Opinion
No. 04-CV-1791 (JBW).
June 10, 2004
MEMORANDUM, JUDGMENT ORDER
Plaintiff brings this action pro se alleging that his constitutional rights were violated when the defendant, the Legal Aid Attorney assigned to represent him on criminal assault charges, caused him to waive his rights to appear before a grand jury. He alleges that the defendant conspired with an unnamed assistant district attorney to intentionally deprived him of his right to appear before the grand jury in violation of 42 U.S.C. § 1983 and state legal malpractice laws. Plaintiff was subsequently tried, and after testifying before the petit jury, he was convicted.
Defendant now moves to dismiss the complaint. An evidentiary hearing was held on June 9, 2004 in which the plaintiff was present by telephone. For the reasons stated below and orally on the record, the case is dismissed.
Plaintiff previously filed suit in federal court against the same defendant, as well as the Legal Aid Society and the City of New York, in January 2004. The allegations raised in that complaint are similar to those in the instant case, and they arise from the same set of facts. The case was dismissed by Judge Trager. Judge Trager found that court-appointed counsel such as the defendant do not act under color of state law and therefore cannot be sued under section 1983. Russell v. Legal Aid Society et al., slip op. at 3 (E.D.N.Y. Feb. 27, 2004) (No. 04-0072). He further found plaintiff's allegations that defendant conspired with the district attorney's offices to be wholly conclusory and insufficient to support his claim. Id. at 4. That judgment, although not preclusive of the instant suit, is persuasive. Plaintiff has not offered any additional evidence to support his conspiracy claim, thus making his section 1983 claim untenable.
His claim for legal malpractice is also without merit. Attorneys often advise clients not to testify before the grand jury in order to avoid the risk of inconsistent statements should they decide to testify at trial. In addition, claims of deficiencies in state grand jury proceedings are generally not cognizable in a habeas corpus claim because any deficiencies have ben rendered harmless by conviction at trial by a petit jury assessing guilt under a heightened standard of proof. See Lopez v. Riley, 865 F.2d 30, 32 (2d Cir. 1989).
The case is dismissed without costs or disbursements.
SO ORDERED.