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Case 7:13-cv-04067-CS Document 75 Filed 12/19/14 Page 1 of 6

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
------------------------------------------------------x
WILLIAM BARBOZA,

Plaintiff,

Case No. 13-cv-4067
U.S.D.J. Cathy Seibel

-against-

VILLAGE OF LIBERTY, DETECTIVE
STEVEN D' AGATA, sued in his
individual capacity, MELVIN GORR,
sued in his individual capacity, ROBERT :
ZANGLA, sued in his individual
capacity,

------------------------------------------------------x

Defendants.

DECLARATION OF DEFENDANT ROBERT ZANGLA
IN SUPPORT OF ZANGLA'S REPLY TO PLAINTIFF'S
RESPONSE TO ZANGLA'S MOTION FOR SUMMARY

JUDGMENT AND IN SUPPORT OF ZANGLA'S RESPONSE

TO PLAINTIFF'S CROSS-MOTION FOR SUMMARY JUDGMENT

STATEOFNEWYORK

COUNTY OF SULLIVAN )

)
) SS.:

ROBERT ZANGLA, being duly sworn, deposes and says:

1.

2.

I am a named Defendant in the above captioned case.

I submit this Declaration in Response to Plaintiffs Cross-Motion for Summary

Judgment in the above matter and in support of my Reply to Plaintiffs Response to my

Motion for Summary Judgment.

3.

This Declaration is based on my personal knowledge.

Case 7:13-cv-04067-CS Document 75 Filed 12/19/14 Page 2 of 6

4. Where the facts set forth in this Declaration were also the subject of my testimony at

my Deposition on November 18,20131 I have referenced the appropriate pages and

lines of the Deposition.

5.

I was and am an Assistant District Attorney in the Sullivan County District Attorney's

Office. I am now the senior Assistant District Atto1ney in the Sullivan County District

Attorney's Office.

6. As an Assistant District Attorney, I am entitled to the benefit of either Absolute

Immunity or Qualified Immunity, whichever may be applicable based on the facts, for

all acts taken by me as an Assistant District Attorney.

7.

Every act charged against me in the Second Amended Complaint was taken by me in

my official capacity as an Assistant District Attorney.

8. HOWEVER, the caption of the action states: "ROBERT ZANGLA, sued in his

individual capacity". While the body of the Second Amended Complaint notes that I

was an Assistant District Attorney, the caption of the action does NOT indicate that I

was an Assistant District Attorney, nor that I am being sued with respect to actions

taken as an Assistant District Attorney, nor that I am being sued in my official capacity.

9.

If the Caption of the Action is controlling, I submit the Action must be dismissed

against me since all of my actions were taken as an Assistant District Attorney.

10. As an Assistant District Attorney I have the Authority, either on my own or in

consultation with the District Attorney, to initiate Criminal Prosecutions.

11. Criminal Prosecutions can be initiated in a number of ways, such as:

A. By an appearance ticket issued by a Law Enforcement Officer.

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Case 7:13-cv-04067-CS Document 75 Filed 12/19/14 Page 3 of 6

B. By a prosecutor's information issued by a District Attorney or Assistant District

Attorney and filed with the Court.

C. By an information issued by a Grand Jury.

D. By an indictment issued by a Grand Jury.

12. When I file an Accusatory Instrument I usually have it prepared in one of a number of

ways.

A. I almost always type the Accusatory Instrument myself.

B. On one or two occasions I have had a secretary in the District Attorney's Office

prepare the Accusatory Instrument.

C. On those one or two occasions a secretary types the Accusatory Instrument the

secretary is not applying any discretion. In such situations the secretary is acting as

a scrivener, as a typist.

D. On rare occasions, if I am in Court or in a police station and I determine to initiate a

criminal prosecution, which is part of my responsibility/authority as an Assistant

District Attorney, I may have, as a matter of convenience, asked a police officer

who I knew well and was willing to accommodate me, to type the Accusatory

Instrument.

E. On those rare occasions when a police officer accommodated me by typing an

Accusatory Instrument it was done without any discretion on the part of the officer

and the police officer was acting as a scrivener, as a typist and not as a police

officer.

13.

In the instant case, I initially dete1mined it would be appropriate for the District

Attorney's Office to consider prosecuting Mr. Barboza notwithstanding that Mr.

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Case 7:13-cv-04067-CS Document 75 Filed 12/19/14 Page 4 of 6

Barboza might have been able to raise a First Amendment Defense. I did not believe

that the charge was absolutely unconstitutional. If I had I would not have presented the

charge.

14.

I came to that conclusion after reading the document he had sent to the Court and

reading the Penal Law. I then spoke with District Attotney Farrell who not only

concurred, but who directed me to initiate the prosecution of Plaintiff.

15.

I did not conduct any investigation.

16.

I did not either confer with Detective D' Agata nor did I have Detective D' Agata

conduct any investigation.

17.

I did not seek an arrest warrant. There was no purpose in seeking an an·est warrant.

Arrest warrants are used to get a prospective defendant into Court. Mr. Barboza was

already in court on that day with respect to his speeding charge. However, I should

note that during my deposition Plaintiff's counsel kept trying to say that I was seeking

an anest wanant. I kept correcting Plaintiffs counsel. I was filing charges with the

court. Again, since Plaintiff was already in court. I was not seeking an arrest warrant.

18. What happened was that I had forgotten the Barboza case was on the Calendar of the

Liberty Court that day. I had intended to prepare the Prosecutor's Info1mation in my

office and file it with the Court. Had I not forgotten the Barboza case was on the

calendar that day I would have prepared a Prosecutor's Information which I would have

directly filed with the Court. Detective D 'Agata would not have been involved in any

way in the initiation of the prosecution.

19. On October 18, 2012, I was in Liberty Court and Plaintiff was present in the Cou11. I

could have asked the Court for some time to return to my office in Monticello to

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Case 7:13-cv-04067-CS Document 75 Filed 12/19/14 Page 5 of 6

prepare the Prosecutor's Information and bring it back to Liberty. However, going to

Monticello to prepare a Prosecutor's Information would have created a delay in the

Court's proceedings. Accordingly, I asked Detective D' Agata, to type the accusatory

instrument as an accommodation to me.

20.

I have known Detective D' Agata a long time. I felt comfortable asking him for the

favor of typing up the document. I WAS NOT acting as his boss. I was not ordering

him. He was merely doing me a favor and functioning as a secretary and he understood

our respective roles. I was initiating the prosecution. He was not. Detective D' Agata

did not have any discretion. I did not ask him for his input. When he typed the

accusatory instrument he was acting as a typist, as a scrivener, not as a police officer.

21.

If Detective D' Agata had not been present I would have requested a brief recess and

would have called my office to dictate what I wanted in the Prosecutor's Information.

Either someone from my office would have delivered it to Court or I would have gotten

it. There was no other police officer present that day who I knew long enough and well

enough to ask for the favor of typing up an accusatory instrument for me.

22. As far as I am concerned the District Attorney's office initiated the prosecution of Mr.

Barboza, consistent with the District Attorney's direction to me.

23.

I am now informed and believe Detective D' Agata had no prior knowledge of

Plaintiff's case.

24.

I was initiating a prosecution as a prosecutor and Detective D' Agata was serving as my

secretary.

25. At all times in this matter I was acting in an official capacity as an Assistant District

Attorney.

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Case 7:13-cv-04067-CS Document 75 Filed 12/19/14 Page 6 of 6

26. At no time in this matter was I acting in my individual capacity.

27. At no time did I exceed the scope of my authority as an Assistant District Attorney.

28.

I had reviewed the document Barboza sent to the Court and then reviewed the Penal

Law. I discussed the matter with the District Attorney. The District Attorney directed

that I initiate the prosecution of Plaintiff. If I had not forgotten the Barboza case was

on the Court's Calendar that day, I would have prepared a Prosecutor's Information

compliant with the District Attorney's directive and would have filed it directly with

the Court. The only reason I had to ask Detective D 'Agata for the favor of typing the

Accusatory Instrument is that I did forget the calendar date.

29.

I respectfully submit that all of my actions were the actions of an advocate, actions

covered by Absolute Immunity or at least Qualified Immunity and that the Second

Amended Complaint should be dismissed as against me.

WHEREFORE, I respectfully submit that my Motion for Summary Judgment should be

granted, that Plaintiffs Cross-Motion for Summary Judgn1ent should be denied and that the

Second Amended Complaint should be dismissed, with prejudice, as against me.

Dated: November 28,2014

Monticello, NY

Robert L. Zangla
Chief Assistant Di 1ct Attorney

Sworn to before me this
28th day of November, 2014.

~~ otary ublic

LORI BERTSCH~BRUSTMAN
Notary Public, State of New York
Qualified in s.ullivan County r«
r,ommission Expires Sept. 16, ..l.ll.

No. 02BE5065981

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