainant. However, at appellant's trial,

C14

Vitale admitted that appellant had told him he would

not take the stand at the trial and that he "might
have [made] a mistake" in his Grand Jury testimony.
Moreover, revealed for the first time at
appellant's trial was the fact that the Special Pros-
ecutor had been in possession of tapes for som2 time
which both corroborated appellant's Grand Jury testi-
mony that he told Vitale he would not testify at the
trial and also contradicted Vitale's Grand Jury test-
imony on that very same issue. Nevertheless, the
then Special Prosecutor, demonstrating a shocking
disregard for the concept of due process and simple
fairness, withheld these crucial tapes from the
Extraordinary Grand Jury. Specifically, a portion
of a tape not played before the Grand Jury contains

the following colloquy between appellant and Vitale:

"Rao, Jr.: You're not gonna take the stand.
You can't testify to it.

"Vitale: I'm not gonna take the stand.
"Rao, Jr.: No, you're not taking the stand.

And ther, if you should take the
stand, I'll bring out you're prior

C15

record * * * Jt won't make us look
good, right?

wo x
"and I think it [the trial] will
be over within a day. But, with
your record, you cannot take the
stand."
Finally, although not raised on appeal by ap-
pellant, it should also be mentioned that the Special
Prosecutor's office practised a gross and unfair

deception upon the Extraordinary Grand Jury with

respect to the testimony of Mrs. Errico. As revealed

at trial, Mrs. Errico had been apprehended for bribery.

“

She agreed to "cooperate" with the Special Prosecutor
only after she had been promised favorable consider-
ation in her pending bribery case. Not only did the
Special Prosecutor fail to reveal this arrangement to
the Extraordinary Grand Jury as a matter reflecting

on Mrs. Errico's credibility, but the prosecutors

also compounded the deception by actually playing

out a charade and having Mrs. Errico execute a wai-

ver of immunity prior to her testifying before that

Grand Jury.

C16

DETERMINATION ON APPEAL

By law a prosecutor has the power, and indeed |
the obligation, to submit evidence to a grand jury
concerning misconduct, nonfeasance or neglect in
public office by a public servant, whether criminal
or otherwise (CPL 190.55). Implicit in such statu-
tory power is the prosecutor's concomitant authority
to aid and advise a grand jury in any investigation
it conducts of corruption involving a public servant
in the carrying out of his or her official duties,
Thus I have no quarrel with the fact that the then
Special Prosecutor decided that the Extraordinary

Grand Jury should conduct an investigation into

whether appellant, as a practising attorney, was en-
gaged in activities relating to the Kings County
criminal justice system, designed to-corrupt and
compromise judicial and court personnel in legal mat-

ters brought to their attention in the course of

judicial business. Indeed the then Special Prosecu-:
tor, under Executive Order No. 58, promulgated by

Governor Rockefeller on September 19, 1972, and pur-

Cl?

suant to assignment by Attorney-General Lefkowitz,
had a sworn duty to aid the Extraordinary Grand Jury
in any such investigation as to possible unlawful act-
ivity in the criminal justice system. However, in
this matter what is palpably evident from the record
is that the duties delegated to the Special Prosecu-
tor's office were carried out by its representatives
outrageously and with an undisguised contempt for the
rule of law. The prosecutors concocted fictitious-
crimes, falsified records, duped Supreme Court Jus-
tices properly engaged in their judicial duties and
orchestrated the introduction before a grand jury of
perjurious testimony of criminal activity which never
occurred. None of these monstrous and patently il-
legal actions are or should be tolerated in a free
society, particularly when practiced by those sworn
to enforce the law and ferret out crime. Yet, the
representatives of the Special Prosecutor's office
knowingly engaged tn all such acts and more in ob-
taining the "Vitale" indictment. In similar vein,

one might weil be accused of belaboring the obvious

c18

or engaging in unnecessary rhetoric for stating that
our criminal justice system is befouled and be-
smirched whenever law enforcement officers conduct

a grand jury proceeding in which (a) the confiden -
tial attorney-client relationship is denigrated and
trampled upon by a person who is himself a lawyer,

(b) the criminal background of a principal witness

for the People is deliberately concealed by the use
of deceptive acts, (c) the introduction of competent
and admissible evidence as mandated by subdivision

1 of CPL 190.65 is the exception rather than the

rule, (d) exculpatory evidence directly bearing on

an issue placed before the grand jury is consciously
withheld from that Grand Jury and (e) erroneous, co-
ercive and misleading instructions are given so as to
control the grand jury's findings. Yet all these and o-
ther transgressions were committed by the representa-
tives of the then Special Prosecutor in order to
satiate his appetite for indictments against appellant
and the two other defendants.

Simply stated, what is evident in this case is

C19

misconduct of law enforcement agents so calculated,
insidious and pervasive as to require as a matter of
due process the vacating of the conviction and dis-

missal of the indictment (cf. United States v Rus-

sell, 411 US 423, 431-432). When we compare the ac-

tions of the law enforcement officials herein with
matters where suppression of evidence was granted
and indictments dismissed because a police officer
erroneously but in good faith and on the spur of the
moment, conducted a search without obtaining a search
warrant, or perhaps because of inexperience, gave
inadequate Miranda warnings, the latter situations
are paled by the comparison. What we have in this
instance is a pattern of prosecutorial misconduct,
commencing in the spring of 1973 when the "Vitale"
scenario was created, continuing and escalating for
almost a year, and finally culminating in the indict-
ments of appellant and the other defendants in May,
1974.

At oral argument before this court, respondent

argued that even though the actions taken by the

C20

representatives of the then Special Prosecutor
_ prior to the trial of appellant may have been highly
irregular and deserving of condemnation, neverthe-
less, the conviction should be affirmed since it
was based on legally sufficient evidence adduced at
trial. In particular, respondent points out that the
exculpatory conversation between appellant and Vitale,
withheld from the Extraordinary Grand Jury, was pre-
sented to the petit jury which nonetheless found
appellant guilty of the count charging him with
helping Vitale create a phony defense. What the
respondent was alluding to is the following language
contained in subdivision 6 of CPL 210.30:

"210.30 Motion to dismiss indictment

on ground of insufficiency of grand

jury minutes; motion to inspect grand
jury minutes

"6. The validity of an order denying
any motion made pursuant to this sec-
tion is not reviewable upon an appeal
from an ensuing judgment of conviction
based upon legally sufficient trial
evidence."

In my opinion the above-quoted statutory lang-

C21

uage has no bearing whatever on what transpired

prior to the trial and conviction of appellant.
Implicit under subdivision 6 is the premise that a
conviction after trial upon legally sufficient evi-
dence will not be set aside where, prior thereto, a
prosecutor, although acting in good faith, inadver-
tently failed to make out a prima facie case before
the grand jury based primarily on competent and ad-
missable evidence. That provision, however, does

not constitute a license for a prosecutor to inun-
date a _— jury with a massive wave of incompetent
and inadmissible evidence, and knowingly withhold ex-—
culpatory evidence, as was done in this instance,
Moreover, what is involved here is not merely a

grand jury presentation, or a trial and conviction
each set in isolation, but rather a continuing pattern
of prosecutorial misconduct over a lengthy time span
so egregious that appellant should never have been
brought to trial. It is clear that the requirements

of due process in a given case may extend to pretrial

conduct of law enforcement authorities, and may also

C22

be invoked to bar prosecution altogether where it
resulted from illegal law enforcement practices

(see United States v Toscanino, 500 F2d 267, 273).

Due process is now viewed as requiring a court to
divest itself of jurisdicition over the person of a
defendant where it has been acquired as a result of
the government's deliberate, unnecessary and unrea-
sonable invasion of the accused's constitutional

rights (United States v Toscanino, supra, p 275).

Finally, while I take no position as to whether
prior to staging the "Vitale" fantasy the Special
Prosecutor had sufficient reason to conduct an in-
quiry into appellant's possible connection with
corruption in the criminal justice system in Kings
County, no evidence in that regard is discernible
from a reading of the Extraordinary Grand Jury min-

utes (cf. People v Isaacson, 44 NY2d 511). We note

that a Grand Jury need not demonstrate any reason for
investigating anyone.
At no time during the Extraordinary Grand Jury

presentation did the prosecutors attempt to establish

ee L

that appellant's conversation with Vitale about a
possible defense to the robbery charge was in any
way material to any investigation into corruption
of the criminal justice system, Rather, what is
evident’ is that in gross violation of appellant's
right to due process, those conducting the proceed-
ing took part in manufacturing a crime that never |
occurred, and then, before the grand jury, tailored
their questions to appellant solely to entice and
trap him into giving false answers. Since no indica-
tion of substantive investigative goals is demon-
strated by the grand jury minutes, it is clear that
we are confronted with a perjury trap of the type

condemned in People v. Tyler (supra, at p 262). As

my eminent former colleague, Justice J, IRWIN SHAPIRO,
so aptly and eloquently pointed out in his stirring
dissent when this matter was first before this court,
and before it was made known to this court that ex-
culpatory evidence had been withheld from the Extra-
ordinary Grand Jury by the Special Prosecutor's office

(Matter of Nigrone v Murtagh, 46 AD2d 343, 358, supra):

C24

"(Bjut the singular and undeniable fact
is that these defendants in their ap-
pearance before the Grand Jury were not
asked a single question with regard to
any bribes. Instead, the questions they
were asked were clearly and purposefully
designed to get them to deny what they
previously had said -- and which was con-
tained on tapes in the possession of the
Special Prosecutor -- so that they could
be threatened with perjury indictments
and then be 'squeezed' by him for the
bribery information which he sought. Up-
on the argument of these applications it
was admitted that before the hand-up of
the instant indictments a conference was
held with at least one of the defendants,
seeking to accomplish that end,"

Perhaps the most damning commentaries as to
the true intent of the prosecutors’ conduct of the
Extraordinary Grand Jury proceeding were the spon-
taneous utterances of two of its members. Troubled
by the tenor of what had transpired before them,
the first one stated: "It wasn't a question. It
was just a statement of judgment that I think was
shared by several of us. There is very little doubt

that there has been perjury committed. However, we

are supposed to be an anti-corruption jury, seeking

corruption, and in this particular case there seems

C25

to be little corruption. Lying, yes: But it was

like a setup to see whether or not a man is going to

tell the truth or not. And it's a very, very diffi-

cult thing as far as I'm concerned." (Emphasis
supplied.) A second grand juror thereafter reflect-
ed: "I think what's bothering some of the jurors

-- I may be wrong -- is the connotation here that a
trap was set. .Is that true? Entrapment, I guess
they call it."

It is to be hoped that this sorry episode of
prosecutorial assault upon our institutions is com-
ing to an unlamented end, It has stained not only
the office from which it emanated but has also tend-
ed to taint unjustifiably and undeservedly all others
who prosecute wrongdoers, while observing a sense of
decency and respect for the law. Tactics such as
those demonstrated by this record if not checked, are
certain to encourage lawlessness and destroy cherished

freedoms (People v Isaacson, 44 NY2d 511, 524, supra).

As the late Mr. Justice BRANDEIS so brilliantly and

with great prescience, stated in his historic dissent

C26

in Olmstead v United States (277 US 435, 485):

"Decency, security and liberty alike
demand that government officials shall
be subjected to the same rule of con-
duct that are commands to the citizen.
In a government of laws, existence of
the government will be imperilled if it
fails to observe the law scrupulously.
Our Government is the potent, the omni-
present teacher. For good or for ill,
it teaches the whole people by its ex-
ample. Crime is contagious. If the
Government becomes a lawbreaker, it
breeds contempt for law; it invites ev-
ery man to become a law unto himself; it
invites anarchy. To declare in the ad-
ministration of the criminal law the end
justifies the means -- to declare that
the Government may commit crimes in order
to secure the conviction of a private
criminal -- would bring terrible retri-
bution. Against that pernicious doctrine
this Court should resolutely set its
face."

A person charged with or suspected of the most
heinous of crimes is still entitled to the funda-
mental fairness encompassed by the notion of due

process (People v Isaacson, 44 NY2d 511, 524, supra).

"Vigilante Justice" is abhorrent to our concept of
jurisprudence whether the end product be a body dang-
ling from the end of a rope, or a person charged with

a crime as a result of lawless conduct on the part of

C27

an overzealous prosecutor. The latter indeed is

reprehensible since both society and the accused

are victimized by one sworn to uphold the law.
Accordingly, the judgment of conviction

should be reversed and the indictment dismissed.

MOLLEN, P. J., and GIBBONS, J. concur in the opinion
of Mr. Justice TITONE.
COHALAN, J., dissents and votes to affirm the judg-

ment.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0390%3A1. Public record. Not legal advice.