Tankleff v. The County of Suffolk et al
Filing
191
MEMORANDUM & ORDER denying 180 Motion for Summary Judgment; Defendants' motion for summary judgment (Docket Entry 180) is DENIED, and the case will proceed to trial. Because no claims remain against Lieutenant McElhone, the Clerk of the Cou rt is directed to TERMINATE Lieutenant McElhone as a defendant in this action. See supra note 2. As to Plaintiff's request for a pre-trial conference (Docket Entry 190), the parties are directed to file a joint proposed pre-trial order on or before September 8, 2017. The parties are further directed to appear for a pre-trial conference with Judge Shields on September 11, 2017 at 10:30 a.m. So Ordered by Judge Joanna Seybert on 6/23/2017. C/ECF (Valle, Christine)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------------X
MARTIN TANKLEFF,
Plaintiff,
MEMORANDUM & ORDER
09-CV-1207(JS)(AYS)
-against–
THE COUNTY OF SUFFOLK, THERESA and
BRETT MCCREADY, as legal successors
of K. JAMES MCCREADY, NORMAN REIN,
CHARLES KOSCIUK, ROBERT DOYLE, JOHN
MCELHONE, JOHN DOE POLICE OFFICERS
1-10, and RICHARD ROE SUFFOLK COUNTY
EMPLOYEES 1-10,
Defendants.
-------------------------------------X
APPEARANCES
For Plaintiff:
Anna B. Hoffman, Esq.
Barry C. Scheck, Esq.
Emma Kate Freudenberger, Esq.
Nick Joel Brustin, Esq.
Amelia Green, Esq.
Vanessa Michelle Buch, Esq.
Neufeld Scheck & Brustin, LLP
99 Hudson Street, 8th Floor
New York, NY 10013
Bruce A. Barket, Esq.
Amy Beth Marion, Esq.
Barket Marion Epstein & Kearon LLP
666 Old County Road, Suite 700
Garden City, NY 11530
Barry J. Pollack, Esq.
Miller & Chevalier Chartered
900 Sixteenth Street NW
Washington, DC 20006
For Defendants:
Brian C. Mitchell, Esq.
Susan A. Flynn, Esq.
Suffolk County Attorney’s Office
100 Veterans Memorial Highway
H. Lee Dennison Building
Hauppauge, NY 11788
SEYBERT, District Judge:
In 1990, Plaintiff Martin Tankleff (“Plaintiff”) was
convicted of murdering his parents in the family home in Belle
Terre, New York.
After his conviction was vacated and the charges
were dismissed, he commenced this action against the County of
Suffolk (the “County”), Detective K. James McCready1, Detective
Norman Rein, Detective Charles Kosciuk, Sergeant Robert Doyle,
Lieutenant John McElhone2 and unknown police officers and county
employees (collectively “Defendants”) alleging that Defendants
violated his constitutional rights under the United States and New
York State Constitutions.
Currently pending before the Court is
Defendants’ motion for partial summary judgment.
Docket Entry 180.)
(Defs.’ Mot.,
For the following reasons, Defendants’ motion
is DENIED.
Detective McCready died while this action was pending. On
June 2, 2016, Theresa and Brett McCready were substituted in
their capacity as the legal successors of Detective McCready.
(Substitution Order, Docket Entry 178.)
1
The Court agrees with Defendants that no claims remain against
Lieutenant McElhone. (Defs.’ Reply, Docket Entry 186, at 2-3.)
Therefore, the Clerk of the Court is directed to TERMINATE
Lieutenant McElhone as a defendant in this action.
2
2
BACKGROUND
I.
Factual Background3
A.
The Crime and Preliminary Investigation
At
approximately
6:11
a.m.
on
September
7,
1988,
Plaintiff called 911 from his father’s office to report that he
had found his father, Seymour Tankleff (“Seymour”), with blood
“gushing” from his neck.
Resp., ¶¶ 1, 3.)
(Defs.’ 56.1 Stmt., ¶¶ 1, 3; Pl.’s 56.1
While he waited for assistance, the 911 operator
instructed Plaintiff to apply pressure to the wound with a clean
towel, lay him down and elevate his feet.
Pl.’s 56.1 Resp. ¶ 1.)
(Defs.’ 56.1 Stmt. ¶ 1;
In subsequent statements, Plaintiff said
that after he used the office phone to call 911, he placed a pillow
under Seymour’s feet and a towel around his throat.
Stmt. ¶¶ 4, 6; Pl.’s 56.1 Resp. ¶¶ 4, 6.)
(Defs.’ 56.1
He testified that while
assisting his father, he got blood on his hands, arms, shoulders,
upper body, legs, and feet.
56.1 Resp. ¶¶ 197-98.)
(Defs.’ 56.1 Stmt. ¶¶ 197-98; Pl.’s
Plaintiff said that after doing this, he
began looking for his mother, Arlene Tankleff (“Arlene”), and
The following material facts are drawn from Defendants’ Local
Civil Rule 56.1 Statement (“Defs.’ 56.1 Stmt.,” Docket Entry
180-2), Plaintiff’s Local Civil Rule 56.1 Response (“Pl.’s 56.1
Resp.,” Docket Entry 183-2) and Plaintiff’s Local Rule 56.1
Counterstatement (“Pl.’s 56.1 Counterstmt.,” Docket Entry 1831). Any relevant factual disputes are noted. All internal
quotation marks and citations have been omitted.
3
3
opened the door to the garage to see if her car was there.4 (Defs.’
56.1 Stmt. ¶ 8; Pl.’s 56.1 Resp. ¶ 8.)
After seeing his mother’s
car in the garage, he said he continued to look for her and
eventually saw her body in the bedroom.
(Pl.’s 56.1 Resp. ¶ 8;
Trial Tr. (Tankleff), Defs.’ Ex. B, 4119:21-4120:19.)5
He said he
saw her body from the doorway of the master bedroom but did not go
past the alarm wall, a short wall near the entrance of the bedroom.
(Defs.’ 56.1 Stmt. ¶ 204; Pl.’s Ex. 42, Docket Entry 184-48.)
He
testified that after seeing her body, he ran into the kitchen and
called his sister.
4120:25-4121:4.)
(Pl.’s 56.1 Resp. ¶ 8; Trial Tr. (Tankleff)
After talking to her, he testified that he
checked on his father, who was “still breathing or gagging,” ran
back to the kitchen to answer a call from his sister and called
his best friend to tell him he would not be picking him up on the
way to school that morning.6
(Defs.’ 56.1 Stmt. ¶¶ 26-27; Pl.’s
56.1 Resp. ¶¶ 26-27; Trial Tr. (Tankleff) 4121:17-4123:23.)
At trial, he testified that when he got up that morning, he
walked by his parents’ bedroom but did not see anyone. (Defs.’
56.1 Stmt. ¶ 200.)
4
Citations to the trial transcript (“Trial Tr.”) will include
the name of the testifying witness for ease of reference.
Additionally, Defendants’ exhibits were separately filed with
the Court and are not available on the Electronic Case File
system.
5
Plaintiff admitted at trial that a photograph of the kitchen
phone showed no blood on the phone. (Defs.’ 56.1 Stmt. ¶ 219.)
6
4
After making those calls, Plaintiff alleges that he went
into his bedroom, wiped his hands on a towel and put on a sweatshirt
before running next door to his neighbor’s house.7
Stmt. ¶ 29; Pl.’s 56.1 Resp. ¶¶ 29-30.)
(Defs.’ 56.1
His neighbor, Martin Hova
(“Hova”), testified that he heard screaming and when he answered
the door, he saw Plaintiff barefoot and wearing shorts and a
sweatshirt.8
(Defs.’ 56.1 Stmt. ¶ 30.)
Hova testified that he
accompanied Plaintiff back to his house and encountered Officers
James Crayne (“Officer Crayne”) and Daniel Gallagher (“Officer
Gallagher”), who were responding to the 911 call.
Stmt. ¶ 31.)
(Defs.’ 56.1
Officers Crayne and Gallagher testified that when
they arrived Plaintiff yelled “somebody murdered my parents.”
(Defs.’ 56.1 Stmt. ¶ 31.) Officer Crayne later described Plaintiff
as “agitated,” and both officers observed blood on Plaintiff’s
“palms, the right side of his face, on his right calf and on his
right foot.”
(Defs.’ 56.1 Stmt. ¶ 32; Pl.’s 56.1 Resp. ¶ 32.)
Hova testified that when they were in the office, he
asked Plaintiff who had done this, and Plaintiff responded “my
father’s business partner, Jerry.”
(Defs.’ 56.1 Stmt. ¶ 33.)
Defendants emphasize that Plaintiff testified to only wiping
his hands on the towel in his room. (Defs.’ 56.1 Stmt. ¶ 208.)
Plaintiff denies that he “specifically excluded the possibility
that he wiped another part of his body on the towel on his bed.”
(Pl.’s 56.1 Resp. ¶ 208.)
7
Plaintiff admits that he was barefoot and wearing shorts and a
sweatshirt at that time. (Pl.’s 56.1 Resp. ¶ 32.)
8
5
Plaintiff
was
referring
to
Jerry
Steuerman
(“Steuerman”),
a
business associate of Seymour’s who had been at the Tankleff home
the previous night for a poker game.
(Defs.’ 56.1 Stmt. ¶¶ 66,
173.) Officer Crayne noticed that there was a towel over Seymour’s
neck and asked Seymour who was responsible.
¶ 36; Pl.’s 56.1 Resp. ¶ 36.)
Seymour
did
Steuerman.”
not
respond,
(Defs.’ 56.1 Stmt.
Officer Crayne testified that
but
Plaintiff
said
“it
was
Jerry
(Defs.’ 56.1 Stmt. ¶ 36; Pl.’s 56.1 Resp. ¶ 36.)
Officer Gallagher testified that he asked Plaintiff to
come into the kitchen and tell him what happened.
Resp. ¶ 36.)
(Pl.’s 56.1
According to Officer Gallagher, Plaintiff told him
that “he woke up that morning, the lights were on in the house,
the alarm was turned off and he found his father,” and further
stated that “the only person who had motive to do this was Jerry
Steuerman.”9
(Defs.’ 56.1 Stmt. ¶ 36; Pl.’s 56.1 Resp. ¶ 36; Trial
Tr. (Gallagher) 275:17-21.)
Officer Gallagher testified that when
he stood at the threshold of the bedroom, he saw Arlene’s head on
the floor “partially sticking out from the end of the bed,” but it
was not until he was standing directly over her that he was able
to observe the extent of her injuries.
(Defs.’ 56.1 Stmt. ¶ 35;
Trial Tr. (Gallagher) 260:7-10.)
When asked by the prosecutor whether he observed “any tearing
on [Plaintiff’s] eyes,” Officer Gallagher indicated that he did
not and described Plaintiff as “composed.” (Defs.’ 56.1 Stmt.
¶ 36; Pl.’s 56.1 Resp. ¶ 36; Trial Tr. (Gallagher) at 276:5-7.)
9
6
Emergency medical personnel arrived at the Tankleff home
at approximately 6:27 a.m.
(Pl.’s 56.1 Resp. ¶ 3.)
They found
Seymour unresponsive and lying on the floor of his office “covered
with dried blood.”
(Seymour Prehospital Care Report, Pl.’s Ex.
32, Docket Entry 184-38, at 2.)
Hospital immediately.
He was transported to Mather
(Seymour Prehospital Care Report at 2.)
When they entered the bedroom, they found Arlene’s body on the
floor with her head near the foot of the bed, and medical personnel
observed
dried
blood
on
her
scalp
and
forehead.
(Arlene
Prehospital Care Report, Pl.’s Ex. 33, Docket Entry 184-39, at 2.)
Around
the
time
that
emergency
medical
personnel
arrived, Officer Edward Aki (“Officer Aki”), Belle Terre Chief
Constable Donald Hines (“Hines”), and Plaintiff’s brother-in-law,
Ron Rother (“Rother”), arrived at the residence.
Stmt. ¶ 37.)
(Defs.’ 56.1
Shortly thereafter, Plaintiff was separated from
Rother by officers and escorted to Officer Aki’s police car.
(Defs.’ 56.1 Stmt. ¶ 38; Pl.’s 56.1 Resp. ¶ 38.)
Officer Aki later
testified that he separated Plaintiff and Rother because they were
both
witnesses
and
separating
them
would
“contaminat[ing] each other’s stor[ies].”10
386:11-17.)
prevent
them
from
(Trial Tr. (Aki)
Plaintiff alleges that when he was sitting in the
Plaintiff alleges that he was only permitted to spend five
minutes with Rother and that separating him from his brother-inlaw left him “completely isolated from his family.” (Pl.’s 56.1
Counterstmt. ¶ 20.)
10
7
back of Officer Aki’s car, he became sick and began “gagging and
spitting up because [he] had blood on [him].”
¶ 38 (alteration in original).)
(Pl.’s 56.1 Resp.
Plaintiff asked Officer Aki if he
could go in the house or use the spigot on the side of the house
to clean his hands, but Officer Aki said no.
¶ 38; Pl.’s 56.1 Resp. ¶ 38.)
(Defs.’ 56.1 Stmt.
Defendants allege that, a short
time later, Officer Aki and Hines observed Plaintiff washing his
hands in a puddle in front of Officer Aki’s police car.
56.1 Stmt. ¶ 39.)
(Defs.’
Plaintiff alleges that Officer Aki gave him
permission to clean his hands in the puddle and provided him with
a tissue or a paper towel from his glove compartment.
(Pl.’s 56.1
Resp. ¶ 39.)
Hines, who was also a family friend, testified that he
had a series of conversations with Plaintiff after Plaintiff washed
his hands.
(Defs.’ 56.1 Stmt. ¶¶ 37, 40.)
Hines testified that
during those conversations, Plaintiff reiterated his suspicions
regarding
Steuerman’s
discussed
the
involvement,
possibility
that
said
that
Steuerman
his
would
do
mother
had
something
terrible, and said that Steuerman was the last person to leave the
card game the previous night.
Resp. ¶ 40.)
(Defs.’ 56.1 Stmt. ¶ 40; Pl.’s 56.1
Hines testified that he told Plaintiff that Seymour
was still alive, and if he recovered, he may be able to identify
the perpetrator.
(Defs.’ 56.1 Stmt. ¶ 40; Pl.’s 56.1 Resp. ¶ 40;
Trial Tr. (Hines) 506:22-507:2.)
8
He testified that when he said
this to Plaintiff, Plaintiff “picked his head up and looked
directly at [him]” and “[h]is eyes widened, he stopped talking and
didn’t say a word.”
507:15-17.)
(Defs.’ 56.1 Stmt. ¶ 41; Trial Tr. (Hines)
Plaintiff
does
not
recall
speaking
with
Hines.
(Defs.’ 56.1 Stmt. ¶ 42.)
John
McNamara
(“McNamara”),
a
friend
of
Seymour’s,
testified that he also had a series of conversations with Plaintiff
that morning.
(Defs.’ 56.1 Stmt. ¶¶ 43-45.)
McNamara testified
that when he walked by the Tankleff residence, Plaintiff approached
him and explained what happened when he woke up that morning.
(Defs.’ 56.1 Stmt. ¶ 43.)
McNamara said that he asked Plaintiff
why he did not have more blood on him, if he had, in fact, lifted
his father from the chair to the floor.
(Defs.’ 56.1 Stmt. ¶ 43.)
McNamara testified that Plaintiff looked at him and walked away
without responding.
(Defs.’ 56.1 Stmt. ¶ 43.)
During the second
alleged conversation, McNamara testified that the sequence of
events changed, and this time, Plaintiff allegedly said he was
naked when he woke up that morning and put on shorts and a
sweatshirt before finding his parents.
(Defs.’ 56.1 Stmt. ¶ 44.)
McNamara
the
also
testified
that
during
second
conversation,
Plaintiff did not mention seeing his mother in the bedroom, but
said that he checked the garage and then ran out of the house.
(Defs.’
56.1
conversation
Stmt.
with
¶
44.)
Plaintiff
McNamara
and
9
also
testified
described
that
a
during
third
that
conversation, Plaintiff said that after checking the garage, he
did go into the bedroom, saw his mother, realized she was dead and
then ran out of the house.
(Defs.’ 56.1 Stmt. ¶ 45.)
Plaintiff
denies that these conversations took place, and testified during
his deposition and at trial that he did not remember having any
conversations with McNamara or even seeing him at his home that
morning.
(Defs.’ 56.1 Stmt. ¶ 46; Pl.’s 56.1 Resp. ¶¶ 43-46.)
The Mayor of Belle Terre, Vincent Bove (“Bove”), who was
at the card game the previous night, also testified that he had a
conversation with Plaintiff that morning.
¶ 47.)
(Defs.’ 56.1 Stmt.
He testified that when he arrived at the scene, Plaintiff
approached him and told him that “somebody murdered my mother and
father” and that he suspected that Steuerman was responsible.
(Defs.’ 56.1 Stmt. ¶ 47.)
Additionally, Bove testified that when
he asked if Plaintiff saw Steuerman harm his parents, Plaintiff
told him that he did not see Steuerman do it, but that Steuerman
and his parents had been arguing.
(Defs.’ 56.1 Stmt. ¶ 47.)
At
his deposition, Plaintiff admitted that he had a conversation with
Bove but did not recall the specifics of that conversation.11
(Defs.’ 56.1 Stmt. ¶ 48; Pl.’s 56.1 Resp. ¶ 48.)
Finally, Dara
Schaeffer (“Schaeffer”), a neighbor and classmate, testified that
she drove by Plaintiff’s home that morning and asked him what
At trial, Plaintiff testified that he did not recall speaking
with Bove. (Defs.’ 56.1 Stmt. ¶ 210.)
11
10
happened.
(Defs.’ 56.1 Stmt. ¶ 49.)
She testified that Plaintiff
said “last night someone killed my mother and tried to kill my
father and molested me.”
(Defs.’ 56.1 Stmt. ¶ 49.)
Plaintiff
denies that he said this and maintains that he said “last night
they murdered my mother, they murdered my father, and they must
have missed me.”
(Pl.’s 56.1 Resp. ¶ 50.)
Although Schaeffer
testified that Plaintiff did not express “any emotions” and “just
told
[her]
how
it
happened,”
in
another
conversation
with
Plaintiff’s investigator, she stated that Plaintiff “appeared to
be in shock.” (Trial Tr. (Schaeffer) 553:8-10, 573:17-19; Defs.’
56.1 Stmt. ¶ 49; Pl.’s 56.1 Resp. ¶ 49.)
At
(“Sergeant
approximately
Doyle”)
of
the
7:20
a.m.,
Suffolk
Sergeant
County
Robert
Police
Doyle
Department’s
Homicide Bureau ordered Detectives Robert Anderson (“Detective
Anderson”),
Carmody
Anthony
(“Detective
Lahgezza
(“Detective
Carmody”),
John
Lahgezza”),
Pfalzgraf
Michael
(“Detective
Pfalzgraf”), K. James McCready (“Detective McCready”) and Norman
Rein (“Detective Rein”) to begin the investigation at the Tankleff
home.
the
(Defs.’ 56.1 Stmt. ¶ 51.)
scene
at
7:39
a.m.
approximately ten minutes.
and
Detective McCready arrived at
walked
through
the
home
for
(Defs.’ 56.1 Stmt. ¶ 52.) Thereafter,
he talked to Plaintiff in his police car.12
(Defs.’ 56.1 Stmt.
Detective McCready testified at his deposition that he was
suspicious of Plaintiff immediately after speaking with him, due
12
11
¶ 52.)
He testified that Plaintiff appeared “excited” and said
that Steuerman was responsible because Steuerman and his father
had
been
fighting.
(Defs.’
56.1
Stmt.
¶
52.)
Thereafter,
Detective McCready and Plaintiff discussed the events of that
morning.
(See Defs.’ 56.1 Stmt. ¶ 53; Pl.’s 56.1 Resp. ¶ 53.)
Detective McCready testified that Plaintiff told him he woke up at
5:35 a.m. when his alarm went off, but that he stayed in bed until
6:10 a.m.
(Defs.’ 56.1 Stmt. ¶ 53.)
Detective McCready further
testified that Plaintiff told him that he got out of bed at 6:10
a.m., put on a sweatshirt and shorts, looked into his parents’
room, which was dark, and did not see anyone.
¶ 53.)
(Defs.’ 56.1 Stmt.
Detective McCready said that at that point, Plaintiff told
him that he walked to the office, saw his father and called 911
from the phone in the office.
(Defs.’ 56.1 Stmt. ¶ 53.)
Detective
McCready said that Plaintiff told him that after the call, he
looked for his mother’s car in the garage and eventually looked in
the bedroom, saw his mother and ran into the kitchen to call his
sister.
(Defs.’ 56.1 Stmt. ¶ 53.)
Plaintiff
alleges
that,
consistent
with
his
trial
testimony, he got out of bed at 6:05 a.m. and put on underwear and
shorts
but
Resp. ¶ 53.)
was
not
wearing
a
sweatshirt.
(Pl.’s
56.1
Other than this, Plaintiff’s account of the events
at least in part to Plaintiff’s demeanor that morning.
56.1 Counterstmt. ¶ 17.)
12
(Pl.’s
of
that
morning
and
Detective
McCready’s
recollection
Plaintiff’s initial statements are largely consistent.13
Defs.’ 56.1 Stmt. ¶ 53 with Pl.’s 56.1 Resp. ¶ 53.)
of
(Compare
During their
conversation, Detective McCready observed blood on Plaintiff’s
right calf and right foot.
(Defs.’ 56.1 Stmt. ¶ 54.)
He asked if
Plaintiff got blood on him when he helped his father and testified
that Plaintiff responded that “[his] hands were covered with blood”
and that “[he] washed them in a puddle.”14
(Defs.’ 56.1 Stmt.
¶ 54.)
After his initial conversation with Plaintiff, Detective
McCready
re-entered
the
(Defs.’ 56.1 Stmt. ¶ 54.)
home
and
made
several
observations.
At trial, Detective McCready testified
that he noticed that there was no blood on the three telephones in
or near the kitchen, no blood on the garage door handle or dead
bolt lock, and that the drapes in the bedroom were open.15
(Defs.’
Plaintiff offers several additional facts to bolster his
account. For example, he alleges that he was not wearing
glasses or contacts that morning and that sunrise on
September 7, 1988 was at 6:25 a.m. (Pl.’s 56.1 Resp. ¶ 53.)
13
Plaintiff admits that this was Detective McCready’s testimony
at trial but notes that Detective McCready testified during his
deposition that the location of the blood observed on
Plaintiff’s body by the first officers on the scene was
consistent with Plaintiff’s account of pulling his father from
the chair by his feet. (Defs.’ 56.1 Stmt. ¶¶ 32, 54; Pl.’s 56.1
Resp. ¶¶ 32, 54; McCready Dep. Tr., Pl.’s Ex. 9-1, Docket Entry
184-13, 121:7-122:13.)
14
Plaintiff denies that these are incriminating facts and refers
to Detective McCready’s testimony at his deposition that
15
13
56.1 Stmt. ¶ 54.)
Detective McCready also testified at trial that
he observed unsmeared blood spatters on the telephone in the office
from which Plaintiff said he called 911. (Defs.’ 56.1 Stmt. ¶ 54.)
However, at his deposition, when Detective McCready was asked to
examine a photograph of the office phone, he testified that there
was something that could have been smeared blood.
(Pl.’s 56.1
Resp. ¶ 54.)
At approximately 8:00 a.m., Sergeant Doyle arrived at
the scene.
(Defs.’ 56.1 Stmt. ¶ 55.)
He walked through the house
and concluded that it was likely that there was a struggle in the
bedroom.
(Defs.’ 56.1 Stmt. ¶ 55.)
Later that morning, he also
noticed that in the bathroom closest to Plaintiff’s bedroom, the
bathtub contained water droplets and there was a wet loofah sponge.
(Defs.’ 56.1 Stmt. ¶ 64.)
Sergeant Doyle testified at trial that
Plaintiff did not appear “upset” or “emotional” when he met with
him shortly after exiting the home, but Plaintiff disputes his
characterization. (Defs.’ 56.1 Stmt. ¶ 55; Pl.’s 56.1 Resp. ¶ 55.)
When Sergeant Doyle recounted his conversation with Plaintiff
during his testimony at trial, he said that Plaintiff did not
mention looking for his mother’s car in the garage, but did say
that, from the hallway outside the bedroom, he saw his mother’s
body and knew she was dead.
(Defs.’ 56.1 Stmt. ¶ 56.)
Plaintiff
Plaintiff could have opened the garage door without getting
blood on the handle or the lock. (Pl.’s 56.1 Resp. ¶ 54.)
14
disputes that Sergeant Doyle’s account is accurate.
Resp. ¶ 56.)
(Pl.’s 56.1
Detective Rein arrived at the scene a short time
later. (Defs.’ 56.1 Stmt. ¶ 59.) He testified that when Plaintiff
spoke to him, Plaintiff said that when he got up, he looked in the
bedroom but did not see anyone, walked to the office and found his
father, dialed 911 from the office, administered aid to his father
per the 911 operator’s instructions, looked for his mother’s car
in the garage, went into the bedroom and saw his mother, called
his sister from the kitchen, and went back to the office and then
back to the kitchen again to answer his sister’s return call.
(Defs.’ 56.1 Stmt. ¶¶ 60-61.)
B.
Plaintiff’s Interview
After Detective Rein’s conversation with Plaintiff, he
spoke with Detective McCready and Sergeant Doyle regarding alleged
discrepancies in Plaintiff’s statements and his demeanor.
56.1 Stmt. ¶ 62.)
Sergeant Doyle directed Detective McCready to
ask Plaintiff to come to police headquarters.
¶ 62.)
alleges
(Defs.’
(Defs.’ 56.1 Stmt.
Plaintiff denies that his accounts were inconsistent and
that
the
Detectives
become
suspicious
because
they
“believed that [his] emotional response was not appropriate.”16
(Pl.’s 56.1 Resp. ¶ 62.)
Plaintiff further denies that his demeanor was inappropriate
or that he was “emotionless.” Plaintiff alleges that he “felt
out of it,” “like he was having a nightmare,” was “in a state of
shock and disbelief,” and “lacked awareness of his
16
15
Defendants allege that, around 8:40 a.m., Detective
McCready
asked
Plaintiff
to
“fine”
come
and
to
Plaintiff
responded
got
vehicle.
(Defs.’ 56.1 Stmt. ¶ 63.)
Police
into
Headquarters
Detective
and
McCready’s
Plaintiff alleges that he
repeatedly requested to go to Mather Hospital to see his father,
but Detective McCready refused to take him there until after he
accompanied him to Police Headquarters.
¶ 22.)
(Pl.’s 56.1 Counterstmt.
Plaintiff also alleges that he “didn’t think he had a
choice about going with Detective McCready and believed that only
by going with Detective McCready to the station would he be able
to get to the hospital.”17
(Pl.’s 56.1 Counterstmt. ¶ 22.)
During
the drive to Headquarters, Detective McCready spoke with Detective
Pfalzgraf, who was at Mather Hospital, and learned that Seymour
had suffered serious head injuries and was being transferred to
Stony Brook Hospital.
Detective
(Defs.’ 56.1 Stmt. ¶ 65.)
McCready
and
Plaintiff
arrived
at
Police
Headquarters at approximately 9:20 a.m., and Detective McCready
gave Plaintiff a cup of coffee while he waited. (Defs.’ 56.1 Stmt.
surroundings.” (Pl.’s 56.1 Counterstmt. ¶ 18.) He points to
the 911 call, Dara Schaeffer’s testimony that he appeared to be
in shock and his testimony that the morning was a “nightmare” as
indicators of his emotional state that morning. (Pl.’s 56.1
Resp. ¶ 62.)
Detectives Rein and McCready testified at their depositions
that Plaintiff never asked to go the hospital. (Pl.’s 56.1
Counterstmt. ¶ 22.)
17
16
¶ 67.)
Plaintiff alleges that the coffee was the only thing he
had to eat since he woke up that morning.
(Pl.’s 56.1 Resp. ¶ 67.)
At approximately 9:40 a.m., Detectives Rein and McCready (the
“Detectives”) entered the interview room and began making small
talk with Plaintiff, and Plaintiff removed three tissues from his
pockets and put them on a desk.
(Defs.’ 56.1 Stmt. ¶ 68.)
The
nature of the interview and the methods used by the Detectives are
vigorously disputed.
Plaintiff
volunteered
For example, the parties dispute whether
information
or
whether
he
supplied
information in response to questioning by the Detectives.
(See,
e.g., Defs.’ 56.1 Stmt. ¶¶ 69-71; Pl.’s 56.1 Resp. ¶¶ 69-71.)
The
order in which the topics were discussed is also unclear.18
Plaintiff alleges that the questions “never seemed to
stop” and that he was “questioned almost continuously until he
broke.”
(Pl.’s 56.1 Counterstmt. ¶ 24.)
alleges
that
he
maintained
his
Additionally, Plaintiff
innocence
throughout
the
Detectives’ questioning and repeated his account of the events of
that morning between six and twelve times, but they “refused to
accept his truthful account.”
(Pl.’s 56.1 Counterstmt. ¶ 25.)
Plaintiff further alleges that he asked to speak to Myron Fox, the
family’s attorney (“Fox”), approximately six times during the
interview, and Detective McCready’s response was “[i]f you want to
18
There is no audio or video recording of the interview.
17
speak with your Uncle Mike, you’re a criminal, we’re going to lock
you up.”19
(Pl.’s 56.1 Counterstmt. ¶¶ 27-28.)
Plaintiff also
claims that Detective McCready prevented him from speaking with
Fox that morning at the crime scene, although Detective McCready
denied during his deposition that he was attempting to prevent
Plaintiff from “lawyering up.”
(Pl.’s 56.1 Counterstmt. ¶ 28.)
Detective McCready further denied that Plaintiff ever asked to
speak with Fox.
(Pl.’s 56.1 Counterstmt. ¶ 28.)
The parties appear to be in agreement regarding the
topics discussed during the interview.
They discussed Seymour’s
business dealings, the horses Seymour owned with Steuerman, the
fact that Steuerman and his parents were partners in a bagel store,
and that there was a dispute regarding Seymour buying into one of
Steuerman’s bagel stores.
Resp. ¶¶ 69-71.)
(Defs.’ 56.1 Stmt. ¶¶ 69-71; Pl.’s 56.1
Plaintiff also mentioned that Seymour had loaned
Steuerman $400,000, and that the two men had a dispute over certain
equipment.
(Defs.’ 56.1 Stmt. ¶ 221.)
Plaintiff talked about his
knowledge of Seymour’s businesses and explained that Seymour was
“grooming” him for a career in business. (Defs.’ 56.1 Stmt. ¶ 83.)
Plaintiff and the Detectives discussed his recent surgery and the
fact that he had to wear glasses during his recovery, girls, his
Plaintiff alleges that Detective McCready knew that Fox was an
attorney for the Tankleff family and that if Fox indicated that
he was Plaintiff’s lawyer, he could not continue to question
him. (Pl.’s 56.1 Counterstmt. ¶ 27.)
19
18
car, and that he loved to cook.
(Defs.’ 56.1 Stmt. ¶¶ 74-76.)
Plaintiff said that he was adopted and talked about his family,
including his parents’ relationship, indicated that he had a good
relationship with his mother and his father, and said that the
family had a maid.
(Defs.’ 56.1 Stmt. ¶¶ 77-81.)
that he had an aversion to blood.
He mentioned
(Defs.’ 56.1 Stmt. ¶ 80.)
Plaintiff further explained that his parents’ will specified that
he would not receive anything until he has 25 and that under the
will, he would get more than his sister. (Defs.’ 56.1 Stmt. ¶ 84.)
Plaintiff told the Detectives that the will provided that he would
manage Seymour’s business interests, including the deals Seymour
had with Steuerman, and that he would inherit the family home.
(Defs.’ 56.1 Stmt. ¶ 222.)
Plaintiff and the Detectives discussed what occurred the
night before the attacks.
(Defs.’ 56.1 Stmt. ¶ 72.)
Plaintiff
said that he took a shower before bed, and when he went into the
master bedroom to say good night to his mother, she was sleeping
on the side of the bed closest to a set of sliding glass doors.
(Defs.’ 56.1 Stmt. ¶¶ 72-73.)
He said he could not recall if the
sliding glass doors were usually locked. (Defs.’ 56.1 Stmt. ¶ 78.)
Plaintiff
and
the
Detectives
discussed
the
poker
game,
and
Plaintiff told the Detectives the names of the players at the game
that night.
(Defs.’ 56.1 Stmt. ¶ 81.)
19
He also mentioned that
Seymour and Steuerman “pretended to be good buddies” but “did not
like each other anymore.”
(Defs.’ 56.1 Stmt. ¶ 82.)
Plaintiff alleges that the Detectives told him that they
did not believe his account of rendering aid to his father, and
called Plaintiff’s version of events “absurd” and “ridiculous.”
(Pl.’s 56.1 Counterstmt. ¶ 26.)
The Detectives asked Plaintiff to
demonstrate how he helped Seymour after calling 911, and Plaintiff
demonstrated on Detective Rein while he sat in a chair.20
56.1 Stmt. ¶¶ 85, 92, 225.)
(Defs.’
Defendants point out that there was
no blood on Plaintiff’s shorts in the photograph taken of Plaintiff
at headquarters, despite the fact that he made contact with
Detective Rein during the demonstration. (Defs.’ 56.1 Stmt. ¶¶ 93,
96.)
Additionally, during the demonstration, Detective McCready
noticed blood on Plaintiff’s shoulder underneath his sweatshirt.21
(Defs.’ 56.1 Stmt. ¶ 91.)
At some point during the questioning, Plaintiff drew
sketches of: (1) the cars of the card players in the driveway; (2)
Although Defendants allege that Plaintiff was not threatened
with any physical harm during the interview up to this point,
Plaintiff testified during his deposition that “nobody put a gun
to my head . . . but they took me away from my house [and] from
my family.” (Defs.’ 56.1 Stmt. ¶ 87; Pl.’s 56.1 Resp. ¶ 87.)
20
Detective Rein further noted that Plaintiff’s demeanor
appeared to be “calm” and he did not appear to be in shock.
(Defs.’ 56.1 Stmt. ¶ 97.) Plaintiff disputes that
characterization. (Pl.’s 56.1 Resp. ¶ 97.)
21
20
the general layout of the Tankleff home; and (3) his parents’
bedroom. (Defs.’ 56.1 Stmt. ¶¶ 88-90.) The sketch of his parents’
bedroom showed the location of Arlene’s body and indicated that he
was standing near the alarm wall when he saw her.
Stmt. ¶¶ 88, 223.)
(Defs.’ 56.1
Plaintiff testified during his deposition that
because he was sleeping, he did not hear any screams or cries for
help during the attacks. (Defs.’ 56.1 Stmt. ¶ 58; Pl.’s 56.1 Resp.
¶ 58.)
The Detectives testified that they became accusatory
around
11:15
and
a.m.22
confronted
Plaintiff
with
alleged
inconsistencies between his statements and their observations at
the scene.23 (Defs.’ 56.1 Stmt. ¶¶ 98, 100; Pl.’s 56.1 Resp. ¶¶ 98,
100.) During the questioning, both Detectives raised their voices,
and Detective McCready poked his fingers into Plaintiff’s chest.
(Defs.’ 56.1 Stmt. ¶¶ 101, 132.)
Plaintiff alleges that Detective
McCready lied to him and told him that they found his hair in
Arlene’s hand. (Pl.’s 56.1 Counterstmt. ¶ 30.) However, Detective
McCready
later
denied
Counterstmt. ¶ 30.)
making
this
statement.
(Pl.’s
56.1
Plaintiff alleges that Detective McCready
also told him that they did not believe that he did not shower
Although he is unsure of the time, Plaintiff admitted at trial
that the interview did not become confrontational until after
the demonstration. (Defs.’ 56.1 Stmt. ¶ 226.)
22
Plaintiff denies that there were any inconsistencies.
56.1 Resp. ¶ 100.)
23
21
(Pl.’s
that
morning
showered.
because
a
humidity
test
indicated
(Pl.’s 56.1 Counterstmt. ¶ 32.)
that
had
As Detective McCready
admitted at his deposition, there was no humidity test.
56.1 Counterstmt. ¶ 32.)
he
(Pl.’s
Plaintiff alleges that he “believed what
Detective McCready was telling him . . . because [Plaintiff] was
brought up to always believe in trusting cops.”
(Pl.’s 56.1
Counterstmt. ¶ 33.) Detective McCready testified at his deposition
that he did not recall specifically making the statement about the
humidity test, but said that he may have. (Pl.’s 56.1 Counterstmt.
¶ 34.)
At some point, Detective McCready left the interview
room and pretended to take a phone call. (Defs.’ 56.1 Stmt. ¶ 102;
Pl.’s 56.1 Counterstmt. ¶ 36.)
While Detective Rein was alone
with Plaintiff, he pulled his chair “very close” to Plaintiff,
“put his hands on his knees” and told him “[he] [couldn’t] accept
that [Plaintiff] didn’t have blood on [his] clothes” as a result
of helping his father.
(Defs.’ 56.1 Stmt. ¶ 132; Pl.’s 56.1 Resp.
¶ 132; Trial Tr. (Rein) 3245:6-3247:13.)
When Detective McCready
came back, he told Plaintiff that Seymour was conscious and
identified him as the perpetrator.24
Pl.’s 56.1 Counterstmt. ¶ 36.)
(Defs.’ 56.1 Stmt. ¶ 102;
In fact, Seymour never regained
Defendants allege that the ruse occurred at approximately
11:54 a.m. Plaintiff disputes that it occurred at that time.
(Defs.’ 56.1 Stmt. ¶ 102; Pl.’s 56.1 Resp. ¶ 102.)
24
22
consciousness.
¶ 37.)
(Defs.’ 56.1 Stmt. ¶ 195; Pl.’s 56.1 Counterstmt.
Plaintiff alleges that Detective McCready pointed his
finger at him and said “they shot your father full of Adrenalin”
and “[y]ou beat and stabbed him, Marty.”
¶ 36.)
(Pl.’s 56.1 Counterstmt.
Plaintiff alleges that Detective McCready also said “[y]ou
did it Marty” and “your father said just tell us what we want to
hear and help us.”25
(Pl.’s 56.1 Counterstmt. ¶ 36.)
Plaintiff
responded that Seymour must have identified him because he saw him
that morning when Plaintiff was administering first aid. Plaintiff
volunteered to a take a polygraph exam. (Defs.’ 56.1 Stmt. ¶ 102.)
Plaintiff alleges that the Detectives “repeatedly told [him] that
his father would not lie about this,” and Plaintiff recalls being
in shock and disbelief that his father would accuse him.
56.1 Counterstmt. ¶ 39.)
(Pl.’s
At his deposition, Detective McCready
admitted to lying to Plaintiff about his father and acknowledged
that the goal was to get Plaintiff to confess.26
(Pl.’s 56.1
Counterstmt. ¶ 37.)
Plaintiff alleges that he began to believe he might have
done it because his father never lied to him.
(Defs.’ 56.1 Stmt.
According to Plaintiff, Detective McCready also indicated that
the conversation with Seymour had been recorded and they would
play it for him later. (Pl.’s 56.1 Counterstmt. ¶ 36.)
25
Detective Rein testified at trial that initially, McCready’s
ruse seemed real to him. (Pl.’s 56.1 Counterstmt. ¶ 37.)
26
23
¶ 107; Pl.’s 56.1 Resp. ¶ 107.)
Detective McCready testified that
Plaintiff said that “whoever did this needs psychiatric help,”
“[m]aybe it wasn’t him but another Marty Tankleff that killed
them,” and “could I have blacked out and done it?”27
Stmt. ¶ 103.)
(Defs.’ 56.1
Plaintiff alleges that the Detectives encouraged
him by saying “there’s a Marty inside of you that knows what
happened”
happened.”
and
that
he
should
make
“that
Marty
(Pl.’s 56.1 Counterstmt. ¶ 43.)
tell
us
what
Then, Detective
McCready asked Plaintiff “[d]id you kill your mother and did you
hurt your father?” and Plaintiff said “Yeah I did it.”28
56.1 Stmt. ¶ 108.)
(Defs.’
Plaintiff alleges that he “broke down and told
the [D]etectives what they wanted to hear . . . without considering
what the consequences of this false confession would be because,
in his shock and trauma, he ‘thought it was all a nightmare and he
was going to wake up and it would be all over.’”
(Pl.’s 56.1
Counterstmt. ¶ 43.)
Defendants allege and Plaintiff admits that the possibility
that Plaintiff could have blacked out was not suggested to him
by the Detectives. (Defs.’ 56.1 Stmt. ¶ 106; Pl.’s 56.1 Resp.
¶ 106.) Additionally, at trial, Plaintiff admitted to asking if
he could have blacked out. (Defs.’ 56.1 Stmt. ¶ 229.)
27
Defendants allege that after this admission, Plaintiff began
to discuss his plans for college, traveling to Florida, and that
he was annoyed that a family friend was coming to stay with him
while his parents went on vacation. (Defs.’ 56.1 Stmt. ¶¶ 109110.) Plaintiff admits that he made such statements, but
disputes that he did so at this point in the interview. (Pl.’s
56.1 Resp. ¶¶ 109-110.)
28
24
Plaintiff and the Detectives discussed how the crime
occurred.
The parties appear to agree that the Detectives made
numerous suggestions to Plaintiff regarding the commission of the
crime
and
that
Plaintiff
ultimately
agreed
with
those
suggestions.29
(Defs.’ 56.1 Stmt. ¶¶ 113, 118; Pl.’s 56.1 Resp.
¶¶ 113, 118.)
However, there is some dispute whether Plaintiff
initially denied the Detectives’ suggestions before acquiescing.
(Defs.’
56.1
Stmt.
¶¶
114-17;
Pl.’s
56.1
Resp.
¶¶
114-17.)
Plaintiff testified at his deposition that during the interview,
he repeatedly told the Detectives that he was innocent.
(Defs.’
56.1 Stmt. ¶¶ 124-125; Pl.’s 56.1 Resp. ¶¶ 124-25.) He also alleges
that he “repeatedly told [the] [D]etectives that he could not
provide details of his parents’ murders by stating, for example,
‘I don’t know.
¶ 45.)
I didn’t do this.’”
(Pl.’s 56.1 Counterstmt.
Plaintiff explained that “the detectives would ask a
question, and I would say, I don’t know what you are talking about;
I didn’t do anything.
And they would once again re-ask the
question or make a statement to me, and I would say, well, you
know, I don’t remember doing anything.
I didn’t do anything.
If
For purposes of this motion, Defendants do not dispute the
veracity of certain portions of Plaintiff’s deposition and trial
testimony, including that he acquiesced to suggestions by the
Detectives. (Defs.’ 56.1 Stmt., at 1 n.1.) However, Defendants
have previously maintained that Plaintiff “respond[ed] to openended questions” and “volunteered a detailed narrative
confession.” (Pl.’s 56.1 Counterstmt. ¶ 52.)
29
25
you’re saying I did something, then I would just acquiesce to what
they were saying.”
(Pl.’s 56.1 Resp. ¶ 125.)
Plaintiff alleges
that the details in the alleged confession “conveniently matched
the observations” the Detectives made at the scene and “the theory
they had formulated . . . during and after the walk-throughs,”
including the sequence of the attacks and the weapons.30
(Pl.’s
56.1 Counterstmt. ¶ 54.)
Plaintiff agreed with the Detectives’ suggestion that he
was naked during the attacks and began by hitting his mother with
a dumbbell.
(Defs.’ 56.1 Stmt. ¶¶ 112, 120.)
The Detectives
suggested and Plaintiff agreed that after he hit her, he grabbed
a knife from the kitchen that was lying on the counter next to
watermelon rinds and cut her throat with it.
¶ 112.)
(Defs.’ 56.1 Stmt.
The Detectives suggested and Plaintiff agreed that then
his mother was on her back, and he continued to stab her, but could
not remember how many times.
(Defs.’ 56.1 Stmt. ¶ 112.)
He also
agreed that he hit her four to five times on the head.
(Defs.’
56.1 Stmt. ¶ 112.)
Next, he agreed that “she was moving a little
bit when he ran out of the bedroom to kill his father.”
(Defs.’
56.1 Stmt. ¶ 119.) Plaintiff acquiesced and agreed that he entered
the office with a dumbbell and the knife behind his back, saw his
Plaintiff alleges that the prosecution relied heavily on the
alleged confession at trial, and pointed to the correlation
between Plaintiff’s statements and the crime scene as an
indication of its reliability. (Pl.’s 56.1 Counterstmt. ¶ 78.)
30
26
father in his chair and hit him from behind with the dumbbell
first.
(Defs.’ 56.1 Stmt. ¶¶ 120-21.)
He agreed that, after his
father asked him what he was doing, he “knocked him silly” and cut
his neck. (Defs.’ 56.1 Stmt. ¶¶ 121-22.) The Detectives suggested
and Plaintiff agreed that he was not sure how many times he hit or
stabbed his father and that he was shocked by the amount of blood.
(Defs.’ 56.1 Stmt. ¶ 122.)
He further agreed that, afterward, he
cleaned the dumbbell and the knife in the shower, returned the
dumbbell to his bedroom, and laid in bed before getting up at 6:10
a.m.
(Defs.’ 56.1 Stmt. ¶ 123.)
Plaintiff
alleges
that
he
never
received
Miranda
warnings, but admits that he signed a waiver of rights card (the
“Waiver Card”) after the alleged confession.
(Defs.’ 56.1 Stmt.
¶ 126; Pl.’s 56.1 Resp. ¶ 126; Pl.’s 56.1 Counterstmt. ¶ 29.)
The
Detectives testified at their depositions that Plaintiff was not
advised of his rights or told he was a suspect when he was first
brought to the station.
(Pl.’s 56.1 Counterstmt. ¶ 29.)
However,
they claimed that Detective McCready provided Plaintiff with the
“Waiver Card” and advised him of his rights just minutes before he
said that he had done it.
(Pl.’s 56.1 Counterstmt. ¶ 29.)
Plaintiff signed a consent form to allow them to take
samples of his fingernail scrapings and any dried blood on his
body, and investigators took several photographs of Plaintiff.
(Defs.’ 56.1 Stmt. ¶¶ 128-29.)
27
Defendants note that in the
photographs, there is no blood on Plaintiff’s shorts or sweatshirt,
and Plaintiff acknowledged this fact at trial.
¶ 224.)
(Defs.’ 56.1 Stmt.
At approximately 1:22 p.m., Fox called and directed the
Detectives to stop their questioning.
(Defs.’ 56.1 Stmt. ¶ 130.)
Plaintiff alleges that beginning with his first conversation with
Detective McCready around 7:55 a.m., he “was effectively confined
for five-and-a-half hours.”
(Pl.’s 56.1 Counterstmt. ¶ 21.)
Plaintiff testified on cross-examination during the trial that,
sometime after the alleged confession, he was in a room with
Detective
Rein,
Detective
McCready,
Detective McCready choked him.
and
Sergeant
Doyle,
(Defs.’ 56.1 Stmt. ¶ 232.)
was the first time Plaintiff made such an allegation.
and
This
(Defs.’
56.1 Stmt. ¶ 233.)
Plaintiff
remained
in
the
interview
room
while
his
arrest was processed, and later that day, he asked to speak with
his sister, Shari Rother (“Shari”).31
(Defs.’ 56.1 Stmt. ¶ 135.)
During the call with Shari, Plaintiff told her he was sorry, and
when
Shari
asked
if
Plaintiff
told
the
police
that
responsible, Plaintiff responded “yes, they made me.”
he
was
(Defs.’
56.1 Stmt. ¶ 136; Tankleff 50-h Examination, Defs.’ Ex. KK, 63:2324.)
Additionally, at trial, Plaintiff admitted that during that
Plaintiff alleges that he asked the Detectives if he could
talk to Shari numerous times that day. (Pl.’s 56.1 Resp.
¶ 135.)
31
28
conversation, he also said that he needed psychiatric help and
told Shari he needed to see her.
Detective
summarizing
McCready
Plaintiff’s
(Defs.’ 56.1 Stmt. ¶ 231.)
subsequently
alleged
drafted
confession,
a
which
report
Plaintiff
alleges is more detailed than the Detectives’ handwritten notes
from the interview itself.
(Pl.’s 56.1 Counterstmt. ¶ 66.)
Plaintiff alleges that the purported confession only contained the
information
known
to
Detectives
at
the
time
they
questioned
Plaintiff and did not include details that would come to light
later in the investigation, including that Arlene had wounds on
her back indicating she may have been attacked from behind and
that the perpetrator(s) wore gloves.
(Pl.’s 56.1 Counterstmt.
¶ 69-70.)
C.
The Evidence
Several detectives remained at the home after Detectives
McCready and Rein transported Plaintiff to Police Headquarters.
Detective James Barnes (“Detective Barnes”) examined all of the
doors and windows and found no sign of forced entry, although
Plaintiff alleges that the front door was open when he woke up
that morning.
(Defs.’ 56.1 Stmt. ¶ 137; Pl.’s 56.1 Resp. ¶ 137.)
Detective Chuck Kosciuk (“Detective Kosciuk”) also made several
observations.
In
Plaintiff’s
bathroom,
Detective
Kosciuk
testified that he observed water in the bathtub, including near
the drain, along one side of the tub, and under a wet loofah
29
sponge.
(Defs.’ 56.1 Stmt. ¶ 138.)
In Plaintiff’s bedroom,
Detective Kosciuk testified that he saw blood on the door knob,
the light switch, and the wall next to the light switch.32
56.1 Stmt. ¶ 138.)
He testified that he also observed a “slightly
damp” towel and a set of dumbbells in Plaintiff’s room.
56.1 Stmt. ¶ 138.)
observed
on
the
(Defs.’
(Defs.’
Plaintiff notes that a red substance was
dumbbells,
and
alleges
that
this
fact,
in
combination with the water in the bathtub led detectives to surmise
that the dumbbells were used in the murders and that Plaintiff
washed them off in the shower. (Pl.’s 56.1 Resp. ¶ 138.) Detective
Kosciuk also saw a knife on the kitchen counter next to watermelon
rinds,
which
according
to
one
witness,
appeared
to
different position than it was during the poker game.
56.1 Stmt. ¶ 139.)
detectives
to
be
in
a
(Defs.’
Plaintiff alleges that this observation led
believe
that
the
knife,
referred
to
as
the
“Watermelon Knife,” was used by the perpetrator. (Pl.’s 56.1 Resp.
¶ 139.)
1. Arlene and Seymour’s Injuries
Dr. Vernard Adams, Deputy Medical Examiner for Suffolk
County (“Dr. Adams”), arrived at the home at around 4:00 p.m. and
examined Arlene’s injuries.
(Defs.’ 56.1 Stmt. ¶ 140.)
Based on
During the trial, Plaintiff testified that he did not recall
if he turned on the light in his bedroom. (Defs.’ 56.1 Stmt.
¶ 209.)
32
30
his preliminary examination of her body and the blood stains, he
concluded that she sustained head injuries, had moved, and then
the
perpetrator
¶ 140.)
inflicted
stab
wounds.33
(Defs.’
56.1
Stmt.
Dr. Adams performed Arlene’s autopsy and testified at
trial that Arlene sustained five depressed skull fractures, cuts
to her hands and forearms, four slash wounds to her back and stab
wounds to her neck caused by a sharp blade.34 (Defs.’ 56.1 Stmt.
¶ 142; Pl.’s 56.1 Counterstmt. ¶ 96.)
He further testified that
the skull fractures were consistent with having been caused by the
dumbbell from Plaintiff’s room.35
(Defs.’ 56.1 Stmt. ¶ 142.)
A surgeon at Stony Brook Hospital who operated on Seymour
testified
at
trial
that
Seymour
suffered
“several
depressed
[skull] fractures,” including “fracture[s] in which pieces of the
bone [were] . . . driven inward” which “appeared to [have been]
produced by a small pointed blunt object of which a hammer would
be a good example.”
(Defs.’ 56.1 Stmt. ¶ 141.)
The surgeon
testified that Seymour’s neck wound was “unusual and extensive,”
Plaintiff acknowledges that “the position of Arlene’s body
suggested [this] to an initial observer” but denies that Dr.
Adams’ observations were accurate. (Pl.’s 56.1 Resp. ¶ 140.)
33
Defendants characterize the wounds to her hands and forearms
as “defensive wounds,” but Plaintiff disputes that description.
(Defs.’ 56.1 Stmt. ¶ 142; Pl.’s 56.1 Resp. ¶ 142.)
34
Plaintiff admits that this was Dr. Adams’ testimony, but
disputes that the skull fractures were caused by the dumbbell.
(Pl.’s 56.1 Resp. ¶ 142.)
35
31
and believed that “it would have taken a great deal of energy and
determination to produce a wound [that] deep and extensive.”36
(Trial Tr. (Tyson) 4349:2-22.)
succumbed to his injuries.
On October 6, 1988, Seymour
(Defs.’ 56.1 Stmt. ¶ 195.)
Dr. Adams’
autopsy revealed that the perpetrator inflicted several blows to
Seymour’s head and that the cause of death was “head trauma and
incised wounds of the neck.”
(Defs.’ 56.1 Stmt. ¶ 195.)
2. Investigation of the Poker Players and Steuerman
As
discussed,
Detective
Robert
Anderson
(“Detective
Anderson”) and Detective Anthony Laghezza (“Detective Laghezza”)
were assigned to interview the card players, including those that
attended the poker game at the Tankleff home on September 6th.
(Defs.’ 56.1 Stmt. ¶ 167.)
Bove, the Mayor of Belle Terre, told
Detectives Anderson and Laghezza that nothing unusual occurred at
the game and that he was not aware of a conflict between Steuerman
and Seymour, although he admitted that he had no personal knowledge
of their business dealings.
(Defs.’ 56.1 Stmt. ¶ 168.)
Other
players at the game, including Robert Montefusco (“Montefusco”),
Albert Raskin (“Raskin”), Peter Capobianco (“Capobianco”), and
Joseph Cecere (“Cecere”), also reported that they did not recall
In response to questions from the prosecutor at trial, Dr.
Tyson agreed that Seymour’s neck wound was consistent with
having been caused by a knife, the perpetrator was likely “very
angry,” and an individual who was able to lift Seymour from that
chair would have the physical strength to cause Seymour’s
injuries. (Defs.’ 56.1 Stmt. ¶ 141.)
36
32
tension between Steuerman and Seymour.
172.)
(Defs.’ 56.1 Stmt. ¶¶ 169-
Plaintiff alleges that two of the players, Montefusco and
Cecere, told detectives that they believed that Steuerman was the
last one to leave the game.37
Detectives
Anderson
and
(Pl.’s 56.1 Resp. ¶¶ 169, 172.)
Laghezza
interviewed
Steuerman
on
September 7th.
(Defs.’ 56.1 Stmt. ¶ 173; Anderson Supp. Rep.,
Defs.’ Ex. V.)
At the time of the interview, Steuerman knew that
Plaintiff had accused him of being responsible for the attacks.38
(Defs.’ 56.1 Stmt. ¶ 173.)
Steuerman told them that he had been
a player in the poker game for about two years and did not recall
anything out of the ordinary during the game on September 6th.
(Defs.’ 56.1 Stmt. ¶ 173.)
with Seymour.
He described his business dealings
(Defs.’ 56.1 Stmt. ¶ 173.)
Additionally, Steuerman
said that he left the card game and arrived at his daughter’s
house, where he was living at the time, at approximately 3:15
Montefusco said that when the other players were leaving,
Steuerman remained inside to talk to Seymour, and Cecere said
that when he left, Steuerman was sitting in his car and was
still sitting there when Cecere drove away. (Pl.’s 56.1 Resp.
¶¶ 169, 172; Pl.’s 56.1 Counterstmt. ¶ 134.)
37
Plaintiff alleges that he was not the only individual to
accuse Steuerman. (Pl.’s 56.1 Counterstmt. ¶ 129.) For
example, he alleges that his brother-in-law, the family attorney
and a cousin all told detectives that Steuerman could be
involved or referred to tension between Steuerman and Seymour.
(Pl.’s 56.1 Counterstmt. ¶¶ 129-31.)
38
33
a.m.39 and found out about the attacks the next morning.
56.1 Stmt. ¶ 173.)
(Defs.’
After speaking with Steuerman, Detectives
Anderson and Laghezza concluded that Steuerman should not be
considered a suspect.
Detectives
(Defs.’ 56.1 Stmt. ¶ 173.)
Rein
and
McCready
conducted
interview of Steuerman on September 10th.
¶ 174.)
a
second
(Defs.’ 56.1 Stmt.
Steuerman discussed the card game and his relationship
with the Tankleff family.
(Defs.’ 56.1 Stmt. ¶ 174.)
At trial,
Steuerman’s daughter testified that he arrived at her house around
3:16 a.m.
(Defs.’ 56.1 Stmt. ¶ 175.)
His daughter testified that
she remembered the time because she had to get up and let her
father in because he had forgotten his keys.
¶ 175.)
(Defs.’ 56.1 Stmt.
She also said that the drive from Belle Terre to her home
takes about fifteen minutes.
(Defs.’ 56.1 Stmt. ¶ 175.)
On September 14, 1988, Steuerman withdrew $15,000 from
an account he shared with Seymour, faked his own death, and
traveled under a fictitious name to Los Angeles, California.
(Defs.’ 56.1 Stmt. ¶ 177; Pl.’s 56.1 Resp. ¶ 177.)
During three
days of testimony at Plaintiff’s trial, Steuerman explained that
he fled to California due to various personal and financial
problems and the accusations against him in connection with the
Plaintiff alleges that Steuerman’s account of when he left the
card game is inconsistent with the testimony of the other card
players and that the inconsistency was overlooked. (Pl.’s 56.1
Counterstmt. ¶ 136.)
39
34
attacks on the Tankleffs. (Defs.’ 56.1 Stmt. ¶ 178.) The homicide
department
ultimately
investigated
Steuerman’s
disappearance,
presumably given the connection to the ongoing investigation.
(Pl.’s 56.1 Counterstmt. ¶ 139; Missing Person Report, Pl.’s Ex.
24, Docket Entry 184-30.)
The Missing Person Report refers to an
anonymous call authorities received indicating that Steuerman
“finance[d] his son . . . in major cocaine dealings.”
Counterstmt. ¶ 142; Missing Person Report at 5.)
(Pl.’s 56.1
On September
26th, Detective McCready, Sergeant Doyle, and Assistant District
Attorney
Edward
Jablonski
(“ADA
Jablonski”)
traveled
to
California, and Steuerman returned to Suffolk County with them on
September 30th.
(Pl.’s 56.1 Counterstmt. ¶¶ 152, 155; Missing
Person Report at 26-28.)
Plaintiff alleges that the purpose of
the trip was not to further investigate Steuerman, but to convince
him to return to Suffolk County.
(Pl.’s 56.1 Counterstmt. ¶ 154.)
During the investigation and trial, authorities learned
more
about
Steuerman
and
Seymour’s
business
relationship.40
Steuerman testified at trial that his relationship with Seymour
deteriorated beginning in July and August 1988.
(Steuerman) 1080:17-23.)
(Trial Tr.
Although Steuerman maintained that his
financial obligations to Seymour continued after Seymour’s death,
For example, Plaintiff alleges that certain detectives,
including Detective McCready and Sergeant Doyle, were aware that
Steuerman owed money to Seymour. (Pl.’s 56.1 Counterstmt.
¶ 140.)
40
35
he also testified that he needed Seymour’s approval to pursue new
ventures and would have had to split the profits with Seymour while
Seymour was alive.
(Defs.’ 56.1 Stmt. ¶ 176; Pl.’s 56.1 Resp. ¶
176; Trial Tr. (Steuerman) 1080:24-1081:25.)
Plaintiff alleges that the fact that Steuerman was ruled
out as a suspect based on “two brief interviews in public places”
and
alibi
testimony
from
his
daughter
illustrates
investigation of Steuerman was “wholly inadequate.”
that
the
(Pl.’s 56.1
Resp. ¶ 175; Pl.’s 56.1 Counterstmt. ¶¶ 148-49.) Plaintiff further
alleges
that
Defendants
failed
to
adequately
investigate
Steuerman’s finances or his connection to his son’s alleged drug
(Pl.’s 56.1 Counterstmt. ¶¶ 148-149.)
dealing.41
Defendants point
out that Steuerman was questioned extensively during his trial
testimony about his alleged involvement in the crime, and Detective
McCready was subject to lengthy cross-examination regarding the
adequacy of the investigation into Steuerman.
(Defs.’ 56.1 Stmt.
¶¶ 179-80.)
3. Blood Stain Analysis
Robert Baumann (“Baumann”), a forensic serologist for
Suffolk County, analyzed blood stains from several locations in
the Tankleff home.
(Defs.’ 56.1 Stmt. ¶ 188.)
Other than a smudge
Plaintiff alleges that detectives falsely represented in the
Missing Persons Report and to Lieutenant McElhone that the
investigation into Steuerman had been thorough. (Pl.’s 56.1
Counterstmt. ¶¶ 150-51.)
41
36
on the exterior doorknob of Plaintiff’s bedroom, Baumann noted
that there was no blood near the entrance of any room in the home.
(Defs.’ 56.1 Stmt. ¶ 188; Pl.’s Resp. ¶ 188.)
Testing of that
smudge did indicate the presence of blood, but no further tests,
including to identify the source of the blood, were ever performed.
(Defs.’ 56.1 Stmt. ¶ 188; Pl.’s Resp. ¶ 188; Baumann Dep. Tr.,
Pl.’s Ex. 12, Docket Entry 184-18, 201:17-202:11.)
In the master
bedroom, a bloodstain on the wall was found to be consistent with
Seymour’s blood.
(Defs.’ 56.1 Stmt. ¶ 189.)
Blood detected on
Arlene’s fingernails was consistent only with Arlene’s blood.
(Defs.’ 56.1 Stmt. ¶ 189; Trial Tr. (Baumann) 2213:3-11.)
Baumann
also analyzed the bedsheets, pillowcases, and shams from the master
bedroom.
(Defs.’
56.1
Stmt.
¶
189.)
On
those
items,
one
bloodstain was consistent with Seymour’s blood, some bloodstains
were
consistent
only
with
Arlene’s
blood,
and
consistent with either Arlene or Plaintiff’s blood.
Stmt. ¶ 189; Trial Tr. (Baumann) 2178:4-2199:17.)
others
were
(Defs.’ 56.1
The bloodstains
in the office were consistent only with Seymour’s blood, and the
bloodstains on a towel in Plaintiff’s bedroom were consistent only
with
Seymour’s
blood.
(Defs.’
56.1
Stmt.
¶¶
189-90.)
The
bloodstain on the light switch and the adjacent wall in Plaintiff’s
bedroom was consistent with either Arlene’s blood or Plaintiff’s
blood.
(Trial Tr. (Baumann) 2272:18-2275:17.)
Analysts also
noticed that a “chain link” or “honeycomb” pattern consistent with
37
latex,
fabric
or
rubber
gloves
appeared
in
several
of
the
bloodstains, including bloodstains on the bedding in the master
bedroom and next to the light switch in Plaintiff’s bedroom.
(Defs.’ 56.1 Stmt. ¶¶ 190-91; Pl.’s 56.1 Resp. ¶¶ 190-91.)
No
underwear.
blood
was
detected
on
(Defs.’ 56.1 Stmt. ¶ 192.)
Plaintiff’s
shorts
or
However, there was a stain
on the inside right shoulder of Plaintiff’s sweatshirt that tested
positive for the presence of blood.
(Defs’ 56.1 Stmt. ¶ 192.)
Due to the size of stain, no further testing could be conducted.
(Defs.’ 56.1 Stmt. ¶ 192.)
As discussed, Detectives McCready and
Rein noticed a bloodstain on Plaintiff’s right shoulder during the
interview,
and
that
stain
was
tested
consistent only with Seymour’s blood.
Trial Tr. (Baumann) 2266:23-2268:9.)
and
determined
to
be
(Defs.’ 56.1 Stmt. ¶ 192;
No blood was detected on the
dumbbells, kitchen knives, traps, drains, or on a loofah sponge in
the bathroom, although the loofah sponge did have a “five inch
slit” of unknown origin.
Resp. ¶ 193.)
(Defs.’ 56.1 Stmt. ¶ 193; Pl.’s 56.1
Nor was any blood detected on the Watermelon Knife.
(Baumann Dep. Tr. 142:18-145:20.)
Finally, two of the tissues
Plaintiff removed from his pocket at Police Headquarters tested
positive
for
the
presence
of
blood;
the
stains
on
one
were
consistent only with Plaintiff’s blood, and the stains on the
second tissue were consistent only with Arlene’s blood.
56.1 Stmt. ¶ 193; Trial Tr. (Baumann) 2277:5-23.)
38
(Defs.’
Plaintiff
alleges that he could have gotten Arlene’s blood on his hand when
he turned on the light in his bedroom that morning, and Detective
McCready agreed during his deposition that this was a possible
explanation for her blood being on the tissue.
(Pl.’s 56.1 Resp.
¶ 193.)
4. The Watermelon Knife
As
discussed,
Seymour’s autopsies.
Dr.
Adams
conducted
both
Arlene
(Pl.’s 56.1 Counterstmt. ¶ 93.)
and
During
Arlene’s autopsy, Dr. Adams observed four sharp impact stab wounds
on her back.
(Pl.’s 56.1 Counterstmt. ¶ 96; Arlene Autopsy
Diagram, Pl.’s Ex. 13, Docket Entry 184-19, at 10.)
Dr. Adams’
autopsy report described them as “four stab wounds . . . with a
small abrasion to the left of [each] stab wound” measuring “from
one-quarter of an inch to five-eighths of an inch.”
Tr., Defs.’ Ex. BBB, 183:6-13.)
(Adams Dep.
In connection with the autopsies,
Dr. Adams was provided with the Watermelon Knife.
(Pl.’s 56.1
Counterstmt. ¶ 97; Adams. Dep. Tr. 179:24-180:15.)
During his deposition in 2014, Dr. Adams testified that
there was no “reasonable possibility” that the Watermelon Knife
caused the stab wounds on Arlene’s back.
192:8;
see
also
Pl.’s
56.1
(Adams Dep. Tr. 191:12-
Counterstmt.
¶
98.)
He
further
testified that he believed those wounds were inflicted by a short
knife that “had some kind of projection that could cause an
abrasion,” such as a utility knife.
39
(Adams. Dep. Tr. 193:22-
194:10.)
Although the parties agree that Dr. Adams did not
communicate his conclusion to the prosecutors either before or
during Plaintiff’s trial, they dispute whether Dr. Adams ever
shared his conclusion with any of the detectives.
(Defs.’ 56.1
Stmt. ¶ 144; Pl.’s 56.1 Resp. ¶ 144; Pl.’s 56.1 Counterstmt.
¶¶ 114-15.)
Defendants deny that Dr. Adams ever communicated his
opinion to detectives.
(Defs.’ 56.1 Stmt. ¶ 144.)
Plaintiff
alleges that Dr. Adams discussed this information with detectives
based
on
his
deposition
testimony
and
testimony
from
other
witnesses indicating that it was an established practice in the
Suffolk County Police Department to have a detective present at an
autopsy.42
(Pl.’s 56.1 Counterstmt. ¶¶ 93, 101.)
It is undisputed
that Plaintiff’s defense attorney, Robert Gottlieb, never learned
this information.
(Pl.’s 56.1 Counterstmt. ¶ 116; Gottlieb Dep.
Tr., Defs.’ Ex. JJJ, 88:5-13.)
Dr. Adams testified that it was “usual and customary” for the
detectives to attend the autopsy. (Adams Dep. Tr. 40:22-8.)
Lieutenant John McElhone testified that autopsies would be
“covered” by a detective. (McElhone Dep. Tr., Pl.’s Ex. 8,
Docket Entry 184-12, 91:20-23.) Assistant District Attorneys
Collins and Jablonski gave similar testimony. (See Collins Dep.
Tr., Defs.’ Ex. HHH, 97:18-98:7 (agreeing that it was “the
practice of the Homicide Squad to attend autopsies . . . and
they would generally assign a detective, if not more than one,
to attend the autopsy” and “most of the time” they would take
notes); Jablonski Dep. Tr., Defs.’ Ex. III, 51:16-24 (testifying
that “a lot of times” a detective attended the autopsy).)
42
40
Detective
McCready,
Detective
Carmody,
Detective
Kosciuk, and Detective Rein have all denied being present at
Arlene’s autopsy; Sergeant Doyle does not recall if he was at
Arlene’s autopsy but admitted to being at the medical examiner’s
office on the day of her autopsy.43 (Pl.’s 56.1 Counterstmt. ¶ 102;
McCready Aff., Defs.’ Ex. FFF, ¶ 9; Doyle Aff., Defs.’ Ex. DDD, ¶
9; Carmody Aff., Defs.’ Ex. CCC, at ¶ 9; Kosciuk Aff., Defs.’ Ex.
EEE, ¶ 10; Rein Aff., Defs.’ Ex. GGG, at ¶ 9.)
Detective Carmody
admitted that he had a meeting with Dr. Adams the day after
Arlene’s autopsy.
(Pl.’s 56.1 Counterstmt. ¶ 102.)
That meeting
appears to be documented in Detective Carmody’s handwritten notes,
which refer to a meeting with Dr. Adams on September 9, 1988.
(Pl.’s 56.1 Counterstmt. ¶ 123; Carmody Notes, Pl.’s Ex. 19, Docket
Entry 184-25, at 27.)
In those notes, Detective Carmody wrote
“clear knife issue,” and there is a drawing of what appears to be
a shorter knife blade and a longer knife blade.
(Pl.’s 56.1
Counterstmt. ¶ 123; Carmody Notes at 27; Carmody Dep. Tr., Pl.’s
Ex. 20, Docket Entry 184-26, 68:20-23 (responding that the drawings
“appear to be” knife shapes).)
At his deposition, Detective
Carmody testified that he did not know what he meant by “clear
knife issue” and that he did not “remember why [he] even drew those
shapes.”
(Carmody Dep. Tr. 68:15-69:11.)
Detective Rein admitted to being at Seymour’s autopsy.
56.1 Counterstmt. ¶ 102; Rein Aff. ¶ 10.)
43
41
(Pl.’s
Dr. Adams testified at his deposition that he “must
have communicated” that he did not believe that the Watermelon
Knife was the weapon “in some sense, if not those words.”
Dep. Tr. 193:9-21.)
(Adams
When asked if he would have communicated this
at Arlene’s autopsy, he testified that he did not “have any
recollection of what we actually communicated” but it “seems
reasonable” that he would have communicated his opinion during the
autopsy.
(Adams Dep. Tr. 192:22-193:8.)
Plaintiff alleges that
Detective Rein was most likely present at Arlene’s autopsy, based
in part on several pages of handwritten notes and a drawing of the
wounds on Arlene’s back, which have been identified as belonging
to Detective Rein by one witness.44
(Pl.’s 56.1 Counterstmt.
¶ 103.) The notes include several pages of diagrams from Seymour’s
autopsy, and both Dr. Adams’ and Detective Rein’s name appear on
the first diagram.
(Seymour Autopsy Diagram, Pl.’s Ex. 17, Docket
Entry 184-23, at 1.)
After the diagrams, there is what appears to
be a drawing of the wounds on Arlene’s back, including measurements
of each cut and a sketch of a knife with a short blade.
Autopsy Diagram, at 5.)
(Seymour
When Dr. Adams was asked about the
document, he testified that the handwriting did not look like his,
but he believed the drawing was made by “someone who was at the
When Assistant District Attorney Collins (“ADA Collins”) was
shown the document, he identified the handwriting on the
diagrams as Detective Rein’s. (Pl.’s 56.1 Counterstmt. ¶ 103;
Collins Dep. Tr. 99:9-19.)
44
42
autopsy and making a diagram of their own at the same time I was
making my notes.”
189:21-190:3.)
(Pl.’s 56.1 Counterstmt. ¶ 104; Adams. Dep. Tr.
Plaintiff alleges that the wound measurements on
that drawing match the measurements documented by Dr. Adams in his
notes.
(Pl.’s 56.1 Counterstmt. ¶ 105.)
Since Plaintiff’s conviction, several detectives have
stated that they came to the conclusion that the Watermelon Knife
was
not
the
Counterstmt.
weapon
¶¶
used
122-27.)
in
At
the
his
attacks.
(See
deposition,
Pl.’s
56.1
Detective
Rein
testified that he came to the conclusion that the Watermelon Knife
was not the murder weapon and that “it would have been a shorter
knife [or] a different kind of knife,” although he was unsure when
he came to believe that.
(Pl.’s 56.1 Counterstmt. ¶ 122; Rein
Dep. Tr., Defs.’ Ex. XX, 197:17-198:4.)
Detective Rein testified
that Sergeant Doyle also believed that the Watermelon Knife was
not the murder weapon and that they discussed it.
197:11-198:4.)
(Rein Dep. Tr.
During subsequent interviews, Detectives Kosciuk,
Detective Pfalzgraf, and Sergeant Doyle all stated that they did
not believe the Watermelon Knife caused Arlene and Seymour’s
injuries.
(Pl.’s 56.1 Counterstmt. ¶¶ 125-27; Kosciuk Interview
Summary, Pl.’s Ex. 21, Docket Entry 184-27, at 3; Pfalzgraf
Interview Summary, Pl.’s Ex. 22, Docket Entry 184-28, at 4; Doyle
Interview Summary, Pl.’s Ex. 23, Docket Entry 184-29, at 5.)
Detective Kosciuk said he thought a “utility-type knife” caused
43
the wounds, Detective Pfalzgraf said he thought he was a “Exacto
knife or razor knife,” and Sergeant Doyle stated that he believed
it was a “utility knife.”
(Kosciuk Interview Summary at 3;
Pfalzgraf Interview Summary at 4; Doyle Interview Summary at 5.)
D.
Indictments, Conviction, and Post-Conviction
Proceedings
On September 9, 1988, Plaintiff was indicted for the
murder of his mother and the assault on his father.
(Defs.’ 56.1
Stmt. ¶ 181; First Am. Compl., Docket Entry 145-1, ¶ 113.)
On
October 27, 1988, Plaintiff was indicted for the murder of his
father.
(Defs.’ 56.1 Stmt. ¶ 182; First Am. Compl. ¶ 115.)
Plaintiff moved to suppress his alleged confession, and the trial
judge conducted a Huntley hearing in March 1989.
The trial judge
denied the suppression motion, and Plaintiff’s confession was
introduced as evidence. (First Am. Compl. ¶ 119.) The trial began
on April 23, 1990 and ended on June 20, 1990.
(First Am. Compl.
¶ 120.) The jury found Plaintiff guilty of the first-degree murder
of Seymour and the second-degree murder of Arlene, and he was
sentenced to two consecutive terms of twenty-five years to life.
(First Am. Compl. ¶ 128.)
Plaintiff
appealed
his
conviction
to
the
Appellate
Division, Second Department and challenged the voluntariness of
his confession, the administration of Miranda warnings, and other
tactics employed the Detectives during the interview.
44
(Defs.’
56.1 Stmt. ¶ 235.)
Based on the determinations by the trial judge
at
hearing,
the
Huntley
Plaintiff’s conviction.
¶ 235.)
the
Appellate
Division
affirmed
(Defs. 56.1 Stmt. ¶ 235; Pl.’s 56.1 Resp.
He appealed that decision to the Court of Appeals, which
affirmed the Appellate Division’s decision and, based on the
determinations of the trial judge at the Huntley hearing, held
that the confession was voluntary. (Defs.’ 56.1 Stmt. ¶ 236; Pl.’s
56.1 Resp. ¶ 236.)
Plaintiff subsequently filed a Writ of Habeas
Corpus in this district, which was denied.
¶ 237.)
(Defs.’ 56.1 Stmt.
He appealed that denial to the Second Circuit Court of
Appeals, and the Second Circuit held that while the Detectives
should have administered Miranda warnings earlier and statements
made before the warnings were given should have been suppressed,
the statements given by Plaintiff subsequent to the waiver of
rights were properly admitted.
(Defs.’ 56.1 Stmt. ¶ 238; Pl.’s
56.1 Resp. ¶ 238.)
On October 3, 2003, Plaintiff filed a motion for a new
trial pursuant to New York State Criminal Procedure Law § 440.10
in Suffolk County Court and the judge conducted a hearing (the
“440.10 Hearing”) to consider new evidence presented by Plaintiff.
People v. Tankleff, 49 A.D.3d 160, 164, 848 N.Y.S.2d 286, 290 (2d
Dep’t 2007).
Plaintiff presented evidence that the attacks on his
parents were committed by Joseph Creedon, Peter Kent, and Glen
Harris, three men who were allegedly hired by Steuerman.
45
(Defs.’
56.1 Stmt. ¶ 240; Pl.’s 56.1 Counterstmt. ¶¶ 157-60.)
After a
lengthy hearing, the trial judge denied Plaintiff’s motion for new
trial. Tankleff, 49 A.D.3d at 176, 848 N.Y.S.2d at 298. Plaintiff
appealed the decision, and on December 18, 2007, the Appellate
Division vacated the convictions and held that the newly discovered
evidence warranted a new trial.
(Defs.’ 56.1 Stmt. ¶ 239.)
However, the Appellate Division held that Plaintiff “did not
establish entitlement to . . . relief” on the grounds of actual
innocence.
The
(Defs.’ 56.1 Stmt. ¶ 239; Pl.’s 56.1 Resp. ¶ 239.)
Appellate
Division
ultimately
declined
to
address
the
admissibility of the confession, but held that “when the evidence
presented at the CPL article 440 hearing is evaluated against the
backdrop
of
the
trial
evidence,
including
the
defendant’s
confession, how the confession was obtained, and the fact that the
defendant almost immediately recanted the confession,” a new trial
was warranted.
Tankleff, 49 A.D.3d at 182, 848 N.Y.S.2d at 302.
In January 2008, the Suffolk County District Attorney
announced that he would drop the charges against Plaintiff and ask
Governor Eliot Spitzer to appoint a special prosecutor to review
the case.
(Defs.’ 56.1 Stmt. ¶ 246; Pl.’s 56.1 Resp. ¶ 246;
Jan. 2, 2008 Article, Pl.’s Ex. 48, Docket Entry 184-54.)
A short
time later, Governor Spitzer appointed Attorney General Andrew
Cuomo (the “Attorney General”) to investigate the case.
(Defs.’
56.1 Stmt. ¶ 246; Pl.’s 56.1 Resp. ¶ 246; Press Release, Pl.’s Ex.
46
47, Docket Entry 184-53.)
At the conclusion of the investigation,
the Attorney General moved to dismiss the indictments against
Plaintiff in the interests of justice pursuant to New York Criminal
Procedure Law § 210.40, and that motion was granted on July 22,
2008.
(Defs.’ 56.1 Stmt. ¶ 247.)
Later that year, in December 2008, the New York State
Commission of Investigation (the “Commission”) released its report
examining the Suffolk County Police Department’s investigation of
the case.
(Defs.’ 56.1 Stmt. ¶ 250.)
The Commission concluded,
among other things, that the investigation was “comprehensive,
extensive and methodical,” the procedures used during Plaintiff’s
interview were “proper in all respects” and “within the confines
of the law,” and the alleged confession was not the result of
“force or coercion.”
(Defs.’ 56.1 Stmt. ¶ 250.)
Plaintiff admits
that these were the Commission’s conclusions but denies that the
conclusions are true.
(Pl.’s 56.1 Resp. ¶ 250.)
Plaintiff also
disputes that the Commission relied on “a complete and accurate
account of the process used to obtain the confession.”
(Pl.’s
56.1 Resp. ¶ 250.)
II.
Procedural History
Plaintiff commenced this lawsuit on March 24, 2009.
(Compl., Docket Entry 1.)
The Complaint alleged the following
causes of action under 42 U.S.C. § 1983: (1) malicious prosecution
against Detective McCready, Detective Rein, and John Doe police
47
officers; (2) fabrication of evidence against Detective McCready
and Detective Rein; (3) failure to investigate against Detective
McCready and Detective Rein; (4) suppression of evidence against
Detective McCready, Detective Rein, and Detective Kosciuk; (5)
coercion and violation of Plaintiff’s right to counsel against
Detective McCready, Detective Rein, and John Doe police officers;
(6) civil rights conspiracy against Detective McCready, Detective
Rein,
Sergeant
officers,
and
Doyle,
Richard
Lieutenant
McElhone,
Roe
employees;
county
John
(7)
Doe
police
supervisory
liability against Sergeant Doyle, Lieutenant McElhone, and Richard
Roe county employees; and (8) an unconstitutional custom or policy
and
a
failure
to
supervise
and
train
pursuant
to
Monell
v.
Department of Social Services, 436 U.S. 658 (1978), against the
County of Suffolk.
(Compl. ¶¶ 147-182.)
Additionally, the
Complaint alleged the following state law causes of action: (1)
malicious prosecution against Detective McCready, Detective Rein,
Sergeant Doyle, John Doe police officers, and Richard Roe county
employees; (2) false imprisonment against Detective McCready,
Detective Rein, Sergeant Doyle, John Doe police officers, and
Richard Roe county employees; and (3) intentional or negligent
infliction of emotional distress against Detective McCready and
Detective Rein.
(Compl. ¶¶ 183-194.)
Answer on July 24, 2009.
Defendants filed their
(Answer, Docket Entry 22.)
48
On April 6, 2010, Defendants filed a motion for judgment
on the pleadings pursuant to Federal Rule of Civil Procedure 12(c).
(Defs.’ 12(c) Mot., Docket Entry 38.)
On December 21, 2010, the
Court granted Defendants’ motion in part and denied it in part.
Tankleff v. County of Suffolk, No. 09-CV-1207, 2010 WL 5341929
(E.D.N.Y. Dec. 21, 2010).
Specifically, the Court dismissed
Plaintiff’s conspiracy, supervisory liability, false imprisonment,
suppression of evidence, failure to investigate, and intentional
or negligent infliction of emotional distress claims.
2010 WL 5341929, at *1.
1983
malicious
Tankleff,
The Court permitted Plaintiff’s Section
prosecution,
state
law
malicious
prosecution,
fabrication of evidence, coercion, and Monell claims to proceed.
Id. at *5-10, 12.
Thereafter, the parties engaged in extensive
discovery and argued numerous discovery motions.
On December 9, 2014, Plaintiff filed a motion to amend
the Complaint, which this Court referred to Magistrate Judge
Steven I. Locke.
Order,
Docket
suppression
of
(Pl.’s Mot. to Amend, Docket Entry 145; Referral
Entry
151.)
evidence
Plaintiff
claim
sought
against
leave
Detective
to
a
McCready,
Detective Rein, Sergeant Doyle, and Detective Kosciuk.
Mot. to Amend at 1.)
add
(Pl.’s
Plaintiff alleged that Detective McCready,
Detective Rein, Sergeant Doyle, and Detective Kosciuk withheld
exculpatory evidence by failing to disclose the medical examiner’s
conclusion that the Watermelon Knife could not have been the murder
49
weapon.
(Pl.’s Mot. to Amend at 1.)
By Order dated May 5, 2015,
Magistrate Judge Anne Y. Shields granted Plaintiff’s motion to
amend.45
(Mot. to Amend Order, Docket Entry 157.)
As a result,
the Court considers the First Amended Complaint at Docket Entry
145-1 to be the operative complaint in this action.
Compl., Docket Entry 145-1.)
(First Am.
The Court subsequently allowed
discovery to be re-opened on a limited basis to gather evidence
related to the suppression claim.
(Electronic Discovery Order,
May 14, 2015.)
On January 14, 2016, Defendants notified the Court that
Detective McCready died.
(Suggestion of Death, Docket Entry 167.)
Theresa McCready and Brett McCready were substituted as Detective
McCready’s legal successors on June 2, 2016.
(Substitution Order,
Docket Entry 178.)
On June 10, 2016, Defendants filed a motion for partial
summary judgment on the Section 1983 and state law malicious
prosecution claims, the coercion claim, and the recently added
suppression claim.
(Defs.’ Mot., Docket Entry 180.)
Defendants
are not moving for summary judgment on Plaintiff’s fabrication of
evidence or Monell claims.
1 n.1.)
(Defs.’ Mem., Docket Entry 180-3, at
Plaintiff filed his opposition on August 17, 2016, and
After the Court referred the motion to Judge Locke, the matter
was reassigned to Judge Shields. (Reassignment Order, Docket
Entry 155.)
45
50
Defendants filed their reply on September 23, 2016.
(Pl.’s Opp.,
Docket Entry 183; Defs.’ Reply, Docket Entry 186.)
DISCUSSION
I.
Legal Standard
Summary
judgment
will
be
granted
where
the
movant
demonstrates that there is “no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.”
FED. R. CIV. P. 56(a).
A genuine factual issue exists where “the
evidence is such that a reasonable jury could return a verdict for
the nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed 2d 202 (1986).
In
determining whether an award of summary judgment is appropriate,
the Court considers the “pleadings, deposition testimony, answers
to interrogatories and admissions on file, together with any other
firsthand information including but not limited to affidavits.
Nnebe v. Daus, 644 F.3d 147, 156 (2d Cir. 2011).
The movant bears the burden of establishing that there
are no genuine issues of material fact.
Gallo v. Prudential
Residential Servs., L.P., 22 F.3d 1219, 1223 (2d Cir. 1994).
Once
the movant makes such a showing, the non-movant must proffer
specific facts demonstrating “a genuine issue for trial.”
Giglio
v. Buonnadonna Shoprite LLC, No. 06-CV-5191, 2009 WL 3150431, at
*4 (E.D.N.Y. Sept. 25, 2009) (internal quotation marks and citation
omitted).
Conclusory allegations or denials will not defeat
51
summary judgment.
Id.
However, in reviewing the summary judgment
record, “‘the court is required to resolve all ambiguities and
draw all permissible factual inferences in favor of the party
against whom summary judgment is sought.’”
Sheet Metal Workers’
Nat’l Pension Fund v. Vadaris Tech. Inc., No. 13-CV-5286, 2015 WL
6449420, at *2 (E.D.N.Y. Oct. 23, 2015) (quoting McLee v. Chrysler
Corp., 109 F.3d 130, 134 (2d Cir. 1997)).
II.
Coercion Claim
Defendants argue that the Court should grant summary
judgment on Plaintiff’s coercion claim because the confession was
not coerced as a matter of law.
(Defs.’ Mem. at 4.)
Without
citing to the parties’ 56.1 Statements, Defendants describe the
events surrounding Plaintiff’s interview and point out that, for
example, there is no “evidence that [Plaintiff] was subjected to
any kind of physical or verbal threats by Detective McCready on
the way to Headquarters,” and at the beginning of the interview,
“the questions and answers . . . were conversational and the
[P]laintiff
fashion.”
answered
the
questions
(Defs.’ Mem. at 5-6.)
in
a
completely
narrative
Defendants argue that Plaintiff
admits that he and the Detectives discussed a variety of topics
including his father’s businesses, his family and his personal
life, and that he provided information on these topics.
Mem. at 6.)
(Defs.’
Defendants also contend that Plaintiff was “not
threatened with any physical harm” other than Detective McCready
52
allegedly screaming at him and “jamming his finger into [his]
chest” after the questioning became accusatory.
6,
8.)
Defendants
maintain
that
at
some
(Defs.’ Mem. at
point
during
the
interview, Plaintiff volunteered to draw sketches of the house,
his parents’ bedroom, and the card player’s cars in the driveway.
(Defs.’ Mem. at 7.) They also argue that “[P]laintiff has produced
no evidence that he exhibited any outward signs of being in shock.”
(Defs.’ Mem. at 7.)
Defendants contend that Plaintiff’s ultimate admission,
“Yeah I did it,” was “the result of a non-accusatory question” and
“in the wake of the [P]laintiff having been told that his father
had regained consciousness, thereby enhancing its reliability.”
(Defs.’ Mem. at 9.) Defendants acknowledge that there is a genuine
issue
of
fact
whether,
during
the
discussion
of
the
crime,
Plaintiff acquiesced to the Detectives’ suggestions or spoke in a
narrative fashion.
(Defs.’ Mem. at 9.)
However, they argue that
Plaintiff’s testimony--that when the Detectives made a suggestion,
he would initially deny the suggestion--reflects that “[Plaintiff]
knew what he was doing, and what he was saying, and voluntarily
chose to go along with their suggestions.”
(Defs.’ Mem. at 12-
13.)
and
They
argue
that
given
the
length
nature
of
the
interrogation, it “can hardly be viewed as an interrogation that
was repetitive, prolonged or relentless.”
(Defs.’ Mem. at 11.)
Moreover, Defendants point out that the courts that previously
53
reviewed
Plaintiff’s
conviction
found
the
confession
to
be
voluntary and the tactics used by the Detectives to be permissible.
(Defs.’ Mem. at 12-13.)
argue
that
there
is
no
Regarding the Waiver Card, Defendants
“evidence
that
[Plaintiff]
did
not
understand his Miranda rights . . . or that he lacked the requisite
level of comprehension to make an effective waiver . . . .” (Defs.’
Reply at 11.)
Finally, Defendants argue that they are entitled to
qualified immunity.
(Defs.’ Mem. at 14-17.)
Plaintiff argues that there are issues of material fact
as to whether the confession was coerced.
(Pl.’s Opp. at 9-19.)
Plaintiff contends that he was only seventeen years old and “just
experienced the profound trauma of finding his parents the victims
of gruesome deadly attacks.”46
(Pl.’s Opp. at 10.)
He alleges
that he was in shock that morning and “believed . . . that he was
in some sort of nightmare.”
(Pl.’s Opp. at 10.)
Plaintiff
maintains that he was “interrogated in a coercive environment under
coercive conditions” and that he was particularly susceptible to
coercion due to his “youth, psychological and emotional fragility,
and inexperience with law enforcement.”
example,
Plaintiff
alleges
that
the
(Pl.’s Opp. at 11.)
Detectives
For
intentionally
Defendants argue that at seventeen, Plaintiff was considered
an adult pursuant to New York Penal Law, and the District Court
that considered his habeas petition described him as
“sophisticated” and an “above average high school student.”
(Defs.’ Reply at 7.)
46
54
isolated him from family members and his family’s attorney, despite
multiple requests to speak to the attorney at his home that morning
and during the interview.
maintains
that
during
(Pl.’s Opp. at 11-12.)
the
five-and-a-half
hours
Further, he
that
he
was
interrogated, he was not offered anything to eat besides a cup of
coffee when he arrived.47
(Pl.’s Opp. at 12.)
He also argues that
he was not advised of his Miranda rights when the questioning
began.48
(Pl.’s Opp. at 12.)
Plaintiff also alleges that the Detectives screamed and
cursed at him, and Detective McCready jammed his finger into
Plaintiff’s chest.
(Pl.’s Opp. at 13.)
Further, Plaintiff
contends that the Detectives made him repeat “his story 6 to 12
times,” “refused to accept his truthful account” and then lied to
him about his hair being found in his mother’s hand, a humidity
test the police purportedly conducted, and that Plaintiff’s father
had implicated him.
(Pl.’s Opp. at 13-14.)
After the Detectives
allegedly had Plaintiff believing that he committed the crime,
Plaintiff alleges that the Detectives “fed him gruesome, nonpublic
Defendants contend that he was “only
an accusatory nature for approximately
Reply at 8.) Additionally, they argue
in the record that Plaintiff requested
(Defs.’ Reply at 9.)
47
subjected to questions of
40 minutes.” (Defs.’
that there is no evidence
and was denied food.
Plaintiff points out that he has not alleged separate claims
for violations of his Miranda rights or his right to counsel,
but has proffered evidence of these alleged violations to
demonstrate coercion. (Pl.’s Opp. at 9, n.5.)
48
55
details about how his parents had been murdered [and] . . . coerced
the traumatized teen into adopting these statements as his own.”
(Pl.’s
Opp.
at
14-15.)
Finally,
Plaintiff
argues
that
the
Detectives are not entitled to qualified immunity.
A plaintiff may bring a Section 1983 coercion claim “if
coercion was applied to obtain a waiver of the plaintiff’s rights
against
self-incrimination
and/or
to
obtain
inculpatory
statements, and the statements thereby obtained were used against
the plaintiff in a criminal proceeding.”
Deshawn E. by Charlotte
E. v. Safir, 156 F.3d 340, 346 (2d Cir. 1998).
To establish a
violation of the accused’s Fifth Amendment right against selfincrimination,
“[a]
plaintiff
must
point
to
circumstances
indicating that []he could not make a knowing and voluntary
decision.”
2016).
Sedunova v. City of N.Y., 652 F. App’x 29, 31 (2d Cir.
“The test for whether a statement was improperly obtained
by coercion is determined by the totality of the circumstances.”
Higazy v. Templeton, 505 F.3d 161, 170 (2d Cir. 2007) (internal
quotation marks and citation omitted); see also Safir, 156 F.3d at
347-48 (explaining that factors to consider include, “whether
Miranda warnings were properly administered or waived, whether
counsel was present, whether the defendant knew the nature of the
offense with which he was charged, . . . the time elapsing between
arrest and the confession, . . . the characteristics of the
accused[,] the conditions of interrogation and[,] the conduct of
56
the law enforcement officials.”).
is
a
“fact-intensive
inquiry”
The assessment of voluntariness
during
which
the
court
should
consider “‘the accused’s characteristics, the conditions of [the]
interrogation, and the conduct of law enforcement officials.’”
Thomsen v. City of N.Y., No. 15-CV-2668, 2016 WL 590235, at *9
(S.D.N.Y. Feb. 11, 2016) (quoting United States v. Taylor, 745
F.3d 15, 24 (2d Cir. 2014)).
When a confession is “obtained under
circumstances that overbear the defendant’s will at the time it is
given,” it is not voluntary.
Thomsen, 2016 WL 590235, at *9.
“Qualified immunity shields government officials from
civil suits for damages” if “‘their conduct does not violate
clearly established statutory or constitutional rights of which a
reasonable person would have known.’”
Higazy, 505 F.3d at 169
(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727,
2738, 73 L. Ed. 2d 396 (1982)).
To determine whether qualified
immunity applies, courts consider “whether the facts shown make
out a violation of a constitutional right and whether the right at
issue was clearly established at the time of the defendant’s
alleged misconduct.”
Estate of Devine v. Fusaro, --- F. App’x --
--, at *1 (2d Cir. 2017) (internal quotation marks and citation
omitted).
Whether a right was clearly established should be
analyzed from the perspective of a reasonable law enforcement
officer, and the relevant inquiry is whether “it would be clear to
a reasonable officer that his conduct was unlawful in the situation
57
he confronted.”
Devine, 2017 WL 362685, at *1.
When there are
issues of fact that bear on the issue of qualified immunity,
summary judgment on qualified immunity grounds must be denied.
See Clark v. City of N.Y., No. 09-CV-2533, 2015 WL 5719612, at *7
(E.D.N.Y. Sept. 29, 2015).
The Court finds that there are issues of material fact
that preclude summary judgment on Plaintiff’s coercion claim.
For
example,
the
Plaintiff
alleges
that
during
the
interview,
questions “never seemed to stop” and that he was “questioned almost
continuously until he broke,” while Defendants maintain that the
interview was conversational and Plaintiff spoke in a narrative
fashion.
(Pl.’s 56.1 Counterstmt. ¶ 24; Defs.’ 56.1 Stmt. ¶ 99.)
Additionally, Plaintiff claims that the Detectives prevented him
from talking to Fox, the family attorney, at the crime scene that
morning
and
interview.
denied
his
requests
to
speak
to
Fox
(Pl.’s 56.1 Counterstmt. ¶¶ 27-28.)
during
the
In contrast,
Detective McCready denied that Plaintiff ever asked to speak to
Fox.
(Pl.’s 56.1 Counterstmt. ¶ 28.)
Examining the facts in the
light most favorable to Plaintiff, including his age and the events
of that morning, a reasonable jury could find that the Detectives
obtained
the
confession
constitutional rights.49
by
coercion
and
violated
Plaintiff’s
See Weaver v. Brenner, 40 F.3d 527, 537
Defendants argue that this Court should adopt the reasoning of
the state and federal courts that held that Plaintiff’s
49
58
(2d Cir. 1994) (holding that there were issues of fact on coercion
claim when officers allegedly told the accused that if he told
them what he did they would “keep [it] out of the newspapers” and
that if he did not cooperate it would be difficult on his family
and
lied
regarding
statements
from
others
implicating
him)
(internal quotation marks omitted); Thomsen, 2016 WL 590235, at *9
(holding that plaintiff stated a coercion claim at motion to
dismiss stage when officer allegedly promised him leniency, lied
to him about the existence of video tapes depicting him committing
the crime, and manipulated him).
Nonetheless, the Court may still grant summary judgment
for Defendants if “[they] can demonstrate that they are entitled
to qualified immunity.”
Clark, 2015 WL 5719612, at *7 (citation
omitted); see also Deskovic v. City of Peekskill, 894 F. Supp. 2d
443, 451 (S.D.N.Y. 2012) (“Summary judgment may be granted on the
basis of a qualified immunity defense premised on an assertion of
objective
reasonableness
[if]
the
defendant
show[s]
that
no
reasonable jury, viewing the evidence in the light most favorable
to the [p]laintiff, could conclude that the defendant’s actions
were objectively unreasonable in light of clearly established
confession was admissible, because “the reasoning and analysis
of these Courts is beyond challenge.” (Defs.’ Mem. at 13.)
However, those prior decisions, which are not binding, evaluated
whether Plaintiff’s confession was voluntary based on the
evidence presented during a pre-trial hearing--not on the record
before this Court.
59
law.”) (quoting O’Bert v. Vargo, 331 F.3d 29, 37 (2d Cir. 2003)
(internal quotation marks omitted) (alteration in original).
The
Second Circuit has held that in 1989, shortly after the events at
issue here, “it was clearly established . . . that criminal
suspects had a due process right to be free from official conduct
designed to overcome the accused’s will and produce an involuntary
incriminating statement.”
Weaver, 40 F.3d at 536.
Thus, this
right was clearly established when Plaintiff was questioned by the
Detectives.50
officer
would
The more complex question is whether a reasonable
understand
Plaintiff’s rights.
the
conduct
to
be
a
violation
of
If the interview proceeded as Plaintiff
described--particularly, if the Detectives denied his repeated
requests
for
counsel--the
factfinder
could
determine
that
a
reasonable officer would understand that conduct to be unlawful.
Therefore,
at
this
qualified immunity.
juncture,
Defendants
are
not
entitled
to
See Weaver, 40 F.3d at 537 (“Review of this
record leads us to conclude that there are genuine issues of
material fact as to whether defendants engaged in the alleged
Defendants again point to the decisions of prior state and
federal courts to support their argument that “it cannot be said
that at the time of the claim it was clearly established that such
conduct would be violative of a plaintiff’s constitutional
rights.” (Defs.’ Mem. at 16.) This argument is belied by the
Second Circuit’s holding in Weaver.
Further, the decisions
referred to by Defendants were based on the record in the criminal
proceeding. See supra note 49. The Court finds that there are
genuine issues of material fact in this record that preclude
dismissal of this claim on qualified immunity grounds.
50
60
coercive conduct.
Since defendants hotly dispute plaintiff’s
allegations, a factual determination of their conduct is needed to
resolve the issue of qualified immunity.”); Higazy, 505 F.3d at
174 (“Where there is a dispute about the material facts, th[e]
question
[of
whether
the
officer’s
conduct
was
objectively
reasonable] must be resolved by the factfinder.”).
Therefore, Defendants’ motion for summary judgment on
the coercion claim is DENIED.
III.
Malicious Prosecution Claims
Defendants argue that Plaintiff’s malicious prosecution
claim under Section 1983 and New York law must be dismissed for
several reasons.
(Defs.’ Mem. at 17-27.)
First, they argue that
there was probable cause to commence and continue the prosecution
against Plaintiff. (Defs.’ Mem. at 19-24.) Defendants acknowledge
that there is a dispute regarding the manner in which Plaintiff’s
alleged confession was obtained but contend that “the existence of
probable cause independent of the allegedly falsified evidence is
a defense” to a malicious prosecution claim.
(Defs.’ Mem. at 20.)
Defendants point to the Court’s prior Order, which dismissed
Plaintiff’s false arrest claim based on the existence of probable
cause, as support for their argument.51
See Tankleff, 2010 WL
Defendants also argue that if the Court grants summary
judgment on Plaintiff’s coercion claim, it should consider
Plaintiff’s admissions in the probable cause analysis, and that
those admissions further support the existence of probable
51
61
5341929,
at
*13-14
(describing
evidence
independent
of
the
confession that provided probable cause for Plaintiff’s arrest).
Second, Defendants maintain that Plaintiff cannot establish that
the charges against him terminated in a favorable manner.
Mem. at 25-27.)
(Defs.’
Defendants appear to argue that Plaintiff’s
Section 1983 malicious prosecution claim is barred by Heck v.
Humphrey,
512
U.S.
477
(1994),
because
Plaintiff
has
not
“produce[d] any evidence beyond that alleged in the complaint which
would more strongly establish his actual innocence.”
(Defs.’ Mem.
at
entitled
26.)
Third,
Defendants
argue
that
they
are
to
qualified immunity because there was “arguable probable cause” to
initiate and continue the prosecution.
(Defs.’ Mem. at 27.)
Plaintiff argues that whether there was probable cause
to initiate or continue the prosecution against Plaintiff should
be decided by a jury, particularly in light of the “factual dispute
as to whether Defendants fabricated Plaintiff’s confession, . . .
misrepresented to prosecutors that the narrative of the crime
originated with Plaintiff [and] taint[ed] the grand jury process.”
(Pl.’s Opp. at 20.)
Court’s
prior
prosecution
Order
claim
on
Regarding Defendants’ argument that the
supports
similar
a
dismissal
grounds,
of
the
Plaintiff
malicious
argues
that
cause. (Defs.’ Mem. at 24-25.) Because the Court has denied
summary judgment on the coercion claim, see supra section II, it
declines to consider this argument.
62
“probable cause to arrest is different than probable cause to
prosecute.”
(Pl.’s Opp. at 21.)
While an indictment creates a
presumption of probable cause, Plaintiff contends that he has
presented sufficient evidence to rebut that presumption.
Opp. at 22-23.)
were
to
find
prosecution,
(Pl.’s
Plaintiff further argues that even if the Court
that
there
probable
was
cause
probable
cause
dissipated
to
after
initiate
the
Plaintiff’s
indictment, including because of “powerful later evidence that
[Plaintiff’s] statement was not true, and that another perpetrator
was likely involved.”
maintains
that
he
has
(Pl.’s Opp. at 24.)
established
the
Finally, Plaintiff
favorable
termination
element of his claim because the indictments were dismissed based
largely on evidence of his innocence.
(Pl.’s Opp. at 29-31.)
To sustain a section 1983 malicious prosecution claim,
plaintiff must show “a violation of his rights under the Fourth
Amendment” and establish “the elements of a malicious prosecution
claim under state law.”
Manganiello v. City of N.Y., 612 F.3d
149, 161 (2d Cir. 2010) (internal citations omitted).
“[U]nder
New York law, a plaintiff must prove: (1) the initiation or
continuation
of
a
criminal
proceeding
against
plaintiff;
(2)
termination of the proceeding in plaintiff’s favor; (3) lack of
probable cause for commencing the proceeding; and (4) actual malice
as a motivation for defendant’s actions.”
Id. (internal quotation
marks and citations omitted); see also Colon v. City of N.Y.,
63
60 N.Y.2d 78, 82, 455 N.E.2d 1248, 1250, 468 N.Y.S.2d 453 (1983).
Setting
aside
violation
of
Plaintiff’s
the
requirement
his
Fourth
Section
1983
claims are identical.
that
Amendment
and
state
Plaintiff
rights,
law
demonstrate
the
malicious
elements
a
of
prosecution
See Genovese v. Cty. of Suffolk, 128 F.
Supp. 3d 661, 668 (E.D.N.Y. Sept. 8, 2015) (“[T]he distinction
between state and federal claims of malicious prosecution does not
affect the Court’s analysis, because the elements of a malicious
prosecution claim are identical under Section 1983 and New York
law.”).
As a result, the Court will analyze Plaintiff’s malicious
prosecution claims together.52
A. Heck and Favorable Termination53
In Heck, the Supreme Court held that “in order to recover
damages
for
allegedly
unconstitutional
conviction
or
Because Defendants do not address the initiation or malice
elements, the Court presumes that they have conceded those
elements and declines to address them.
52
Analyzing whether Plaintiff’s claims are barred by Heck and
whether he obtained a favorable termination of the charges under
state law requires an examination of the same underlying facts.
However, the two analyses are distinct. See Spak v. Phillips,
857 F.3d 458, 462 (2d Cir. 2017) (“While the same phrase-‘favorable termination’--is used in both the accrual analysis
and the merits analysis of a Section 1983 suit, it is analyzed
under a different legal standard in each context. When the
question before a federal court is at what point a malicious
prosecution claim accrued, ‘favorable termination’ is analyzed
under federal common law . . . . When, by contrast, a federal
court is analyzing the merits of a plaintiff’s claim, the
definition of ‘favorable termination’ is analyzed under state
law.”) (internal citations omitted).
53
64
imprisonment, . . .
a § 1983 plaintiff must prove that the
conviction or sentence has been reversed on direct appeal, expunged
by executive order, declared invalid by a state tribunal authorized
to make such determination, or called into question by a federal
court’s issuance of a writ of habeas corpus, 28 U.S.C. § 2254.”
Heck, 512 U.S. at 486-87, 114 S. Ct. 2364, 2372, 129 L. Ed. 2d
383.
Relying on an analogy to malicious prosecution’s favorable
termination requirement, the Supreme Court explained that if a
claim requires that the Plaintiff prove “the unlawfulness of his
conviction or confinement . . . the complaint must be dismissed
unless
the
plaintiff
can
demonstrate
sentence has already been invalidated.”
that
the
Id.
conviction
or
Thus, Heck operates
as a bar to section 1983 malicious prosecution claims unless the
conviction or sentence has been invalidated by one of the four
methods specified by the Supreme Court.
recently
clarified
the
application
The Second Circuit
of
Heck
to
malicious
prosecution and other Section 1983 claims in Poventud v. City of
N.Y., 750 F.3d 121 (2d Cir. 2014) (en banc).
The Court explained
that “[i]n the context of § 1983 malicious prosecution cases,
Heck’s
bar
is
coextensive
with
the
favorable
termination
requirement,” and “the tort cannot stand unless the underlying
criminal case[ ] ‘finally end[s] in failure.’”
65
Poventud, 750 F.3d
at 131 (quoting DeBlasio v. City of N.Y., 102 F.3d 654, 657 (2d
Cir. 1996)) (internal citations omitted).
To
determine
whether
Plaintiff
has
established
the
favorable termination element of his claim, the Court must look to
New York law.
Clark, 2015 WL 5719612, at *10; see also Negron v.
Wesolowski, 536 F. App’x 151, 152 (2d Cir. 2013) (“‘Because there
are no federal rules of decision for adjudicating § 1983 actions
that are based upon claims of malicious prosecution, [courts] are
required by 42 U.S.C. § 1988 to turn to state law--in this case
New York state law--for such rules.’”) (quoting Conway v. Vill. of
Mount Kisco, 750 F.2d 205, 214 (2d Cir. 1984)) (alteration in
original).
prove
[his]
Under New York law, a plaintiff is not “require[d] to
innocence,”
but
rather
to
“demonstrate
termination that is not inconsistent with innocence.”
a
final
Clark, 2015
WL 5719612, at *9 (alteration in original) (internal quotation
marks and citation omitted); see also Smalls v. City of N.Y., 181
F. Supp. 3d 178, 188 (E.D.N.Y. 2016) (“[T]he reversal need not
affirmatively demonstrate the accused’s innocence.”).
Further,
“any final termination of a criminal proceeding in favor of the
accused,
such
that
the
proceeding
cannot
qualifies as a favorable termination . . . .”
be
brought
again,
Poventud, 750 F.3d
at 131 (quoting Smith-Hunter v. Harvey, 95 N.Y.2d 191, 195, 734
N.E.2d 750, 753, 712 N.Y.S.2d 438 (2002)).
When charges are
dismissed in the interests of justice, the New York Court of
66
Appeals has declined to establish a per se rule, but rather
directed courts to consider “‘whether, under the circumstances of
each case, the disposition was inconsistent with the innocence of
the accused.’” Genovese, 128 F. Supp. 3d at 672 (quoting Cantalino
v. Danner, 96 N.Y.2d 391, 396, 754 N.E.2d 164, 168, 729 N.Y.S.2d
405 (2001)).
Moreover, when a prosecutor formally or voluntarily
abandons the charges, the abandonment “can constitute a favorable
termination, as long as the abandonment did not result from a
compromise, an act of mercy requested by or accepted by the
accused, or misconduct by the accused.”
Clark, 2015 WL 5719612,
at *10.
In light of the particular circumstances in this case,
the Court finds that the disposition of the charges against
Plaintiff
constitute
a
favorable
termination.
Plaintiff’s
convictions were vacated by the Appellate Division based upon newly
discovered evidence presented by Plaintiff at the 440.10 Hearing.
Tankleff, 49 A.D.3d at 162, 848 N.Y.S.2d at 288.
Subsequently,
the Attorney General moved to dismiss the indictments in the
interests of justice.
Docket Entry 184-46.)
(N.Y.S. Mot. to Dismiss, Pl.’s Ex. 40,
The Attorney General moved to dismiss the
indictments for several reasons, including changes in the law, the
passage of time, and “evidence of problematic conduct” by Detective
McCready.
(N.Y.S. Mot. to Dismiss at 5.)
However, relevant to
this inquiry, the Attorney General also moved to dismiss because
67
“there is no biological or physical evidence strongly linking the
defendant to the crimes, even after a renewed set of forensic tests
using the most up-to-date technology,” and “there is some evidence
that others may have committed the killings.”
Dismiss at 5.)
(N.Y.S. Mot. to
The Attorney General’s investigation also led to
the discovery of a “previously unnoticed bloody imprint” of a knife
on the bed sheets in the master bedroom which did not match the
Watermelon Knife or any other knife in the home.
Dismiss at 5-6.)
(N.Y.S. Mot. to
Because the indictments were dismissed in part
based on evidence that tends to show that another individual was
responsible, the disposition is not inconsistent with Plaintiff’s
innocence.
See Genovese, 128 F. Supp. 3d at 672.
Moreover, the
charges cannot be brought again and the abandonment of the charges
was not the result of a compromise with Plaintiff.
See Poventud,
750 F.3d at 131; Clark, 2015 WL 5719612, at *10.
The favorable
termination element of Plaintiff’s malicious prosecution claims is
satisfied.
See Clark, 2015 WL 5719612, at *10 (holding that the
prosecutor’s abandonment of the charges based on “evidence that
could or would be elicited and explored at trial” was a favorable
termination); Smalls, 181 F. Supp. 3d 178, 188 (holding that
criminal proceedings terminated favorably based on reversal of
conviction by Appellate Division).
Further,
terminated
in
his
because
favor,
the
charges
Plaintiff’s
68
against
Section
1983
Plaintiff
malicious
prosecution claim is not barred by Heck. As discussed, Plaintiff’s
conviction was vacated by “a state tribunal authorized to make
such determination.”
See Heck, 512 U.S. at 486-87, 114 S. Ct.
2364, 2372, 129 L. Ed. 2d 383.
Additionally, the proceedings
ultimately terminated in Plaintiff’s favor when the indictments
were dismissed.54
See Spak, 857 F.3d at 464 (“So long as a
particular prosecution has been ‘conclusively’ terminated in favor
of the accused, such that the underlying indictment or criminal
information has been vacated and cannot be revived, then the
plaintiff has a justiciable claim for malicious prosecution.”).
B.
Probable Cause
“Although
the
existence
of
probable
cause
must
be
determined with reference to the facts of each case,” Manganiello,
612 F.3d at 161, generally, there is probable cause when “knowledge
Relying on DeBlasio v. City of N.Y., 102 F.3d 654 (2d Cir.
1996), the Court previously suggested that Plaintiff may be
required to make a stronger showing of his innocence to overcome
Heck’s bar. In DeBlasio, the Second Circuit held that
DeBlasio’s malicious prosecution claim was barred by Heck
because while his original conviction was vacated pursuant to a
writ of habeas corpus, he was retried and convicted on a lesser
charge. DeBlasio, 102 F.3d at 655. The Second Circuit further
held that the proceeding terminated when he was convicted on the
lesser charge and not when the writ of habeas corpus was issued,
because the writ could not be considered an “indication of
innocence.” Id. at 658. To the extent that federal common law
requires a plaintiff alleging malicious prosecution to
“demonstrate that the outstanding conviction has been
conclusively invalidated in a manner that demonstrates his
innocence,” the Court finds that, based on its review of the
record, Plaintiff has made such a showing. Spak, 857 F.3d at
465.
54
69
of facts, actual or apparent, [is] strong enough to justify a
reasonable man in the belief that he has lawful grounds for
prosecuting the defendant in the manner complained of.”
Riccio v.
New York, 859 F. Supp. 2d 480, 486 (E.D.N.Y. 2012) (quoting Genia
v. N.Y. State Troopers, No. 03-CV-0870, 2007 WL 869594, at *12
(E.D.N.Y. Mar. 20, 2007)); see also Thomsen, 2016 WL 590235, at *7
(“The probable cause standard in the malicious prosecution context
is
slightly
higher
cases . . . Probable
prosecution,
has
than
the
cause,
. . .
been
in
standard
the
for
context
described
as
false
of
such
arrest
malicious
facts
and
circumstances as would lead a reasonably prudent person to believe
the plaintiff guilty.”) (internal quotation marks and citation
omitted) (alteration in original).
In New York, “the existence of
probable cause is a complete defense to a claim of malicious
prosecution . . . .”
Cir. 2003).
Savino v. City of N.Y., 331 F.3d 63, 72 (2d
Moreover, “indictment by a grand jury creates a
presumption of probable cause that may only be rebutted by evidence
that
the
indictment
was
procured
by
‘fraud,
perjury,
the
suppression of evidence or other police conduct undertaken in bad
faith.’”
Savino, 331 F.3d at 72 (quoting Colon, 60 N.Y.2d at 83,
455 N.E.2d at 1251) (emphasis in original)).
See also Bernard v.
United States, 25 F.3d 98, 104 (2d Cir. 1994).
Plaintiff “bears
the burden of proof in rebutting the presumption, and he must do
so with more than mere conjecture and surmise that his indictment
70
was procured as a result of conduct undertaken by the defendants
in bad faith.”
Reid v. City of N.Y., No. 00-CV-5164, 2004 WL
626228, at *7 (S.D.N.Y. Mar. 29, 2004), R&R adopted by, 2004 WL
1488194 (S.D.N.Y. July 1, 2004)) (quoting Savino, 331 F.3d at 73)
(internal quotation marks omitted).
Further, the failure to take
certain investigative steps is “not the equivalent of fraud or the
suppression of evidence.”
Colon, 60 N.Y. 2d at 78, 455 N.E.2d at
1251, 468 N.Y.S.2d at 456.
The Second Circuit has held that “‘even when probable
cause is present at the time of the arrest, evidence could later
surface which would eliminate that probable cause.’”
Lowth v.
Town of Cheektowaga, 82 F.3d 563, 571 (2d Cir. 1996) (quoting Cox
v. Cty. of Suffolk, 780 F. Supp. 103, 108 (E.D.N.Y. 1991)).
However,
“‘[i]n
order
for
probable
cause
to
dissipate,
the
groundless nature of the charges must be made apparent by the
discovery of some intervening fact.’”
Fappiano v. City of N.Y.,
No. 01-CV-2476, 2015 WL 94190, at *13 (E.D.N.Y. Jan. 7, 2015),
aff’d 640 F. App’x 115 (2d Cir. 2016) (quoting Lowth, 82 F.3d at
571).
The Court finds that the record is rife with factual
disputes related to whether there was probable cause to initiate
or
continue
the
prosecution
of
Plaintiff.
In
particular,
Defendants conceded for the purposes of this motion that there are
issues of fact as to whether the confession was fabricated.
71
(Defs.’ Mem. at 1 n.1.)
If the confession was fabricated, that
alone could be sufficient to rebut the presumption of probable
cause.
Morel v. Reed, Nos. 11-CV-1808, 12-CV-5145, 2015 WL
3755976, at *4 (E.D.N.Y. June 16, 2015) (“When law enforcement
officers fabricate evidence . . . the presumption of probable cause
created by the indictment [is] overcome . . . .”).
Further, a
reasonable jury could find that probable cause dissipated after
Plaintiff was indicted, based on, inter alia, forensic analysis
which showed that there was no blood on the purported murder
weapons or in the shower, traps, and drains, as well as Steuerman’s
suspicious behavior.55
Defendants are also not entitled to summary judgment
based
on
Plaintiff’s
qualified
immunity.
statements
were
If,
as
coerced
Plaintiff
and
the
maintains,
prosecution
was
initiated based on a confession fabricated by Defendants, the
factfinder could conclude that no reasonable officer would believe
that there was probable cause to prosecute.
See Smalls, 181 F.
Supp. 3d at 189 (“Officers who knowingly lie are not protected by
qualified immunity.”); Clark, 2015 WL 5719612, at *7 (denying
Defendants argue that these claims should be dismissed based
on the Court’s prior determination that there was probable cause
to arrest Plaintiff. (Defs.’ Mem. at 21-23.) However, this
argument fails to consider that probable cause to arrest and
probable cause to initiate and continue a prosecution are
different standards and analyzing whether each standard is met
can involve examining different facts.
See Thomsen, 2016 WL
590235, at *7.
55
72
summary judgment on qualified immunity grounds due to factual
dispute as to the existence of probable cause).
Dismissal on
qualified immunity grounds is not appropriate at this time.
See
Deskovic, 894 F. Supp. 2d at 461-62 (denying motion for summary
judgment on qualified immunity grounds in light of allegations of
fabrication and coercion when “a reasonable jury could find that
officers of reasonable competence would agree that there was not
probable cause to prosecute [plaintiff], given the exculpatory DNA
results and general lack of other evidence”).
Therefore, Defendants’ motion for summary judgment on
the Section 1983 and state law malicious prosecution claims is
DENIED.
IV.
Suppression Claim
Defendants
argue
that
they
are
entitled
to
summary
judgment on the suppression claim because there is no evidence
that Dr. Adams told any detective that he believed the Watermelon
Knife was not the murder weapon.
(Defs.’ Mem. at 28.)
Defendants
also contend that Plaintiff cannot establish that any detective
learned this information, or identify which detective learned it
and allegedly withheld it from prosecutors.56
(Defs.’ Mem. at 29.)
Defendants have submitted affidavits in which Detective
McCready, Detective Carmody, Detective Kosciuk, and Detective
Rein deny being present at Arlene’s autopsy. Sergeant Doyle
does not recall if he was at Arlene’s autopsy. (Pl.’s 56.1
Counterstmt. ¶ 102; McCready Aff., Defs.’ Ex. FFF, ¶ 9; Doyle
Aff., Defs.’ Ex. DDD, ¶ 9; Carmody Aff., Defs.’ Ex. CCC, at ¶ 9;
56
73
Further, Defendants argue that even if one of the detectives did
become aware of Dr. Adams’ conclusion, the failure to disclose did
not violate Brady because defense counsel “either knew, or should
have known, of the essential facts permitting him to take advantage
of that exculpatory evidence.”
(Defs.’ Mem. at 32.)
Finally,
Defendants maintain that this claim is barred by the statute of
limitations.
(Defs.’ Mem. at 32-33.)
Plaintiff responds that there is an issue of material
fact as to whether Dr. Adams communicated his conclusion to
detectives.
(Pl.’s Opp. at 32.)
He argues that the evidence in
the record establishes that it was the department’s practice to
have a detective present at the autopsy, and handwriting on what
appears to be a diagram of the wounds on Arlene’s back has been
attributed to Detective Rein.
(Pl.’s Opp. at 32.)
Plaintiff
points out that when Dr. Adams was shown that diagram during his
deposition, he stated that it appeared to be drawn by an individual
who was present at the autopsy.
(Pl.’s Opp. at 32.)
Moreover,
Plaintiff contends that “many Defendants themselves confirmed that
they knew that the [W]atermelon [K]nife was not used in the crime”
during
the
reinvestigation
(Pl.’s Opp. at 33.)
by
the
Attorney
General’s
Office.
Plaintiff also disputes that his defense
counsel could have obtained this information and argues that his
Kosciuk Aff., Defs.’ Ex. EEE, ¶ 10; Rein Aff., Defs.’ Ex. GGG,
at ¶ 9.)
74
defense
counsel
should
not
be
faulted
for
relying
on
the
representation of prosecutors that all exculpatory evidence had
been disclosed.
the
Court
(Pl.’s Opp. at 34-35.)
should
not
permit
Further, he argues that
Defendants’
“blame
the
defense
rationale to absolve the government of its Brady obligations.”
(Pl.’s Opp. at 35 (internal quotation marks omitted).)
Plaintiff
contends that based on the evidence in the record, “a jury could
conclude that Defendants knew of, and withheld, Brady evidence.”
(Pl.’s Opp. at 38.)
Finally, Plaintiff argues that this claim is
timely under the relation back doctrine and claims that Defendants
had adequate notice because the original Complaint included a
suppression of evidence claim.
In
Brady
v.
(Pl.’s Opp. at 38-39.)
Maryland,
the
Supreme
Court
held
that
“suppression by the prosecution of evidence favorable to the
accused upon request violates due process where the evidence is
material either to guilt or to punishment, irrespective of the
good faith or bad faith of the prosecution.”
373 U.S. 83, 87, 83
S. Ct. 1194, 1196-97, 10 L. Ed. 2d 215 (1963). Because withholding
exculpatory evidence violates the accused’s right to a fair trial,
a Brady violation may form the basis for a Section 1983 claim.
See Fappiano, 640 F. App’x at 118.
To prevail on a Section 1983
claim on a Brady theory, (1) “[t]he evidence at issue must be
favorable to the accused, either because it is exculpatory, or
because it is impeaching” (2) “th[e] evidence must have been
75
suppressed by the State, either willfully or inadvertently,” and
(3) “prejudice must have ensued.”
Poventud, 750 F.3d at 133
(quoting United States v. Rivas, 377 F.3d 195, 199 (2d Cir. 2004))
(internal quotation marks omitted).
To evaluate prejudice, the
courts should consider materiality, that is, whether there is a
“reasonable
probability
of
a
different
result”
based
on
the
allegedly suppressed evidence and “whether in its absence [the
plaintiff] received a fair trial.” Id. (quoting Leka v. Portuondo,
257 F.3d 89, 104 (2d Cir. 2001)).
Officers may be liable on a
Brady theory only when they commit such violations intentionally.
See Fappiano, 640 F. App’x at 118.
Moreover, “[e]vidence is not
suppressed if the defendant either knew, or should have known, of
the essential facts permitting him to take advantage of the
exculpatory evidence.”
United States v. Taylor, 17 F. Supp. 3d
162, 177 (E.D.N.Y. 2014) (quoting United States v. Guerrero, 959
F. Supp. 2d 523, 531 (S.D.N.Y. 2013) (internal quotation marks
omitted).
The Court finds that there are issues of material fact
that preclude summary judgment on this claim.
At a minimum,
whether Dr. Adams ever disclosed his opinion to Defendants is an
issue of material fact.
Dr. Adams testified during his deposition
that he “must have communicated” his conclusion in “some sense”
and it was a “reasonable supposition” that he did so during the
76
autopsy.57
(Adams. Dep. Tr. 192:22-193:21.)
Combined with the
testimony from several witnesses regarding the department’s custom
of having a detective present at all autopsies, the diagram
allegedly drawn by Detective Rein, Detective Carmody’s notes from
a meeting with Dr. Adams indicating a “clear knife issue,” and the
subsequent statements of Detective Rein, Sergeant Doyle, Detective
Kosciuk, and Detective Pfalzgraf that they did not believe the
Watermelon Knife was the weapon, Plaintiff has presented enough
evidence to defeat summary judgment.
(Pl.’s 56.1 Counterstmt.
¶¶ 93-95, 122, 123-27.)
Wisely,
Defendants
do
not
dispute
that
Dr.
Adams’
conclusion is material, but instead argue that Plaintiff’s defense
counsel could have or should have discovered this information
independently.
no
reason
to
The Court is not persuaded.
believe
that
there
was
Defense counsel had
exculpatory
information
regarding the murder weapon beyond what was documented in the
autopsy and forensic reports received from the prosecutor.
See
United States v. Payne, 63 F.3d 1200, 1209 (2d Cir. 1995) (holding
Defendants claim that Dr. Adams testified that “he could have
said something about the knife, or he could have said nothing,”
but this characterization is misleading. (Defs.’ Mem. at 29
(internal quotation marks omitted).) In response to a question
regarding what he would have said to detectives, he testified:
“I could have said that or I could have said nothing, and then
they bring in the [W]atermelon [K]nife and I could have said, I
don’t like that very much for these wounds.” (Adams. Dep. Tr.
191:18-21.)
57
77
that failure to disclose affidavit that was available in a public
court records was suppressed within the meaning of Brady because
there was “no indication that Payne’s counsel was aware of facts
that would have required him to discover the affidavit through his
own diligent investigation”).
In his opening statement, the
prosecutor himself said that the Tankleffs’ injuries were not
inconsistent with having been caused by the Watermelon Knife.
(Trial Tr. (Opening), Defs.’ Ex. B, 27:20-28:9.) To expect defense
counsel to infer that there was information contrary to that
representation before trial, or to cross-examine Dr. Adams on this
issue during trial, would be inconsistent with Brady’s mandate.
Accordingly, the Court declines to dismiss the claim on these
grounds.
Finally, Plaintiff’s suppression claim is timely under
the relation back doctrine.
Federal Rule of Civil Procedure 15
provides that “[a]n amendment to a pleading relates back to the
date of the original pleading when . . . the amendment asserts a
claim or defense that arose out of the conduct, transaction, or
occurrence set out--or attempted to be set out--in the original
pleading.”
See FED. R. CIV. P. 15(c)(1)(B); see also Slayton v.
Am. Express Co., 460 F.3d 215, 228 (2d Cir. 2006).
Further, “the
‘central inquiry is whether adequate notice of the matters raised
in the amended pleading has been given to the opposing party within
the statute of limitations by the general fact situation alleged
78
in the original pleading.’”
Slayton, 460 F.3d at 228 (quoting
Stevelman v. Alias Research Inc., 174 F.3d 79, 86 (2d Cir. 1999)).
In
the
Complaint,
Plaintiff
asserted
a
claim
for
suppression of evidence, alleging that “Defendants McCready and
Rein knowingly and deliberately chose not to document or disclose
to the prosecutors information that was favorable and material to
Mr. Tankleff’s defense, including, without limitation, the truth
about how they elicited the so-called confession . . . .”
¶ 160 (emphasis supplied).)
(Compl.
The Brady claim in the Amended
Complaint alleges that Defendants withheld information regarding
one
piece
of
evidence--the
Watermelon
Knife--with
greater
specificity, but the nature of the conduct is similar to the
conduct alleged in Count IV of the original Complaint.
See Triano
v. Town of Harrison, N.Y., 895 F. Supp. 2d 526, 530 n.3 (S.D.N.Y.
2012) (holding that Monell claim related back to claim against
officer in original complaint because both claims arose “from the
alleged
violations
of
[plaintiff’s]
constitutional
[officer] during [p]laintiff’s arrest”).
rights
by
Thus, Defendants were on
notice of alleged Brady violations when the original Complaint was
filed.
That this claim was dismissed in a subsequent order does
not change the result because Defendants were given notice of
similar allegations during the statute of limitations period.
Slayton, 460 F.3d at 228.
79
Therefore, Defendants’ motion for summary judgment on
the suppression claim is DENIED.
CONCLUSION
Defendants’ motion for summary judgment (Docket Entry
180) is DENIED, and the case will proceed to trial.
Because no
claims remain against Lieutenant McElhone, the Clerk of the Court
is directed to TERMINATE Lieutenant McElhone as a defendant in
this action.
See supra note 2.
As to Plaintiff’s request for a
pre-trial conference (Docket Entry 190), the parties are directed
to file a joint proposed pre-trial order on or before September 8,
2017.
The parties are further directed to appear for a pre-trial
conference with Judge Shields on September 11, 2017 at 10:30 a.m.
SO ORDERED.
/s/ JOANNA SEYBERT
Joanna Seybert, U.S.D.J.
Dated:
June 23 , 2017
Central Islip, New York
80
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