McCray v. The City of Albany New York, et al

Filing 117

ORDER OF MAGISTRATE JUDGE HUGH B. SCOTTORDER re 116 LetterPlaintiff's attached New York State criminal complaints to his letter (Docket No. 116) are legal nullities.Copy of Order mailed to plaintiff at Sing Sing Correctional Facility by Chambers.So Ordered. Signed by Hon. Hugh B. Scott on 5/4/2016. (DRH)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

TERENCE SANDY McCRAY,
Plaintiff,
Hon. Hugh B. Scott
13CV949A
v.
Order

CO AYERS and CO ROSIA,
Defendants.

Before this Court is a letter (filed pursuant to this Court’s Local Civil Rule 5.2 regarding
pro se submissions) from plaintiff proceeding pro se in this civil rights action (Docket No. 116).
Attached to this letter, plaintiff now purports to commence a New York State criminal
prosecution against two of the civil defendants in this action. These criminal complaints allege
again incidents that plaintiff claims occurred in 2011 and 2012 that are now pending in this civil
rights suit.
One of the documents is called a “felony complaint” (Docket No. 116), which is defined
in New York statutes as a written accusation filed with a local criminal court charging one or
more persons of the commission of one or more felonies. It serves as commencement of a
criminal action but not as a basis for prosecution thereof. N.Y. Crim. Proc. L. § 100.10(5). The
other document is a misdemeanor complaint, which under state law can serve as a basis for
prosecution only if defendant waives prosecution by information, id. § 100.10(4).

The two criminal complaints attached to his letter (id.) and purportedly filed with this
Court, however, are legal nullities.
First, plaintiff cites to New York Criminal Procedure Law § 100.55 as the basis for this
Court’s filing and presumed prosecution of these criminal complaints. That provision is for
filing of accusatory instruments in New York State courts; reference in Criminal Procedure Law
§ 100.55(1) to “district court” is to the New York State District Court, a local court, N.Y. Crim.
Proc. L. § 10.10(3)(a), in Nassau or Suffolk Counties, see N.Y. Const. art. VI, § 16(a); David D.
Siegel, New York Practice § 20 (2d ed. 1991), and not to the United States District Court, see
Siegel, supra, § 20, at 21 (the state district courts are “unrelated to and shouldn’t be confused
with the United States District Court”)). These are two separate sovereignties and the crimes in
one generally cannot be prosecuted in the other. Furthermore, a criminal prosecution or
complaint cannot be commenced within a civil action.
The state procedure cited by plaintiff here is analogous to the commencement of federal
prosecution by a criminal complaint, Fed. R. Cr. P. 3, which is issued by the Court upon the
request of the attorney for the Government, Fed. R. Cr. P. 4(a), and not by others, Pugach v.
Klein, 193 F. Supp. 630, 634 (S.D.N.Y. 1961); see Keenan v. McGrath, 328 F.2d 610, 611 (1st
Cir. 1964) (per curiam). Courts have rejected for filing a litigant’s purported criminal complaint
that has not been authorized (as was not done here) by the United States Attorney, United States
v. Bryson, 434 F. Supp. 986, 988 (W.D. Okla. 1977) (federal courts lack “jurisdiction of cases
prosecuted in the name of the United States unless they are prosecuted by the United States
Attorney”). Here, plaintiff seeks to prosecute on behalf of the People of the State of New York
(see Docket No. 116) in United States District Court.
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Furthermore, the Criminal Procedure Law refers to filing of that complaint in the district
in the county where the accused offense occurred, N.Y. Crim. Proc. L. § 100.55(1). Here, that
would be in Seneca County, since these incidents allegedly occurred at Five Points Correctional
Facility in that county. Seneca County does not have a district court.
Therefore, the state criminal complaints attached to plaintiff’s filed letter (Docket
No. 116) shall be treated as nullities nunc pro tunc. Plaintiff’s cover letter also indicates that he
intends to file criminal complaints for other offenses.
So Ordered.

/s/ Hugh B. Scott
Hon. Hugh B. Scott
United States Magistrate Judge
Dated: Buffalo, New York
May 4, 2016

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