DIETER v. County of Livingston, Thomas E. Moran, Individually and in his official capacity as former District Attorney of Livingston County, Other Known or Unknown Members of Livingston County, Defendants.* (2019)

SUMMARY ORDER

Tyler Dieter appeals from a judgment of the District Court (Siragusa, J.) dismissing his claims against former Assistant District Attorney Lindsay P. Quintilone on the ground that Quintilone is entitled to absolute immunity. On appeal, Dieter argues that Quintilone is not entitled to absolute immunity for her conduct during one of the interviews of the child whom Dieter was alleged to have sexually abused and for Quintilone’s statement to the grand jury relating to that interview. We assume the parties’ familiarity with the underlying facts and the record of prior proceedings, to which we refer only as necessary to explain our decision to affirm. See L.H. v. Cty. of Livingston, No. 12-CV-6541, 2013 WL 5656209, at *5 (W.D.N.Y. Oct. 16, 2013), aff’d, 590 F. App'x 102 (2d Cir. 2015).

Whether a prosecutor is entitled to absolute immunity for specific actions “depends principally on the nature of the function performed.” Ying Jing Gan v. City of New York, 996 F.2d 522, 530 (2d Cir. 1993). As the presentation of inculpatory evidence showing probable cause to the grand jury is an essential prosecutorial function, necessary to obtain an indictment, doing so is protected by absolute immunity. It is “intimately associated with the judicial phase of the criminal process.” Simon v. City of New York, 727 F.3d 167, 171–72 (2d Cir. 2013) (quotation marks omitted). The prosecutor’s reassurance of the child witness is a protected act of “advocacy” in the course of presenting her evidence to the grand jury. For the purpose of determining whether this prosecutor is entitled to absolute immunity for placing the most crucial inculpatory evidence before the grand jury, and where Dieter admits that the purpose of taping the Child’s testimony was to present it to a grand jury, there is no functional difference between creating a recording of the child’s testimony for presentation to the grand jury pursuant to N.Y. Crim. Proc. Law § 190.32 and directly questioning the child in the grand jury. Both are the creation of the essential grand jury record. Quintilone was therefore entitled to absolute immunity for recording the child’s testimony, including her misguided effort to reassure the child.

Dieter also argues that Quintilone is not entitled to absolute immunity because any probable cause dissipated by the start of the interview during which the child accused Dieter. Here, however, the child’s denials, obviously influenced by her father’s admonition “not to talk about” what had happened, did not refute the probable cause established by her earlier accounts.

We also reject Dieter’s argument that Quintilone’s statement to the grand jury regarding the relative importance of the four recordings of the child’s testimony is not protected by absolute immunity. Her statement constituted the sort of “advocacy” that is protected by absolute immunity. “The presentation of a case to a grand jury falls squarely within the prosecutor’s traditional function and is thus subject to absolute immunity․” Maglione v. Briggs, 748 F.2d 116, 118 (2d Cir. 1984); see Hill v. City of New York, 45 F.3d 653, 661 (2d Cir. 1995).

We have considered Dieter’s remaining arguments and conclude that they are without merit. For the foregoing reasons, the judgment of the District Court is AFFIRMED.