Kogut v. The County of Nassau et al

Filing 489

MEMORANDUM & ORDER. For the reasons outlined in the M&O 456 Kogut's Motion for a New Trial is DENIED; 457 Halstead and Restivo's Motion for a New Trial is GRANTED IN PART and DENIED IN PART; and 474 the Motion to Amend/Correct/Supplem ent the record is GRANTED. Defendants' Motion 447 for Judgement as a matter of law regarding Plaintiffs' Monell claims is DENIED as MOOT. Within 30 days of the date of this Memorandum & Order, counsel for Halstead and Restivo and counsel for Defendants shall provide the Court with dates that they are available for a Court conference. Ordered by Judge Joanna Seybert on 7/22/2013. (Nohs, Bonnie)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------------X
JOHN KOGUT,
Plaintiff,
-againstTHE COUNTY OF NASSAU, POLICE
COMMISSIONER DONALD KANE, POLICE
COMMISSIONER WILLIAM J. WILLETT (2005),
POLICE COMMISSIONER JAMES LAWRENCE,
DETECTIVE SEAN SPILLANE (HEAD OF HOMICIDE
1985), DETECTIVE DENNIS FARRELL (HEAD OF
HOMICIDE 2005), CAROLANN HESSEMAN, AS
EXECUTRIX FOR THE ESTATE OF JOSEPH VOLPE,
DETECTIVE ROBERT DEMPSEY, DETECTIVE ALBERT
MARTINO, DETECTIVE WAYNE BIRDSALL,
DETECTIVE MILTON G. GRUBER, DETECTIVE
CHARLES FRAAS, DETECTIVE FRANK SIRIANNI,
DETECTIVE HARRY WALTMAN, P.O. MICHAEL
CONNAUGHTON, P.O. WILLIAM DIEHL, and
JOHN DOES 1-5,
Defendants.
----------------------------------------X
JOHN RESTIVO, DENNIS HALSTEAD,
MELISSA LULLO, JASON HALSTEAD,
HEATHER HALSTEAD, and TAYLOR
HALSTEAD,
Plaintiffs,
- against NASSAU COUNTY, CAROLANN HESSMAN, AS
EXECUTRIX FOR THE ESTATE OF JOSEPH VOLPE,
in his individual capacity, ROBERT DEMPSEY,
in his individual capacity, FRANK SIRIANNI,
in his individual capacity, MILTON GRUBER,
in his individual capacity, HARRY WALTMAN
in his individual capacity, ALBERT MARTINO,
in his individual capacity, CHARLIE FRAAS,
in his individual capacity, THOMAS ALLEN
in his individual capacity, RICHARD BRUSA,
in his individual capacity, VINCENT DONNELLY,
1

MEMORANDUM & ORDER
06-CV-6695(JS)(WDW)
(LEAD CASE)

06-CV-6720(JS)(WDW)
(MEMBER CASE)

in his individual capacity, MICHAEL
CONNAUGHTON, in his individual capacity,
WAYNE BIRDSALL, in his individual capacity,
WILLIAM DIEHL, in his individual capacity,
JACK SHARKEY, in his individual capacity,
DANIEL PERRINO, in his individual capacity,
ANTHONY KOZIER, in his individual capacity,
Detective Sergeant CAMPBELL, (Shield #48),
in his individual capacity, SEAN SPILLANE,
in his individual capacity, RICHARD ROE
SUPERVISORS #1-10, in their individual
capacities,
Defendants.
----------------------------------------X
APPEARANCES
For Plaintiffs:
John Kogut
Anthony M. Grandinette, Esq.
John T. Serio, Esq.
Grandinette & Serio, LLP
114 Old Country Road, Suite 420
Mineola, New York 11501
Paul Casteleiro, Esq.
86 Hudson Street
Hoboken, New Jersey 07030
John Restivo and
Dennis Halstead

Barry C. Scheck, Esq.
Monica R. Shah, Esq.
Nick Joel Brustin, Esq.
Anna Benvenutti Hoffman, Esq.
Cochran, Neufeld & Scheck, LLP
99 Hudson Street, 8th Floor
New York, New York 10013

For Defendants:

Louis M. Freeman, Esq.
Lee Ginsberg, Esq.
Freeman, Nooter & Ginsberg
75 Maiden Lane, Suite 503
New York, New York 10038
David L. Lewis, Esq.
Lewis & Fiore, Esq.
225 Broadway, Suite 3300
New York, New York 10007

2

Liora M. Ben-Sorek, Esq.
Sondra Meryl Toscano, Esq.
Christine Ann Lobasso, Esq.
Dennis J. Saffran, Esq.
Sondra Meryl Toscano, Esq.
Office of the Nassau County Attorney
One West Street
Mineola, New York 11501
SEYBERT, District Judge:
The following motions are currently pending before the
Court: (1) Defendants’ letter motion for judgment as a matter of
law regarding Plaintiffs’ Monell claims (Docket Entry 447); (2)
Plaintiff John Kogut’s (“Kogut”) motion for a new trial1 (Docket
Entry 456); (3) Plaintiffs Dennis Halstead (“Halstead”) and John
Restivo’s

(“Restivo”

and

together

with

Halstead

and

Kogut,

“Plaintiffs”) motion for a new trial (Docket Entry 457); and (4)
Halstead and Restivo’s motion to amend/correct/settle the record
(Docket Entry 474), in which Kogut joined.

For the following

reasons, Defendants’ letter motion regarding Monell is DENIED AS
MOOT, Kogut’s motion for a new trial is DENIED, Halstead and
Restivo’s motion for a new trial is GRANTED IN PART and DENIED
IN PART, and the motion to amend/correct/settle the record is
GRANTED.

The Court notes that Kogut has also joined in Halstead and
Restivo’s motion for a new trial and incorporated their
arguments by reference. At times, however, the Court
distinguishes the arguments as specific to particular
plaintiffs.
1

3

BACKGROUND
The
procedural

Court

history

assumes
of

this

familiarity
case.

with

Briefly,

the

facts

Kogut

and

initially

commenced an action on December 19, 2006 pursuant to 42 U.S.C.
§ 1983

(“Section

Nassau

(the

Detective

1983”)

“County”),

Joseph

Volpe

against,
Detective

inter
Sean

(“Volpe”),

alia,

the

Spillane

Detective

County

of

(“Spillane”),

Robert

Dempsey

(“Dempsey”), Detective Wayne Birdsall, Detective Charles Fraas,
and Detective Frank Siranni (collectively “Defendants”).

Two

days later, Halstead and Restivo commenced an action of their
own, also pursuant to Section 1983, against Defendants.

By

Order dated March 31, 2009, this Court consolidated the actions.
The facts of this case begin with the 1984 rape and
murder of sixteen-year-old Theresa Fusco.

In connection with

that investigation, Plaintiff Kogut was twice brought to the
Nassau

County

questioning.
interrogation,

Police
On
Kogut

Department

March

26,

provided

(“NCPD”)
1985,
a

headquarters

after

written

an
and

for

overnight
videotaped

confession in which he implicated himself as well as Plaintiffs
Halstead and Restivo.
arrested and tried.

Ultimately, all three Plaintiffs were
On June 27, 1986, Kogut was convicted on

all counts in the Indictment.

On December 3, 1986, after a

trial separate from Kogut’s, Halstead and Restivo were convicted
of rape and second-degree murder.
4

Beginning

in

1993,

samples

of

semen

obtained

from

Fusco’s body were subjected to DNA testing.

After initial tests

excluded

the

Halstead,

Restivo,

and

Kogut

as

source

of

the

semen, Plaintiffs moved to vacate their convictions, but their
motions were denied.

Later DNA tests again excluded Plaintiffs,

and on June 11, 2003, Plaintiffs’ convictions were vacated.
2005,

however,

Kogut;

and

in

the

Nassau

December

County

2005,

District

Kogut

was

Attorney

acquitted.

In

retried
Shortly

thereafter, the Nassau County Supreme Court formally dismissed
the charges against Halstead and Restivo.
Plaintiffs thus commenced Section 1983 actions before
this Court for Defendants’ alleged constitutional violations in
connection with the investigation of Theresa Fusco’s rape and
murder and Plaintiffs’ prosecutions.

After a lengthy procedural

history, this Court ultimately held a consolidated jury trial on
Plaintiffs’ claims.
issues:

(1)

The jury was presented with the following

whether

Defendants

denied

Kogut

of

his

constitutional rights to due process and right to a fair trial;
(2)

whether

Defendants

denied

Restivo

of

his

constitutional

rights to due process and right to a fair trial; (3) whether
Defendants denied Halstead of his constitutional rights to due
process

and

maliciously
period;

(5)

right

to

a

fair

trial;

prosecuted

Kogut

during

whether

Defendants
5

(4)
the

whether
1985

maliciously

to

Defendants
1986

prosecuted

time
Kogut

during the 2005 time period; (6) whether Defendants maliciously
prosecuted

John

prosecuted

Dennis

failed

supervise

to

Restivo;

(7)

Halstead;

whether
(8)

Volpe,

Defendants

whether

Dempsey,

maliciously

Defendant

and

the

Spillane

other

police

officers and, if so, whether Spillane is entitled to qualified
immunity; and finally (9) whether the County was responsible for
the

acts

of
this

whether

Spillane
failure

caused

nearly

three-month

Following

a

in

failing

to

an

supervise,

injury

to

trial

and,

Plaintiff

and

six

if

so,

Kogut.

days

of

deliberation, the jury returned a defense verdict.
DISCUSSION
Currently
motions

for

a

new

pending
trial

amend/correct/supplement
motion,

made

just

before
as

well

the

before

Plaintiffs’ Monell claims.

the
as

record
the

Court

are

Plaintiffs’

Plaintiffs’

and

jury’s

motion

Defendants’
verdict,

to

letter

regarding

The bulk of the following Memorandum

and Order will pertain to Plaintiffs’ respective motions for a
new

trial.

Accordingly,

the

Court

will

first

address

the

applicable legal standard.
I.

Legal Standard
“A motion for a new trial, pursuant to [Federal Rule

of Civil Procedure] 59, may be granted when the district court
is ‘convinced that the jury has reached a seriously erroneous
result

or

that

the

verdict

is
6

a

miscarriage

of

justice.’”

Tesser v. Bd. of Educ. of City Sch. Dist. of City of N.Y., 190
F. Supp. 2d 430, 440 (E.D.N.Y. 2002) (quoting Smith v. Lightning
Bolt Prods., Inc., 861 F.2d 363, 370 (2d Cir. 1988)).

In making

this determination, the Court “is free to weigh the evidence
[itself] and need not view it in the light most favorable to the
verdict winner.”
Co.,

245

Health Alliance Network, Inc. v. Cont’l Cas.

F.R.D.

121,

127

(S.D.N.Y.

2007)

(alteration

in

original) (quoting Song v. Ives Labs., Inc., 957 F.2d 1041, 1047
(2d Cir. 1992)).

In addition, the Court may grant a new trial

“even if there is substantial evidence to support the verdict.”
Datskow v. Teledyne Cont’l Motors Aircraft Prods., a Div. of
Teledyne Indus., Inc., 826 F. Supp. 677, 683 (W.D.N.Y. 1993)
(internal quotation marks and citation omitted).

Despite this

liberality, however, “[a] court should only grant a new trial
when a jury’s verdict is egregious.”
Inc., 245 F.R.D. at 127.
for

relitigating

theories,

old

securing

a

Health Alliance Network,

Furthermore, “Rule 59 is not a vehicle

issues,

presenting

rehearing

on

the

taking a ‘second bite at the apple[.]’”

the

case

merits,

under

or

new

otherwise

O’Connell v. Onondaga

Cnty., No. 09-CV-0364, 2013 WL 998598, at *1 (N.D.N.Y. Mar. 13,
2013)

(alteration

in

original)

(quoting

Sequa

Corp.

v.

GBJ

Corp., 156 F.3d 136, 144 (2d Cir. 1998)).
Where a party seeks a new trial based upon evidentiary
errors,

such

as

the

majority--though
7

not

all--of

Plaintiffs’

arguments here, the Court looks to the standard of Federal Rule
of Civil Procedure 61.

Rule 61 provides that

[u]nless justice requires otherwise, no
error in admitting or excluding evidence--or
any other error by the court or a party--is
ground for granting a new trial, for setting
aside a verdict, or for vacating, modifying,
or otherwise disturbing a judgment or order.
At every stage of the proceeding, the court
must disregard all errors and defects that
do
not
affect
any
party’s
substantial
rights.
FED. R. CIV. P. 61.

In other words, “[e]ven if . . . evidence was

admitted in error, this is not a ground for granting a new trial
unless it affected [plaintiffs’] ‘substantial rights.’”
v.

Nat’l

(E.D.N.Y.

R.R.

Passenger

2011).

“The

Corp.,
Second

793

Circuit

F.

Supp.

has

2d

Stowe

549,

clarified

568

that

a

substantial right has been affected only where a jury’s judgment
was likely to have been ‘swayed by the error.’”

Parrish v.

Sollecito, 280 F. Supp. 2d 145, 165 (S.D.N.Y. 2003) (quoting
Perry v. Ethan Allen, Inc., 115 F.3d 143, 150 (2d Cir. 1997)).
Relevant to this inquiry is “whether or not the evidence bears
on an issue that is plainly critical to the jury’s decision” and
“whether or not the evidence was emphasized in arguments to the
jury.”
II.

Hynes v. Coughlin, 79 F.3d 285, 291 (2d Cir. 1996).

Separate Trials
Halstead, Restivo, and Kogut contend that the Court’s

decision to conduct a consolidated trial prejudiced all of them.

8

On

July

31,

2012,

Halstead

and

Restivo

moved

to

bifurcate,

requesting that their claims be tried separately from those of
Kogut.
that

(See Docket Entry 312.)

motion.

(See

Docket

Kogut subsequently joined in

Entry

349.)

The

Court,

however,

denied those motions on the record during an August 16, 2012
conference.

(See Aug. 16, 2012 Minute Entry, Docket Entry 353.)

Although Plaintiffs assert various arguments as to why
a consolidated trial now mandates new, separate, trials, their
primary contention is that the Court allowed the jury to hear
prejudicial material that would not have otherwise been admitted
had there been one trial for Plaintiff Kogut and a separate
trial for Plaintiffs Halstead and Restivo.
raise

error

confession

with

and

respect

certain

to

the

polygraph

Specifically, they

admission

evidence.

of
The

the

Kogut

Court

will

address the arguments pertaining to the Kogut confession first
before turning to the polygraph evidence.
A.

Kogut Confession
Halstead

necessary

and

Restivo

because

the

jury

maintain

adjudicating

that
their

should have been informed of Kogut’s confession.

severance
claims

was
never

In their prior

motion for bifurcation, Halstead and Restivo primarily argued
that Kogut’s confession is irrelevant and inadmissible on their
individual liability claims.
At

the

August

16,

2012

(See Docket Entry 312 at 9-10.)

hearing,
9

the

Court

rejected

this

argument,

holding

that

Kogut’s

confession

was

admissible

in

Halstead and Restivo’s case to show Defendants’ malice, or the
absence

thereof,

in

connection

malicious prosecution claim.
Currently,

with

Halstead

and

Restivo’s

(Aug. 16, 2012 Tr. 7.)

Halstead

and

Restivo

reiterate

their

assertion that the jury deciding their claims never should have
heard

evidence

regarding

Kogut’s

confession.

Specifically,

Halstead and Restivo assert that 1) the Kogut confession was
inadmissible hearsay for which there was no permissible “nontruth”

purpose,

instructed

the

2)
jurors

the

Court’s

that

they

jury
could

charge
consider

erroneously
the

Kogut

confession in determining whether there was probable cause to
commence the 2005 proceedings against Halstead and Restivo, and
3) the Kogut confession is irrelevant to the malice element of
their

malicious

claims.

prosecution

claims

and

to

their

fair

trial

The Court will address each of these arguments in turn.
1.

Hearsay

Hearsay is an out of court statement offered for the
truth of the matter asserted.
Court’s

holding

during

the

See FED. R. EVID. 801(c).
August

16,

2012

conference

As the
makes

clear, the Kogut confession was not being offered for the truth
of the matter asserted, but rather for the “non-truth” purpose
of

demonstrating

Halstead

and

whether

Restivo,

Defendants

based

upon
10

maliciously

their

subjective

prosecuted
belief

in

guilt.

(Aug.

16,

2012

Tr.

9

(“In

this

context

malice

and

probable cause are closely related, and the defendants should be
able to use the evidence that they subjectively believed Restivo
and Halstead were guilty [i.e., the Kogut confession] to negate
plaintiffs’

evidence

that

the

defendants

acted

[with]

malice.”).)

Accordingly, Halstead and Restivo’s motion for a

new trial on this ground is DENIED.
2.

Jury Instructions

Halstead

and

Restivo

also

contend

that

the

Court

erroneously instructed the jury as to probable cause, misleading
the

jury

into

thinking

that

it

could

consider

the

Kogut

confession as part of its analysis.
Plaintiffs refer to the malicious prosecution section
of the charge, in which the Court properly instructed the jury
that, to establish a claim for malicious prosecution, Plaintiffs
must

prove

that:

“One,

criminally prosecuted.

the

Defendants

caused

them

to

be

Two, that there was no probable cause

for the criminal proceeding, and Three, that the Defendants did
so maliciously, that is, for a bad purpose, and Four, that the
prosecution was eventually terminated in Plaintiffs’ favor, in a
manner indicating that the Plaintiffs were not guilty of the
charge.”

(Trial Tr. 6038.)

With respect to the probable cause

element specifically, the Court instructed the jury that “you
must determine whether a reasonably prudent person, based upon
11

all

of

the

facts

prosecution
plaintiffs

was
were

and

circumstances

commenced,
guilty

of

would
the

known
have

crimes

to

him

when

the

that

the

(Trial

Tr.

believed

charged.”

6040.)
Halstead and Restivo maintain that this explanation of
probable cause suggests to the jury that they could consider
“defendants’

belief

in

guilt,”

including

that

analysis

whether Kogut’s confession contributed to that belief.

(H&R Br.

for New Trial, Docket Entry 457-1 at 13.)
Court

instead

should

have

instructed

in

They assert that the

the

jury

that

probable

cause means the belief that the prosecution would succeed based
on

admissible

assertion

is

evidence.
based

upon

(Docket
the

Entry

Second

457-1

at

Circuit’s

13.)

This

discussion

of

probable cause in Boyd v. City of New York, 336 F.3d 72 (2d Cir.
2003).

There, the Second Circuit proffered two ways of thinking

about the probable cause analysis.

Initially, the Court noted

that “[t]o succeed on a claim for malicious prosecution, the
plaintiff must show that a prosecution was initiated against
him, that it was brought with malice but without probable cause
to

believe

that

it

could

succeed

and

that

terminated in favor of the accused plaintiff.”

the

prosecution

Id. at 76.

In

the very next sentence, the Circuit went on to explain that
“[p]robable cause, in the context of malicious prosecution, has
also been described as such facts and circumstances as would
12

lead

a

reasonably

guilty.”

Id.

prudent

person

to

believe

the

plaintiff

Later in its discussion, the Circuit noted that,

if the plaintiff’s statements regarding his knowledge of stolen
property were made after arrest but before he was given Miranda
warnings,

that

this

statement

would

be

inadmissible,

and

therefore there would have been no probable cause to believe
that

the

succeed.

prosecution
Id. at 77.

for

possession

of

stolen

goods

would

As such, Halstead and Restivo read Boyd to

assert that probable cause to commence proceedings means the
belief that the prosecution would succeed based on admissible
evidence.
Restivo

(See Docket Entry 457-1 at 13.)
maintain

that

the

Court’s

Thus, Halstead and

charge,

as

given,

was

erroneous because it essentially did not make explicit that the
probable cause analysis included only admissible evidence.
While the Court’s instruction was legally correct, the
Court

agrees

with

Halstead

and

Restivo

that

the

charge,

as

worded, may have misled the jury and that the jury may have
improperly considered the Kogut confession in connection with
Halstead

and

Restivo’s

malicious

prosecution

claim.

See

O’Connell v. Onondaga Cnty., No. 09-CV-0364, 2013 WL 998598, at
*5 (N.D.N.Y. Mar. 13, 2013) (“A jury instruction is erroneous if
it misleads the jury as to the correct legal standard or does
not adequately inform the jury on the law.” (quoting Anderson v.
Branen,

17

F.3d

552,

556

(2d
13

Cir.

1994)).

Moreover,

this

confusion

pertains

directly

to

an

element

of

Halstead

and

Restivo’s malicious prosecution claim, and therefore cannot be
said to be harmless.
To begin, and as previously noted, the Court clearly
held during the August 16, 2012 conference that, in attempting
to show probable cause, Defendants were limited to evidence that
was

both

included

admissible

in

in

Halstead

and

(Aug. 16, 2012 Tr. 11.)
admissible

in

Halstead

their

interrogatory

Restivo’s

responses

criminal

and

proceedings.

Kogut’s confession, however, was not
and

Restivo’s

criminal

proceedings.

Accordingly, the jury never should have considered the Kogut
confession in determining whether Defendants had probable cause
in connection with Halstead and Restivo’s case.
Although nuanced, and in most cases likely synonymous,
the difference between the two ways of describing probable cause
carry

very

different

particular case.

connotations

in

the

setting

of

this

That is to say, defining probable cause as

whether the prosecution could succeed puts the standard within
the

context

of

court

proceedings,

in

which,

of

course,

the

prosecution must rely upon admissible evidence in order to be
successful.
reasonably

In contrast, defining probable cause as “whether a
prudent

person,

based

upon

all

of

the

facts

and

circumstances known to him when the prosecution was commenced,”
see Trial Tr. 6040, as many courts have, suggests a wider range
14

of evidence.

See, e.g., Colon v. City of N.Y., 60 N.Y.2d 78,

82, 468 N.Y.S.2d 453, 455 N.E.2d 1248 (1983) (defining probable
cause as described).

Here, one of the facts and circumstances

known to Defendants was that Kogut had provided a confession,
but this “evidence” would not have any bearing on whether the
prosecution against Halstead and Restivo would or could succeed.
Additionally, the Kogut confession was arguably one of
the central pieces of evidence in this case and the Court finds
that the absence of a more direct instruction with respect to
probable

cause

affected

Halstead

and

Restivo’s

substantial

rights.

In particular, the Court notes that approximately two

hours after it relieved a particular juror from service upon
learning of his outside research on “false confessions,” the
jury returned a defense verdict.
Accordingly, Halstead and Restivo’s motion for a new
trial on this ground is GRANTED.

In the interest of completion,

however, the Court’s analysis continues.
3.

Confession was Irrelevant to Malice

Restivo

and

Halstead

also

maintain

that

they

are

entitled to a new trial because Kogut’s confession is irrelevant
to malice, and thus in adjudicating a consolidated trial, the
jury improperly considered the Kogut confession on this element
of Halstead and Restivo’s malicious prosecution claim as well.
The Court disagrees.
15

Halstead

and

Restivo

argue

that,

contrary

to

the

Court’s pretrial ruling, the Kogut confession was irrelevant to
malice because “plaintiffs’ theory was that defendants framed
them

through

the

intentional

creation

of

false

evidence

and

withholding of exculpatory evidence, which is malicious whether
or not defendants believed that plaintiffs had in fact committed
the crime.”

(Docket Entry 457-1 at 13.)

Halstead

and

Restivo

are

correct

in

their

general

assertion that if “defendants framed [Plaintiffs] through the
intentional

creation

of

false

evidence

and

withholding

of

exculpatory evidence,” that this would be “malicious whether or
not defendants believed that plaintiffs had in fact committed
the crime.”
N.Y.C.

(Docket Entry 457-1 at 13-14 (citing Ricciuti v.

Transit

Auth.,

124

F.3d

123,

130

(2d

Cir.

1997).)

However, as their brief acknowledges, Plaintiffs attempted to
show malice based upon three separate theories: that Defendants
(1) pursued a lawful end by intentionally unlawful means, such
as by taking an illegal action in order to obtain a conviction
of a person they believed to be guilty; (2) acted with reckless
disregard of the rights of the plaintiff; (3) acted pursuant to
a wrong or improper motive, in other words for some reason other
than a desire to see the ends of justice served.

(Docket Entry

457-1 at 14; Pls.’ Proposed Jury Instructions, Docket Entry 382,
at 13.)
16

Thus, while subjective intent may not necessarily be
relevant

to

the

element

of

malice

where

the

theory

is

that

Defendants pursued a lawful end by intentionally unlawful means,
such

as

through

the

fabrication

of

evidence,

Halstead and Restivo’s only theory of malice.
proposed

jury

instructions,

Halstead

and

this

was

not

Here, as in their

Restivo

acknowledge

that another theory of malice was that Defendants acted pursuant
to a wrong or improper motive, and they cite to Lowth v. Town of
Cheektowaga,

82

F.3d

563

(2d

Cir.

1996)

for

that

(Docket Entry 457-1 at 14; Docket Entry 382 at 13.)

purpose.
In Lowth,

the Second Circuit stated the general premise that where there
is a lack of probable cause, malice may be inferred.
573.

Id. at

In so noting, the Second Circuit also implied that the

subjective intent of the officer was relevant to the malice
inquiry.

Id.

(discussing whether the “accuser” believed “in

the guilt of the accused” (internal quotation marks and citation
omitted)).
Halstead and Restivo attempt to distinguish Lowth and
similar

cases

because,

in

the

instant

case,

there

was

no

inference of malice flowing from the lack of probable cause.
That is to say, here, there was an indictment, and therefore an
inference of probable cause.

The Court, however, finds that

this is not a particularly viable distinction.

The relevant

inquiry is not whether there is an inference of malice flowing
17

from

the

lack

of

probable

cause,

or

whether

there

is

an

inference of probable cause that can be overcome, but rather the
relevant inquiry is the meaning of “malice” and whether or not a
defendant exhibited it.

Where malice is defined as a “wrong or

improper motive, something other than a desire to see the ends
of justice served,” this implicates an analysis into subjective
belief.
1996)

See, e.g., Pinsky v. Duncan, 79 F.3d 306, 313 (2d Cir.
(noting

theories,

that,

malice

while

malice

“implicates

an

may

evil

or

include

particular

unlawful

purpose”

(emphasis added)); Smith v. City of N.Y., 388 F. Supp. 2d 179,
187

(S.D.N.Y.

2005)

(after

holding

that

there

was

probable

cause, the Court also found that there was no malice because the
Assistant

District

Attorney

“believed

found her to be a credible witness”).

D.G.’s

allegations

and

Thus, this theory looks

to the defendant’s state of mind, his “desire.”

In contrast,

other theories may look to the defendant’s actions, or “means.”
As such, and while actions may necessitate a finding of malice
under certain factual scenarios regardless of subjective belief,
it is not always the case that subjective belief is irrelevant
under any theory of malice.

Accordingly, Halstead and Restivo’s

motion for a new trial on this ground is DENIED.
4.

Confession Irrelevant to Fair Trial Claims

18

Halstead
confession
claims.

was

and

Restivo

irrelevant

to

their

argue
due

that

Kogut’s

process/fair

trial

Again, the Court disagrees.
Halstead

three

also

kinds

of

and

Restivo’s

evidence:

(1)

fair

trial

suppressed

claim

Brady

turned

material;

on
(2)

fabrication and planting of evidence; and (3) creating false
witness statements by coercion.

(Trial Tr. 5806.)

As the third

theory suggests, the Kogut confession was relevant to whether
Defendants created false witness statements by coercion.

And,

in fact, Halstead and Restivo used the confession to argue that,
even assuming that the Kogut confession was true, Fusco could
not have been in the van for more than 15 or 20 minutes, which
was not a long enough period of time to show post mortem root
hair banding.

(See Trial Tr. 5853)

Accordingly, Halstead and Restivo’s motion for a new
trial on this ground is also DENIED.
5.

Exclusion of Expert Testimony of Saul Kassin

Furthermore, Halstead and Restivo argue that “[t]he
error of introducing the Kogut confession . . . was compounded
by the Court’s improper exclusion of social psychologist Dr.
Saul Kassin’s testimony” regarding false confessions.
Entry

457-1

at

16.)

Similarly,

Kogut

maintains

(Docket

that

he

is

entitled to a new trial due to the Court’s exclusion of Dr.
Kassin’s

testimony.

Essentially,
19

Plaintiffs

assert

that

Dr.

Kassin’s testimony was necessary to help the jury evaluate the
evidence and put the Kogut confession into perspective.

The

Court disagrees.
During a conference on September 6, 2012, the Court
issued its ruling excluding Dr. Kassin’s testimony.

The Court

held:
While Professor Kassin has some special
training in psychology and police techniques
regarding false confessions, his knowledge,
background and proffered testimony do not
meet the criteria under Rule 702.
His
qualifications are impressive but the facts
and data that he relied upon are weak. The
principles and methods are difficult to
relate
to
the
issues
we
have
here.
Essentially, this is an area that the jurors
can decide for themselves.
The jury can
determine if Kogut was exhausted, high, or
submitted to constant clues given to him by
Detectives Volpe, Sirianni, and Dempsey, or
that Kogut believed he failed the test, was
terrified of the detectives and finally that
he was worn down by refusals to allow him to
call a lawyer or his girlfriend.
(Sept. 6, 2012 Tr. 6.)
The
believe

Court

stands

that

there

was

testimony

such

as

to

Certainly

the

issue

by

an

this

error

warrant
of

somewhat counterintuitive.

false

a

conclusion

in
new

excluding
trial

confessions

and
Dr.

does

not

Kassin’s

on

this

basis.

is

conceptually

However, this Court, of course, must

perform a gatekeeping function with respect to expert testimony,
Daubert v. Merrell Dow Pharma., Inc., 509 U.S. 579, 113 S. Ct.

20

2786, 125 L. Ed. 2d 469 (1993), and precedent simply does not
support
courts,

the

admission

including

of

this

within

type

this

of

testimony.

Circuit,

have

Federal

consistently

considered, and excluded, expert testimony on the topic of false
confessions.

See United States v. Deputee, 349 F. App’x 227,

229 (9th Cir. 2009); United States v. Mamah, 332 F.3d 475, 475
(7th Cir. 2003); United States v. Mazzeo, 205 F.3d 1326, 2000 WL
323032, at *2 (2d Cir. 2000); Yang Feng Zhao v. City of N.Y.,
No. 07-CV-3636, 2008 WL 3928238, at *2 (S.D.N.Y. Aug. 20, 2008).
In

fact,

this

case

is

not

the

first

in

which

excluded Dr. Kassin’s testimony under Daubert.

a

court

has

See Bell v.

Ercole, No. 05-CV-4532, 2011 WL 5040436, at *13 (E.D.N.Y. Oct.
21, 2011); see also Commonwealth v. Robinson, 449 Mass. 1, 5-6,
864 N.E.2d 1186, 1189-90 (2007).
Kassin’s

report,

once

again,

Furthermore, a review of Dr.

supports

the

Court’s

conclusion

that his testimony is not the product of reliable principles and
methods.
(“While

(See, e.g., Kassin Report, Docket Entry 316-1, at 6
it

is

not

possible

to

determine

with

precision

the

statistical prevalence of the problem, it is clear that false
confessions occur . . . .”).)
Accordingly,

Plaintiffs’

this ground is DENIED.
B.

Polygraph Evidence

21

motion

for

a

new

trial

on

Both of the pending motions for a new trial also raise
various issues with respect to the polygraph evidence in this
case.

To the extent that Plaintiffs’ arguments overlap, the

Court will provide a singular discussion on the matter.
extent

that

Plaintiffs

proffer

arguments

specific

To the

to

their

unique status in the case, the Court will structure its analysis
accordingly.
1. Prejudice to Restivo and Halstead by Admission of
Kogut’s Polygraph
Restivo and Halstead argue that they were prejudiced
by the introduction of evidence that Kogut took a polygraph and
was told that he failed.
improperly

relied

on

determining

that

Kogut

They argue that “the jury could have
the

fact

(and,

of

by

Kogut’s

polygraph

implication,

in

Restivo

and

Halstead) were guilty of the Fusco rape/murder, that defendants
had probable cause to prosecute them, that defendants had a
subjective belief in Restivo and Halstead’s guilt, or all of the
above.”

(Docket Entry 457-1 at 20).
With

evidence

respect

to

determine

to

the

jury

Plaintiffs’

considering
guilt

or

polygraph
Defendants’

subjective belief in guilt, the jury very clearly understood
that they could not consider the polygraph results.

The Court

instructed the jury on multiple occasions that the results of
any polygraphs were not in evidence and that the jury was not to

22

infer the results.

For example, during opening statements the

Court instructed the jury as follows: “At certain times, counsel
[may] make statements regarding a polygraphist.

The one thing

you will not hear in this case is the result of a polygraph, one
way or the other.

You are just here for the facts.”

(Trial Tr.

223.)
There is nothing to suggest that the jury was in any
way confused by these instructions or did not understand them.
See Aristocrat Leisure Ltd v. Deutsche Bank Trust Co. Americas,
727

F.

Supp.

indication

that

2d

256,

the

275

jurors

(S.D.N.Y.
either

2010)

failed

(“There

to

was

comprehend

no
the

special instruction or were swayed by the stricken testimony.”).
In fact, one juror even interrupted closing arguments to note
that they could not consider the results of the lie detector
test.

(Trial Tr. 5777-78.)
In further support of their argument that they were

prejudiced by the introduction of polygraph evidence, Halstead
and Restivo also point to the trial testimony of Dempsey and
Walsh.

Upon cross-examination, Detective Dempsey “gratuitously”

testified that Restivo took and failed a polygraph.

(See Docket

Entry 457-1 at 20-21 (citing Trial Tr. 3019).)

In addition,

during

that

his

direct

examination,

agreed to take a polygraph.

Walsh

testified

(Trial Tr. 5492.)

Restivo

During Dempsey’s

testimony, the Court instructed the jury as follows: “Ladies and
23

gentlemen, you heard the term polygraph, lie detector test, et
cetera.
tests,

I want you to understand that polygraph or lie detector
the

results,

are

never

admissible,

never

admissible.

These terms have nothing to do with respect to this case and you
are to disregard them.”

(Trial Tr. 3616.)

Similarly, during

Walsh’s testimony, the Court stated: “I, on [a] prior occasion,
told you that polygraph evidence is not part of the case.

You

have not forgotten that, and it certainly has nothing to do with
this case and Mr. Restivo.

Strike from your memory anything

with regard to the polygraph evidence.”
Halstead

and

Restivo

(Trial Tr. 5502.)

maintain,

however,

Court’s curative instructions were inadequate.

that

the

In support, they

cite to various texts and other sources discussing the practical
ability of jurors to follow such instructions.

Despite their

academic approach to this issue, and the logical conundrum that
curative instructions present in the abstract, this argument is
not novel.

“[J]uries are presumed to follow the instructions

they are given.”

Stowe, 793 F. Supp. 2d at 567 (citing Bingham

v. Zolt, 66 F.3d 553, 563 (2d Cir. 1995)).

Although there are

“particularly

which

egregious

circumstances”

in

a

curative

instruction may be insufficient, see id. (citing United States
v. Reyes, 18 F.3d 65, 71-72 (2d Cir. 1994), this is not such a
case.

In initially ruling on this matter, the Court took into

consideration the very same arguments regarding prejudice that
24

Plaintiffs now raise.
jury system.

The Court, properly, put its faith in the

See CSX Transp, Inc. v. Hensley, 556 U.S. 838,

841, 129 S. Ct. 2139, 173 L. Ed. 2d 1184 (2009) (“The jury
system is premised on the idea that rationality and careful
regard for the court’s instructions will confine and exclude
jurors’ raw emotions.”).
Accordingly,

Plaintiffs’

motion

for

a

new

trial

in

this regard is DENIED.
With respect to probable cause, Halstead and Restivo
themselves

used

the

Kogut

polygraph

analysis of malicious prosecution.

in

their

probable

cause

In attempting to rebut the

presumption of probable cause, Halstead and Restivo, similar to
their fair trial claim, offered evidence that Defendants created
false

witness

statements

through

coercion

tactics

such

as

submitting witnesses to polygraphs and then telling them that
they failed.

(Trial Tr. 5873-74, 5878-79.)

In fact, in his

closing, counsel for Halstead and Restivo used the example that
Restivo was taken in, given a polygraph, told he failed, and
pressured

into

making

a

statement.

(Trial

Tr.

5877.)

The

scenario of Kogut’s polygraph only bolsters this theory.
Accordingly, Halstead and Restivo’s motion for a new
trial on this ground is DENIED.

25

2. Deliberating Jury Inadvertently Provided with
Polygraph Results (and prior arrests)
Kogut, Halstead, and Restivo also maintain that they
are entitled to a new trial because the jury was inadvertently
provided evidence regarding Kogut’s polygraph examination and
results.

Specifically, six days into deliberations, the jury

requested to see the Kogut polygraph and highlighted polygraph
question sheet of Kogut, which had been admitted into evidence
in a redacted form.
for

Halstead

and

(See Ct. Ex. 17.)
Restivo

mistakenly

Unfortunately, counsel
pulled

the

unredacted

exhibit, which went unnoticed by defense counsel, and the jury
erroneously received evidence that the examiner determined that
Kogut

had

evidence

been

lying

regarding

during

Kogut’s

the

prior

polygraph
criminal

examination

history.

and

Counsel

noticed the error within minutes, and Court personnel retrieved
the documents.

Upon retrieval, however, one juror stated “I

think you want this back,” referring to the polygraph exhibits.
(Trial Tr. 6196.)
The parties and the Court recognized the significance
of this event, and the Court acted promptly.

In fact, at no

time during discussion of the matter did Plaintiffs’ counsel
request

a

mistrial.

Rather,

Plaintiffs’

counsel

drafted

a

curative instruction, which the Court adopted almost verbatim.
The

Court

informed

the

jury

that

26

they

had

been

mistakenly

provided a portion of Exhibit 8 that was not in evidence and
instructed them that “[t]here is no evidence of any polygraph
test result before you in this case.
you,

polygraph

results

are

As I previously instructed

not

admissible,

they

are

inadmissible, and should not be used by you for any purpose.”
(Trial
curative

Tr.

6199).

In

instruction,

addition

the

Court

to

providing

further

the

accommodated

proposed
Kogut’s

counsel and questioned each individual juror as to whether they
could follow the Court’s directive.
Bennett

v.

Poole,

No.

04-CV-0014,

(Trial Tr. 6199-6200.)
2008

WL

3200242,

at

See
*15

(W.D.N.Y. Aug. 5, 2008) (noting that, on appeal, the Appellate
Division found that curative instruction, which was proposed by
defense counsel, negated any prejudice).
Plaintiffs were essentially content with the Court’s
actions and made no further objections.

See Health Alliance

Network, Inc., 245 F.R.D. at 128 (denying new trial where Court
provided curative instruction and the defendants did not ask for
any further instruction or relief); see also Isaac v. City of
N.Y., 271 F. App’x 60, 65 (2d Cir. 2008) (“[G]iven the District
Court’s willingness to adopt the remedial measures suggested by
Isaac and Isaac’s failure to object at that point, we conclude
that the District Court did not exceed its allowable discretion
in denying Isaac’s motion to set aside the jury’s verdict on
this ground.”).
27

As such, the Court finds that any error in this regard
does

not

merit

a

new

trial

and

Plaintiffs’

motion

in

this

respect is DENIED.
C.

Additional Evidentiary Issues
Kogut raises several other evidentiary errors which he

maintains

merit

a

new

trial.

First,

he

respect to evidence of prior arrests.
along

with

the

inadvertently
during

polygraph

provided

with

deliberations.

results,
a

The

raises

error

with

As noted previously,
the

background

jury

was

questionnaire

questionnaire

form

also
form

contains

information regarding Kogut’s prior criminal history, including
that Kogut had been arrested “7-8” times before, that Kogut had
received a prior “charge” for “burg/tresp,” and that Kogut may
have been on probation at the time of his polygraph examination.
(Ct. Ex. 18.)
consolidated

Second, Kogut maintains that, as a result of the
trial

with

Halstead

and

Restivo,

Kogut

was

prejudiced by the admission of testimony regarding Halstead’s
interactions with young girls and by the admission of statements
allegedly made by Restivo.
Evidentiary errors, however, assuming there were any,
do not merit a new trial unless a party’s substantial rights
were affected.

See supra at 7-8.

Here, even if there were such

errors, they do not require a new trial.
heard

some

argument

and

testimony
28

about

To begin, the jury
Kogut’s

background,

albeit

in

a

general

sense.

For

example,

during

opening

statements, Kogut’s counsel argued that Kogut’s rough upbringing
and difficult past may have made him more vulnerable to coercion
tactics.

(See Trial Tr. 154-55, 210-11; see also id. 1285-87.)

Thus, the fact that Kogut had a less than stellar past most
likely

came

as

little

surprise

to

the

jury.

Moreover,

the

questionnaire form was one page, containing a relatively large
amount of information, within a several page document.
18.)

(Ct. Ex.

The jury received this document at the same time that it

received several others and had the exhibits for a brief period
of

time.

In

any

event,

this

evidence

certainly

was

not

emphasized to the jury in any way, and there is nothing to
suggest that they improperly considered it.
Samataro,

257

F.R.D.

624,

625-26

(D.

Conn.

See Dominguez v.
2009)

(evidence

regarding prior convictions did not warrant new trial).
Likewise, neither was testimony regarding Halstead’s
interactions with young girls or Restivo’s supposed admissions
prejudicial to Kogut such that a new trial is warranted.
Beyer

(“Beyer”)

and

Regina

Fuhrmann

testified

that,

Kim
as

teenagers, they frequented Halstead’s apartment, where they at
times drank alcohol and used marijuana.

Although this may have

some implications about the much older Halstead, such testimony
says very little about Kogut, who was a teenager himself at the
time.

Furthermore, Beyer testified that, on the occasion she
29

met Kogut, Kogut was polite.
Michael

and

allegedly

Kenneth

made

by

(Trial Tr. 4973.)

Cockerel

Restivo,

testified

statements

In addition,

regarding

which

said

statements
nothing

of

Kogut nor necessarily implicated him in any way.
The

Court

fails

to

see

how

any

such

evidence

was

prejudicial against Kogut, nevermind how it can be said to have
affected his substantial rights.

Accordingly, Kogut’s motion

for a new trial in this respect is DENIED.
III. Restivo and Halstead’s Claims Regarding Presentation of
Evidence Relevant to Crimes
In addition to the aforementioned arguments, Restivo
and Halstead also assert that they were barred from presenting
evidence directly relevant to their crimes, and therefore this
Court should grant them a new trial.

Specifically, they argue

that the Court barred or limited evidence pertaining to David
Rapp, Fred Klein, Peter Weinstein, and prior cases involving
Volpe and Dempsey.

Moreover, they assert that the cumulative

effect of these errors further supports their position for a new
trial.
A.

The Court will address each of these arguments in turn.
David Rapp
Halstead and Restivo claim that the Court improperly

excluded approximately forty pages of deposition testimony from
David Rapp.

(Docket Entry 457-1 at 24.)

Mr. Rapp was a former

friend of Restivo’s who testified during his deposition that he

30

was questioned by Nassau County Police Department officers, that
officers

told

him

that

Carl

Pozzini

overheard

him

having

a

conversation with Restivo in which Restivo made admissions to
Rapp, and that Rapp ultimately provided a false statement to
police vaguely incriminating Restivo.

(Docket Entry 457-1 at 24

(quoting Rule 32 designation of Rapp deposition excerpts).)

The

Court excluded this testimony because it is hearsay and because
it is irrelevant.
Halstead and Restivo assert that this evidence is not
hearsay and that it is relevant because Rapp not only denies
that he ever had a conversation with Pozzini about Restivo’s
admissions, but that he told NCPD officers before the grand jury
that Restivo had never made any admissions to him.

Therefore,

they say, it is relevant to rebut the presumption of probable
cause.
The

Court

finds

no

error

in

its

initial

ruling.

Defendants did not attempt to use the statements of Carl Pozzini
or David Rapp in its showing of probable cause.

(Trial Tr. 2200

(Defendants “are not coming in and saying we relied on it, the
statement of David Rapp or the statement of Carl Pozzini, that
was part of our reliance in arresting and prosecuting them.”).)
Thus, that Rapp later recanted his statement regarding Restivo’s
admissions is not relevant, and does not show that Defendants
did not make a full and fair statement of the facts.
31

Nor

is

this

“critical

circumstantial

evidence

corroborating Restivo’s testimony that defendants treated him
the same way during the same investigation.”
1

at

26.)

Defendants’

Plaintiffs
treatment

investigation,

presented

of

including

ample

witnesses
evidence

Kogut and Michael Cockrel.

(Docket Entry 457testimony

and

suspects

regarding

regarding
the

treatment

the

during

of

The Court may, in its discretion,

exclude cumulative evidence.

See United States v. Stewart, 433

F.3d 273, 313 (2d Cir. 2006); Zomber v. Stolz, No. 09-CV-4637,
2012 WL 252844, at *8 (E.D.N.Y. Jan. 26, 2012).
Having

found

no

evidentiary

error,

Halstead

and

Restivo’s motion for a new trial in this regard is DENIED.
B.

Fred Klein Evidence
Halstead

and

Restivo

further

assert

that

the

Court

erred in excluding a particular document in connection with the
testimony of Fred Klein.

As Plaintiffs correctly state, “[t]he

critical subject of Klein’s testimony was whether Volpe ever
disclosed

the

Brady

material

jeans/rope lead to him.”

about

the

French

car/striped

(Docket Entry 457-1 at 26.)

Klein

could not recall whether he ever had knowledge of such evidence,
but Volpe had testified during his deposition that he turned
over

the

entire

police

file

to

Klein.

To

counter

Volpe’s

testimony, Halstead and Restivo sought to introduce the prior
inconsistent statement of prosecution witness Brian O’Hanlon.
32

Klein’s deposition testimony revealed that he had not seen the
O’Hanlon statement but that he would have disclosed it to the
defense

if

Stmt.).)

he

had.

(See

Docket

Entry

457

Ex.

D

(O’Hanlon

Thus, Plaintiffs sought to use the O’Hanlon statement

as circumstantial evidence that Volpe had not, in fact, turned
over

the

entire

police

file.

The

Court

concluded

that,

“[w]ithout O’Hanlon being here, I think it’s an improper use of
the document and I’m going to exclude it.”

(Trial Tr. 4136.)

Even assuming arguendo that there was an evidentiary
error

in

this

respect,

any

error

was

harmless.

Mr.

Klein

directly testified regarding the French car/striped jeans/rope
lead, and the jury heard extensive testimony and argument on
this

particular

topic.

(See,

e.g.,

Trial

Tr.

4098-4125.)

Although Mr. Klein did not have a specific recollection as to
whether that evidence was contained in the file, his testimony
alone provided circumstantial evidence to support Plaintiffs’
argument

that

Specifically,

Volpe
Klein

did

not

turn

testified

over

that

he

the

entire

couldn’t

file.

remember

receiving those documents, but that if he had, it would have
been

important,

and

he

would

have

followed

up

on

it

and/or

brought that information to the attention of his colleagues.
(See Trial Tr. 4123-24.)

That Klein did not do so, and even

that Klein did not recall such potentially pertinent evidence,
supported

Plaintiffs’

theory.

Accordingly,
33

exclusion

of

the

O’Hanlon

statement,

even

if

erroneous,

did

not

affect

Plaintiffs’ substantial rights, and the motion for a new trial
in this regard is DENIED.
C.

Peter Weinstein
In addition, Restivo and Halstead maintain that the

Court erred in excluding the March 10, 1995 memorandum from
former

Appeals

Weinstein

Chief

recommends

convictions.
claim

Bureau

that

continuing

Peter

vacating

Weinstein
Restivo

(Docket Entry 457-1 at 27.)
the

Weinstein

prosecution

memorandum

case.

The

in

which

and

Mr.

Halstead’s

Halstead and Restivo

was

critical

Court

made

to

the

their

following

ruling: “Well, [the Weinstein memorandum] is subjective legal
opinion.

It’s not coming in . . . You can ascertain from Mr.

Weinstein

all

the

things

they

didn’t

know

and

you

can

also

ascertain that in 1995 they were aware of the DNA testing and
what if any significance that had.
to elicit that information.”

I think you should be able

(Trial Tr. 3858.)

Thus, once again, even if there was an error, which
the

Court

harmless

does
as

not

believe

Plaintiffs

were

that
not

there

was,

prevented

any
from

error

was

presenting

evidence on this topic and were free to elicit this testimony
directly.
of

the

Moreover, Halstead and Restivo assert that exclusion
Peter

Weinstein

evidence

also

hampered

their

regarding the French car/striped jeans/rope material.
34

proof

(Docket

Entry 457-1 at 28.)

However, rather than calling Mr. Weinstein,

the parties ultimately entered into a stipulation which stated
that,

“[t]o

the

best

of

Mr.

Weinstein’s

knowledge,

this

information about the French car/striped jeans lead was never
disclosed by the police to the prosecutors.”

(Ct. Ex. 4.)

Accordingly, the motion for a new trial based on the
Court’s exclusion of the Peter Weinstein evidence is DENIED.
D.

Moore and Lee cases
Halstead

and

Restivo

further

assert

that

the

Court

erred in excluding evidence regarding the cases of Shonnard Lee
v.

Dempsey,

No.

00-CV-0881

(E.D.N.Y.),

and

Robert

Moore

v.

Incorporated Village of Hempstead, No. 96-CV-5987 (E.D.N.Y.).
Specifically, they maintain that they should have been able to
use Lee, in which the jury found that Dempsey affirmatively
misled and tricked the plaintiff, to impeach Dempsey’s trial
testimony that he never used trickery or deception to obtain a
statement from a suspect.

(Docket Entry 457-1 at 29.).

In

addition, they say, they should have been able to introduce
evidence that Dempsey and Volpe took other false confessions,
such as in the Lee and Moore cases.

(Docket Entry 457-1 at 31.)

With respect to the preclusion of the Lee and Moore
cases generally, the Court previously addressed these issues and
ruled appropriately.

During the September 6, 2012 conference,

the Court held:
35

The evidence that the plaintiff seeks to
introduce on 404(b) evidence as to the
Shonnard Lee and Robert Moore prosecutions
as they deal with Detectives Volpe and
Dempsey will not be admissible in the first
phase.
They will be admissible in the
second phase.
Under 404(b), evidence of
crimes, wrongs, or acts are not admissible
to show action in conformity with.
The
evidence that plaintiffs seek to admit, this
particular evidence, is to show a modus
operandi, and that is not one of the
permitted purposes in this particular case
. . . .
(Sept. 6, 2012 Tr. 4-5.)

Plaintiffs cite no reason as to why

the Court’s prior ruling was erroneous, and in fact refer back
to prior briefing on this issue.
employed

to

Starbucks

relitigate

Corp.,

152

“[A] Rule 59 motion may not be

already-decided

F.

Supp.

2d

matters,”

322,

326

Ullman

(S.D.N.Y.

v.

2001)

(internal quotation marks and citation omitted), however, and
the Court finds nothing erroneous in its initial ruling.
With
Dempsey,
effect
value.

the

of

respect
Court

such

to

limitations

properly

impeachment

concluded

evidence

on

the

that

impeachment
the

outweighed

of

prejudicial

any

probative

See FED. R. EVID. 403 (“The court may exclude relevant

evidence if its probative value is substantially outweighed by a
danger

of

one

or

more

of

the

following:

unfair

prejudice,

confusing the issues, misleading the jury, undue delay, wasting
time, or needlessly presenting cumulative evidence.”).

As the

Court expressed in its September 6, 2012 ruling, the jury very

36

likely would have been confused, by, and considered evidence
regarding, Dempsey’s prior conduct in other cases to conclude
that Dempsey acted in conformity therewith and used coercive
tactics to obtain false witness statements in this case.
prejudicial impact of such testimony cannot be understated.
the

context

presented
coercion

of

this

various
tactics,

particular

evidence
the

trial,

regarding

Court

finds

in

which

the

In

Plaintiffs

Defendants’

that

The

alleged

limitation

of

impeachment evidence was not error and, even if it was, any such
error was harmless.
Accordingly, Halstead and Restivo’s new trial motion
on this ground is DENIED.
Finally, and as the Court finds that it did not err
with

respect

to

the

aforementioned

evidence,

the

Court

also

rejects Halstead and Restivo’s claim regarding the cumulative
effect of these errors.
trial

on

the

grounds

Accordingly, their motion for a new

that

they

were

barred

from

presenting

evidence directly relevant to their crimes is DENIED.
IV.

Qualified Immunity of Spillane
Halstead and Restivo further aver that the question of

qualified immunity as to Defendant Spillane never should have
been presented to the jury.

The Court agrees.

Here, the jury was instructed, in relevant part:

37

I will now instruct you about what is
called qualified immunity. This instruction
relates only to the claim that defendant
Spillane created a policy or custom under
which unconstitutional practices occurred.
It does not relate to the claim that
defendant Spillane directly participated in
a constitutional violation, nor does it
apply to any of the other claims any of the
plaintiffs have asserted.
At the time of the incidents giving
rise to this lawsuit, it was clearly
established
law
that
supervisors
were
required
to
investigate
all
complaints
regarding
an
officer’s
wrongdoing
with
respect to a violation of constitutional
rights. However, even if you find that the
defendant
Spillane
violated
the
law
requiring him to investigate all complaints
regarding
an
officer’s
wrongdoing
with
respect to a violation of constitutional
rights, he may still not be liable to
Restivo and Halstead.
This is because the
defendant may be entitled to what is called
qualified immunity. If you find that he is
entitled to such immunity, you must find him
not liable.
(Trial Tr. 6043-44.)
The Court determined that there were pending questions
of fact on which qualified immunity as to Defendant Spillane
turned.
lengthy

For example, the Court explained, during a somewhat
discussion

on

this

particular

portion

of

the

jury

charges and verdict sheet, that whether qualified immunity for
Spillane
credited

was

present

Plaintiffs’

here

depended

version

of

upon
events

interrogations and the overall investigation.

whether
as

to

the

jury

witness

(See, e.g., Trial

Tr. 5275 (“The jury may very well find that the defendants did
38

not

use

Restivo.

coercive

tactics

in

questioning

Kogut

and/or

Mr.

They may find that they got him coffee; they were nice

to him; he had some time to rest.

I don’t know what they will

find.”); Trial Tr. 5276 (“I think there is reasonable basis,
because the jury can find that the information Spillane had was
not as serious.

They may find that he had some information, but

it really wasn’t clear that Kogut was being fed facts, that he
was forced, you know.”)).
Certainly,

these

presented to the jury.

factual

issues

were

properly

See Oliveira v. Mayer, 23 F.3d 642, 649-

50 (2d Cir. 1994) (finding that the District Court erred in not
presenting qualified immunity to the jury due to factual issues
involved); Wright v. Wilburn, 194 F.R.D. 54, 60 (N.D.N.Y. 2000)
(“[I]f determining the objective reasonableness of the police
officer’s

conduct

requires

further

fact

finding,

it

is

appropriate to submit the issue of qualified immunity to the
jury.”).
Furthermore, and although there is somewhat of a split
of authority, see Stephenson v. Doe, 332 F.3d 68, 81 n.18 (2d
Cir. 2003) (“Courts have disagreed about whether a jury that is
provided

a

proper

legal

basis

should

decide

qualified

immunity.”), the better course of action is for the Court to
decide qualified immunity as a matter of law after the jury has
resolved the factual issues in dispute, see Lore v. City of
39

Syracuse, 670 F.3d 127, 162 (2d Cir. 2012) (“We conclude that
although the district court properly put the fact questions to
the jury, it erred in having the jury decide the ultimate legal
question . . . .”); Warren v. Dwyer, 906 F.2d 70, 76 (2d Cir.
1990) (“The ultimate legal determination whether, on the facts
found, a reasonable police officer should have known he acted
unlawfully is a question of law better left for the court to
decide.”).
The Court further notes that Halstead and Restivo, but
not Kogut, brought the claim of supervisory liability as to
Spillane.

Accordingly, Halstead and Restivo’s new trial motion

on this ground is meritorious, and GRANTED in this respect.
V.

The Verdict is Against the Weight of the Evidence
Finally,

say,

the

Plaintiffs

verdict

was

seek

against

a

the

new

trial

weight

of

because,
the

they

evidence.

Insofar as Halstead and Restivo have argued such, the Court has
already

granted

their

motion

for

address this issue any further.

a

new

trial

and

need

not

Insofar as Kogut seeks a new

trial on this ground, his motion is DENIED.
Kogut outlines a list of evidence which, he believes,
“overwhelmingly demonstrates that the verdict in favor of the
defendants on each of the plaintiff’s claims was against the
clear weight of the evidence.”
the

Court’s

view,

such

(Docket Entry 456 at 12.)

evidence
40

falls

into

two

In

primary

categories:

(1)

testimonial

evidence;

and

(2)

scientific

and

medical evidence.
By “testimonial” evidence, the Court means to refer to
evidence that turns primarily, if not exclusively, on witness
credibility, such as the testimony of retired F.B.I. Special
Agent Frank Meyers, testimony regarding Plaintiffs’ whereabouts
on November 10, 1984, and evidence regarding Kogut’s confession.
Despite the relatively lenient standard on a Rule 59 motion,
however,

the

jury’s

assessment

of

witness

credibility

is

entitled to deference and “the court should only grant such a
motion when the jury’s verdict is egregious.”

Ricciuti, 70 F.

Supp. 2d at 305; see also Ellis v. La Vecchia, 567 F. Supp. 2d
601,

610

(S.D.N.Y.

Plaintiff’s

2008)

testimony

assessment.”).

and

(“The
the

jury

Court

was

entitled

should

not

to

credit

disturb

that

Here, a reasonable view of the evidence is that

Plaintiffs were together on the night of November 10, 1984 and
that,

whether

product

of

true

or

coercion.

not,
For

Kogut’s
example,

confession
Agent

was

Meyers

not

the

testified,

during his videotaped deposition, that the blue van purportedly
used

during

Fusco’s

rape

and

murder

was

up

on

blocks

in

Restivo’s driveway and not in immediately operable condition.
(Trial Tr. 3510-12.)

The jury, though, which viewed portions of

the deposition, was in the best position to determine Agent
Meyer’s credibility, and may have very well found that Meyers,
41

as

a

member

credibility
Moreover,

of

or

the

Restivo’s

simply
jury

that

viewed

family,
Meyers

the

was
may

Kogut

entitled

have

to

been

videotape

less

mistaken.

confession

on

multiple occasions, in addition to having heard an abundance of
testimony

on

testimony,

it

this

particular

topic,

was

reasonable

for

and,

them

to

in

light

credit

of

such

Defendants’

version of events.
With respect to the scientific and medical evidence,
some of it, such as the DNA evidence, pertains more to the issue
of Plaintiffs’ actual guilt or innocence in the underlying crime
than to the issues relevant to the particular case at hand.
Other

evidence,

evidence
death,

and

such

the

although

as

medical

the

post

evidence

scientific

in

mortem

concerning

nature,

credibility component as well.

root

has

a

hair
the

banding

manner

testimonial

of
and

See Giles v. Rhodes, 171 F.

Supp. 2d 220, 226 (S.D.N.Y. 2001) (“Even assuming arguendo the
medical

evidence

concerning

Giles’

injuries

did

not

itself

implicate any credibility issues, a decision by this Court that
the verdict is against the weight of the evidence would require
me to credit the plaintiff’s testimony over the defendants’.”
(emphasis in original)); see also Lewis v. City of N.Y., 689 F.
Supp. 2d 417, 426 (E.D.N.Y. 2010) (jury was entitled to credit
one expert over the other).
expert

testimony,

the

jury

Even in the face of unrefuted
need
42

not

necessarily

adopt

the

expert’s opinion without scrutiny.

Giles, 171 F. Supp. 2d at

226 (“The fact that defendants did not rebut Dr. Mihalakis’s
opinion with a medical expert of their own did not immunize the
Mihalakis testimony from the jury’s evaluation of whether it was
credible.”).
examination

In this case, Defendants demonstrated on crossof

Plaintiffs’

expert

on

post

mortem

root

hair

banding that, as to the issue of timing, which was critical to
Plaintiffs’

case,

additional

research

was

required

and

the

expert could not testify on that issue to a reasonable degree of
scientific certainty.

(Trial Tr. 2111-16.)

Accordingly, the

verdict as to Kogut was not so “seriously erroneous” as to merit
a new trial.

See Campbell v. City of N.Y., No. 99-CV-5129, 2003

WL 660847, at *2 (S.D.N.Y. Feb. 27, 2003).
Kogut’s motion for a new trial on the grounds that the
verdict was against the clear weight of the evidence is DENIED.
VI.

Motion to Settle the Record
Also pending before the Court is a motion to settle

the record filed by Plaintiffs Halstead and Restivo and joined
by Plaintiff Kogut.
to

Plaintiffs,

the

(See Docket Entries 474 & 476.)
current

trial

record

According

erroneously

omits

certain deposition excerpts that were played for the jury during
trial.

Plaintiffs

request

that

the

Court

enter

an

Order

reflecting that these deposition excerpts were indeed presented

43

to the jury and are appropriately part of the record.

For the

following reasons, Plaintiffs’ motion is GRANTED.
A district court may, in certain circumstances, amend,
correct, or clarify the record.
Appellate

Procedure

10(e)

For example, Federal Rule of

provides

that

“[i]f

any

difference

arises about whether the record truly discloses what occurred in
the district court, the difference must be submitted to and
settled by that court and the record conformed accordingly.”
FED. R. APP. P. 10(e)(1); see also Corbett v. Guardian Worldwide
Moving Co., 164 F.R.D. 323, 329 (E.D.N.Y. 1995) (“Rule 10(e)
provides

a

accurately

mechanism
what

for

ensuring

transpired

in

the

that

district

quotation marks and citation omitted)).
Rule

of

Civil

Procedure

60(a)

the

states

record
court.”

reflects
(internal

In addition, Federal
that

“[t]he

court

may

correct a clerical mistake or a mistake arising from oversight
or omission whenever one is found in a judgment, order, or other
part of the record.”

FED. R. CIV. P. 60(a).

In support of their motion, Plaintiffs provide sworn
declarations

from

Ms.

Deborah

Cornwall,

former

counsel

for

Halstead and Restivo, and Mr. Anthony Grandinette, counsel for
Kogut.

Both declarations affirm that Plaintiffs’ counsel kept

contemporaneous records of video deposition excerpts that were
presented to the jury, taking into account changes made after
Defendants’

objections,

the

Court’s
44

rulings,

and

attempts

to

reduce the overall length of particular clips.
¶ 4; Grandinette Decl. ¶ 4.)
dispute

that

portions

of

presented to the jury.

(Cornwall Decl.

Defendants do not particularly
the

specified

depositions

were

Rather, they oppose Plaintiffs’ motion

because there is no way of knowing for sure whether the portions
Plaintiffs identify are truly accurate and because Plaintiffs’
counsel should have identified on the record the portions being
played for the jury or moved the final versions into evidence.
(Defs.’ Opp. to Mot. to Settle, Docket Entry 479, at 3.)
Given the sworn declarations of such thorough counsel,
the

Court’s

familiarity

with

the

trial

proceedings,

and

the

Defendants’ somewhat general opposition to the motion, the Court
concludes that those portions of deposition excerpts specified
in the Cornwall and Grandinette declarations were presented to
the jury and are properly part of the record.

See Libaire v.

Kaplan, No. 06-CV-1500, 2010 WL 2301197, at *4 (E.D.N.Y. June 7,
2010)

(concluding

record

because

that

particular

magistrate

judge

exhibits
likely

were

would

part
have

of

the

noticed

missing exhibits and it generally appeared that exhibits had
been before the Court at some point); United States v. DiPietro,
No. 02-CR-1237, 2007 WL 2164262, at *2 (S.D.N.Y. July 25, 2007)
(“[T]he

Court

holds

that

it

may

consider

both

direct

and

circumstantial evidence in ruling on a motion to correct the
record

under

Federal

rule

of
45

Appellate

Procedure

10(e).”);

Benvenisti v. City of N.Y., No. 04-CV-3166, 2007 WL 1825853, at
*1 (S.D.N.Y. June 25, 2007) (denying motion to settle the record
without prejudice to plaintiff bringing an amended motion with a
sworn affidavit articulating reasons for belief that documents
were

part

Plaintiffs’

of

the

motion

summary
to

settle

judgment
the

record).

record

is

Accordingly,

GRANTED

and

the

portions specified in the declarations are deemed part of the
record.
CONCLUSION
For the foregoing reasons, Kogut’s motion for a new
trial is DENIED, Halstead and Restivo’s motion for a new trial
is

GRANTED

IN

PART

and

DENIED

IN

PART,

and

the

motion

to

amend/correct/supplement the record is GRANTED.
Finally, also pending before the Court is Defendants’
motion for judgment as a matter of law regarding Plaintiffs’
Monell claims (Docket Entry 447).

Defendants submitted this

motion to the Court on November 28, 2012.

In light of the

jury’s verdict, rendered the following day on November 29, 2012,
Defendants’ motion for judgment as a matter of law on the Monell
claims is DENIED AS MOOT.

[BOTTOM OF PAGE INTENTIONALLY LEFT BLANK]

46

Within thirty (30) days of the date of this Memorandum
&

Order,

counsel

for

Halstead

and

Restivo

and

counsel

for

Defendants shall provide the Court with dates that they are
available for a Court conference.

SO ORDERED
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
DATED:

July
22 , 2013
Central Islip, New York

47