Hewitt v. The City of New York et al
Filing
93
MEMORANDUM & ORDER: Defendants' 76 motion for summary judgment is granted in its entirety. Forwarded for judgment. Ordered by Judge Raymond J. Dearie on 9/27/2012. (Chee, Alvin)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
______________________________________________________ ------------ J{
JENNIFER HEWITT,
MEMORANDUM &
ORDER
Plaintiff,
09 CV 214 (RJD) (MDG)
- againstTHE CITY OF NEW YORK, DETECTIVE
JENNIFER CHILDS (Shield # 2022), DETECTIVE
CHRISTOPHER COOKE (Shield # 1569),
UNDERCOVER OFFICER No. 0055, UNDERCOVER
OFFICER No. 0054, and DETECTIVE VINCENT
DAUGE (Shield # 30121),
Defendants.
-------------------------------------------------------------------- J{
DEARIE, District Judge.
Plaintiff brings claims pursuant to 42 U.S.C. § 1983 ("Section 1983") against the
City of New York and members of the New York City Police Department ("NYPD") for
her arrest and prosecution following a large scale, multi-year investigation into a
Brooklyn narcotics distribution network. Plaintiff claims that defendants falsified
evidence, including her identification. Apparent inconsistencies and minor discrepancies,
however, do not meaningfully diminish the strength of the evidence available to the
defendant officers at the time of plaintiff s arrest and prosecution. Because plaintiff has
failed to show that defendants did anything more than possibly misidentify her,
defendants' motion for summary judgment is granted.
I. BACKGROUND I
A. Drug Investigation
"[I]n or around September 2005," the Brooklyn North Narcotics division of the
NYPD commenced an 18-month, large-scale investigation into a "narcotics distribution
network in the area of the Cypress Hills Housing Development in Brooklyn, NY." Def.
R. 56.1
~~
1-2.
During the investigation, "undercover officers and confidential
informants purchased narcotics from a vast network of individuals, including juveniles."
Id.
~
2. Detective Christopher Cooke ("Cooke") was the "lead case detective," Detective
Vincent Dauge ("Dauge") was the "alternate case detective," and Undercover Officers 55
('UC-55") and 54 ("UC-54") were undercover officers assigned to the investigation. Id.
~~
3-5. The investigation ultimately led to the arrests of "approximately 50-60" and the
indictment of thirty-seven individuals, including plaintiff. ECF Docket # 85, PI. Exh. 12,
Cooke Deposition ("Dep.") at 44; ECF Docket # 78, Def. Exh. J. at 1-2.
B. Undercover Transactions
Unidentified Female
with
Plaintiffs Brother,
Carl Hewitt and
During the investigation, UC-55 made contact with suspected drug dealer, Carl
Hewitt ("Mr. Hewitt"), who is plaintiffs brother, on two occasions relevant to the instant
action: April 6, 2006 and April 20, 2006.
I The following factual backdrop is largely adapted from the parties' Local Civil Rule 56.1 statements. A
significant portion of plaintiffs responses in her Rule 56.1 (b) Statement ("PI. R. 56.1") to defendants' Rule
56.I(a) Statement ("Def. R. 56.1"), are unresponsive and merely recite, verbatim, inconsistencies in
defendants' investigation, which the Court will address, infra Part II.A. The Court "deem[s] admitted"
defendants' Statement to the extent that plaintiff failed to "specifically controvert[]" any of defendants'
"correspondingly numbered paragraph[s]." See Local Civil Rule 56.I(c).
2
2
I. April 6, 2006 Transaction
On April 6, 2006, UC-55 met Mr. Hewitt, who arrived on the corner of
Pennsylvania and Fulton Avenues in Brooklyn, New York driving a red Nissan Altima
with a female passenger. Def. R. 56.1 '\1'\1 6-8. UC-55 and Mr. Hewitt "had a deal for five
eight balls," or five-eighths of an ounce of crack. PI. Exh. 15, UC-55 Dep. at 22-23.
After UC-55 indicated his interest in purchasing, Mr. Hewitt asked the female passenger
to hand him an object and the female passenger retrieved a black plastic bag from under
her seat and handed it to Mr. Hewitt. Def. R. 56.1 '\I 10. Mr. Hewitt then retrieved five
eight-balls of what later was determined to be crack cocaine from the bag, and handed
them to UC-55. rd. '\I II. "Because the Field Team was conducting another operation,
and ... were not prepared for the buy," UC-55 Dep. at 24, UC-55 created a ruse: he
explained to Mr. Hewitt that he did not have the money to purchase the narcotics at that
time, Def. R. 56.1 '\112. Mr. Hewitt informed UC-55 that he could still purchase the crack
from a third party later that day, which he did. rd.; PI. Exh. 25, 4/6/06 Buy Report.
Following the April 6, 2006 operation, UC-55 orally reported his observations to
Cooke, including the fact that Mr. Hewitt was with a female at the time of the transaction,
UC-55 Dep. at 47-49; Cooke Dep. at 29-30; see PI. R. 56.1 '\lB. He also prepared a buy
report summarizing the transaction. The buy report did not include the facts that a female
was present or that Mr. Hewitt was in a car. See 4/6/06 Buy Report.
Plaintiff's Rule 56.1 Statement is largely unresponsive regarding the April 6, 2006 transaction. The
principal dispute seems to be over whether plaintiff was actually in the car or involved at all. Plaintiff, for
her part, testified at her deposition that she never owned a car, never had a driver's license, never drove a
car in which Mr. Hewitt was a passenger, and never was a passenger in a car that was driven by Mr. Hewitt.
PI. Exh. 23, PI. Dep. at 57. Reading the evidence in the light most favorable to plaintiff, the Court will
assume, without deciding, that plaintiff was not actually present during this transaction.
2
3
2. April 20, 2006 Transaction 3
Two weeks later, UC-55 arranged another buy with Mr. Hewitt. UC-55 again met
Mr. Hewitt on a street corner in the same red Nissan Altima. Oef. R. 56.1
~~
15-16. This
time, however, Mr. Hewitt was in the passenger seat and the same unidentified female
was driving. Id.
~
16. UC-55 stepped into the backseat of the vehicle on the passenger
side and handed Mr. Hewitt $1000. Id.
~~
16-17; PI. Exh. 28, 4/20106 Buy Report. Mr.
Hewitt again asked the female "to get something" and the female reached "under her
seat" and placed a "small bag, small shopping style bag" into Mr. Hewitt's hand. UC-55
Oep. at 60; see Oef. R. 56.1
~
18. Mr. Hewitt then handed UC-55 "the product," which
was a "white rocky substance." UC-55 Oep. at 61; 4/20106 Buy Report. UC-55 field
tested the "white rocky substance," and the results were negative for cocaine. Oef. R.
56.1
~
20; see PI. Exhs. 30-32, Field Test Results. After observing the same female twice
under like circumstances, the female was then given the codename "J.O. Altima." Oef.
R. 56.1
~9.
Ouring this transaction, UC-54 observed the transaction from nearby. Oef. R.
56.1
~
21. UC-54 was "not more than 25 feet away" and corroborated UC-55's report in
all material respects, including the type of car driven and the presence of the female in
the driver's seat. PI. Exh. 29, UC-54 Observation Notes; PI. Exh. 17, UC-54 Oep. at 1314. UC-54 also submitted a "Complaint Follow-Up Information," which recorded these
same observations. PI. Exh. 29
C. Identification of Plaintiff
Between April 2006 and September 2006, Cooke and his team attempted to
identifY the female and learned that Mr. Hewitt had a sister, who "fit the description that
3
See supra, note 2.
4
the Undercover Officer described.,,4 Cooke Dep. at 54; see Def. R. 56.1 ~ 54. On
September 13, 2006, Cooke presented UC-55 with a photo array that included plaintiffs
photo. After viewing the photo array, UC-55 identified plaintiff as "J.D. Altima."s Def.
R. 56.1
~~
24-25; see PI. Exhs. 33-34.
D. NYPD interaction with Kings County District Attorney's Office ("KCDA")
During the course of the investigation, Cooke and Dauge met with Assistant
District Attorney, Gloria Rios ("Rios"), and provided her with information "as far as
what involvement, what actions, what any particular person did as far as the investigation
is concerned," PI. Exh. 22, Rios Dep. at 16; Def. R. 56.1
~
28, and provided her with the
buy reports and other investigative reports, Rios Dep. at 14.
E. Plaintiffs Arrest6
On April 25, 2007, plaintiff and Mr. Hewitt were arrested in front of their house,
as part of a mass arrest of suspects involved in the investigation. Def. R. 56.1
Plaintiff was then taken to the
77th
~
29.
Precinct where she was "stripped searched" and then
held for "two and a half days." PI. Dep. at 41-42. The day after arrest, plaintiff was "put.
Plaintiff disputes that the description UC-55 provided fits plaintiff. The Court addresses the effect of this
purported inconsistency, infra Part II.A.
4
5 Defendants claim that UC-55 made an additional confirmatory identification of plaintiff on April 19,
2007-just days before her arrest-when "Cooke along with two other officers conducted a stop of plaintiff
and Carl Hewitt." Def. R. 56.1 111126-27; see PI. Exh. 35. Plaintiff disputes that this identification ever took
place, citing UC-55's deposition testimony that after the April 20, 2006 transaction, he "did not see
[plaintiff] physically until she was arrested" on April 25, 2007. PI. R. 56.1 1111 26-27. Moreover, when
presented with Cooke's report of the disputed April 19,2007 confirmatory identification, UC-55 responded
that the report was "not clear ... I would have to ask [Cooke]." See id. Reading the evidence in the light
most favorable to plaintiff, the Court will assume, without deciding, that this second confirmatory
identification never took place.
There is a dispute as to who actually arrested plaintiff. Defendants contend that plaintiff was arrested "by
law enforcement officers who are not a party to this suit." Def. R. 56.1 11 29. Plaintiff contends that
plaintiff was arrested by Detective Jennifer Childs ("Childs"). PI. Dep. at 35; PI. R. 56.1 1111 29, 31-32.
Defendants counter that "[a]s a result of the numerous arrests that were made in connection with this
investigation ... Childs was assigned to be plaintiffs arresting officer even though she was not at the scene
of plaintiffs arrest." Def. R. 56.1 11 31. Reading the evidence in the light most favorable to plaintiff, the
Court will assume, without deciding, that Childs did physically arrest plaintiff.
6
5
· . in an interrogation room," id. at 42, during which time "UC-55 again positively
identified plaintiff as JD Altima," Def. R. 56.1
'If 30. Plaintiff was transported from the
77 th Precinct to Central Booking, where she alleges she was again strip searched. PI. Dep.
at 43-44. Two and one-half days later, she was arraigned and remanded to Riker's Island
after failing to post bail and was strip searched again. Id. at 45-46. In all, plaintiff
remained at Riker's for approximately six months. Id. at 46.
F. Plaintiff s Prosecution
On April 27, 2007, Cooke signed a sworn criminal complaint, which charged
plaintiff along with numerous other co-defendants with multiple drug and conspiracy
related offenses. PI. Exh. 2, Cooke Sworn Compl. at 1, 7. On March 15, April 24, and
April 27, 2007, UC-55 testified before the grand jury about plaintiffs involvement in the
April 6, 2006 transaction. PI. Exh. 5, 3/15107, 4/24/07, & 4/27/07 Grand Jury Minutes
("Mins."). Plaintiff was indicted on two counts of conspiracy in the first degree and two
counts of conspiracy in the second degree. Def. R. 56.1
'If 33 (citing Def. Exh. H, Kings
County Criminal Court Indictment No. 2366/07 ("First Indictment")).
On October 15, 2007, after review of the evidence presented to the grand jury, the
Honorable Danny K. Chun of the New York State Supreme Court, Kings County,
dismissed the charges of conspiracy in the first degree, but declined to dismiss or reduce
the charges of conspiracy in the second degree. Id.
'If 34 (citing Def. Exh. I, at 2, Chun
10/15107 Order). Judge Chun "granted leave" to the KCDA "to represent the case to the
grand jury." Chun 10115107 Order at 2. Accordingly, the KCDA re-presented evidence to
a second grand jury, during which UC-55 testified concerning plaintiffs involvement in
the April 20, 2006 transaction. Defs. R. 56.1
'If'lf 35-36.
6
This second grand jury subsequently issued a superseding indictment, indicting
plaintiff on four counts of conspiracy in the first degree, four counts of conspiracy in the
second degree, and numerous other offenses related to the sale and possession of a
controlled substance. Id.
~
37. On April 7, 2008, upon review of the evidence presented
to the second grand jury, however, Judge Chun "dismissed the superseding indictment in
its entirety as to plaintiff for lack oflegally sufficient evidence." Id.
~
38 (citing Def. Exh.
K, Chun 417108 Order at 2).
Ultimately, Mr. Hewitt and up to thirty-five others were indicted by the same
grand juries as plaintiff. On August 20, 2008, Mr. Hewitt pled guilty to Conspiracy in the
Second Degree and Criminal Sale of a Controlled Substance in the Third Degree. Def. R.
56.1
~
40; see Def. Exh. J, Indictment; Def. Exh. N, Carl Hewit Plea Allocution.
II. DISCUSSION
Summary judgment "is warranted when, after construing the evidence in the light
most favorable to the nonmoving party and drawing all reasonable inferences in its favor,
there is no genuine issue as to any material fact." Sledge v. Kooi, 564 F.3d lOS, 108 (2d
Cir. 2009) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-50, 255 (1986».
The party opposing summary judgment must set forth evidence demonstrating a genuine
issue for trial, Salahuddin v. Goord, 467 F.3d 263, 273 (2d Cir. 2006), and may not rely
only on allegations in its pleadings or mere "condusory statements, conjecture, or
speculation," Kulak v. City of New York, 88 F.3d 63, 71 (2d Cir. 1996). Although a
plaintiff is entitled "to have his testimony believed," at summary judgment, a plaintiff is
only entitled "to have all reasonable inferences that can be drawn therefrom made in his
7
favor." Richardson v. City of New York, No. 02 CV 3651(JG), 2006 WL 2792768, at *3
(E.D.N.Y. Sept. 27, 2006) (Gleeson, J.) (emphasis added).
A. False Arrest
A Section 1983 claim for false arrest under the Fourth Amendment "is
substantially the same as a claim for false arrest under New York law." Weyant v. Okst,
101 F.3d 845, 852 (2d Cir. 1996) (internal citations omitted). False arrest requires that:
'''(I) the defendant intended to confine [the plaintiff], (2) the plaintiff was conscious of
the confinement, (3) the plaintiff did not consent to the confinement and (4) the
confinement was not otherwise privileged.'" Singer v. Fulton Cnty. Sheriff, 63 F.3d 110,
118 (2d Cir. 1995) (quoting Broughton v. State, 37 N.Y.2d 451, 456 (N.Y. 1975». Even
where a defendant did not "actually restrain[j or confiner] a plaintiff, a claim of false
arrest ... may lie where a plaintiff can show that defendant instigated his arrest, thereby
making the police agents in accomplishing defendant's intent to confine the plaintiff.,,7
Chepilko v. City of New York, No. 06-CV-5491 (ARR)(LB), 2012 WL 398700, at *10
(E.D.N.Y. Feb. 6, 2012) (Ross, J.) (internal modifications and quotation marks omitted).
Probable cause "is a complete defense to an action for false arrest." Weyant, 101 F.3d at
852 (internal citations and quotation marks omitted).
As plaintiff conceded at oral argument, she cannot survive summary judgment
without raising a genuine fact issue as to whether UC-55 or others fabricated evidence
implicating her in the drug sales and conspiracy. Mere misidentifications do not
undermine probable cause; police officers are entitled to make reasonable mistakes when
identifYing suspects. Colon v. City of New York, 60 N.Y.2d 78, 82 (N.Y. 1983). When
UC-54's mere presence and observation as a "ghost" undercover during one of two transactions is
insufficient to meet the "intended to confine" element of plaintiffs false arrest claim.
7
8
assessing probable cause to arrest, police officers are likewise entitled to rely-as long as
such reliance is reasonable--on information provided by other law enforcement officials,
including identifications which may later tum out to be mistaken. Manganiello v. City of
New York, 612 F.3d 149, 161 (2d Cir. 2010). Especially where, as here, there was a
wide-ranging "investigation regarding a series of committed crimes," courts recognize
the necessity of depending on collective knowledge. People v. Reynolds, 479 N.Y.S.2d
736,739 (N.Y. App. Div. 1984).
At this stage of the litigation, plaintiff s unsupported assertions that she never
rode in Mr. Hewitt's car or sold drugs cannot defeat summary judgment because
defendant had probable cause to arrest her. See Lowth v. Town of Cheektowaga, 82 F.3d
563, 569 (2d Cir. 1996) ("Probable cause exists when there are 'facts and circumstances
sufficient to warrant a prudent man that the suspect had committed or was committing an
offense. "') (quoting Gerstein v. Pugh, 420 U.S. 103, 111 (1975» (internal modifications
omitted) (emphasis added).
As part of an extensive and apparently quite successful investigation into a major
drug conspiracy, UC-55 engaged suspected drug dealer, Mr. Hewitt.
During two
different drug buys in Mr. Hewitt's car, UC-55 saw a female-who the defendants
subsequently codenamed "J.D. Altima"-hand Mr. Hewitt a bag of drugs, which Mr.
Hewitt then handed to UC-55 in exchange for money. UC-54 substantially corroborated
UC-55's account of the second transaction. UC-55 then later identified plaintiff as "J.D.
Altima." Whether this identification was ultimately accurate is something only plaintiff
knows, and firmly denies. For the purpose of summary judgment, the Court gives
9
plaintiff the benefit of the doubt.
Nonetheless, defendants' probable cause to arrest
plaintiff as "J.D. Altima," even if mistaken, defeats plaintiffs Fourth Amendment claim.
Plaintiff challenges UC-55's identification because it "took place five months
after the last purported transaction that the defendants claim [she] had been involved in."
PI. R. 56.1 at
'Il 25.
Although the circumstances concerning UC-55's delayed
confirmatory identification may have affected the weight-if any-accorded to his
identification at trial or at a pre-trial suppression hearing, the delay alone does not vitiate
probable cause to arrest. See Celestin v. City of New York, 581 F. Supp. 2d 420, 431
(E.D.N.Y. 2008) (Glasser, J.) ("A positive photo identification by an eyewitness is
normally sufficient to establish probable cause to arrest."); Whitson v. Gilberg, 792 F.
Supp. 2d 639,644 (E.D.N.Y. 2011) (Wexler, J.) (holding that "it was certainly reasonable
for [arresting officer] to believe that probable cause existed at the time of the arrest"
based upon fellow officer's "identification of [plaintiff], and [the fellow] officer's
knowledge of the area."). Plaintiff does not allege that the photo array was unduly
suggestive nor does she give any basis to question Cooke's testimony that the team
identified plaintiff in good faith. Moreover, prior to plaintiffs arrest, Rios agreed with
Cooke and Dauge's assessment of UC-55's investigation and plaintiffs involvement,
supporting the decision to arrest plaintiff. See Martinez v. Simonetti, 202 F.3d 625, 636
(2d Cir. 2000) (finding officers' probable cause determination supported by District
Attorney's "concurre[nce] with the propriety of bringing charges based on the evidence at
hand.").
Plaintiff s argument that "the purported involvement of the female that the
defendants have identified as the plaintiff ... amounts to nothing more than merely being
10
present during said purported transactions," is baseless. Opp. Mem. at 14; see id. at 15.
The actions of J.D. Altima went far beyond that of "mere association with those
implicated in an unlawful undertaking." United States v. Nusraty, 867 F.2d 759, 764 (2d
Cir. 1989); see People v. Reisman, 29 N.Y.2d 278, 285 (N.Y. 1971) ("[P]ossession
suffices to permit the inference that the possessor knows what he possesses, especially,
but not exclusively, if it is in his hands, on his person, in his vehicle, or on his
premises."); People v. Green, 35 N.Y.2d 437, 442-43 (N.Y. 1974) ("[B]ecause of the
nature of narcotics traffic and high monetary value attached to illicit drugs, ignorance of
one's possession of narcotics or knowledge of their nature or value is highly unlikely.").
Additionally immaterial is the fact that the April 6, 2006 sale was not ultimately
consummated in Mr. Hewitt's car, as well as the possibility that the female may never
have received any compensation for her role. The term "sell" is defined in N.Y. Penal L.
220.00(1) (McKinney's 2009) as "to sell, exchange, give or dispose of to another, or to
offer or agree to do the same." rd. (emphasis added). Where, as here, there is "evidence
of a bona fide offer to sell-i.e., that [the suspect] had both the intent and the ability to
proceed with the sale," People v. Mike, 92 N.Y.2d 996,998 (N.Y. 1998), a suspect "may
be guilty as a seller even if he does not receive any consideration for the transfer of drugs
to the buyer," People v. Starling. 85 N.Y.2d 509,515 (N.Y. 1995).
Plaintiff points the Court to no evidence of ill will or malice on the part ofUC-55,
no arguable motivation to fabricate, or any other coherent theory for why an undercover
involved in the investigation and arrests of dozens would lie about the existence, identity,
and actions of one. Plaintiff's recitation of inconsistencies and inaccuracies in UC-55's
II
buy reports, grand jury testimony, 8 descriptions of the female suspect, and undercover
audio recordings, do not support her argument that UC-55 fabricated evidence against
her. Simply stating that something raises an inference does not make it so. Rather, "[t]he
purported motivations grounded in animus and a clear disregard of duty attributed to
[UC-55] constitute nothing more than unsubstantiated conjecture," insufficient to raise a
genuine issue of material fact for trial. Celestin, 581 F. Supp. 2d at 432.
Plaintiff spends considerable effort to stress that UC-55's April 6, 2006 buy report
mentioned no female.
Relatedly, plaintiff points out UC-55's failure to discuss the
presence of any female during the April 6, 2006 encounter when first testifying before the
grand jury. Defendants, however, provide reasonable and logical explanations for these
inconsistencies, to which plaintiff offers no response. Instead, plaintiff does no more than
conjecture that these inconsistencies "should reasonably have brought into question [UC55's] purported allegation of the involvement of the plaintiff in said purported
transaction." Opp. Mem. at 15.
Plaintiff points out discrepancies in the reported color and type of bag the female
was alleged to have handed to Mr. Hewitt-a clear plastic bag versus a black plastic
bag-, but plaintiff fails to tie such imprecision-irrelevant, in any case, to the probable
cause deterrnination 9-to a reasonable inference of outright fabrication.
8 The Supreme Court recently held that plaintiffs may not use "evidence of [a grand jury] witness'
testimony to support any other § 1983 claim concerning the initiation or maintenance of a prosecution."
Rehberg v. Paulk, 132 S.C!. 1497, 1506 (2012) (emphasis added). It is unclear whether a Section 1983
claim arising out of an arrest, such as false arrest, excessive use of force, or iIIegaJ search and seizure, could
be considered a claim "concerning the initiation ... of a prosecution" under Rehberg. Id. Given this
ambiguity, the Court will entertain grand jury testimony in support of plaintiff's false arrest claim.
9 J.D. Altima's knowledge of the quantity of drugs she possessed and handed to Mr. Hewitt has no bearing
on probable cause. N.Y. Penal L. § 15.20(4) (McKinney's 1995) ("[K]nowledge by the defendant of the
aggregate weight of [a] controlled substance ... is not an element of any [contrOlled substance] offense and
12
Plaintiff additionally draws the Court's attention to claimed "significant[]
differen[ ces]" between the approximate height and weight provided by UC-55 and
plaintiff's deposition description of herself. Opp. Mem. at 16; compare 4/20106 Buy
Report; with PI. Oep. at 12. Relatedly, plaintiff points out that Mr. Hewitt had referred to
the female accomplice as his "girlfriend," as opposed to his sister. Plaintiff offers no
evidence, however, to rebut the logical explanation that UC-55's descriptions were mere
estimates based on observations of the female while seated, "through the front
windshield," from "the passenger side," or from the backseat of the car. UC-55 Oep. at
83. Moreover, UC-55's subsequent confirmatory photo identification was based solely
on plaintiff's face, not her body type. As to Mr. Hewitt's statement that the female
accomplice was his "girlfriend," neither UC-55, nor the other officers, were obliged to
believe what Mr. Hewitt said. Mr. Hewitt could have been lying to protect his sister or he
could have been shooting straight that the female really was his girlfriend.
Police
officers, however, are "not required to explore and eliminate every theoretically plausible
claim of innocence before making an arrest." Martinez, 202 F.3d at 635 (internal
quotation omitted).
In any case, the evidence-undisputed by plaintiff-demonstrates
that Cooke and others did investigate who J.O. Altima might be before arranging the
confirmatory photo array. Cooke Oep. at 54.
Lastly, plaintiff argues that the audio recordings of UC-55's undercover
operations on April 6 and 20, 2006 "belie [UC-55]'s purported version of events." The
Court has listened in full to the recordings provided, the majority of which either consist
of absolute silence, white noise, hip-hop tracks, or unintelligible conversations and
it is not ... a defense to a prosecution therefor that the defendant did not know the aggregate weight of the
controlled substance ...."} (emphasis added).
13
laughter drowned out by echoes and other radiant neighborhood noise. Plaintiff offers no
summaries or transcripts to assist the Court in deciphering the recordings. What little the
Court could make out, however, seems to corroborate UC-55's version of events and if
anything, reveal an undercover detective, successful in building rapport and trust among
serious drug dealers, at work in dangerous and unpredictable conditions, scheduling,
negotiating and carrying out large drug buys.
The Court, therefore, rejects plaintiffs submission that these foregoing proffered
inconsistencies raise a genuine fact issue, let alone constitute "undisputed evidence" that
defendants fabricated evidence. More likely, the inconsistencies constitute reasonable
oversights to be expected in drug investigations of like scale and scope. Without raising
any reasonable inference that defendants manufactured evidence against her, plaintiff's
Fourth Amendment claim fails in the face of defendants' probable cause to arrest.
Plaintiffs claim for false arrest is dismissed in its entirety.
B. Malicious Prosecution
Plaintiff s malicious prosecution claim requires that she prove "(I) the initiation
or continuation of a criminal proceeding against plaintiff; (2) termination of the
proceeding in plaintiffs favor; (3) lack of probable cause for commencing the
proceeding; and (4) actual malice as a motivation for defendant's actions." Manganiello,
612 F.3d at 161 (internal quotations and citations omitted). "[T]o prevail on a §
1983 claim against a state actor for malicious prosecution," however, "a plaintiff must
[also] show a violation of his rights under the Fourth Amendment," Id. at 160-61, which
14
reqUires "that [a] seizure resulted from the initiation or pendency of judicial
proceedings.")O Murphy v. Lynn, 118 F.3d 938, 944 (2d Cir. 1997).
"[T]he existence of probable cause is a complete defense to a claim of malicious
prosecution in New York." Savino, 331 F.3d at 72.
"Unlike an arrest, which only
requires probable cause that 'the suspect had committed an offense, ", however, "a
prosecution requires probable cause 'to charge the suspect with each of the crimes. ",
Kavazanjian v. Rice, No. 03-CV-1923 (FB)(SMG), 2005 WL 1377946, at *4 (E.D.N.Y.
June 6, 2005) (Block, J.) (quoting Lowth, 82 F.3d at 569, 571) (internal modifications
omitted) (emphasis in original).
The Court dismisses plaintiff's malicious prosecution claims against UC-54 and
Dauge because plaintiff does not allege that these defendants were sufficiently involved
in initiating her prosecution.
Plaintiff neither alleged nor proffered any evidence to
suggest that UC-54's involvement extended beyond one "ghost" observation and the
reporting of that observation to Cooke. '''One who does no more than disclose to a
prosecutor all material information within his knowledge is not deemed to be the initiator
of the proceeding.'" Rohman v. New York City Trans. Auth., 215 F.3d 208, 217 (2d Cir.
2000) (quoting Present v. Avon Prods .. Inc., 687 N.Y.S.2d 330, 335 (N.Y. App. Div.
1999)). Dauge's involvement as "Alternate Case Detective" was limited to collecting
and providing-in at most, a supporting role to Cooke-information to the KCDA's
office in "the investigation that led to the arrest of the plaintiff." Opp. Mem. at 9
10 The Court dismisses plaintiffs claim for malicious prosecution against Childs for failure to set forth any
proof that Childs' involvement extended beyond plaintiffs arrest. An arrest alone "cannot serve as the
predicate deprivation of liberty" required under the Fourth Amendment as the arrest "occurred prior to
[plaintiffs] arraignment and without a warrant, and therefore was not pursuant to legal process." Singer, 63
F.3d at II? (internal quotation marks omitted).
15
(emphasis added). Dauge played no, let alone "an active role in the prosecution" of
plaintiff. Rohman, 215 F.3d at 217.
Similar logic applies to bar plaintiffs malicious prosecution claim against UC-55.
Although UC-55's investigation, including reports, identifications, and ongoing
communication with Cooke, formed the principal basis for the arrest of plaintiff, "the
chain of causation between a police officer's ... arrest and a subsequent [prosecution]
[wa]s broken by the intervening exercise of independent [prosecutorial] judgment,"
Townes v. City of New York, 176 F.3d 138, 147 (2d Cir. 1999).
UC-55 did testify before the grand jury, and his testimony led to plaintiffs
indictment.
As the Supreme Court recently made explicit, however, although "a
detective or case agent who has performed or supervised most of the investigative work
in a case may serve as an important witness in the grand jury proceeding and may very
much want the grand jury to return an indictment[,] ... such a witness ... does not make
the decision to press criminal charges." Rehberg v. Paulk, 132 S.Ct. 1497, 1508 (2012).
Absent a sworn complaint or evidence--as already found-to raise the reasonable
inference that UC-55 forwarded false or misleading information to the KCDA to
influence their otherwise independent charging discretion, UC-55 did not initiate the
prosecution against plaintiff.
The fact that plaintiff is barred from bringing a malicious prosecution claim
against UC-55 does not mean that UC-55's conduct before the grand jury was exemplary.
Testifying about the April 20, 2006 buy, UC-55 was neither asked by the DA nor
independently offered the fact that the "drugs" he bought tested negative. See 10/25107
Grand Jury Mins. at 71. Selling or possessing fake drugs is legal as long as the seller or
16
possessor is aware that the substance is fake. See People v. Acevedo, 596 N.Y.S.2d 618,
619 (N.Y. App. Div. 1993) (dismissing indictment where defendant sold fake cocaine and
"[ilt was equally plausible that defendant intended to defraud the undercover officer.").
At least in part as a result of UC-55's incomplete testimony, the grand jury returned
indictments on Counts 147-149 for drug offenses tied to plaintiffs alleged involvement
in the April 20, 2006 transaction. Def. Exh. J at NYC 184-85. But under Rehberg v.
Paulk, "a grand jury witness has absolute immunity from any § 1983 claim based on the
witness' testimony." 132 S.Ct. at 1506 (emphasis added). This case is distinguishable
from Sankar v. City of New York, --- F.Supp.2d ----, 2012 WL 1116984 (E.D.N.Y. Mar.
30,2012), in which this Court allowed a malicious prosecution action to proceed against
an officer who both swore out a criminal complaint and testified before the grand jury. In
Sankar, the defendant's grand jury testimony paralleled the information contained in his
sworn complaint and provided to the prosecution; therefore, the Court found a genuine
fact issue as to whether defendants lacked probable cause to prosecute. The Sankar
defendant's liability for malicious prosecution was not "based on the witness' testimony,"
Rehberg, 132 S.Ct. at 1506, but on his other conduct "laying the groundwork for an
indictment." Sankar v. City of New York, No. 07 CV 4726(RJD)(SMG), 2012 WL
2923236, at *3 (E.D.N.Y. July 18,2012) (denying reconsideration). In contrast, because
the Court has found that UC-55 was forthright in laying the groundwork for an
indictment, any liability would be based solely on his less-than-forthright grand jury
testimony, for which he enjoys absolute immunity. Rehberg, 132 S.Ct. at 1506.
As lead detective on the case, however, Cooke laid the groundwork for plaintiffs
prosecution and swore out the criminal complaint. See Rounseville v. Zahl, 13 F.3d 625,
17
628 (2d Cir. 1994) (swearing out accusatory instrument constitutes initiation of criminal
prosecution). Cooke's liability for malicious prosecution, however, extends only as far as
his personal involvement in prosecuting plaintiff-filing his sworn complaint.
Cooke
did not testify before the grand jury against plaintiff, and plaintiff did not rebut the
presumption that the KCDA independently decided to prosecute her for offenses
additional to those charged in Cooke's sworn complaint. Felmine v. City of New York,
No. 09-CV-3768 (CBA)(JO), 2011 WL 4543268, at *11 (E.D.N.Y. Sept. 29, 2011)
(Amon, C.J.) ('''[AJ malicious-prosecution claim cannot stand if the decision made by the
prosecutor to bring criminal charges was independent of any pressure exerted by [the J
police."') (quoting Hartman v. Moore, 547 U.S. 250, 263 (2006» (modifications in
original).
Cooke's sworn complaint charged plaintiff with three drug related offenses based
upon the April 6, 2006 buy-Criminal Sale of a Controlled Substance in the Second and
Third Degrees and Criminal Possession of a Controlled Substance in the Third Degree.
Based on UC-55's observations, there was ample probable cause to arrest plaintiff for
each of these offenses. See supra Part II.A. Where, as here, "probable cause existed at the
time of arrest, it continues to exist at the time of prosecution unless undermined by the
discovery of some intervening fact." Johnson v. Constantellis, 221 F. App'x. 48, 50 (2d
Cir. 2007) (internal quotation marks omitted). The only "intervening fact" discovered in
this case--UC-55's additional identification of plaintiff in the stationhouse the day after
his arrest-bolsters rather than "undermine[s]" probable cause. Id.
Cooke's sworn complaint also charged plaintiff with Conspiracy
III
the First
Degree. Under N.Y. Penal Law § 105.17 (McKinney's 1978), "[aJ person is guilty of
18
conspiracy in the first degree when, with intent that conduct constituting a class A felony
be performed, he, being over eighteen years of age, agrees with one or more persons
under sixteen years of age to engage in or cause the performance of such conduct." Id.
Here, UC-55's observations of J.D. Altima involved in drug buys on both April 6, 2006
and April 20, 2006 under like circumstances raise the strong inference of an illicit
agreement. See,
~
United States v. Diez, 736 F.2d 840, 843 (2d Cir. 1984) (affirming
conspiracy charges based on inference of agreement raised by defendant's presence in car
during drug deal and fact that defendant "actually witnessed the transaction"); cf.
Nusraty, 867 F.2d at 764 (finding evidence insufficient to support drug conspiracy
conviction where there was no "pattern or acts . . . reflecting the defendant's
participation in a criminal scheme" or "evidence to show that [defendant] ever took
possession, either actual or constructive, ofthe heroin.") (emphasis added).
Plaintiffs argument that "there is absolutely no evidence that the plaintiff had
ever entered into an agreement to sell narcotics with juveniles," Opp. Mem. at 15
(emphasis in original), is without legal significance. New York courts have recently
clarified that the illicit agreement need not have been made directly between one
conspirator and an individual under the age of 16 to satisfy the elements for Conspiracy
in the First Degree. Indeed, "a conspirator is guilty of the First Degree offense if he not
only is unaware of the age of the young conspirator, but does not even know of that
individual's existence." People v. Canales, 934 N.Y.S.2d 36 (Table), 2011 WL 2652566,
at *4 (N.Y. Sup. Ct. 2011) (Table); accord People v. Ackies, 914 N.Y.S.2d 211, 216
(N.Y. App. Div. 2010) (reversing dismissal of First Degree Conspiracy counts and
observing that "[p ]roof of a defendant's knowledge of the identities and specific acts of
19
all his coconspirators is not necessary where the circumstantial evidence establishes the
defendant's knowledge that he is part of a criminal venture which extends beyond his
individual participation.").!!
"Once an illicit agreement is shown, the overt act of any conspirator may be
attributed to other conspirators to establish the offense of conspiracy and that act may be
the object crime." People v. McGee, 49 N.Y.2d 48,57 (N.Y. 1979) (internal citations
omitted). The commission of Criminal Sale in the Second Degree on April 6, 2006 was
sufficient to meet both the "overt act" and "conduct constituting a class A Felony"
elements of the First Degree Conspiracy offense.!2
Because Cooke had probable cause to prosecute plaintiff for the crimes charged in
his sworn complaint, plaintiffs malicious prosecution claims against him are dismissed.
C. Unlawful Strip Searches
Plaintiff claims that she was illegally strip searched, Opp. Mem. at 2-3, but fails to
allege or provide any admissible evidence that anyone of the named defendants were
personally involved in strip searching plaintiff. See Opp. Mem. at 23. Accordingly,
summary judgment is granted on this claim for failure to show personal involvement.
D. Right to a Fair Trial
"When a police officer creates false information likely to influence a jury's
decision and forwards that information to prosecutors, he violates the accused's
11 Given this recent clarification and the continued unsettled nature of the issue-Canales is a Table
decision issued by a New York Superior Court-Cooke would be protected by qualified immunity as the
required elements for Conspiracy in the First degree in New York was not "clearly established" at the time
of Cooke's charging decision. See Camreta v. Greene. 131 S.C!. 2020, 2031 (2011) ("If prior case law has
not clearly settled the right, and so given officials fair notice of it, the court can simply dismiss the claim
for money damages.").
12 See N.Y. Penal L. §220.4I(l) (McKinney's 1973) (classifYing criminal sale ofa controlled substance in
the second degree as a "class A-II felony").
20
constitutional right to a fair trial, and the harm occasioned by such an unconscionable
action is redressible in an action for damages under [Section] 1983." Ricciuti v. New
York City Trans. Auth., 124 F.3d 123, 130 (2d Cir. 1997). This claim, however, is
duplicative of both plaintiff's false arrest and malicious prosecution claims because the
Court has already found no genuine fact issue that defendants fabricated any evidence
that was then "forward[ed] ... to prosecutors." Id. Summary judgment is, therefore,
granted.
E. Failure to Intervene 13
"A law enforcement officer has an affirmative duty to intercede on the behalf of a
citizen whose constitutional rights are being violated in his presence by other
officers." O'Neill v. Krzeminski, 839 F.2d 9, II (2d Cir. 1988). Because the Court has
already ruled, however, that plaintiff has failed to raise a genuine issue of material fact
that her "constitutional rights" were "violated" by any officers under any theory,
summary judgment must be granted as to this claim.
F. Municipal Liability
"[A] municipality can be held liable under Section 1983 if the deprivation of the
plaintiffs rights under federal law is caused by a governmental custom, policy, or usage
of the municipality." Jones v. Town of East Haven, --- F.3d ----, 2012 WL 3104523, *6
(2d Cir. Aug. 1,2012) (citing Monell v. New York City Dep't of Soc. Servs., 436 U.S.
658,690-91 (1978)). Again, however, because plaintiff has failed to raise a genuine issue
of material fact that she suffered a "deprivation of [her] ... rights under federal law,"
plaintiff s claim must fail. Id. Even if plaintiff were able to raise a genuine issue that her
13 On February 7, 2011, Magistrate Judge Go denied as "futile" plaintiffs motion to amend her complaint
to add a failure to intervene claim against Childs. ECF Docket # 37, 21711 larder at 3. Accordingly,
discussion of this claim only addresses !he liability of the remaining defendants.
21
constitutional rights were violated when UC-55 failed to testifY before the grand jury
about the negative field test-irrespective of his personal immunity to suit based upon
such testimony-"[plroof of a single incident of unconstitutional activity is not sufficient
to impose liability under Monell, unless proof of the incident includes proof that it was
caused by an existing, unconstitutional municipal policy, which policy can be attributed
to a municipal policymaker." City of Okla. City v. Tuttle, 471 U.S. 808, 823-24 (1985).
Plaintiff has set forth no proof-instead relying on conclusory allegations-to raise a
genuine issue of such an "existing, unconstitutional municipal policy.,,14 rd.
III. CONCLUSION
For the foregoing reasons, defendants' motion for summary judgment is granted
in its entirety.
SO ORDERED.
Dated: Brooklyn, New York
September~2012
/s/ Judge Raymond J. Dearie
RA 'h/~N~ARIE
United Stat
Istnct Judge
14 To the extent that plaintiff's municipal policy claim is now solely based on the "District Attorney['s]
fail[ure] to train and supervise ADA's [sic] regarding their legal obligations," Opp. Mem. at 29, on
February 7, 2011, Magistrate Judge Go denied as "futile" plaintiff's motion to amend her complaint to add
such complaints. See 2/7/11 Order at 6-10.
22
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