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Case 7:13-cv-04067-CS Document 77 Filed 12/19/14 Page 1 of 14

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

Plaintiff,

ECF Case 13 Civ. 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.

MEMORANDUM OF LAW IN SUPPORT OF

DEFENDANT ZANGLA'S MOTION

FOR SUMMARY JUDGMENT AND TO DISMISS
AND IN OPPOSITION TO PLAINTIFF'S MOTION

FORSUMMARYJUDGEMENT

Samuel S. Y asgur
Sullivan County Attorney
Attorney for Defendant Zangla
100 North Street
Monticello, New York 12701
Office: (845)807-0560
Fax: (845)807-0574

Email: Samuel.Y [email protected] .sullivan.ny .us

Case 7:13-cv-04067-CS Document 77 Filed 12/19/14 Page 2 of 14

TABLE OF CONTENTS

TABLE OF CONTENTS ................................................................................................................ ii

TABLE OF AUTHORITIES ......................................................................................................... iii

PRELIMINARY STATEMENT ........................................................................ 1

STANDARD OF REVIEW ............................................................................... 2

ARGUMENT

POINT I

THE SECOND AMENDED COMPLAINT MUST BE
DISMISSED AGAINST DEFENDANT ZANGLA
SINCE HE HAS ABSOLUTE PROSECUTORIAL
IMMUNITY FROM SUIT ................................................................................ 3

POINT II

THE ALLEGATIONS IN THE AMENDED
COMPLAINT MAKE CLEAR THAT
DEFENDANT ZANGLA IS ENTITLED
TO ABSOLUTE PROSECUTORIAL IMMUNITY ................................................. 7

POINT III

EVEN IF DEFENDANT ZANGLA DOES NOT
HAVE PROSECUTORIAL IMMUNITY, HE
CLEARLY HAS QUALIFIED IMMUNITY .......................................................... lO

CONCLUSION ............................................................................................ 11

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Case 7:13-cv-04067-CS Document 77 Filed 12/19/14 Page 3 of 14

TABLE OF AUTHORITIES

Barr v. Abrams,
810 F.2d 358 (2nd. Cir. 1987) ............................................................... .3

Buckley v. Fitzsimmons,
509 U.S. 259, 113 S. Ct. 2606 (1993) ...................................................... 3, 10

Imbler v. Pachtman,
424 U. S. 409, 431, 96 S. Ct. 984 (1976) ................................................. .3, 5

Osborne V. County of Seneca,
2014 U.S. Dist. LEXIS 77473 (2014) ...................................................... 6

People v. Dixon,
44 Misc. 3d 1216(A) (Crim. Ct. Cty ofN. Y. 2014) .................................... 10

Shmueli V. City of New York,
424 F. 3d 231 (2nd. Cir. 2005) ............................................................. 6

Zahrey V Coffey,
221 F.3d 342 (2nd Cir. 2000) ............................................................... 5

iii

Case 7:13-cv-04067-CS Document 77 Filed 12/19/14 Page 4 of 14

Preliminary Statement

This Memorandum of Law is submitted on behalf of Defendant Zangla in further support of his

Motion for Summary Judgment pursuant to Federal Rules of Civil Procedure (F.R.C.P.), Rule 56

as his Reply to Plaintiffs Response. As set forth initially, it is respectfully submitted that, in the

alternative, based on the facts and law submitted by Defendant Zangla, this Court should convert

this motion either into a Motion to Dismiss the Amended Complaint pursuant to F.R.C.P., Rules

12(b)(6), 12(c) and 8(a)(2), or, in the alternative, or into a Motion for a Judgment on the

Pleadings pursuant to F.R.C.P. Rule 12(c), and dismiss the Amended Complaint with prejudice.

This Memorandum is also submitted as Defendant Zangla's Response to Plaintiffs Motion for

Summary Judgment.

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Case 7:13-cv-04067-CS Document 77 Filed 12/19/14 Page 5 of 14

Standard of Review:

The Standards of Review of these motions were fully set forth in Defendant Zangla's initial

Memorandum of Law in support of his Motions for Summary Judgment and to Dismiss.

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Case 7:13-cv-04067-CS Document 77 Filed 12/19/14 Page 6 of 14

ARGUMENT

POINT I

THE SECOND AMENDED COMPLAINT MUST BE

DISMISSED AS AGAINST DEFENDANT
ZANGLA SINCE HE HAS ABSOLUTE

PROSECUTORIAL IMMUNITY FROM SUIT

The Second Amended Complaint states: "Defendant Zangla is an assistant district attorney

employed by the Sullivan County District Attorney's Office in Sullivan County, New York".

(Second Amended Complaint, Page 2, Paragraph 6.)1

It is well established that as an Assistant District Attorney Defendant Zangla had absolute

Prosecutorial Immunity from suit for all ofhis prosecutorial actions, i.e. all of the actions which

he took as a prosecutorial advocate. The actions taken as a prosecutorial advocate include

" .. .initiating a prosecution ... "

(Imbler v. Pachtman, 424 U.S. 409,431,96 S. Ct. 984 (1976));

Barr v. Abrams, 810 F.2d 358 (2nd. Cir. 1987)

If Defendant Zangla had engaged in investigative activities he would not have absolute immunity

but, depending on the facts, he might enjoy the benefits of qualified immunity for such

investigative conduct. (Buckley v. Fitzsimmons, 509 U.S. 259, 113 S. Ct. 2606 (1993)) There is

no dispute that Defendant Zangla did not engage in investigative activities.

1 Note: The caption states Defendant Zangla is being sued in his individual capacity. It does not state he is being
sued in his official capacity as a public official who may have exceeded his authority. That fact was pointed out in
Defendant Zangla/s initial motion. Plaintiff has not sought to correct that deficiency. That is a material deficiency.
Since an action cannot be brought against a private individual under Section 1983 the Complaint must be
dismissed against Defendant Zangla for that reason alone.

3

Case 7:13-cv-04067-CS Document 77 Filed 12/19/14 Page 7 of 14

Plaintiff contends that Defendant Zangla exceeded his authority when, according to Plaintiff, he

gave orders to a police officer to file charges against Plaintiff. Plaintiff is mistaken.

As is clearly set forth in Defendant Zangla's Declaration dated November 28, 2014, which

accompanies this Memo of Law, what actually happened was the following:

A. Defendant Zangla's boss, District Attorney Farrell, read the document in question on

which Plaintiff had handwritten his words.

B. Mr. Farrell discussed the document with Defendant Zangla.

C. Both men discussed the fact that if the charge of Aggravated Harassment was filed

the Plaintiff could have raised a First Amendment defense.

D. Neither Defendant Zangla nor District Attorney Farrell believed they were precluded

from prosecuting Plaintiff.

E. District Attorney Farrell directed that Defendant Zangla initiate a prosecution of

Plaintiff.

F. Once the District Attorney gave him that direction it was Defendant Zangla' s

responsibility to prepare a Prosecutor's Information and initiate the prosecution of

Plaintiff.

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Case 7:13-cv-04067-CS Document 77 Filed 12/19/14 Page 8 of 14

G. Defendant Zangla clearly states, in a sworn Declaration, that the only reason he did

not personally prepare and file the Prosecutor's Information was because he simply

forgot the Barboza matter would be on the Court's calendar that day.

H. Moreover, as is clearly set forth in the Zangla Declaration ofNovember 28,2014, if

Detective D' Agata had not been in Court that day, Defendant Zangla would have

arranged for a Prosecutor's Information to be prepared in his office in Monticello and

would have arranged to obtain the document and file it with the Court.

I. Defendant Zangla makes it clear in his Declaration of November 28,2014, that his

relationship with Detective D' Agata was such that he felt he could ask Detective

D 'Agata to dg him the favor of typing up the accusatory instrument. He also makes it

clear that he would not have asked that favor of any other police officer.

Given the foregoing, Defendant Zangla, as instructed by the District Atto1ney, in fact initiated

the prosecution, albeit having Detective D 'Agata type up the accusatory instrument as a favor to

Defendant Zangla.

It is totally irrelevant whether Defendant Zangla's determination about the charge was mistaken

or even imprudent. He is covered by absolute Prosecutorial Immunity. (Imbler v. Pachtman,

424 U.S. 409,431, 96 S. Ct. 984 (1976); Zahrey V. Coffey, 221 F. 3d 342 (2"d Cir. 2000);

5

Case 7:13-cv-04067-CS Document 77 Filed 12/19/14 Page 9 of 14

Shmueli V. City of New York, 424 F. 3d 231 (2nd. Cir. 2005); Osborne V. County of Seneca,

2014 U.S. Dist. LEXIS 77473 (2014)

6

Case 7:13-cv-04067-CS Document 77 Filed 12/19/14 Page 10 of 14

POINT II

THE ALLEGATIONS IN THE AMENDED

COMPLAINT MAKE CLEAR THAT
DEFENDANT ZANGLA IS ENTITLED

TO ABSOLUTE PROSECUTORIAL IMMUNITY

As set fotth in Defendant Zangla' s original Memo of Law, the allegations in Second Amended

Complaint clearly demonstrate Defendant Zangla has absolute Prosecutorial Immunity and

compel dismissal.

The Second Amended Complaint does not make any claim that Defendant Zangla conducted a

factual investigation, spoke to potential victitns or the like. Rather, the Second Amended

Complaint specifically states that: "Zangla, however, failed to take any steps to secure an arrest

warrant, conduct a factual investigation, or conduct an independent interview of individuals in

the clerk's office who received the payment form". (Second Amended Complaint, Page 5,

Paragraph 22, last sentence.) That assertion warrants a dismissal of the Second Amended

Complaint since Defendant Zangla would have had Prosecutorial Immunity for any such

conduct. However, as stated in the Second Amended Complaint Defendant Zangla did not

engage in any such conduct.

There are only three paragraphs in the entirety of the Second Amended Complaint asserting what

Defendant Zangla did or is presumed by Plaintiff to have done. Only one Paragraph in dispute,

Paragraph 24 which states, in conclusory fashion: "As Defendant Zangla stepped into a role

usually played by the police officer ... ".

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Case 7:13-cv-04067-CS Document 77 Filed 12/19/14 Page 11 of 14

There is no evidence in the record to suppo1i that allegation. While that conclusory assertion in

the Second Amended Complaint is vital to Plaintiff's Action, at Defendant Zangla's deposition

Plaintiff's counsel never asked Defendant Zangla why he had Detective D 'Agata type up the

accusatory instrument even though she had a clear opportunity ask the question. The critical

portion is:

"Q. When you say requested that he file a charge, what do you mean?

"A. Well, I hadn't brought a charge, and I wasn't going back to Monticello to go back
to my office at that point. I was in middle of court. So it took place in the Village
of Liberty, so I asked him to draw up an accusatory instrument."

(Zangla deposition, Page 39, Lines 22-25 and Page 40, Lines2- 4)

At that point in the deposition Plaintiff's counsel could have asked Defendant Zangla why he

picked Detective D' Agata, why Defendant Zangla did not have an accusatory instrument already

prepared and filed with the court, and a host of similar questions. But she did not. At the end of

the above quoted answer she had a document marked as an exhibit and went on to a new line of

questions.

Defendant Zangla provides the very clear, uncontested answers to the questions Plaintiffs

counsel did not ask at the deposition in his Declaration sworn to on November 28, 2014. He

unambiguously states that he asked Detective D' Agata to type up the accusatory instrument

because: 1) he had forgotten the Baboza case was on the Court's calendar that day, 2) he had

been directed by the District Attorney to prosecute Barboza, 3) he had intended to prepare the

Prosecutor's Information in his office, 4) if Detective D' Agata had not been there that day he

would have had his office prepare the accusatory instrument and get it to him in Liberty, and 5)

the only reason he asked Detective D' Agata to prepare the accusatory instrument was because he

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Case 7:13-cv-04067-CS Document 77 Filed 12/19/14 Page 12 of 14

knew Detective D' Agata so well that he felt he could ask Detective D' Agata for the favor of

typing up an accusatory instrument for him. In Defendant Zangla's mind Detective D' Agata

merely assisted Defendant Zangla to initiate the prosecution by doing the actual typing.

Given the foregoing, Defendant Zangla's conduct was prosecutorial throughout and he is cloaked

with prosecutorial immunity.

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Case 7:13-cv-04067-CS Document 77 Filed 12/19/14 Page 13 of 14

POINT III

EVEN IF DEFENDANT ZANGLA DOES NOT
HAVE PROSECUTORIAL IMMUNITY, HE
CLEARLY HAS QUALIFIED IMMUNITY

Defendant Zangla clearly states in his Declaration of November 28, 2014 that: 1) he believed Mr.

Barboza would have been able to raise the First Amendment as a defense to the Aggravated

Harassment charge, 2) he did not believe it would have been unconstitutional to charge Mr.

Barboza with Aggravated Harassment, and 3) had he known it would have been an

unconstitutional act to charge Mr. Barboza with Aggravated Harassment he would not have

brought such a charge against Mr. Barboza. Given those sworn statements, and nothing to the

contrary in the record, Defendant Zangla, at the very least, is entitled to the benefit of Qualified

Immunity. See, for example, People v. Dixon, 44 Misc. 3d 1216(A) (Crim. Ct. Cty ofN. Y.

2014).

Qualified immunity turns on whether the state actor, or a reasonable person, would have known

that their discretionary conduct violates " ... clearly established federal statutory or constitutional

rights ... ". Buckley v. Fitzsimmons, 509 U.S. 259,261, 113 S. Ct. 2606, 2609 (1993)

There is nothing in the entirety of the record to dispute the foregoing statements of Defendant

Zangla that while he believed the First Amendment could be raised as a defense by Mr. Barboza

he did not believe there was a constitutional bar to charging him with the crime. While Plaintiff

did not depose the District Attorney, it is manifest that he had the same understanding of the law

since he was the person who directed Defendant Zangla to prefer that specific charge against Mr.

Barboza.

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Case 7:13-cv-04067-CS Document 77 Filed 12/19/14 Page 14 of 14

Based on the foregoing, at the very least, Defendant Zangla must be accorded the benefit of

Qualified Immunity.

CONCLUSION

It is respectfully submitted that Plaintiffs Second Amended Complaint be dismissed in its

entirety against Defendant Robert Zangla.

Dated: November 28, 2014

Monticello, NY

r (SY- 712.

County Attar ey for the County of Sullivan
Attorney for Defendant Robert Zangla
100 North Street, P.O. Box 5012
Monticello, New York 12701
(845) 807-0560

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