Battisti v. Rice et al
Filing
61
MEMORANDUM & ORDER granting 52 Motion for Summary Judgment; The County Defendants motion for summary judgment (Docket Entry 52) is GRANTED and Plaintiff's claims are DISMISSED WITH PREJUDICE. To the extent the County Defendants' cross -claims against Gersbeck relate to the claims dismissed herein, their cross-claims are also DISMISSED WITH PREJUDICE. Additionally, Plaintiff's claim against Gersbeck is DISMISSED WITH PREJUDICE. The Clerk of the Court is directed to enter judgment accordingly and mark this case CLOSED. So Ordered by Judge Joanna Seybert on 1/9/2017. C/ECF; C/M (Valle, Christine)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------------X
ANTHONY BATTISTI,
Plaintiff,
MEMORANDUM & ORDER
10-CV-4139(JS)(AYS)
-against–
KATHLEEN RICE, ADA MICHAEL CANTY,
ADA CAROLYN KELLY, ADAs JOHN DOE 1-5,
DETECTIVE JASON GAERTNER, SERGEANT
ROBERT GALGANO, OFFICERS JOHN DOE 1-5,
THE COUNTY OF NASSAU, and TIMOTHY
GERSBECK,
Defendants.1
-------------------------------------X
APPEARANCES
For Plaintiff:
Neil S. Torczyner, Esq.
Steven J. Harfenist, Esq.
Harfenist Kraut & Perlstein, LLP
3000 Marcus Avenue, 2d Floor East
Lake Success, New York 11042
For the County
Defendants:
Donna A. Napolitano, Esq.
Daniel James Evers, Esq.
Berkman, Henoch, Peterson,
Peddy & Fenchel, P.C.
100 Garden City Plaza
Garden City, New York 11530
Liora M. Ben-Sorek, Esq.
Nassau County Attorney’s Office
One West Street
Mineola, NY 11501
The Clerk of the Court is directed to TERMINATE Kathleen Rice
and the County of Nassau as parties to this action. On
November 16, 2016, the claims against these Defendants were
voluntarily dismissed. (Stip. & Order, Docket Entry 58.)
1
For Timothy
Gersbeck:
Timothy Gersbeck, pro se2
54 Balsam Lane
Levittown, NY 11756
SEYBERT, District Judge:
This case involves claims for false arrest and malicious
prosecution by Plaintiff Anthony Battisti (“Plaintiff”) against
Defendants
Assistant
District
Attorney
Michael
Canty
(“ADA
Canty”), Assistant District Attorney Carolyn Kelly (“ADA Kelly”),
Detective Jason Gaertner (“Detective Gaertner”), Sergeant Robert
Galgano
(“Sergeant
Defendants”),
and
Galgano”)
Timothy
(collectively
Gersbeck
the
(“Gersbeck”).
“County
Currently
pending before the Court is the County Defendants’ motion for
summary judgment.
(Defs.’ Mot., Docket Entry 52.)
For the
following reasons, the County Defendants’ motion is GRANTED.
BACKGROUND
I.
Factual Background3
A.
The Assault and Preliminary Investigation
On
January
23,
2009,
Plaintiff’s
ex-wife,
Patricia
Battisti, was assaulted outside her home in Franklin Square, New
The County Defendants notified the Court that Mr. Gersbeck’s
address has changed. The Clerk of the Court is directed to
update his address as indicated above.
2
The following material facts are drawn from the County
Defendants’ Local Civil Rule 56.1 Statement and Plaintiff’s
Local Civil Rule 56.1 Counterstatement. Any relevant factual
disputes are noted. All internal quotation marks and citations
have been omitted.
3
2
York.
(Defs.’ 56.1 Stmt., Docket Entry 52-2, ¶¶ 35, 38, 51.)
After the attack, Detective Gaertner, a detective with the Nassau
County Police Department, arrived at the scene. (Defs.’ 56.1 Stmt.
¶ 35.) He learned that the suspected assailant, Gersbeck, had been
apprehended by two men after he fled the scene of the assault.
(Defs.’ 56.1 Stmt. ¶ 36.)
Dashner
and
Sergeant
At least two people at the scene, Brian
Joseph
Pizzimenti,
heard
Gersbeck
say
something to the effect of “You should go back to the house before
someone finishes the job” and “I was hired by Tony.”
(Defs.’ 56.1
Stmt. ¶ 37; Supporting Dep., Defs.’ Ex. C, Docket Entry 52-6, at 2;
Pizzimenti Crim. Tr., Defs.’ Ex. PPP, Docket Entry 52-71, 1226:1020.)4
After Gersbeck was arrested, Detective Gaertner searched
the area and directed officers to call the Crime Scene Unit to
gather evidence. (Defs.’ 56.1 Stmt. ¶¶ 40-42.) Detective Gaertner
discovered two blue latex gloves on the path Gersbeck took to flee
the scene.
(Defs.’ 56.1 Stmt. ¶ 43.)
Detective Gaertner also
instructed that a black Jeep belonging to Gersbeck be impounded to
preserve any evidence inside.
(Defs.’ 56.1 Stmt. ¶ 45.)
At some
point during the preliminary stages of the investigation, Sergeant
With the exception of transcripts, the Court will use the
pagination assigned by the Electronic Case Filing System when
referring to the exhibits. The Court will refer to deposition
transcripts (“Dep. Tr.”), trial testimony (“Crim. Tr.”) and
testimony at administrative proceedings (“Admin. Tr.”) by the
transcript page and line number.
4
3
Galgano arrived, although the parties dispute whether he provided
any direction to Detective Gaertner or others regarding the conduct
of
the
investigation.
(Defs.’
56.1
Stmt.
¶
44;
Pl.’s
56.1
Counterstmt., Docket Entry 54-1, ¶ 44.)
Next, Detective Gaertner, Sergeant Galgano, and another
officer went to Winthrop Hospital to speak to Ms. Battisti and
photograph a wound she suffered to her neck.
¶ 46.)
(Defs.’ 56.1 Stmt.
Ms. Battisti stated that she was opening the front door of
her home after a shopping trip when “an unknown male put his hand
around her mouth, stabbed her in the back of her neck with a sharp
instrument, told her that ‘if you tell anyone, I’ll kill your son
and daughter,’ pushed her to the ground and ran away.”
56.1 Stmt. ¶ 47.)
Timothy Gersbeck.
(Defs.’
Afterward, she identified the individual as
(Defs.’ 56.1 Stmt. ¶ 47.)
When they returned
to the scene, “a sharpened screwdriver was found inside a pair of
white latex gloves” near where Gersbeck was apprehended, which was
later determined to be the weapon used in the attack.
(Defs.’
56.1 Stmt. ¶¶ 48-49.)
B.
Gersbeck’s Initial Statements
Gersbeck
was
taken
to
the
police
precinct
for
questioning and gave a statement to Detective Ronald Rispoli
(“Detective Rispoli”).
(Defs.’ 56.1 Stmt. ¶¶ 51-52.)
Gersbeck
admitted that he “put stuff out of order,” and the statement went
through between six and eight drafts.
4
(Pl.’s 56.1 Counterstmt.
¶ 52; Gersbeck Dep. Tr., Defs.’ Ex. CCC, Docket Entry 52-58, 19:2020:3.)
The County Defendants allege that several drafts were
prepared because “Gersbeck kept talking, told Rispoli things out
of order/context, left some information out, and kept remembering
other details.”
(Defs.’ 56.1 Stmt. ¶ 53.)
The parties dispute
whether Gersbeck read the final statement before signing it.
(Defs.’ 56.1 Stmt. ¶ 52; Pl.’s 56.1 Counterstmt. ¶ 52.) Afterward,
Detective Gaertner reviewed the statement and spoke with Gersbeck
as part of the investigation, including to obtain Gersbeck’s
consent to search his impounded Jeep and cell phone.
Stmt. ¶¶ 54, 56.)
(Defs.’ 56.1
During this time, Plaintiff’s attorney called
Sergeant Galgano and asked if Plaintiff should report to the
precinct, and he responded that it was not necessary for several
reasons,
including
because
“the
investigation
was
in
the
preliminary stages . . . and there was not enough at that point to
look at Plaintiff as a suspect or take him into custody.”
(Defs.’
56.1 Stmt. ¶ 58.)
On
January
24,
2009
at
approximately
4:00
a.m.,
Detective Rispoli and Detective Gaertner took Gersbeck to the
Nassau
County
District
Attorney’s
Office
(“NCDAO”)
for
a
videotaped statement. (Defs.’ 56.1 Stmt. ¶ 59.) The parties agree
that at this point, Gersbeck had “been up for about twenty-four
hours with no sleep and was confused and nervous.”
Stmt. ¶ 60; Pl.’s 56.1 Counterstmt. ¶ 60.)
5
(Defs.’ 56.1
Gersbeck said that he
met Plaintiff in 2002 or 2003 when they worked together at a
container company and they “became friends because they both were
interested in racing stock cars.”5
(Defs.’ 56.1 Stmt. ¶ 63.)
He
said that Plaintiff was an officer with the New York City Police
Department (“NYPD”) and began talking about killing his ex-wife
because he did not want to continue to make child support payments
of approximately $3,000 a month.
67.)
(Defs.’ 56.1 Stmt. ¶¶ 64, 65,
Gersbeck said Plaintiff specifically asked him in 2008 if he
would kill Ms. Battisti if Plaintiff paid him.
¶ 68.)
(Defs.’ 56.1 Stmt.
He also stated that when he was incarcerated in Nassau
County Correctional Center in 2007, Plaintiff visited him and told
him that if Gersbeck did not formulate a plan to kill Ms. Battisti,
Plaintiff would make sure he remained in jail.
¶¶ 66, 119.)
(Defs.’ 56.1 Stmt.
He said that Plaintiff “got rid” of several traffic
tickets for him, which Plaintiff later used as leverage to try to
get him to kill Ms. Battisti.
(Defs.’ 56.1 Stmt. ¶¶ 69-70.)
Plaintiff objects to the Court’s consideration of Gersbeck’s
statements to the NCDAO on hearsay grounds. (See Pl.’s
Counterstmt. ¶¶ 63-110.) However, they are not being offered to
“prove the truth of the matter asserted.” FED. R. EVID.
801(c)(2). As set forth more fully infra, the statements are
being offered to show the information ascertained by the County
Defendants during the investigation which formed the basis for
the determination of probable cause. See, e.g., Sandor v. Safe
Horizon, Inc., No. 08-CV-4636, 2011 WL 115295, at *7 (E.D.N.Y.
Jan. 13, 2011) (holding that statements offered to show the
information available to managers when they decided not to
promote plaintiff which demonstrated their state of mind were
not hearsay in employment discrimination case). Accordingly,
Plaintiff’s objections are disregarded.
5
6
During 2008 and 2009, he said that Plaintiff mentioned
killing Ms. Battisti approximately fifty times, and on a few
occasions, discussed methods of killing Ms. Battisti at either
Plaintiff’s mother’s house or the Franklin Square Fire Department
firehouse.
(Defs.’ 56.1 Stmt. ¶¶ 72, 74, 75.)
Gersbeck stated
that, on one occasion, Plaintiff told him he had a shotgun Gersbeck
could use to kill Ms. Battisti. (Defs.’ 56.1 Stmt. ¶ 76.) Gersbeck
said that Plaintiff offered him $5,000 to kill Ms. Battisti, and
that in March 2008, Plaintiff made several payments to him in cash
totaling $2,500 as partial payment for killing her.
Stmt. ¶¶ 79-80.)
(Defs.’ 56.1
Gersbeck said that Plaintiff received the money
from his cousin, the owner of Royal Carting Company. (Defs.’ Stmt.
¶ 80.) After he received the money, Gersbeck stated that Plaintiff
began harassing him to kill Ms. Battisti, but Plaintiff was
“stalling and just wanted to give the money back.”
Stmt. ¶ 82.)
(Defs.’ 56.1
When he tried to give it back, he said that Plaintiff
would not let him, and told him that he would get Gersbeck’s
warrants and tickets reinstated.
(Defs.’ 56.1 Stmt. ¶¶ 83-84.)
Later, in September 2008, Gersbeck said Plaintiff “got
really serious about killing [her]” after Ms. Battisti sought
reimbursement for $4,000 to $5,000 in medical expenses for the
couple’s
children.
(Defs.’
56.1
Stmt.
¶¶
85-86.)
Around
Christmas, Gersbeck saw Ms. Battisti at a gas station in her
neighborhood, and he followed her home with the intention of
7
killing her.
(Defs.’ 56.1 Stmt. ¶ 90.)
However, he saw an
ambulance in the neighborhood and noticed that the volunteer fire
department
(including
Plaintiff)
was
arriving
on
the
scene.
(Defs.’ 56.1 Stmt. ¶¶ 90-91.) Gersbeck said that he told Plaintiff
he was going to kill Ms. Battisti, but Plaintiff told him to leave
and asked him to meet at the firehouse later; when they met,
Plaintiff allegedly made an additional $300 payment for the murder.
(Defs.’ 56.1 Stmt. ¶ 91.)
Gersbeck said that about a week and a half before the
attack, he met Plaintiff at the fire house to discuss killing Ms.
Battisti, and Plaintiff indicated that he wanted to “get it done.”
(Defs.’ 56.1 Stmt. ¶¶ 92-93; Gersbeck Video Stmt., Defs.’ Ex. H,
Docket Entry 52-11, at 7.)
Gersbeck also mentioned that he saw a
“blonde female police officer” at the firehouse during the meeting
with Plaintiff.
(Defs.’ 56.1 Stmt. ¶ 113.)
On January 23, 2009, Gersbeck said that Plaintiff called
him and asked if they were “on” for that day.
¶ 95.)
(Defs.’ 56.1 Stmt.
When Gersbeck asked what he meant, he said that Plaintiff
stated that he was going upstate with his children and Ms. Battisti
would be home alone.
(Defs.’ 56.1 Stmt. ¶ 95.)
Later that
afternoon, Gersbeck said that Plaintiff called him to tell him to
wait until after 7:00 p.m. to go to Ms. Battisti’s home because he
was leaving later than expected to travel upstate.
Stmt. ¶ 96.)
(Defs.’ 56.1
Gersbeck told Plaintiff he needed money for gas, and
8
Plaintiff told him he would leave $20 outside his mother’s house,
which according to Gersbeck, he never retrieved.
(Defs.’ 56.1
Stmt. ¶ 97.)
Gersbeck stated that he arrived at Ms. Battisti’s home
around 5:45 p.m. and waited for her to come home. (Defs.’ 56.1
Stmt. ¶¶ 98-99.)
When she arrived, Gersbeck put on a pair of blue
surgical gloves and approached her while she was walking to the
front door.
(Defs.’ 56.1 Stmt. ¶¶ 101-02.)
After he came up
behind her, he “accidentally stepped on her leg and caused her to
fall into the front door” and after the front door opened, she
fell onto the floor.6
(Defs.’ 56.1 Stmt. ¶ 102.)
At this point,
Gersbeck said he became scared and started to run away, and as he
was running, he took off the blue gloves and dropped them. (Defs.’
56.1 Stmt. ¶¶ 103-04.)
Gersbeck also explained that at that time,
he was carrying a small screwdriver in a pair of white surgical
gloves in his pocket that were given to him by Plaintiff.
56.1 Stmt. ¶ 105.)
(Defs.’
Gersbeck maintained that he had left the
screwdriver inside the gloves in the console of his car since
The transcript of the 911 call indicates that Ms. Battisti told
the dispatcher that “someone stabbed [her] in the back of the
neck,” and that he said “he was going to kill [her] son and
daughter.” (Defs.’ 56.1 Stmt. ¶ 130; Pl.’s 56.1 Counterstmt.
¶ 130; Defs.’ Ex. T, Docket Entry 52-23, at 1-4.) When the
dispatcher asked if she knew the attacker, she said “I don’t
know my ex-husband probably could of sent someone here.”
(Defs.’ 56.1 Stmt. ¶ 130; Pl.’s 56.1 Counterstmt. ¶ 130; 911
Transcript, Defs.’ Ex. T, Docket Entry 52-23, at 1-4.)
6
9
receiving it from Plaintiff approximately four months earlier.
(Defs.’ 56.1 Stmt. ¶ 105.) He also stated that Plaintiff sharpened
the screwdriver and placed it inside the gloves, and he never
removed the screwdriver from the gloves during the months it was
in his car.
(Defs.’ 56.1 Stmt. ¶¶ 106-07.)
He claimed that when
he approached Ms. Battisti he “never took the screwdriver out of
his pocket, did not have any weapon in his hand, never put the
screwdriver to her neck, and was just going to scare her.” (Defs.’
56.1 Stmt. ¶ 108.)
Gersbeck subsequently testified that he told
the truth when gave the statement to Detective Rispoli and during
the videotaped confession.
(Defs.’ 56.1 Stmt. ¶ 62; Gersbeck Dep.
Tr. 113:18-23.)
Gersbeck was charged and arraigned for Attempted Murder
in the Second Degree, Criminal Possession of a Weapon in the Third
Degree, and Petit Larceny.
C.
(Defs.’ 56.1 Stmt. ¶ 114.)
The Investigation and Indictments
Detective Gaertner attempted to verify the information
provided by Gersbeck.
Along with Detective Galgano and Detective
Gregory Celantano (“Detective Celantano”), he went to Plaintiff’s
mother’s home and discovered “a $20 bill under a Belgium block at
the top of the driveway,” which was photographed and taken into
evidence. (Defs.’ 56.1 Stmt. ¶ 116.) Detective Gaertner confirmed
that the owners of Royal Carting Company, from whom Plaintiff
allegedly obtained Gersbeck’s fee, were Plaintiff’s relatives.
10
(Defs.’ 56.1 Stmt. ¶ 117.)
He learned that Plaintiff visited
Gersbeck while he was incarcerated at NCCC in 2007.
Stmt. ¶ 119.)
(Defs.’ 56.1
Further, video footage corroborated that Plaintiff
and Gersbeck met on January 16, 2009 at the fire house and a female
police officer was there as well.
(Defs.’ 56.1 Stmt. ¶ 120.)
Records also showed that an EZ Pass registered to Plaintiff crossed
the Throgs Neck Bridge into the Bronx at approximately 7:04 p.m.
the day of the attack and that Plaintiff had withdrawn $7,000 from
his bank account in February 2008, a month before Gersbeck claimed
to have received $2,500 from Plaintiff to kill Ms. Battisti.
(Defs.’ 56.1 Stmt. ¶¶ 80, 126, 128; Pl.’s 56.1 Counterstmt. ¶ 126.)
The parties dispute whether either the NCDAO or Detective Gaertner
confirmed that Gersbeck had previous traffic tickets which he
alleged Plaintiff threatened to reinstate if he did not kill Ms.
Battisti.
(Defs.’ 56.1 Stmt. ¶¶ 69, 143; Pl.’s Counterstmt.
¶ 143.)
Detective
Gaertner
became
aware
that
Family
Court
proceedings between Plaintiff and Ms. Battisti were initiated
during the fall of 2008, which was consistent with Gersbeck’s
earlier statement that in September 2008, Plaintiff “got really
serious about killing [her].” (Defs.’ 56.1 Stmt. ¶¶ 85, 147; Pl.’s
56.1 Counterstmt. ¶ 147; Gaertner Dep. Tr., Defs.’ Ex. DDD, Docket
Entry 52-59, 135:16-136:2.)
The NCDAO obtained cell phone records
and cell site data which confirmed that Gersbeck and Plaintiff had
11
communicated on the day of the attack around the times Gersbeck
indicated.
(Defs.’ 56.1 Stmt. ¶¶ 150-51.)
Statements were
obtained from Franklin Square volunteer firefighters regarding
conversations with Plaintiff the night of the attack, including a
statement indicating that Plaintiff told one individual that he
was upstate, when according to cell site data, he was in Queens,
and another statement indicating that after that call, he said “I
am home with the kids what do you mean” even though he already
knew about the incident at his ex-wife’s home.
¶¶ 206-07.)
(Defs.’ 56.1 Stmt.
Records from the Franklin Square Fire House also
confirmed that the Fire Department (and Plaintiff) responded to a
call on Ms. Battisti’s street on December 15, 2008, consistent
with Gersbeck’s statement that he followed Ms. Battisti home with
the intention of killing her before Christmas, but left after
speaking to Plaintiff.
(Defs.’ 56.1 Stmt. ¶¶ 90-91, 162.)
Detective Gaertner also learned additional information
about the nature of Ms. Battisti and Plaintiff’s relationship after
he accompanied Ms. Battisti to Family Court to file a family
offense petition.
(Defs.’ 56.1 Stmt. ¶ 121.)
The petition stated
that Plaintiff allegedly stalked Ms. Battisti and contacted her
regularly after she requested that he stop.
(Defs.’ 56.1 Stmt.
¶ 121; Family Offense Pet., Defs.’ Ex. N, Docket Entry 52-17,
at 1.)
It also stated that Plaintiff had threatened to kill her
in 2003 and told her he would be able to get away with it.
12
(Family
Offense Pet. at 3-4.)
of Protection.
Thereafter, Ms. Battisti filed for an Order
(Family Offense Pet. at 3-4.)
Detective Gaertner
and NCDAO subsequently received a copy of Plaintiff’s Internal
Affairs Bureau (“IAB”) file which also contained information about
allegations of domestic violence.
(Defs.’ 56.1 Stmt. ¶ 127.)
In February 2009, the NCDAO entered into a debriefing
agreement with Gersbeck and conducted several debriefing sessions
with him.
(Defs.’ 56.1 Stmt. ¶ 133.)
Detective Gaertner was
notified that the NCDAO was taking over the investigation and,
afterward, periodically assisted NCDAO with its investigation.
(Defs.’ 56.1 Stmt. ¶¶ 135-36; Gaertner Dep. Tr. 61:2-10.)
At one
of the debriefing sessions, Gersbeck learned that Ms. Battisti had
sustained an injury to the back of her neck during the attack. At
that point, Gersbeck contradicted his earlier statements and said
that he had the screwdriver in his hand when he approached her and
that he tried to stab her.
(Defs.’ 56.1 Stmt. ¶ 138; Gaertner
Dep. Tr. 82:5-88:12; Gersbeck Admin. Tr., Defs.’ Ex. WWW, Docket
Entry 52-78, 228:8-16.) At another session, Gersbeck for the first
time mentioned a video of his family which Plaintiff used to
threaten him and intimidate him.
Gersbeck Dep. Tr. 104:20-106:9.)
(Defs.’ 56.1 Stmt. ¶ 139;
Gersbeck stated that Plaintiff
showed him the video, and he was scared that Plaintiff would harm
13
his family if he did not kill Ms. Battisti.7
(Defs.’ 56.1 Stmt.
¶ 139; Gersbeck Dep. Tr. 104:20-106:9.)
The
NCDAO
obtained
DNA
samples
from
Plaintiff
and
Gersbeck, and the medical examiner detected Gersbeck’s DNA and
DNA from an unknown individual on the white gloves that held the
screwdriver used in the attack.8
(Defs.’ 56.1 Stmt. ¶ 152; Defs.’
Ex. EE, Docket Entry 52-34, at 4-5.) Subsequent testing determined
that Plaintiff’s DNA did not match the unknown DNA, and he was
excluded as the source of that DNA.
(Defs.’ 56.1 Stmt. ¶ 154;
Pl.’s 56.1 Counterstmt. ¶ 154; Feb. 16, 2009 Police Dep’t Rep. at
5.)
On February 24, 2009, Gersbeck wrote a letter to his
girlfriend, Deanna Kani (the “Belle Letter”).
¶ 156.)
(Defs.’ 56.1 Stmt.
In the letter, Gersbeck discussed several interactions
with Plaintiff, and stated: (1) “But back to the Anthony stuff I
During his deposition, Gersbeck admitted that he did not
mention the video during the videotaped statement because he was
“confused and nervous.” (Defs.’ 56.1 Stmt. ¶ 111; Gersbeck Dep.
Tr. 18:8-19:8.) He also said he thought he told Detective
Rispoli about the video when he gave his written statement but
could not remember for sure. (Defs.’ 56.1 Stmt. ¶ 112; Gersbeck
Dep. Tr. 19:9-20:3.)
7
Plaintiff alleges that the County Defendants’ Exhibit EE “does
not identify which gloves were tested.” (Pl.’s 56.1
Counterstmt. ¶ 152.) However, a report from the Forensic
Evidence Bureau indicates that a “white glove has been accepted
. . . for immediate analysis,” and a “pair of blue gloves” w[as]
rejected.” (Feb. 16, 2009 Police Dep’t Rep., Defs.’ Ex. EE,
Docket Entry 52-34, at 4 (emphasis in original).)
8
14
will start with the money[.]
I sold [h]im one of my race motors
and [h]e still owes me $5200.00 bucks[.]
So now that Im [sic]
working with the system they said that money is money for hire the
way it went down but [h]e actually owes me more then [sic] that
and I’m still out of the money and the motor.”; (2) “He showed me
two different tapes of [h]im following Melissa and the girls when
she was going back and forth from school and [h]er job[.] Followed
[h]er to Miller Ale House a few times and which not like I cared
about [h]er but still didn’t want anything to [h]appen to [h]er
[b]ecause of me.”; and (3) “[I]t sounds like it was nothing but
the two times [h]e pulled his gun on me definetly [sic] made it
very serious . . . so I really didn’t know what to do anymore and
[h]ad no where to turn . . . .”
(Belle Ltr., Defs.’ Ex. GG, Docket
Entry 52-36, at 1.)
The parties dispute when the police department and the
NCDAO became aware of the content of the Belle Letter.
Ms. Kani
testified at Gersbeck’s trial that she sent a copy of the letter
to Detective Gaertner or his partner in April 2009.
(Defs.’ 56.1
Stmt. ¶ 156; Pl.’s 56.1 Counterstmt. ¶ 156; Kani Crim. Tr., Defs.’
Ex. KKK, Docket Entry 52-66, 1571:8-16, 1575:12-20.)
deposition,
Detective
Gaertner
testified
that
he
At his
learned
in
February or March 2009 that Gersbeck was writing to his girlfriend
from ADA St. Bernard, but he did not read the letter at that time.
(Defs.’ 56.1 Stmt. ¶ 158; Gaertner Dep. Tr. 93:18-94:24.)
15
ADA
Canty, who took over the investigation from ADA St. Bernard in
June 2009, testified that he did not read the letter until December
2009 when he was preparing the case for trial.9
¶¶ 165, 183, 210.)
(Defs.’ 56.1 Stmt.
However, Detective Gaertner testified that he
read the letter before Gersbeck was indicted in August 2009 and he
received the letter from ADA Canty.
(Defs.’ 56.1 Stmt. ¶ 183;
Pl.’s 56.1 Counterstmt. ¶ 183.)
The Nassau County Police Department’s Forensic Evidence
Bureau analyzed the screwdriver used by Gersbeck and “determined
that it was a Craftsman #2 screwdriver, had toolmarks on the base
consistent with a gripping tool with opposing jaws, [and] had marks
on the tip consistent with a grinding or abrasive tool . . . .”
(Defs.’ 56.1 Stmt. ¶ 161.)
Afterward, Detective Gaertner and
Sergeant Galgano executed a search warrant on Plaintiff’s garage
and collected, among other items, “26 screwdrivers, 24 gripping
devices, 1 pair of pliers, 2 files, a bench vice, [and] a free
standing grinder.” (Defs.’ 56.1 Stmt. ¶ 170.) Subsequent analysis
revealed that the marks on the screwdriver could not be matched to
any tools seized from Plaintiff’s garage.
¶ 174.)
(Defs.’ 56.1 Stmt.
Specifically, the Bureau of Alcohol, Tobacco, Firearms
and Explosives (“ATF”) concluded that “the sharpened tip of the
Plaintiff alleges by implication that ADA Canty did not present
the Belle Letter to the grand jury, since he testified he did
not read it until December 2009, several months after the grand
jury. (Pl.’s 56.1 Counterstmt. ¶ 277.)
9
16
screwdriver was made with an abrading type tool . . . such as a
grinding wheel, disc or belt that left no toolmarks of value for
comparison,” however “the impressions on the screwdriver handle
were not made by the tools seized at Plaintiff’s garage.”
56.1 Stmt. ¶ 212.)
that
Plaintiff
(Defs.’
The NCDAO later received records indicating
purchased
a
set
of
Craftsman
screwdrivers
approximately ten months before Ms. Battisti was attacked. (Defs.’
56.1 Stmt. ¶ 208.)
On August 3, 2009, Gersbeck was indicted for Attempted
Murder in the First Degree, Conspiracy in the Second Degree,
Assault in the Second Degree, and Criminal Possession of a Weapon
in the Third Degree.
(Defs.’ 56.1 Stmt. ¶ 176.)
After the
indictment, ADA Canty met with Gersbeck and asked him about the
inconsistencies between his statements; Gersbeck responded that he
was “confused” and “made some mistakes” but during his deposition,
he said “the testimony that [he] gave later to ADA Canty was more
accurate.” (Defs.’ 56.1 Stmt. ¶¶ 178-79; Gersbeck Dep. Tr. 130:18132:7.)
During these sessions (and contrary to some of his
previous statements), Gersbeck said that he did use the sharpened
screwdriver
to
stab
Ms.
Battisti
threatening video of his family.
Thereafter,
Gersbeck
signed
a
and
again
mentioned
the
(Defs.’ 56.1 Stmt. ¶¶ 180-81.)
cooperation
agreement
for
his
testimony against Plaintiff, and in exchange, the NCDAO agreed to
17
ask the judge to sentence Gersbeck to eight years.
(Defs.’ 56.1
Stmt. ¶ 182.)
On September 3, 2009, Plaintiff was indicted on charges
of Attempted Murder in the First Degree, Conspiracy in the Second
Degree, Assault in the Second Degree, and Criminal Possession of
a Weapon in the Fourth Degree.
(Defs.’ 56.1 Stmt. ¶ 190.)
A
warrant was issued for his arrest, and Detective Gaertner and
Sergeant
Galgano
participated
in
the
arrest.
(Defs.’
56.1
Stmt. ¶ 191.) While in the squad car, the County Defendants allege
that Plaintiff stated “I threw away my life.
I threw away 17 and
a half years,” and Detective Gaertner wrote the statement down
immediately.
(Defs.’ 56.1 Stmt. ¶¶ 195-96; Gaertner Dep. Tr. at
113:13-15; Defs.’ Ex. SS, Docket Entry 52-48, at 1.)
Sergeant
Galgano recalled that he said “I wasted 17 and a half years of my
life.”
(Pl.’s 56.1 Counterstmt. ¶ 195; Galgano Dep. Tr., Defs.’
Ex. EEE, Docket Entry 52-60, 13:15-21.)
Plaintiff alleges that he
actually said “I can’t believe this is the way they treat me after
seventeen and a half years on this job.”
(Pl.’s 56.1 Counterstmt.
¶ 195; Battisti Dep. Tr., Ex. VVV, Docket Entry 52-77, 235:5-8.)
Plaintiff denied making this statement in subsequent proceedings,
and it was later confirmed that Plaintiff had been a NYPD officer
for approximately seventeen and a half years at that time.
56.1 Counterstmt. ¶¶ 195, 197.)
18
(Pl.’s
D.
Trial Preparation and Trial
At some point between Plaintiff’s indictment and trial
and after a request from Plaintiff’s criminal counsel, Gersbeck’s
vehicle was searched and a grinder was located in the trunk of the
vehicle.
(Defs.’ 56.1 Stmt. ¶ 214.)
Detective Gaertner testified
that the grinder was never sent to ATF for comparison testing
because “it was explained to [him] by a district attorney that it
would not be possible.”
(Defs.’ 56.1 Stmt. ¶¶ 215; Pl.’s 56.1
Stmt. ¶ 215; Gaertner Dep. Tr. 75:22-76:2.)
Plaintiff alleges
that none of the detectives or ADAs “ever attempted to compare the
sharpened screwdriver . . . with the grinding tools that were in
the very vehicle Gersbeck drove to [Ms. Battisti’s] house.” (Pl.’s
56.1 Counterstmt. ¶ 271.)
The County Defendants allege that “the
ATF’s report . . . concluded that the screwdriver had no toolmarks
for
comparison
Gersbeck’s).”
to
any
(Defs.’
grinder
56.1
(whether
Counterstmt.,
Plaintiff’s
Docket
Entry
or
56-1,
¶ 271.)
Immediately prior to trial, ADA Kelly took over the case
against Plaintiff and prepared the case for trial.
Stmt. ¶¶ 217, 234.)
(Defs.’ 56.1
During her meetings with Gersbeck, he told
that when he approached Ms. Battisti, he tried to stab her but
then “the door opened and she fell into the house.”
(Pl.’s 56.1
Counterstmt. ¶ 222; Kelly Dep. Tr., Ex. GGG, Docket Entry 52-62,
26:19-27:5.)
He also mentioned the threatening video of his
19
family.
(Defs.’ 56.1 Stmt. ¶ 220.)
When ADA Kelly asked Gersbeck
about his statements in the Belle Letter, he explained that “he
didn’t want his girlfriend to know that he had done this . . .
[t]hat he accepted money in exchange for trying to kill someone.”
(Kelly Dep. Tr. 34:18-24; Defs.’ 56.1 Stmt. ¶ 224.)
ADA Kelly
also spoke with Joe Massone, Gersbeck’s boss, who conveyed to her
that Gersbeck told him about the plan to kill Ms. Battisti. (Defs.’
56.1 Stmt. ¶ 228; Kelly Dep. Tr. 15:17-16:11.)
From May 17, 2010 to June 2, 2010, ADA Kelly conducted
Plaintiff’s trial, and the jury acquitted Plaintiff on all charges.
(Defs.’ 56.1 Stmt. ¶¶ 234, 237.)
In November 2011, a NYPD
administrative proceeding was held, after which the Assistant
Deputy
Commissioner
found
it
was
more
likely
than
not
that
Plaintiff: (1) “with the intent to cause of the death of another
person . . . attempted to cause the death of Patricia Battisti by
entering into an agreement with Timothy Gersbeck whereby Timothy
Gersbeck would cause the death of Patricia Battisti in exchange
for a sum of United States currency”; (2) “while acting in concert
with and or aiding and abetting and being aided and abetted by
Timothy Gersbeck . . . with the intent to cause physical injury to
another person, caused such injury to Patricia Battisti by stabbing
her in the neck with a sharp metal object”; (3) while acting in
concert with and or aiding and abetting and being aided and abetted
by Timothy Gersbeck . . . possessed a sharp metal object with the
20
intent to use it unlawfully against Patricia Battisti”; and (4)
being “wrongfully in possession of a Department radio previously
reported missing.”
(Defs.’ Ex. BBB, Docket Entry 52-57, at 2-3.)
He pleaded guilty to two other charges and was found not guilty on
one charge.
(Defs.’ Ex. BBB, at 3.)
terminated from the NYPD.
II.
Plaintiff was subsequently
(Defs.’ 56.1 Stmt. ¶ 243.)
Procedural History
Plaintiff commenced this lawsuit on September 10, 2010
against
ADA
Canty,
ADA
Kelly,
Detective
Gaertner,
Sergeant
Galgano, Gersbeck, Kathleen Rice (“Rice”), unidentified ADAs,
unidentified officers, and the County of Nassau (“the County”).
(Compl., Docket Entry 1, at 1.) The Complaint asserted five causes
of action: (1) false arrest against Detective Gaertner, Sergeant
Galgano, ADA Canty, ADA Kelly, Gersbeck, unknown officers and
unknown
ADAs;
(2)
malicious
prosecution
against
Detective
Gaertner, Sergeant Galgano, ADA Canty, ADA Kelly, and Gersbeck;
(3)
violation
of
unconstitutional
his
“perp
fourteenth
walk”
amendment
policy
rights
against
the
due
to
County;
a
(4)
defamation against Rice; and (5) interference with his parental
rights against ADA Kelly, ADA Canty and unknown ADAs.
¶¶ 107-163.)
Galgano,
Specifically,
Detective
Gaertner,
Plaintiff
and
alleged
Gersbeck
that
“testified
(Compl.
Sergeant
falsely
before the grand jury,” (Compl. ¶ 112); ADA Canty and ADAs John
Doe 1-5 “knowingly offered perjured testimony before the grand
21
jury,” (Compl. ¶ 113); “[t]he criminal prosecution was commenced
despite . . . [the County Defendants’] knowledge that [Plaintiff]
was not involved in Gersbeck’s attack on Patricia and that probable
cause for the initiation and continuation of the prosecution did
not exist,” (Compl. ¶ 123); and the County Defendants “continued
to participate in the criminal prosecution, even after they learned
that there was no evidence linking [Plaintiff] to Gersbeck’s
actions
against
Patricia
and
that
Gersbeck
was
lying
about
[Plaintiff’s] involvement in order to obtain a more favorable plea
bargain.”
(Compl. ¶ 124.)
compensatory
damages,
as
well
damages, and attorneys’ fees.
Plaintiff sought $32,000,000 in
as
exemplary
damages,
(Compl. at 27.)
punitive
On December 6,
2010, the County Defendants answered and asserted cross-claims
against Gersbeck.
After
(Answer, Docket Entry 7.)
engaging
in
discovery,
Plaintiff
agreed
to
discontinue the third, fourth, and fifth causes of action, and the
County and Rice were terminated as defendants.
Docket Entry 44; See Stip. & Order.)
(See Pl.’s Ltr.,
On January 7, 2016, the
County Defendants moved for summary judgment on the remaining
claims for false arrest and malicious prosecution.
(Defs.’ Mot.,
Docket Entry 52.) Plaintiff filed his opposition brief on February
19, 2016, and the County Defendants filed their reply brief on
March 18, 2016. (Pl.’s Opp., Docket Entry 54; Defs.’ Reply, Docket
Entry 56.)
22
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
summary judgment.
Id.
However, in reviewing the summary judgment
record, “‘the court is required to resolve all ambiguities and
23
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.
False Arrest
The
County
Defendants
argue
that
Plaintiff’s
false
arrest claim must be dismissed because Plaintiff “was arrested
pursuant to a Superior Court arrest warrant issued after a grand
jury indictment.”
Court agrees.
(Defs.’ Br., Docket Entry 52-1, at 15.)
The
A false arrest claim must be dismissed when the
“arrest is made pursuant to a warrant issued after a grand jury
indictment.”
Stukes v. City of N.Y., No. 13-CV-6166, 2015 WL
1246542, at *11 (E.D.N.Y. Mar. 17, 2015) (quoting Sargent v. Cty.
of Nassau, No. 04-CV-4274, 2007 WL 778437, at *7 (E.D.N.Y. Mar. 13,
2007)).
The proper claim is one for malicious prosecution.
Stukes, 2015 WL 1246542, at *11.
See
The parties agree that Plaintiff
was arrested pursuant to a “Superior Court Warrant of Arrest” after
he was indicted on September 3, 2009.
Pl.’s 56.1 Counterstmt. ¶ 190.)
Plaintiff’s
concession
that
the
(Defs.’ 56.1 Stmt. ¶ 190;
In light of the foregoing, and
false
arrest
claim
is
“mis-
styled,” Plaintiff’s false arrest claim is DISMISSED.10
Plaintiff requests that the Court consider the “allegations of
having presented false evidence to the Grand Jury and/or
10
24
III. Malicious Prosecution11
The County Defendants argue that they are entitled to
summary
judgment
on
the
malicious
prosecution
claim
for
the
following reasons: (1) Plaintiff has not demonstrated that ADA
Kelly or Sergeant Galgano were personally involved; (2) Detective
Gaertner and Sergeant Galgano did not initiate or continue a
criminal proceeding against Plaintiff; (3) there was probable
cause to indict, arrest, and prosecute Plaintiff; and (4) Plaintiff
has failed to show that any Defendant acted with malice.
(Defs.’
Br. at 15.)
withholding exculpatory evidence from the Grand Jury under a
theory of [m]alicious [p]rosecution as pleaded in the second
cause of action.” (Pl.’s Opp. at 19.) The Court will address
these allegations in its discussion of the malicious prosecution
claim.
With respect to Plaintiff’s malicious prosecution claim
against Gersbeck, Plaintiff has failed to demonstrate that he
was acting under color of state law, which is required to
maintain an action under § 1983. See Lee v. Law Office of Kim &
Bae, P.C., 530 F. App’x 9, 9-10 (2d Cir. 2013) (quoting
Ciambriello v. Cty. of Nassau, 292 F.3d 307, 324 (2d Cir. 2002)
(internal citations omitted) (“A conclusory allegation that a
private entity acted in concert with a state actor does not
suffice to state a § 1983 claim against the private entity. To
support a claim against a private party on a § 1983 conspiracy
theory, a plaintiff must show (1) an agreement between a state
actor and a private party; (2) to act in concert to inflict an
unconstitutional injury; and (3) an overt act done in
furtherance of that goal causing damages.”). Thus, the
malicious prosecution claim against Gersbeck is DISMISSED. The
Court will only address the allegations against ADA Canty, ADA
Kelly, Detective Gaertner, and Sergeant Galgano.
11
25
Plaintiff
advances
two
theories.
First,
Plaintiff
alleges that the presentation of the case to the grand jury was
improper.
that
two
(Pl.’s Opp. at 19.)
acts
by
ADA
Specifically, Plaintiff argues
Canty—-the
presentation
of
Gersbeck’s
testimony and his failure to present the Belle Letter to the grand
jury--are sufficient to rebut the presumption of probable cause
arising from the indictment.
(Pl.’s Opp. at 21.)
He maintains
that “multiple versions of Gersbeck’s testimony put the Defendants
on notice that Gersbeck was not telling the truth” and that “he
had materially changed his story.”
(Pl.’s Opp. at 22.)
He also
argues that ADA Canty’s “failure to present exculpatory evidence
to a grand jury eviscerates the presumption of probable cause which
attaches to a grand jury indictment.” (Pl.’s Opp. at 21.) Second,
Plaintiff alleges that any probable cause that may have been
established by the time of the grand jury dissipated before trial.
(Pl.’s Opp. at 19-20.)
Plaintiff argues that “many of the lies
told by Gersbeck were dispelled after he began ‘working with the
system’ while other evidence which could have served to corroborate
Gersbeck’s story or exonerate the Plaintiff were never pursued.”
(Pl.’s Opp. at 26; Belle Ltr. at 1.)
Plaintiff points to several
facts which he claims destroyed probable cause before trial,
including Gersbeck’s admission that he did have the screwdriver in
his
hand
when
he
approached
Ms.
Battisti,
the
DNA
results
demonstrating that Plaintiff was “excluded as a DNA match” for the
26
gloves,
and
the
testing
which
showed
that
the
marks
screwdriver were not a match to any of Plaintiff’s tools.
Opp. at 26.)
on
the
(Pl.’s
Plaintiff also focuses on the discovery of grinding
tools in Gersbeck’s car and the failure to forward the tools for
testing,
as
well
as
the
failure
to
follow-up
regarding
the
threatening video of Gersbeck’s family and Gersbeck’s statements
in the Belle Letter.
(Pl.’s Opp. at 26-27.)
Plaintiff contends
that, although these facts may not be enough to show a dissipation
of probable cause on their own, these facts taken together raise
an issue of fact sufficient to defeat summary judgment.
(Pl.’s
Opp. at 27.)
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.”
27
Id. (internal quotation
marks and citations omitted); see also Colon v. City of N.Y.,
60 N.Y.2d 78, 82, 455 N.E.2d 1248, 1250, 468 N.Y.S.2d 453 (1983).
“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
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)). In New York, “the existence of probable
cause is a complete defense to a claim of malicious prosecution .
. . . ”
Savino v. City of N.Y., 331 F.3d 63, 72 (2d Cir. 2003).
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 was
procured as a result of conduct undertaken by the defendants in
bad faith.”
Reid v. City of N.Y., 00-CV-5164, 2004 WL 626228, at
28
*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).
investigative
steps
is
suppression of evidence.”
Further, the failure to take certain
“not
the
equivalent
of
fraud
or
the
Colon, 60 N.Y. 2d at 78, 468 N.Y.S.2d
at 456, 455 N.E.2d 1248.
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).
A.
Initiation or Continuation of a Criminal Proceeding
As a preliminary matter, the County Defendants argue
that Plaintiff cannot establish that Sergeant Galgano or Detective
Gaertner initiated or continued a criminal proceeding against
Plaintiff.12
(Defs.’ Br. at 17-18.)
The Court agrees.
“[T]here
Plaintiff does not respond to this argument, instead
contending that the County Defendants (collectively) “commenced
a criminal proceeding (in this case the Grand Jury presentation)
against Plaintiff.” (Pl.’s Opp. at 20.)
12
29
is a presumption that a prosecutor exercises independent judgment
in
bringing
a
criminal
case,
thereby
breaking
any
chain
of
causation between a police officer’s conduct and the initiation of
the proceeding.”
Stukes, 2015 WL 1246542, at *9.
To demonstrate
initiation, “‘a defendant must do more than report the crime or
give testimony[, h]e must play an active role in the prosecution,
such
as
giving
advice
authorities to act.’”
and
encouragement
or
importuning
the
Id. (quoting Manganiello, 612 F.3d at 163).
In addition, initiation can be demonstrated with evidence showing
that the defendant “fil[ed] the charges[,] . . . prepar[ed an]
alleged
false
Manganiello,
confession
612
F.3d
at
and
forward[ed]
163,
(internal
it
to
prosecutors,”
quotation
marks
and
citation omitted) “with[held] material exculpatory evidence from
the
prosecutor
or
knowingly
created
false
information
that
creat[ed] the basis for the prosecution.” Stukes, 2015 WL 1246542,
at *9.
Sergeant Galgano’s role in the investigation was limited
to
executing
arrest.
search
warrants
(Defs.’ Br. at 12.)
and
assisting
with
Plaintiff’s
Detective Gaertner was the primary
detective investigating this incident; however, after the NCDAO
took over the investigation, he assisted the NCDAO with questions
and corroborated certain information in advance of the grand jury.
(Defs.’ Br. at 12-13.)
There is no evidence that either officer
importuned ADA Canty to prosecute Plaintiff or that either officer
30
fabricated or withheld evidence from ADA Canty. See, e.g., Stukes,
2015 WL 1246542, at *9 (“No facts are alleged that would permit an
inference that Miller pressured or importuned A.D.A. Marshall to
bring charges against Plaintiff . . . Additionally, . . . Plaintiff
has failed to plead sufficient facts to allege that the Defendants
knowingly forwarded false evidence to the D.A.’s Office, or that
they
improperly
withheld
material
exculpatory
evidence.”);
Sargent, 2007 WL 778437, at *8 (“Here there is no evidence that
Heimbauer or the other two individual police officer defendants
failed
to
evidence.”).
disclose
facts
or
misrepresented
or
falsified
Therefore, the malicious prosecution claims against
Sergeant Galgano and Detective Gaertner are DISMISSED.
B.
Lack of Probable Cause
As to the remaining claims against ADA Canty and ADA
Kelly, to defeat summary judgment, Plaintiff must either (1)
demonstrate a genuine issue of material fact that the indictment
was procured by bad faith or fraudulent conduct, or (2) demonstrate
a genuine issue of material fact that probable cause dissipated
between the indictment and trial.
1.
Rebutting the Presumption of Probable Cause
The Court finds that Plaintiff is unable to rebut the
presumption of probable cause because he has failed to show
evidence of “fraud, perjury, the suppression of evidence or other
police conduct undertaken in bad faith.”
31
See Savino, 331 F.3d at
72 (internal quotation marks and citation omitted).
Plaintiff
relies on unsupported allegations that: (1) “multiple versions of
Gersbeck’s testimony put Defendants on notice that Gersbeck was
not telling the truth,” (2) “Canty knew that [Gersbeck] had
materially changed his story” and (3) “the Belle Letter . . .
constitutes exculpatory evidence which should have been disclosed
. . . to the Grand Jury.”
conclusory
allegations
probable
(Pl.’s Opp. at 22-23.)
are
not
cause
sufficient
resulting
to
from
However, these
overcome
a
grand
the
presumption
of
jury
indictment.
See, e.g., Stukes, 2015 WL 1246542, at *6 (“Although
Plaintiff attempts to rebut the presumption of probable cause by
alleging that the A.D.A. presented ‘false-facts’ to the grand jury,
and that Defendants failed to turn over exculpatory evidence . .
. for presentation to the grand jury, these conclusory statements
fail to overcome the presumption of probable cause.”) (internal
quotation marks and citations omitted); Montes v. King, No. 00CV-4707, 2002 WL 1808209, at *3 n. 5 (S.D.N.Y. Aug. 6, 2002)
(holding that “unsubstantiated speculation” that an officer acted
in bad faith was not sufficient to defeat summary judgment); cf.
Reid, 2004 WL 626228, at *7-8 (holding that plaintiff had raised
disputed issues of fact to rebut the presumption of probable cause
because witness testified at trial that he lied at grand jury after
detective encouraged him to identify plaintiff).
There is no
evidence that fraud, perjury, or bad faith conduct occurred or
32
that ADA Canty was aware of or engaged in any such conduct.
Further, there is no evidence that ADA Canty knew that any evidence
presented to the grand jury (including Gersbeck’s testimony) was
false.13
Although there were differences in Gersbeck’s accounts,
this fact on its own is not enough to demonstrate that the
indictment was obtained as a result of fraud, perjury, suppression
of evidence, or other bad faith conduct.
As the County Defendants
point out, many facts in Gersbeck’s accounts were independently
corroborated.
(Defs.’ Br. at 20-21.)
Plaintiff argues that ADA Canty’s failure to present the
Belle Letter to the grand jury constitutes sufficient evidence to
overcome the presumption of probable cause.
(Pl.’s Opp. at 21.)
The Court recognizes that the parties dispute when ADA Canty
learned about the content of Belle Letter.
Nevertheless, even
assuming arguendo that ADA Canty knew about the Belle Letter prior
to the grand jury, he was not obligated to present it and his
decision not to present the letter is not sufficient to overcome
the presumption of probable cause.
See, e.g., Savino, 331 F.3d
at 75 (“ADA Sullivan—-who had the discretion and authority to
Plaintiff argues that “District Courts have denied motions for
summary judgment on Malicious Prosecution claims when there is
evidence that the prosecution proffered testimony from a witness
who the prosecutor and/or police knew had been lying.” (Pl.’s
Opp. at 21.) Although this may be true as a general
proposition, Plaintiff has failed to show any evidence that ADA
Canty, ADA Kelly, or the two detectives knew that Gersbeck was
lying.
13
33
decide what evidence to present to the grand jury—-was under no
duty to present every item of arguably exculpatory evidence in
seeking an indictment.
Accordingly, even if we assume . . . that
ADA Sullivan was made aware of [the officer’s] observations, his
decision not to present this information to the grand jury would
not
amount
to
conduct
undertaken
in
bad
faith.”)
(citations
omitted); Stukes, 2015 WL 1246542, at *5 (“‘[T]he simple act of
not
disclosing
to
the
grand
jury
all
evidence
that
could
potentially benefit the accused at a grand jury hearing does not
necessarily rise to the level of bad faith.’”) (quoting Parisi v.
Suffolk Cty., No. 04-CV-2187, 2009 WL 4405488, at *10 (E.D.N.Y.
Nov. 30, 2009).
2.
Dissipation of Probable Cause
The Court also finds that Plaintiff has not raised a
material issue of fact related to the dissipation of probable
cause.
The grand jury voted to indict Plaintiff on September 3,
2009, and the trial was conducted from May 17, 2010 to June 7,
2010.
(Defs.’ 56.1 Stmt. ¶¶ 190, 234.)
The appropriate inquiry
is whether facts arose between September 2009 and May 2010 that
clearly
demonstrated
“the
groundless
nature
of
the
charges.”
Fappiano, 2015 WL 94190, at *13.
Plaintiff relies on two facts that came to light prior
to the indictment: (1) Gersbeck’s admission in February 2009 that
he had the screwdriver in his hand during the attack, (Defs.’ 56.1
34
Stmt. ¶¶ 133, 138) and (2) DNA testing completed in March 2009
that excluded Plaintiff as a source of the DNA on the gloves.
(Defs.’ 56.1 Stmt. ¶ 154; Pl.’s 56.1 Counterstmt. ¶ 154; Feb. 16,
2009 Police Dep’t Rep. at 5.)
considered
probable
because
cause
they
arose.
Neither of these facts can be
occurred
See
before
Sargent,
the
2007
presumption
WL
of
778437,
*9
at
(analyzing only the “information that came to light subsequent to
the
grand
jury
indictment”
to
determine
if
that
information
vitiated probable cause).
Plaintiff argues that ATF testing completed in March
2010--which showed that the marks on the handle of the screwdriver
were not a match to any of Plaintiff’s tools--destroyed probable
cause.
(Pl.’s Opp. at 26; Defs.’ 56.1 Stmt. ¶ 174.)
Although the
impressions on the handle did not match any of Plaintiff’s tools,
ATF was unable to determine if any of Plaintiff’s tools sharpened
the
screwdriver.
Counterstmt.
tool
that
(Defs.’
¶ 271.)
sharpened
56.1
Stmt.
¶
212;
Defs.’
56.1
As the County Defendants point out, the
the
screwdriver
left
“no
toolmarks
for
comparison” and as a result, those marks could not be matched to
any tool—-not just Plaintiff’s.
56.1 Counterstmt. ¶ 271.)
(Defs.’ 56.1 Stmt. ¶ 212; Defs.’
The results of ATF’s testing merely
illustrate that the authorities would never be able to determine
the particular tool that was used to alter the screwdriver; they
35
do
not
demonstrate
that
the
charges
against
Plaintiff
were
groundless.
Plaintiff further argues that the failure to follow-up
on the video of Gersbeck’s family and his contradictory statements
in the Belle Letter support the dissipation theory and that “other
evidence which could have served to corroborate Gersbeck’s story
or exonerate the Plaintiff w[as] never pursued.”
26.)
(Pl.’s Opp. at
However, “the police are not obligated to pursue every lead
that may yield evidence beneficial to the accused.”
Parisi, 2009
WL 4405488, at *11 (quoting Gisondi v. Town of Harrison, 72 N.Y.2d
280, 285, 528 N.E.2d 157, 160, 532 N.Y.S.2d 234 (1988)). Moreover,
Plaintiff’s criticisms of the investigation do not amount to an
intervening fact that rendered the charges groundless.
Finally, Plaintiff contends that the discovery of the
grinder in Gersbeck’s vehicle destroyed probable cause and faults
the County Defendants for failing to submit the grinder for
comparison testing.
¶ 271.)
(Pl.’s Opp. at 27-28; Pl.’s 56.1 Counterstmt.
However, the discovery of the grinder in Gersbeck’s car,
standing alone, is not sufficient to establish that probable cause
dissipated before Plaintiff’s trial.
See, e.g., Parisi, 2009 WL
4405488, at *11 (holding that defendant’s demeanor on surveillance
video
and
“establish
inconsistencies
the
existence
in
of
victim’s
material
statements
disputed
fact
failed
that
to
the
prosecution was groundless”); Sargent, 2007 WL 778437, at *9
36
(holding that statement by victim’s ex-boyfriend that he caused
injuries to victim after plaintiffs were arrested for assault did
not vitiate probable cause).
Because of the lack of tool marks,
it was impossible to determine if the grinder in Gersbeck’s car
was used to sharpen the screwdriver.
¶ 271.)
(Defs.’ 56.1 Counterstmt.
Without that determination, the presence of the grinder
in Gersbeck’s car is not inconsistent with his statements or the
prosecution’s theory that Plaintiff hired Gersbeck to kill his
wife, especially in light of all of the other corroborating
evidence.
See, e.g., Fappiano, 2015 WL 94190, at *14 (holding
that probable cause did not dissipate after prosecutors received
negative
serology
results
including
because
the
results
“entirely consistent with the prosecution’s theory”).
were
Moreover,
this Court declines to find that probable cause dissipated based
on “arguably exculpatory evidence.”
See Parisi, 2009 WL 4405488,
at 11 (“[I]t is difficult to imagine how any criminal defendant
could ever be constitutionally prosecuted if mere knowledge of
arguably exculpatory evidence alone were sufficient to dissipate
probable cause.”).
Because Plaintiff cannot demonstrate a genuine issue of
fact that the prosecution lacked probable cause, the remaining
claims against ADA Canty and ADA Kelly are DISMISSED.14
14
Because Plaintiff’s underlying claims are without merit, it
37
CONCLUSION
The
County
Defendants’
motion
for
summary
judgment
(Docket Entry 52) is GRANTED and Plaintiff’s claims are DISMISSED
WITH PREJUDICE.
To the extent the County Defendants’ cross-claims
against Gersbeck relate to the claims dismissed herein, their
cross-claims are also DISMISSED WITH PREJUDICE.
Additionally,
Plaintiff’s claim against Gersbeck is DISMISSED WITH PREJUDICE.
The Clerk of the Court is directed to enter judgment accordingly
and mark this case CLOSED.
SO ORDERED.
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Dated:
January
9 , 2017
Central Islip, New York
is unnecessary for the Court to determine whether the County
Defendants are entitled to absolute or qualified immunity.
38
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