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State held liable in attacks by rapist

Mar 5, 2005 | Newsday Even more than the rapist and killer himself, New York State is responsible for the rape and murder of a Yaphank woman, and the rape of Rocky Point woman, because the state mistakenly sprung him from prison 13 years early, a state court of claims judge has ruled.

Now the state must pay $5.5 million to the victims' families, Court of Claims Judge Alan Marin has ruled.

The decision marks the first time the state has been held liable for damages for prematurely releasing a convict, and attorneys in the case say it could set a nationwide precedent.

The award followed an earlier decision finding that it was a series of errors and oversights originating in a Suffolk County Court typing pool that set Franklin Scruggs of Rocky Point free. Once loose, Scruggs raped and murdered Michelle Ann Brey, 34, of Yaphank, and also raped a Rocky Point woman.

"But for the state letting this guy out of jail, this tragedy would never have taken place," said Jerrold Parker, the Great Neck attorney representing Brey's estate. "If they didn't let him out of jail, Michelle Brey would still be here and she'd be raising her three young kids."

Officials from the state attorney general's office declined to comment on the case.

Brey's mother, Linda Steel of Malverne, also declined to comment, but Parker said she "is happy to get this case behind her." Steven Palermo, the Smithtown attorney representing the other rape victim, said she is "pleased with the outcome, but at this point, I think she wants to put this behind her. She's trying to put her life back together."

Parker called Marin's ruling a "landmark" decision and said he has already received several inquiring calls from attorneys in other states with similar cases.

Scruggs, who had a history of violent felonies, was originally serving two concurrent 20-year sentences, but in 1997, successfully had one of the sentences reduced to 3 1/2 to 7 years.

Although he still had another 20-year sentence, a court clerk erroneously recorded that both his sentences had been reduced. That meant that because he had already served seven years, Scruggs was free to go.

Two years later, Scruggs committed the two rapes and the murder. After pleading guilty, he received a sentence of 20 years to life, which will begin when he completes his original 20-year sentence.

Attorneys for the victims' families filed the wrongful death suit, arguing that the initial mistake went through multiple layers of state oversight without being picked up. Parker said one senior prison record clerk testified that she had been aware that Scruggs' successful appeal only applied to one of his sentences, and even told him "Why are you bothering?" but still processed his release. "She opened the door to the prison and let him out," Parker said.

The attorney general's office argued that it should not have to pay damages because it shared liability with Scruggs and with the victims themselves - saying that Brey was under the influence of cocaine. But Marin placed two-thirds of the blame on the state for unleashing a violent felon on his victims.

State Department of Correctional Services spokesman James Flateau yesterday called the ruling "outrageous."

"How do you possibly say that the state government is more responsible for a murder than the killer?" Flateau said.

Flateau said with 30,000 inmates coming through the system each year, correction workers cannot be expected to catch every mistake, but do catch hundreds a year.

Parker said he was assured by state officials that safeguards have since been implemented to ensure a similar blunder doesn't happen again, but they would not say what the changes were.

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