Nash v. The County of Broome et al

Filing 71

MEMORANDUM-DECISION AND ORDER granting Defendants' 62 Motion for Summary Judgment. Signed by Judge Norman A. Mordue on 2/24/2012. (amt) [Pltf served via reg. mail]

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________________
LESTER NASH,
Plaintiff,
vs.

5:08-CV-541
(NAM/ATB)

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THE VILLAGE OF ENDICOTT; THE ENDICOTT
POLICE DEPT.; DWAYNE J. SMITH (Police Officer);
JENNIFER QUINN (Police Officer); MICHAEL
KAMINSKY (Detective Sgt.); MICHAEL SCULLY
(Detective); CRAIG WILLIAMS (Detective Lt.); and
S.F. CARPENTER (Detective); in both their official
and their individual capacities,
Defendants.
_________________________________________
APPEARANCES:

OF COUNSEL:

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LESTER NASH
07-B-1788
Green Haven Correctional Facility
P.O. Box 4000
Stormville, New York 12582
Plaintiff Pro Se

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SHANTZ & BELKIN
26 Century Hill Drive, Suite 202
Latham, New York 12210
Attorney for Defendants Village of Endicott
and Endicott Police Dept.

M. Randolph Belkin, Esq.

THE TUTTLE LAW FIRM
10 Century Hill Dr., Suite 4
Latham, New York 12110
Attorney for the Individual Defendants

James B. Tuttle, Esq.

Norman A. Mordue, U.S. District Judge
MEMORANDUM-DECISION and ORDER
I.

INTRODUCTION

This Court issued a Memorandum-Decision and Order concerning defendants’ motions for
summary judgment on September 22, 2010, (Dkt. # 50) which denied in part and granted in part
the requested relief. The Court’s previous decision dismissed all but one of plaintiff’s claims, the
ninth cause of action based on alleged abuse of process by defendants in charging and prosecuting
plaintiff with criminal possession of a controlled substance in the third degree. Defendants now
renew their motion for summary judgment on this remaining claim in the complaint. Plaintiff
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opposes defendants’ motion.
II.

DISCUSSION
The Court assumes the parties’ familiarity with the facts and procedural history in this

matter. As referenced in the Court’s previous Memorandum-Decision and Order, plaintiff was
charged with possession of a controlled substance in the third degree which requires proof of
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intent to sell. Defendants failed to present proof in admissible form in their prior motion that at
the time plaintiff was arrested they had probable cause to believe he had intent to sell the crack
cocaine they found in his possession. Upon review of defendants’ renewed motion papers, the
Court finds the affidavit submitted by Sergeant Kaminsky, now retired from the Village of
Endicott Police Department, is notable for a number of pertinent facts. Sergeant Kaminsky stated

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that he was heavily involved in the investigation that led to plaintiff’s arrest as well as in the in
investigation of plaintiff’s girlfriend’s drug selling activities. Sergeant Kaminsky applied for and
obtained three separate search warrants in the course of his investigation into plaintiff’s suspected
involvement in drug trafficking. Plaintiff and his girlfriend also had lengthy criminal histories,
including drug charges which the police department took into account in conducting their

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investigation. On the date of his arrest, however, Sergeant Kaminsky stated that plaintiff was
found in possession of an eighth of an ounce of crack cocaine which was “individually packed,”
consistent with intent to sell. Kaminsky also averred that plaintiff had eight cell phones counting
those found in his apartment, his car and on his person, consistent with someone engaged in drug
trafficking activities. Finally, Sergeant Kaminsky referred to the results of a garbage search
carried out on the same day plaintiff was arrested. The warrant was executed by the Village of
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Endicott Police Department at plaintiff’s apartment and yielded a marijuana roach/blunt which
had a positive field test for marijuana as well as packaging materials for narcotics. These facts
are more than sufficient to establish that plaintiff intended to sell the drugs he was indisputably in
possession of at the time of his arrest on November 17, 2005. Moreover, although plaintiff has
submitted an affidavit which attempts to rehash the facts which led to dismissal of the underlying
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criminal charges against him, he does not address the issue of whether defendants had probable
cause to charge and prosecute him for the crime of criminal possession of a controlled substance
in the third degree in the first instance. Based thereupon, defendants’ motion for summary
judgment on plaintiff’s ninth cause of action must be granted.
III.

CONCLUSION

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Based on the foregoing, defendants’ second motion for summary judgment (Dkt. # 62)
dismissing plaintiff’s complaint is GRANTED.
IT IS SO ORDERED.
Date: February 24, 2012

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