Jeanty v. City of Utica et al

Filing 357

ORDER that Plaintiff's request to delay resolution of the pending summary judgment motions and conduct additional discovery pursuant to Fed. R. Civ. P. 56(d), (Dkt. Nos. 317 -3, 319 -3, 325 -3), the City Defendants' motion for sanctions , (Dkt. No. 310 ), and Plaintiff's motion to disqualify counsel, (Dkt. No. 334 ), are DENIED. The City Defendants' motion for summary judgment (Dkt. No. 300 ) is DENIED with respect to Plaintiff's fabrication of evidence claim (Fi rst and Second Causes of Action) against Defendant Cerminaro and his defamation claim (Eleventh Cause of Action) against Defendants Cerminaro and City of Utica, and GRANTED in all other respects. The motions for summary judgment by Defendant Dough erty (Dkt. No. 307 ) and the County Defendants (Dkt. No. 308 ) are GRANTED in their entirety and the following claims are DISMISSED with prejudice: Plaintiff's Brady claim (First Cause of Action); Plaintiffs fabrication of evidence claim (Fir st Cause of Action) against Defendants Dougherty and Paladino; Plaintiff's fabrication of evidence claim (Second Cause of Action) against Defendants Dougherty and Paladino; Plaintiff's malicious prosecution claims (Third and Fourth Cause of Action); Plaintiff's failure to intervene claim (Fifth Cause of Action); Plaintiff's Monell claim (Sixth Cause of Action); and Plaintiff's defamation claims (Seventh and Eighth Causes of Action) against Defendants McNamara and the County of Oneida. Signed by Judge Brenda K. Sannes on 1/14/2021. (rjb, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
VLADIMIR JEANTY,
Plaintiff,

6:16-cv-00966 (BKS/TWD)

v.
THE CITY OF UTICA; THE COUNTY OF ONEIDA;
MARK WILLIAMS, Chief of Police, Utica Police Dept.;
Police Officer MICHAEL F. CERMINARO, badge #1301;
Investigator PETER PALADINO, badge #6290; Lieutenant
SEAN DOUGHERTY, badge #2553; and Honorable
SCOTT D. MCNAMARA, Oneida County District
Attorney,
Defendants.
Appearances:
Vladimir Jeanty
Uniondale, NY 11553
Plaintiff, pro se
Zachary C. Oren
First Assistant Corporation Counsel
One Kennedy Plaza
Utica, NY 13502
Attorneys for Defendants City of Utica, Michael Cerminaro, Peter Paladino, and Mark Williams
(the “City Defendants”)
William P. Schmitt
Schmitt & Lascurettes, LLC
1508 Genesee Street, Suite 3
Utica, NY 13502
Attorneys for Defendants Honorable Scott D. McNamara and County of Oneida (the “County
Defendants”)
David A. Bagley
Kernan Professional Group, LLP
1310 Utica Street
Oriskany, NY 13424
Attorney for Defendant Sean Dougherty

Hon. Brenda K. Sannes, United States District Judge:
MEMORANDUM-DECISION AND ORDER
I.

INTRODUCTION
Plaintiff pro se Vladimir Jeanty brings this action against Defendants under 42 U.S.C. §

1983 and New York law for alleged constitutional and tort injuries resulting from his arrest on
October 15, 2009 and subsequent prosecution, as well as a related news report. (Dkt. No. 33).
Following this Court’s dismissal of certain claims and Defendants at the pleading stage, (Dkt.
No. 99), and Plaintiff’s voluntary dismissal of his claims against several other Defendants, (Dkt.
No. 340), Plaintiff’s remaining claims are: (1) two separate causes of action under 42 U.S.C. §
1983 for denial of a fair trial against Defendants Cerminaro, Paladino and Dougherty, the first
arising from his criminal proceedings, and the second arising from his post-conviction
proceedings; (2) two separate causes of action under 42 U.S.C. § 1983 and New York law for
malicious prosecution against Defendants Cerminaro, Paladino and Dougherty, the first arising
from his criminal proceedings, and the second arising from his post-conviction proceedings; (3) a
cause of action under 42 U.S.C. § 1983 for failure to intervene against Defendants Paladino and
Dougherty; (4) a Monell cause of action against the City of Utica; (5) two separate defamation
causes of action under New York law against Defendants McNamara and the County of Oneida,
the first arising from an August 2015 article by the Utica Observer-Dispatch (the “ObserverDispatch”), and the second arising from a May 2016 affidavit by Defendant McNamara; and (6)
a defamation cause of action under New York law against Defendants Cerminaro and the City of
Utica arising from Defendant Cerminaro’s October 15, 2009 deposition supporting criminal
charges against Plaintiff (the “Supporting Deposition”). (Dkt. No. 33, at ¶¶ 630-790).
Currently before the Court are three separate motions for summary judgment brought by
the City Defendants, Defendant Dougherty, and the County Defendants, collectively seeking
2

dismissal of all of Plaintiff’s remaining claims. (Dkt. Nos. 300, 307, 308).1 Plaintiff has
responded to all three motions, (Dkt. Nos. 317, 319, 325), and all Defendants have submitted
replies, (Dkt. Nos. 343, 344, 346). Also before the Court are the following additional motions:
(1) a motion by the City Defendants for an adverse inference due to Plaintiff’s alleged spoliation
of evidence, (Dkt. No. 310); (2) a motion by Plaintiff to disqualify counsel for the City
Defendants, (Dkt. No. 334); and (3) a request by Plaintiff, pursuant to Fed. R. Civ. P. 56(d), to
delay resolution of the summary judgment motions and allow him to take the depositions of
several additional witnesses, (Dkt. Nos. 317-3, 319-3, 325-3). For the following reasons, the
motions for summary judgment by Defendant Dougherty and the County Defendants are granted
in their entirety; the City Defendants’ motion for summary judgment is granted with respect to
all of Plaintiff’s claims against them except for his fabrication of evidence claims against
Defendant Cerminaro (first and second causes of action) and his defamation claim against
Defendants Cerminaro and the City of Utica (eleventh cause of action); and the other pending
motions are denied.
II.

FACTS2
A.

Plaintiff’s Arrest

On October 15, 2009, Plaintiff was parked in a rental vehicle by himself on Elm Street in
Utica, New York. (Dkt. No. 300-38, at ¶ 1; Dkt. No. 325-1, at ¶ 1). Defendant Cerminaro, a
police officer of the Utica Police Department who was patrolling the area in his vehicle, slowly

1

Defendants attached to their summary judgment motions a “Notification of the Consequences of Failing to Respond
to a Summary Judgment Motion,” informing Plaintiff of the requirements for a proper response and the consequence
of failing to file a proper response. (Dkt. No. 300-36; Dkt. No. 307-1; Dkt. No. 308, at 3-4).
2

The following facts are drawn from Defendants’ Statements of Undisputed Material Facts pursuant to Local Rule
7.1(a)(3), (Dkt Nos. 300-38, 307-15, 308-5), and Plaintiff’s responses to those statements, (Dkt. Nos. 317-1, 319-1,
325-1), to the extent those facts are well-supported by pinpoint citations to the record, as well as the exhibits attached
thereto and cited therein. The facts are construed in the light most favorable to Plaintiff as the non-moving party.
Gilles v. Repicky, 511 F.3d 239, 243 (2d Cir. 2007).

3

passed Plaintiff’s parked vehicle and made eye contact with Plaintiff, then turned left onto
Hobart Street. (Dkt. No. 300-38, at ¶¶ 2-3; Dkt. No. 325-1, at ¶¶ 2-3; Dkt. No. 300-2, at 54).
Plaintiff then approached the intersection of Hobart and Elm Street facing south and observed
Defendant Cerminaro, who had made a U-turn or a 3-point turn and was now at the same
intersection facing west. (Dkt. No. 300-38, at ¶ 4; Dkt. No. 325-1, at ¶ 4). Plaintiff made a right
turn onto Hobart Street with Defendant Cerminaro following behind him. (Dkt. No. 300-38, at ¶
6; Dkt. No. 325-1, at ¶ 6). Plaintiff proceeded through a green light at the next intersection,
which was the intersection of Hobart and Kemble Street. (Dkt. No. 300-38, at ¶¶ 7-8; Dkt. No.
325-1, at ¶¶ 7-8). As Plaintiff approached the next intersection, Oneida Square, Defendant
Cerminaro activated his overhead lights, and Plaintiff made a right turn onto Oneida Street and
stopped at approximately 1321 Oneida Street. (Dkt. No. 300-38, at ¶¶ 8-10; Dkt. No. 325-1, at ¶¶
8-10). Plaintiff maintains that, up until this point, he had not violated any traffic regulations, and
believes that Defendant Cerminaro profiled him based on his race. (Dkt. No. 325-1, at ¶¶ 2, 4, 6,
7; Dkt. No. 300-2, at 53-58, 69).
Defendant Cerminaro parked his patrol car behind the vehicle Plaintiff was driving,
exited his car and approached Plaintiff’s vehicle. (Dkt. No. 300-38, at ¶¶ 11-12; Dkt. No. 325-1,
at ¶¶ 11-12). Defendant Cerminaro asked Plaintiff for his license and registration, at which point
Plaintiff told him that the car was a rental and provided his driver’s license and rental agreement.
(Dkt. No. 300-38, at ¶¶ 13-14; Dkt. No. 325-1, at ¶¶ 13-14). Defendant Cerminaro observed
several cell phones in the vehicle Plaintiff was operating; Plaintiff acknowledges that there were
five cell phones in his car at the time, but contends that only two were on the passenger seat and
visible to Defendant Cerminaro. (Dkt. No. 300-38, at ¶ 15 & n.5; Dkt. No. 325-1, at ¶ 15; Dkt.
No. 308-5, at ¶ 2; Dkt. No. 317-1, at ¶ 2). As Defendant Cerminaro continued to question Plaintiff,
including about whether there were illegal drugs in the vehicle, Plaintiff left the traffic stop without

4

Defendant Cerminaro’s consent by putting his car in drive and driving away, leaving Defendant
Cerminaro with Plaintiff’s driver’s license and rental agreement. (Dkt. No. 300-38, at ¶ 16; Dkt.

No. 325-1, at ¶ 16; Dkt. No. 308-5, at ¶ 3; Dkt. No. 317-1, at ¶ 3). Plaintiff testified that he left
the traffic stop because he believed that he had not violated any laws, that the traffic stop was
illegal, and that Defendant Cerminaro was racially profiling him, all of which made him “very
angry.” (Dkt. No. 300-2, at 69; Dkt. No. 325-1, at ¶ 16).
Defendant Cerminaro radioed dispatch that Plaintiff had fled the stop, then returned to his
patrol car and, with the lights activated on the patrol car, began to chase Plaintiff. (Dkt. No. 300-38,

at ¶¶ 17-18; Dkt. No. 325-1, at ¶¶ 17-18; Dkt. No. 308-5, at ¶ 4; Dkt. No. 317-1, at ¶ 4). Seeing
Defendant Cerminaro chasing him, Plaintiff drove through Oneida Square, tumed right onto Park
Avenue, and drove approximately 200 feet before putting the vehicle in park and exiting the
vehicle near Joel’s Spanish Food Restaurant. (Dkt. No. 300-38, at ¶¶ 18-20; Dkt. No. 325-1, at
¶¶ 18-20; Dkt. No. 308-5, at ¶ 4; Dkt. No. 317-1, at ¶ 4). Defendant Cerminaro exited his patrol
car and followed Plaintiff on foot. (Dkt. No. 300-38, at ¶ 21; Dkt. No. 325-1, at ¶ 21; Dkt. No.
308-5, at ¶ 4; Dkt. No. 317-1, at ¶ 4). Plaintiff ran behind Joel’s Spanish Food Restaurant and
used a chain link fence gate to access the roof. (Dkt. No. 300-38, at ¶ 22; Dkt. No. 325-1, at ¶
22). Defendant Cerminaro chased Plaintiff across several rooftops spanning a distance of
approximately 250 feet. (Dkt. No. 300-38, at ¶¶ 23-25; Dkt. No. 325-1, at ¶¶ 23-25). Throughout
the chase, Defendant Cerminaro was approximately 15 feet behind Plaintiff. (Dkt. No. 308-5, at
¶ 4; Dkt. No. 317-1, at ¶ 4).
Defendant Cerminaro contends that, during the course of the foot chase, he saw Plaintiff
pull a large plastic bag from his waist band, rip the bag open with his teeth, and begin to eat and
shake out an off-white substance from the bag, before jumping to the ground and discarding the
bag. (Dkt. No. 300-38, at ¶¶ 25, 32; Dkt. No. 307-15, at ¶ 15; Dkt. No. 308-5, at ¶ 5). Plaintiff
5

maintains that this never happened, and that he never had such a bag in his possession. (Dkt. No.
325-1, at ¶ 32; Dkt. No. 319-1, at ¶ 15; Dkt. No. 317-1, at ¶ 5). Contemporaneous police radio
communications reflect that Defendant Cerminaro did not report Plaintiff pulling out, tearing
open or discarding a bag while the chase was occurring, but that after the chase was over,
Defendant Cerminaro requested a ladder because Plaintiff “threw several items on the roof.”
(Dkt. Nos. 319-8, 325-8).
After jumping to the ground and (according to Defendant Cerminaro) discarding the bag,
Plaintiff ran down an approximately 200-foot driveway leading to Kemble Street, with
Defendant Cerminaro still chasing him. (Dkt. No. 300-38, at ¶ 25; Dkt. No. 325-1, at ¶ 25).
Seeing police officers coming up Kemble Street from Hobart Street and coming down Kemble
Street from Eagle Street, Plaintiff ran behind the back of the home located at 1223 or 1224
Kemble Street, where he was apprehended by police officers. (Dkt. No. 300-38, at ¶¶ 26-27; Dkt.
No. 325-1, at ¶¶ 26-27; Dkt. No. 308-5, at ¶ 6; Dkt. No. 317-1, at ¶ 6). After arresting Plaintiff,
officers brought him to the front of 1224 Kemble Street. (Dkt. No. 325-1, at ¶ 28).
After Plaintiff was arrested, Defendant Dougherty, who was then a Utica Police Sergeant
and Patrol Supervisor, arrived on the scene. (Dkt. No. 307-15, at ¶¶ 8-9; Dkt. No. 319-1, at ¶¶ 89). After seeing Plaintiff in front of 1224 Kemble Street, Defendant Dougherty directed that
Plaintiff be placed in a police vehicle and driven to Utica Police Headquarters. (Dkt. No. 307-15,
at ¶¶ 9; Dkt. No. 319-1, at ¶¶ 9; Dkt. No. 300-38, at ¶¶ 28-29; Dkt. No. 325-1, at ¶¶ 28-29; Dkt.
No. 308-5, at ¶ 6; Dkt. No. 317-1, at ¶ 6). Defendant Dougherty did not otherwise observe
Plaintiff’s arrest or the events leading to it. (Dkt. No. 307-15, at ¶ 11; Dkt. No. 319-1, at ¶ 11).
At some point following Plaintiff’s arrest, officers searched Plaintiff’s person and
discovered that he was carrying $1,739.00 in U.S. currency, though the parties dispute whether

6

this discovery occurred at the scene of the chase or later while Plaintiff was held at the police
station. (Dkt. No. 300-38, at ¶ 30; Dkt. No. 325-1, at ¶¶ 29-30; Dkt. No. 308-5, at ¶ 9; Dkt. No.
317-1, at ¶ 9).
B.

Drug Evidence Found at the Chase Scene

According to Defendant Cerminaro’s account of events, after Plaintiff was arrested, he
returned to the area where Plaintiff had jumped off the roof and found a torn, corner-knotted
plastic bag, which he immediately secured. (Dkt. No. 300-38, at ¶ 31). Plaintiff admits, for
purposes of the pending motions, that Defendant Cerminaro “may have found an alleged torn
plastic bag somewhere in the area of the chase,” but denies that he ever possessed the bag. (Dkt.
No. 325-1, at ¶¶ 31, 36). Defendant Cerminaro maintains, at the time he collected the knotted
bag, it contained a chunky and powder substance that was off white in color. (Dkt. No. 300-38, at
¶ 31; Dkt. No. 308-5, at ¶ 7). Plaintiff, by contrast, contends that the bag was empty, and that
Defendant Cerminaro (alone or in concert with other Defendants) collected stray pieces of an
off-white, chunky substance that were scattered across the ground and placed them in the empty,
knotted bag. (Dkt. No. 325-1, at ¶¶ 31, 53; Dkt. No. 317-1, at ¶ 7). Plaintiff admits, however, that
he did not personally see any Defendant do so. (Dkt. No. 300-38, at ¶ 54; Dkt. No. 325-1, at ¶
54).
Meanwhile, responding to Defendant Cerminaro’s call for assistance, Defendant Paladino
arrived on the scene on the Park Avenue side of Oneida Square, where he climbed onto the
rooftop of Joel’s Spanish Restaurant. (Dkt. No. 300-38, at ¶¶ 60-61). In his deposition,
Defendant Paladino testified that he searched the rooftops where the chase had occurred for
contraband, but did not find any. (Dkt. No. 300-30, at 23). He further testified that, from his
vantage point on the rooftops, he saw Defendant Cerminaro on the ground searching for
evidence, but he did not specifically see Defendant Cerminaro pick up any evidence off the
7

ground. (Id. at 25-30, 146-47). When he was finished searching for contraband, Defendant
Paladino returned to the ground on the Oneida Square side. (Dkt. No. 300-38, at ¶ 61; Dkt. No.
325-1, at ¶ 61). Then, on the Park Avenue side of Oneida Square, Defendant Paladino met
Defendant Cerminaro, who handed him the corner knotted torn plastic bag that Defendant
Cerminaro claimed to have retrieved from the ground on the chase route. (Dkt. No. 300-38, at ¶
62). Defendant Paladino testified that the only time he was on the Kimble Street side was when
he was exploring the rooftops; he never set foot on the ground of Kimble Street or the alleyway it
connects to, where Defendant Cerminaro allegedly discovered the bag. (Id. ¶ 63).3
Upon receiving the corner knotted torn plastic bag (which, at least by that point,
contained a white chalky substance) from Defendant Cerminaro, Defendant Paladino went back
to the Utica Police Station with the evidence in order to weigh and test the substance. (Dkt. No.
300-38, at ¶ 64; Dkt. No. 325-1, at ¶ 64). The substance was caught in the knot of the bag. (Dkt.
No. 300-38, at ¶ 65). In order to field test the substance and achieve a more accurate weight,
Defendant Paladino removed the substance from the bag before weighing and testing it. (Id. ¶
66). Defendant Paladino performed a field test on the substance, which tested positive for
cocaine. (Id. ¶ 67; Dkt. No. 308-5, at ¶ 8). He then weighed the substance on a calibrated scale,
and found that it weighed 1.2 grams in the aggregate. (Dkt. No. 300-38, at ¶ 68; Dkt. No. 308-5,
at ¶ 8). Defendant Paladino then sealed the substance in an evidence bag and placed it in the
Utica Police Department’s narcotics safe. (Dkt. No. 300-38, at ¶ 68). However, he did not

3

Plaintiff disputes this, insisting that “Defendant Paladino at some point was on Kemble St and assisted with the
search for contraband and observed Defendant Cerminaro picking up evidence.” (Dkt. No. 325-1, at ¶ 60). However,
the evidence Plaintiff cites for support—including Defendant Paladino’s deposition testimony and his testimony in
Plaintiff’s criminal proceedings—is consistent with Defendant Paladino’s assertions that: (1) he was above Kimble
Street at one point while searching the rooftops, but never stepped foot on the ground in the alleyway off Kimble
Street while it was being searched, and that, (2) while he was on the rooftops, he observed Defendant Cerminaro
collecting evidence, but did not see him pick any particular item of evidence off the ground. (Id.).

8

complete the official property detail log entry for the evidence until October 21, and in his
deposition, he admitted that there is no documentation beyond his own testimony to prove that
the evidence remained in the safe, and was not tampered with, between October 15 and October
21. (Dkt. No. 300-30, at 40, 69-71, 76-79, 191-96).
In January 2010, in connection with Plaintiff’s criminal trial, the substance was sent to
the New York State Police Forensic Investigation Center for further testing. The New York Lab
Technician took photographs of the substance, which do not appear to show any dirt, leaves,
grass, twigs or other organic material mixed with it. (Dkt. No. 300-38, at ¶ 56; Dkt. No. 325-1, at
¶ 56). Furthermore, lab testing of the substance found that the substance consisted only of 520
mg of cocaine and two common cutting agents, Levamisole and Caffeine, and did not find any
dirt or other environmental contaminants mixed with the substance. (Dkt. No. 300-38, at ¶ 57;
Dkt. No. 325-1, at ¶ 57; Dkt. No. 308-5, at ¶¶ 13, 26; Dkt. No. 317-1, at ¶¶ 13, 26).
C.

The Allegedly Exculpatory Photographs

Shortly after Defendant Cerminaro secured the knotted bag from the chase scene (and
before he gave it to Defendant Paladino), Defendant Dougherty spoke with Defendant Cerminaro
about what had occurred. (Dkt. No. 307-15, at ¶ 13; Dkt. No. 319-1, at ¶ 13). Subsequently,
Defendant Dougherty took photographs of the scene of Plaintiff’s arrest and the surrounding
area, as well as of Plaintiff’s car and its contents. (Dkt. No. 307-15, at ¶ 14; Dkt. No. 319-1, at ¶
14; Dkt. No. 300-38, at ¶ 34). At one point, he directed Defendant Cerminaro to place the
knotted bag on the ground where he had found it so that Defendant Dougherty could photograph
it in its original place. (Dkt. No. 307-15, at ¶ 15; Dkt. No. 319-1, at ¶ 15). Defendant Dougherty
testified that this was done in order to re-create the chase scene and show where Plaintiff and
Defendant Cerminaro would have jumped off the roof of a building during the chase, and that

9

such re-creation is something that is sometimes done pursuant to normal police procedure. (Dkt.
No. 307-15, at ¶ 16).
Defendant Dougherty maintains that he did not take these photographs for purposes of a
case investigation or as evidence to be used in prosecuting Plaintiff, but because he was
concerned that the circumstances of Plaintiff’s arrest may lead to an administrative investigation
regarding Defendant Cerminaro’s use of force. (Id. ¶¶ 19-20).4 Defendant Dougherty has
testified that, while he has been trained as a police evidence technician, he was not acting in that
capacity at the scene of Plaintiff’s arrest. (Id. ¶ 12).
The photographs Defendant Dougherty took generally show the chase route, the knotted
bag on the ground, a white chunky substance scattered across the ground along that route, and
Plaintiff’s rental vehicle with five cell phones on the vehicle’s seat. (Dkt. No. 300-38, at ¶ 34). In
addition to the photographs he took at the crime scene, Defendant Dougherty testified that he
later took photographs of Plaintiff himself at the Utica Police Station where Plaintiff was being
held, though Plaintiff recalls that these photographs were taken by a different police officer and
avers that Defendant Dougherty never photographed him. (Id. ¶ 35; Dkt. No. 325-1, at ¶ 35; Dkt.
No. 307-15, at ¶ 17; Dkt. No. 319-1, at ¶ 17). These photographs show minor injuries from the
foot chase, and one picture shows what appears to be white powder on Plaintiff’s black shirt.
(Dkt. No. 300-38, at ¶ 35). Altogether, twenty-two photographs were taken in connection with
Plaintiff’s arrest. (Dkt. No. 300-38, at n.9 (explaining that Exhibit 6 to the City Defendants’
motion, Dkt. No. 300-7, contains the complete set of relevant photographs); Dkt. No. 307-15, at
¶ 18 (agreeing); Dkt. No. 319-1, at ¶ 18 (agreeing that this is undisputed)).5

4

No complaint regarding Defendant Cerminaro’s use of force was ever made, and thus no such administrative
investigation was ever conducted. (Dkt. No. 307-15, at ¶ 21; Dkt. No. 319-1, at ¶ 21).
5

Throughout this decision, when referring to the photographs at issue, the Court cites to Exhibit 6 of the City
Defendants’ motion, which is contained on a CD that has been filed with the Court. (Dkt. No. 300-6). Other copies of

10

On October 20, 2009—five days after Plaintiff’s arrest—Defendant Dougherty uploaded
all twenty-two photographs into the Utica Police Department’s Record Management System
(“RMS”), an automated computer information system used to maintain offense, arrest, incident
and reference file databases. (Dkt. No. 307-15, at ¶¶ 24, 26; Dkt. No. 319-1, at ¶¶ 24, 26). In an
affidavit in support of his motion for summary judgment, Defendant Dougherty explains his
reason for the five-day delay in uploading the photographs as follows:
The day following [Plaintiff’s] arrest I served a shift as Patrol Supervisor, the two days
after that I was off, and following that I took a vacation day. There is no particular reason
why I entered the photographs, which were not part of the case investigation or evidence,
on October 20. However, I did not intentionally or purposefully delay entering the
photographs into the RMS System.
(Dkt. No. 307-3, at ¶ 16). Once Defendant Dougherty uploaded the pictures, they could be
accessed in the RMS system by using the assigned RMS Number, 09-52210, and
selecting the “Photographs” tab. (Dkt. No. 307-15, at ¶ 29).
Despite Utica Police Department policies requiring evidence technicians to prepare
reports describing their activities, Defendant Dougherty did not prepare any narrative or report
describing the fact that he took photographs of the crime scene. (Dkt. No. 307-15, at ¶¶ 25, 28;
Dkt. No. 319-1, at ¶¶ 25, 28). Defendant Dougherty’s explanation for not doing so is that the
photographs were not taken for purposes of being used as evidence in Plaintiff’s criminal case,
and that he was not acting as an evidence technician when he took the photographs. (Dkt. No.
307-15, at ¶¶ 25, 28). However, in his deposition, Mark Williams, Chief of the Utica Police
Department, testified that any officer responding to a crime scene in any capacity would be
expected to prepare a radio log or narrative describing their activities, and Defendant

the same photographs are included with Plaintiff’s opposition filings. (Dkt. Nos. 317-10, 317-18, 317-19, 319-12,
319-13, 325-11, 325-14, 325-15).

11

Dougherty’s failure to do so violated Utica Police Department policies. (Dkt. No. 300-32, at 4344; Dkt. No. 319-27, at 85-87).
After uploading the photographs to the RMS system, Defendant Dougherty performed no
other acts related to Plaintiff’s arrest or prosecution until 2012, after Plaintiff’s release from
incarceration. (Dkt. No. 307-15, at ¶ 27; Dkt. No. 319-1, at ¶ 27). He did not testify in any of
Plaintiff’s criminal proceedings, did not make any representation or presentation to the District
Attorney’s office in connection with those proceedings, and did not otherwise participate in
Plaintiff’s indictment, prosecution or conviction. (Dkt. No. 307-15, at ¶¶ 38-40; Dkt. No. 319-1,
at ¶¶ 38-40).
D.

Cerminaro’s Supporting Deposition and Plaintiff’s Criminal Charges

Following Plaintiff’s arrest, Defendant Cerminaro prepared a Supporting Deposition
describing his encounter with Plaintiff. (Dkt. No. 300-3, at 2). Defendant Cerminaro wrote that
he conducted a traffic stop of Plaintiff’s vehicle after Plaintiff “fail[ed] to stop for a stop sign
which is located at the intersection of Elm Street at Hobart Street.” (Id.). The Supporting
Deposition went on to describe the encounter as follows:
I exited my patrol car and initiated conversation with the driver and sole occupant of the
vehicle. Jeanty identified himself with a NYS driver license and told me that the vehicle
was a rental and he was the person on the lease. While speaking with Jeanty, I took notice
to his hands as they were shaking uncontrollably. I asked him if he was cold or nervous
because his hands were shaking. Jeanty did not answer my question. I also took notice to
[sic] several cell phones on the passenger side seat of his vehicle. When asked about the
reason for having several cell phones, Jeanty put the vehicle in drive and fled the scene. I
notified headquarters that I had a failure to comply and that the suspected vehicle was
now traveling Northbound on Park Ave. Upon turning onto Park Ave, I saw that Jeanty
had left the vehicle abandoned and was now fleeing on foot behind Joel’s Spanish Food
Restaurant (1225 Park Ave).
I engaged in foot pursuit of Jeanty which lead up a chain link fence behind Joel’s
Restaurant and onto a first floor rooftop. While on this fist [sic] floor roof top, Jeanty had
jumped onto the adjoining building’s rooftop (2nd floor). While running across this
rooftop, I saw Jeanty reaching into his waistband and pull out a large plastic bag. This
plastic bag contained a large quantity of a white in color powder substance which had the
12

appearance and characteristics associated with cocaine. Jeanty placed this place bag in his
mouth and began eating the substance all while tearing the bag open with his teeth.
Jeanty then jumped from the 2nd-floor rooftop to the ground and upon landing on the
ground, he threw the remnants of the plastic bag to the ground. While still pursuing
Jeanty on foot, I was able to grab a hold of him behind 1225 Kemble Street and place him
in handcuffs, without further incident.
Multiple units were on scene assisting and I was able to turn physical custody over to
Patrolman Logalbo.
I returned to the exact location where I saw Jeanty discard the plastic bag and retrieved
this item which contained a quantity of a white in color powder and chunky substance. I
secured this item under my exclusive custody and control where it was turned over to
Investigator Paladino, while on scene on Park Ave.
(Id.). Nowhere in his Supporting Deposition did Defendant Cerminaro mention the fact that
Defendant Dougherty had taken photographs of the scene, nor did he mention that he and
Defendant Dougherty had seen additional substance scattered along the chase route outside of
the recovered bag. (Id.). Defendant Cerminaro prepared several subsequent addendums to this
narrative, none of which mentioned the photographs or additional contraband. (Dkt. No. 300-15,
at 8-11).
Defendant Paladino also prepared a narrative describing his search of the rooftops, his
recovery of the seized bag from Defendant Cerminaro, and his testing and weighing of the
substance contained therein. (Dkt. No. 300-15, at 11). Defendant Paladino’s narrative also does
not mention any photographs being taken, or that additional contraband was found outside of the
recovered bag. (Id.).
On the day of Plaintiff’s arrest, relying on Defendant Cerminaro’s Supporting Deposition
and the evidence that had been collected and tested, Defendant Paladino charged Plaintiff with
criminal possession of a controlled substance in the fifth and seventh degrees. (Dkt. No. 300-38,
at ¶ 69; Dkt. No. 325-1, at ¶ 69).

13

E.

Plaintiff’s Criminal Proceedings

On October 20, 2009, a preliminary hearing was held on Plaintiff’s felony charges, at
which Defendants Cerminaro and Paladino both testified. (Dkt. No. 308-3). In his testimony,
Defendant Cerminaro provided an account of events that was largely consistent with his
Supporting Deposition. (Id. at 5-27). He testified that, when he found the torn plastic bag on the
ground, there was remnants of an “off-white, chunky substance and white-colored, powdery
substance” in the bag. (Id. at 24-25). He testified that the only evidence he collected and turned
over to Defendant Paladino was the bag with the substance inside, and did not mention that he
and Defendant Dougherty saw pieces of a white chunky substance on the ground outside the bag.
(Id.). He further testified, that “[a]s soon as I picked up the bag, I immediately turned it over to
Investigator Paladino,” omitting the fact that he had first allowed Defendant Dougherty to take
pictures of the bag in the place from which he retrieved it. (Id. at 10). He was not asked whether
any photographs were taken at the scene, and did not mention the existence of any photographs.
(Id. at 5-27). Defendant Paladino also gave an account consistent with his previous narrative, and
did not mention the existence of photographs or contraband other than the bag Defendant
Cerminaro gave him. (Id. at 27-35). At the conclusion of the preliminary hearing, Plaintiff was
held for Grand Jury action. (Id. at 35).
On November 23, 2009, Assistant District Attorney (“ADA”) Grant Garramone made a
grand jury presentation regarding Plaintiff’s criminal charges, at which Defendants Cerminaro
and Paladino again testified. (Dkt. No. 308-4). Both Defendants again gave accounts that were
substantially consistent with their testimony at Plaintiff’s preliminary hearing. (Id.). Defendant
Cerminaro was explicitly asked whether he was “able to locate anything else” besides the bag he
had secured and its contents when searching the area of pursuit, and he responded “nothing.” (Id.
at 8). Defendant Cerminaro failed to mention that he and Defendant Dougherty had, in fact, seen
14

other bits of substance scattered on the ground on the chase route, which Defendant Dougherty
photographed. (Id.). Again, neither Defendant was asked whether photographs of the scene had
been taken, and neither mentioned the fact that Defendant Dougherty had taken such
photographs. (Id. at 1-17). On November 24, 2009, the grand jury indicted Plaintiff on the
charges of Criminal Possession of a Controlled Substance in the fifth and seventh degrees. (Dkt.
No. 308-5, at ¶ 12; Dkt. No. 317-1, at ¶ 12).
Plaintiff’s case proceeded to trial. Prior to, and on the first day of, Plaintiff’s trial, his
criminal attorney, Rebecca L. Wittman, made various discovery demands of the District
Attorney’s (“DA”) Office, including demands for all photographs associated with Plaintiff’s
arrest. (Dkt. No. 308-5, at ¶ 16; Dkt. No. 317-1, at ¶ 16). The presiding judge, the Honorable
Michael L. Dwyer, issued numerous orders directing that the DA’s office provide any and all
such photographs. (Dkt. No. 308-5, at ¶ 16; Dkt. No. 317-1, at ¶ 16). ADA Garramone and Kurt
Schultz, the ADA who had assumed responsibility for Plaintiff’s criminal prosecution after the
grand jury proceedings, investigated and reported that their office was not in possession of any
such photographs. (Dkt. No. 308-5, at ¶ 17; Dkt. No. 317-1, at ¶ 17). On the first day of
Plaintiff’s trial, Judge Dwyer ordered ADA Schultz to travel to the Utica Police Station in
person, review the records of the Utica Police Department, and confirm once and for all that no
such photographs existed. (Dkt. No. 308-5, at ¶ 17; Dkt. No. 317-1, at ¶ 17). No photographs
were located from this review, and therefore none were turned over to Wittman. (Dkt. No. 308-5,
at ¶ 17; Dkt. No. 317-1, at ¶ 17). Defendant Dougherty was not aware of Plaintiff’s discovery
requests or Judge Dwyer’s discovery orders, and the photographs he took were never made
available to the DA’s office or turned over to Plaintiff’s defense attorney. (Dkt. No. 307-15, at ¶¶
34-35; Dkt. No. 319-1, at ¶¶ 34-35).

15

Defendants Cerminaro and Paladino once again testified at Plaintiff’s criminal trial. At
trial, in response to questioning, Defendant Cerminaro specifically testified that he did not call an
evidence technician to photograph the evidence he collected, explaining that he “didn’t see a
need to” and “didn’t want to leave [the bag] there unattended.” (Dkt. No. 300-22, at 184-85,
188). He once again omitted the fact that Defendant Dougherty had, in fact, taken photographs of
the bag with Defendant Cerminaro present. (Id.). Defendant Paladino also testified that he did
not take any pictures of the recovered bag either at the scene or elsewhere, and when asked about
the existence of photographs, did not mention the pictures taken by Defendant Dougherty. (Id. at
266-68). Once again, neither Defendant mentioned that other off-white chunky substances had
been found scattered on the ground outside of the recovered bag. On March 25, 2010, at the
conclusion of Plaintiff’s trial, Plaintiff was found guilty on both charges upon which he was
indicted, and on May 13, 2010, he was sentenced to 2.5 years of imprisonment. (Dkt. No. 308-5,
at ¶ 15; Dkt. No. 317-1, at ¶ 15).
F.

Post-Conviction Events and Proceedings
1.

Plaintiff’s Receipt of the Allegedly Exculpatory Photographs

On or about July 19, 2010, during Plaintiff’s incarceration, in response to a Freedom of
Information Law (“FOIL”) request and a subsequent Article 78 proceeding initiated by Plaintiff
in New York State Supreme Court, the City of Utica provided him with the twenty-two
photographs taken on the date of his arrest. (Dkt. No. 308-5, at ¶ 18; Dkt. No. 317-1, at ¶ 18).
Plaintiff subsequently filed a complaint with the Utica Police Department on January 1, 2011.
Plaintiff was released from prison on August 2, 2012, after which he served one year of his 2year post-release supervision sentence. (Dkt. No. 308-5, at ¶ 15; Dkt. No. 317-1, at ¶ 15).

16

2.

The Secretly Recorded Meeting

In June 2011, Defendant Dougherty was assigned to the Utica Police Department’s
Professional Standards Bureau. (Dkt. No. 307-15, at ¶ 42; Dkt. No. 319-1, at ¶ 42). In that
capacity, in 2012, Defendant Dougherty was asked to assist the City of Utica Corporation
Counsel’s office in connection with ongoing FOIL requests Plaintiff had filed. (Dkt. No. 307-15,
at ¶ 43; Dkt. No. 319-1, at ¶ 43). Defendant Dougherty testified that, in providing this assistance,
he became aware for the first time of Plaintiff’s January 2011 complaint, which had been filed
before Defendant Dougherty was assigned to the Professional Standards Bureau. (Dkt. No. 30715, at ¶ 43). In June 2012, Defendant Dougherty called Plaintiff’s complaint to the attention of
Defendant Williams in his capacity as the Chief of Police, who authorized Defendant Dougherty
to meet with Plaintiff and discuss the circumstances of his arrest and prosecution. (Id. ¶¶ 44-45;
Dkt. No. 319-1, at ¶¶ 44-45).
On December 21, 2012, Defendant Dougherty, Investigator Joseph Trevasani, and City of
Utica First Assistant Corporation Counsel Charles Brown met with Plaintiff, and Plaintiff
secretly recorded the meeting. (Dkt. No. 307-15, at ¶ 46; Dkt. No. 319-1, at ¶ 46). During the
meeting, Defendant Dougherty made several statements that Plaintiff contends indicate his
awareness that Defendant Cerminaro improperly collected loose contraband off the ground,
added it to the knotted bag and used it as evidence against Plaintiff, despite never having seen
Plaintiff possess this loose contraband. (Dkt. No. 319-1, at ¶ 47). Specifically, when shown
pictures of the white substance scattered across the ground, Defendant Dougherty agreed that his
officers collected that substance; he said that Defendant Cerminaro “may have picked some of
the loose pieces up and put them in [the] bag”; he said that “somebody should have picked” up
the scattered substance from the ground; and he said that that he “know[s] they picked up some
little pieces of residue, because it’s in the property.” (Dkt. No. 307-13, at 14, 28, 44). During this
17

conversation, Defendant Dougherty also stated that there was “obviously a disconnect between
what was presented in court and what was [sic] actually happened at the scene,” and that he did
not know why his photographs were not entered into evidence or why Defendants Cerminaro and
Paladino did not disclose the existence of those photographs in their testimony, but that he did
not believe that either officer intentionally lied in their testimony or withheld relevant evidence.
(Id. at 15, 21, 29-30, 38-39).
3.

Plaintiff’s § 440 Motion and Defendant McNamara’s Investigation

On March 8, 2015, Plaintiff filed a motion to vacate his conviction pursuant to § 440.10
of the New York Criminal Procedure Law. (Dkt. No. 307-15, at ¶ 48; Dkt. No. 319-1, at ¶ 48;
Dkt. No. 308-5, at ¶ 20; Dkt. No. 317-1, at ¶ 20). Plaintiff attached to his motion the twenty-two
photographs taken in connection with his arrest. (Dkt. No. 308-5, at ¶ 20; Dkt. No. 317-1, at ¶
20). Plaintiff’s motion was the first time the DA’s office became aware of the existence of these
photographs, as they had not been provided to the DA’s office during Plaintiff’s trial or at any
time prior to March 2015. (Dkt. No. 308-5, at ¶¶ 19-20; Dkt. No. 317-1, at ¶¶ 19-20). Shortly
thereafter, Defendant McNamara received a phone call from Judge Dwyer, in which Judge
Dwyer expressed concern that Plaintiff’s conviction may result in his deportation to the Congo,
and asked Defendant McNamara to consider consenting to the motion and giving Plaintiff a
dispensation that would not result in Plaintiff’s deportation. (Dkt. No. 300-38, at ¶¶ 73-75).
After receiving this phone call, Defendant McNamara began investigating the
circumstances of Plaintiff’s case. As part of his investigation, he questioned several ADAs who
were involved and reviewed records from the Utica Police Department and his own office
regarding Plaintiff’s prosecution. (Dkt. No. 308-5, at ¶ 22). Defendant McNamara also contacted
the Utica Police Department to determine how photographs were maintained in its record
management system. (Id. ¶ 24; Dkt. No. 317-1, at ¶ 24). He also directed ADA Garramone to
18

review the test results of the contraband collected at the time of the Plaintiff’s arrest to determine
whether any dirt or environmental contaminants were in the contraband used in Plaintiff’s
prosecution. (Dkt. No. 308-5, at ¶ 26; Dkt. No. 317-1, at ¶ 26). Garramone did so, and confirmed
that the lab reports revealed no evidence of such contaminants. (Dkt. No. 308-5, at ¶ 26; Dkt. No.
317-1, at ¶ 26).
In May 2015, in connection with this investigation, ADA Garramone directed Defendant
Dougherty to prepare a narrative concerning his involvement in Plaintiff’s arrest and,
specifically, his taking of photographs that were never turned over to the DA’s office. (Dkt. No.
307-15, at ¶ 49; Dkt. No. 319-1, at ¶ 49; Dkt. No. 308-5, at ¶ 25; Dkt. No. 317-1, at ¶ 25). In his
narrative, Defendant Dougherty described his arrival on the scene following Plaintiff’s arrest and
his discussions with Defendant Cerminaro. (Dkt. No. 307-3, at 37). The narrative went on to
explain his decision to take photographs and subsequent events, in pertinent part, as follows:
I knew that typically, the Metro Unit didn’t take photographs of drug evidence at the
time, however because of the pursuit, potential for injury (to both the suspect and
Cerminaro) and the possibility that I would eventually have to complete some type of
administrative investigation, I took photographs of the scene. While I was taking these
photographs, I asked Cerminaro to place the bag exactly where he found it so I could
document it’s [sic] location in relation to the second roof top Jeanty jumped from during
the pursuit. I don’t believe that Metro Investigator Peter Paladino ever saw me take any
photographs, which is why he probably testified the way he did during Jeanty’s court
appearances.
(Dkt. No. 307-3, at 37-38). Defendant Dougherty’s narrative then recounted his discovery of
Plaintiff’s January 2011 complaint, as well as a subsequent discussion with ADA Schultz in
which Defendant Dougherty “attempt[ed] to make him aware of [Plaintiff’s] allegations and the
extent of my involvement”; Schultz “dismissed [his] concerns, basically saying not to worry

19

about it.”6 (Id. at 38). The narrative also described Defendant Dougherty’s December 2012
meeting with Plaintiff and stated that, at that meeting, he told Plaintiff that “there was no
conspiracy, I took the photographs and was present at the time of his arrest,” and that he “would
testify to that fact” “if need be.” (Id. at 38-39).
At some point,7 Defendant McNamara and members of his staff met with Defendants
Cerminaro, Paladino and Dougherty and interrogated them concerning their involvement in
Plaintiff’s case. (Dkt. No. 308-5, at ¶ 23). Defendant McNamara testified that, at the time of this
meeting, he was considering bringing perjury charges against one or more of the officers in
connection with their false testimony at Plaintiff’s criminal trial. (Dkt. No. 300-16, at 72-73, 79;
Dkt. No. 300-17, at 24-25). In their depositions, Defendant McNamara and ADA Garramone
(who was also at the meeting) testified that, under questioning, Defendant Cerminaro insisted
that he continued to have no recollection of any pictures being taken, even after being shown the
pictures and acknowledging that his feet were visible in one of them. (Dkt. No. 300-16, at 75, 82,
86-87, 129, 133-34; Dkt. No. 300-18, at 100-03). They also testified that Defendant Paladino told
them he was never aware of any photographs being taken, and may not have been present when
they were taken at the scene. (Dkt. No. 300-16, at 74-75, 80; Dkt. No. 300-18, at 80, 101, 104,
140). During the meeting, the officers also advised McNamara regarding their recollection of the
size of the contraband they observed and collected during Plaintiff’s arrest. (Dkt. No. 308-5, at ¶
23). Based on this meeting and the rest of Defendant McNamara’s investigation, he concluded

6

In his deposition, Schultz denied that such a conversation with Defendant Dougherty ever occurred. (Dkt. No. 30020, at 81-82, 84).

7

The County Defendants’ Statement of Material Facts places this meeting on July 28, 2015. (Dkt. No. 308-5, at ¶ 23).
However, as discussed further below, Defendant McNamara described his conclusions regarding Defendants
Cerminaro and Paladino’s recollection of the photographs at a hearing in May 2015. (Dkt. No. 317-14, at 8-9). This
appears to suggest that Defendant McNamara’s interrogation of these officers actually took place much earlier, and
that the July 2015 meeting referenced in Defendant McNamara’s deposition testimony was a different, subsequent
meeting. In any event, the precise sequence of events is not material for purposes of the present motions.

20

that the explanations provided by the officers made sense, and that Defendants Cerminaro and
Paladino had not committed perjury during Plaintiff’s criminal proceedings. (Dkt. No. 308-5, at ¶
27; Dkt. No. 317-1, at ¶ 27; Dkt. No. 307-15, at ¶ 53; Dkt. No. 319-1, at ¶ 53).
4.

Plaintiff’s Post-Conviction Court Proceedings

On May 18, 2015, while Defendant McNamara’s investigation into Plaintiff’s case was
ongoing, oral argument on Plaintiff’s § 440 motion was held before the Hon. Barry M. Donalty
of the Oneida County Court.8 (Dkt. No. 317-14). Defendant McNamara appeared personally to
argue the motion on behalf of the DA’s office. (Id. at 7-9). During his argument, he explained
that, based on his interviews with Defendants Cerminaro and Paladino, Defendant Paladino “was
not even there when the pictures were taken,” and Defendant Cerminaro “conceded he was
there” and acknowledged that “obviously they took pictures because my feet are in the picture,”
but maintained that he “[did not] remember [Defendant Dougherty] taking pictures.” (Id. at 8-9).
Following oral argument, Judge Donalty ordered an evidentiary hearing on Plaintiff’s § 440
motion that was limited to the question of whether the failure to produce the photographs during
Plaintiff’s trial constituted a Brady9 or Rosario10 violation, while making clear his conclusion
that all the other allegations underlying Plaintiff’s motion were “speculation” with no factual
support. (Id. at 9-10; see also Dkt. No. 325-21 (declaration from Judge Donalty reiterating that
his decision to vacate Plaintiff’s conviction was based solely on a potential violation of Brady
and/or Rosario)).

8

Because some of the allegations underlying Plaintiff’s § 440 motion included accusations against Judge Dwyer,
Judge Dwyer recused himself and transferred the case to Judge Donalty for purposes of adjudicating the motion. (Dkt.
No. 317-14, at 4).

9

Brady v. Maryland, 373 U.S. 83 (1963).

10

People v. Rosario, 9 N.Y.2d 286 (1961).

21

On June 29, 2015, ADA Garramone, at the direction of Defendant McNamara, consented
to an order vacating Plaintiff’s judgment of conviction, and the conviction was vacated. (Dkt.
No. 308-5, at ¶ 28;11 Dkt. No. 317-1, at ¶ 28; Dkt. No. 317-20). On the record, Garramone did
not provide reasons for the DA’s office’s decision to consent to the vacatur. (Id.). In his
deposition, Defendant McNamara testified that he did not believe that the withheld photographs
were Brady or Rosario material, but that Plaintiff nonetheless should have received the
photographs during his trial pursuant to the DA’s office’s policy of turning over a defendant’s
entire file to the defense, and thus that vacating Plaintiff’s conviction was the just approach.
(Dkt. No. 300-16, at 59-60, 98-100, 113-14). Plaintiff’s indictment was not dismissed at that
time, and the case was returned to Judge Dwyer’s trial calendar for retrial. (Dkt. No. 308-5, at ¶
28; Dkt. No. 317-1, at ¶ 28; Dkt. No. 317-20).
During the re-trial process, the DA’s office offered to resolve Plaintiff’s case by allowing
him to plea to a disorderly conduct charge, and Plaintiff’s assigned attorney recommended that
he accept the offer, but he refused. (Dkt. No. 300-13, at 7). At a hearing on July 27, 2015, Judge
Dwyer and Plaintiff discussed Plaintiff’s refusal to accept the plea. Plaintiff informed Judge
Dwyer, in substance, that he could not accept a plea because he believed that a criminal
conviction of any kind could result in his deportation to the Congo, where his life could be
threatened. (Id. at 7-18).
On August 10, 2015, at a hearing before Judge Dwyer, Defendant McNamara appeared
and moved to have Plaintiff’s indictment dismissed in the interests of justice pursuant to
§ 210.40 of the Criminal Procedure Law. (Dkt. No. 308-5, at ¶ 29; Dkt. No. 317-1, at ¶ 29).
Defendant McNamara explained that he did “not believe the police intentionally lied” and did

11

The County Defendants’ Statement of Material Facts references the incorrect date of July 27, 2005.

22

“not believe the intent of the police were trying to hide anything [sic],” but nonetheless that he
believed that Plaintiff “should have had those pictures” and that they “would have been able to
support his claim,” even though the “evidence was pretty clear of what took place in that he was
in a traffic stop, possessed cocaine and ultimately was convicted of that.” (Dkt. No. 325-13, at 56). Defendant McNamara went on to explain the various factors forming the basis for his motion
to dismiss the indictment, which included the following: (1) Plaintiff had been charged only with
possession of a controlled substance, and had already served his full prison term for that crime;
(2) the drug evidence used at Plaintiff’s trial had already been destroyed pursuant to a court
order, which would be a “serious hindrance” to the prosecution on retrial;12 (3) Plaintiff was “not
a known drug dealer in this community,” was “not involved in any violent crime as typically
associated with drug dealing,” had a “family” and “job,” and “has been crime free since being
released from prison”; and (4) “a conviction of any type would result in [Plaintiff] being
deported,” which was “not what [the DA’s office was] looking for in this case, nor was it ever a
situation that [the DA’s office was] looking for.” (Dkt. No. 325-13, at 6-9). Plaintiff’s attorney
stated that he “did a similar assessment of the factors relating to an interest of justice dismissal”
and that Defendant McNamara’s analysis “very closely tracks the assessment that I had of those
same factors.” (Id. at 9). Plaintiff himself opposed the relief, arguing that he had been convicted
based on police misconduct and insisting on proceeding with the retrial so that he could have the
opportunity to prove his allegations. (Id. at 9-16).

12

In November 2011, the DA’s office had obtained a court order authorizing the destruction of the contraband
introduced at Plaintiff’s trial, and the contraband was subsequently destroyed. (Dkt. No. 308-5, at ¶ 14; Dkt. No. 3171, at ¶ 14). Plaintiff alleges that the DA’s office obtained this order using a supporting affidavit that falsely stated that
there was no appeal pending from Plaintiff’s conviction, when in fact such an appeal was pending. (Dkt. No. 317-1,
at ¶ 14).

23

After hearing the arguments, Judge Dwyer granted Defendant McNamara’s motion and
dismissed Plaintiff’s indictment, stating that he “agree[d] with all of the statements that have
been made by Mr. McNamara,” that “[i]f there was a second conviction I would not give
[Plaintiff] anymore jail or prison time,” that Plaintiff “has family that he works very hard in
supporting,” and that “he’s done well for himself” and is “working to better himself.” (Id. at 1617). Judge Dwyer also stated that “the Court is not saying that . . . it does not feel that there was
sufficient evidence on the record to support the original conviction.” (Id. at 17).
G.

McNamara’s Alleged Defamation of Plaintiff

On or about August 12, 2015, Defendant McNamara spoke with reporter Micaela Parker
at the Observer-Dispatch regarding Plaintiff’s case and the dismissal of his conviction. (Dkt. No.
308-5, at ¶ 30; Dkt. No. 317-1, at ¶ 30). Thereafter, the Observer-Dispatch published an article
online on August 12, 2015, and in its print edition on August 13, 2015. The online version of the
article reads, in its entirety, as follows:
Nassau County resident Vladimir Jeanty served as his own attorney for about six months
in an attempt to get a 2010 conviction dismissed.
On Monday he was successful, but he wasn’t happy about it.
“I wanted a retrial, because had I had a retrial it would have came out that the officer and
investigators manufactured the crime, they made up the charges.” Jeanty said. “And I
have proof of that. My reasoning going to trial again was that I wanted to introduce this
info that I didn't have in the original trial.”
Jeanty said he plans to appeal Judge Michael Dwyer’s dismissal of the case. In 2010, he
served a 2 1/2-year state prison sentence for his conviction of fifth-degree criminal
possession of a controlled substance.
The motion to dismiss was originally made in court by Oneida County District Attorney
Scott McNamara.
“I think it was the right thing to do even though he’s a bit of a difficult individual, it was
the right thing to do in the interest of justice,” McNamara said.

24

The case began in 2009 when Jeanty was being interviewed by a Utica police officer on
Park Avenue during a traffic stop, Mr. McNamara said. When the officer questioned
Jeanty on the six cell phones visible in the vehicle, Jeanty drove away before stopping at
Oneida Square, climbing a building and running across a roof in an effort to evade police.
While he was running, Jeanty was ripping into a baseball sized bag of cocaine with his
teeth and throwing pieces of it away, McNamara said. The cocaine was about the size of
a marble when officers took him into custody.
Photos were taken of the smaller ball of cocaine, but the chunks reportedly bit off were
never photographed or collected. The photos were never turned over to the District
Attorney’s Office, so the evidence wasn’t included in trial, among other concerns.
McNamara said the photos are a violation of discovery because the prosecution is
required to hand over any photos taken during the investigation to the defense. Jeanty
claims that the police planted the cocaine visible in the photos, and that the other chunks
of cocaine never existed.
“Though I don’t agree with him, it could substantiate his claim there wasn’t crack on the
ground, making it Brady material, meaning it could be favorable to the defendant,”
McNamara said.
The cocaine in evidence was destroyed following Jeanty’s conviction, as is standard for
the office.
(Dkt. No. 33-3, at 2-3). The print version of the article is substantially identical, except that the
seventh paragraph ends with, “Jeanty drove away before stopping at Oneida Square, climbing a
building and running across a roof in an effort to evade police, officials said.” (Dkt. No. 33-4, at
2 (emphasis added)).
On May 13, 2016, Defendant McNamara submitted an affidavit in support of a motion
seeking dismissal of Plaintiff’s complaint against him and the County of Oneida in New York
State court proceedings. (Dkt. No. 33-5). In his affidavit, Defendant McNamara made statements
that Plaintiff alleges are defamatory, including statements averring Defendant McNamara’s
belief that Plaintiff was guilty of possession of illegal narcotics and that one of the photographs
withheld during Plaintiff’s criminal case appears to depict Plaintiff with cocaine on his black
shirt. (Dkt. No. 33, at ¶¶ 741-47).

25

III.

STANDARD OF REVIEW
Under Rule 56(a), summary judgment may be granted only if all the submissions taken

together “show that there is no genuine issue as to any material fact and that the moving party is
entitled to judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); see
also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The moving party bears the
initial burden of demonstrating “the absence of a genuine issue of material fact.” Celotex, 477
U.S. at 323. A fact is “material” if it “might affect the outcome of the suit under the governing
law,” and is genuinely in dispute “if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson, 477 U.S. at 248; see also Jeffreys v. City of New
York, 426 F.3d 549, 553 (2d Cir. 2005) (citing Anderson). The movant may meet this burden by
showing that the nonmoving party has “fail[ed] to make a showing sufficient to establish the
existence of an element essential to that party’s case, and on which that party will bear the
burden of proof at trial.” Celotex, 477 U.S. at 322; see also Selevan v. N.Y. Thruway Auth., 711
F.3d 253, 256 (2d Cir. 2013) (explaining that summary judgment is appropriate where the
nonmoving party fails to “‘come forth with evidence sufficient to permit a reasonable juror to
return a verdict in his or her favor on’ an essential element of a claim” (quoting In re Omnicom
Grp., Inc. Sec. Litig., 597 F.3d 501, 509 (2d Cir.2010))).
If the moving party meets this burden, the nonmoving party must “set out specific facts
showing a genuine issue for trial.” Anderson, 477 U.S. at 248, 250; see also Celotex, 477 U.S. at
323-24; Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009). “When ruling on a summary
judgment motion, the district court must construe the facts in the light most favorable to the nonmoving party and must resolve all ambiguities and draw all reasonable inferences against the
movant.” Dallas Aerospace, Inc. v. CIS Air Corp., 352 F.3d 775, 780 (2d Cir. 2003). Still, the
nonmoving party “must do more than simply show that there is some metaphysical doubt as to
26

the material facts,” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986),
and cannot rely on “mere speculation or conjecture as to the true nature of the facts to overcome
a motion for summary judgment,” Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 12 (2d Cir. 1986)
(quoting Quarles v. Gen. Motors Corp., 758 F.2d 839, 840 (2d Cir. 1985)). Furthermore, “[m]ere
conclusory allegations or denials . . . cannot by themselves create a genuine issue of material fact
where none would otherwise exist.” Hicks v. Baines, 593 F.3d 159, 166 (2d Cir. 2010) (quoting
Fletcher v. Atex, Inc., 68 F.3d 1451, 1456 (2d Cir. 1995)).
Where the plaintiff proceeds pro se, the Court must read his submissions liberally and
interpret them “to raise the strongest arguments that they suggest.” McPherson v. Coombe, 174
F.3d 276, 280 (2d Cir. 1999) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)).
However, a pro se party’s “‘bald assertion,’ completely unsupported by evidence, is not
sufficient to overcome a motion for summary judgment.” Jordan v. New York, 773 F. Supp. 2d
255, 268 (N.D.N.Y. 2010) (citing Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991)); see also
Wagner v. Swarts, 827 F. Supp. 2d 85, 92 (N.D.N.Y. 2011).
IV.

SUMMARY JUDGMENT MOTIONS
A.

Preliminary Evidentiary Issues

As a preliminary matter, in their reply to Plaintiff’s opposition, the City Defendants raise
objections to several pieces of evidence Plaintiff relies on, specifically: (1) the transcript and
recording of his December 2012 meeting with Defendant Dougherty and others, and (2) an
affidavit from Plaintiff’s criminal defense attorney, Rebecca Wittman. (Dkt. No. 346-2, at 10-11,
20-22). Plaintiff’s opposition submissions included an affidavit describing the December 2012
recording and transcript that attempts to demonstrate their authenticity and admissibility, (Dkt.
No. 317-4, 319-4, 325-4), but he has not had a meaningful opportunity to respond to the City

27

Defendants’ specific objections.13 In any event, as will become clear from the analysis below,
neither piece of evidence is dispositive on any of the conclusions the Court reaches. Therefore,
the Court will consider them as part of the record for purposes of the summary judgment
motions, without prejudice to any Defendant’s right to object to their use at a subsequent stage of
the proceedings.14
B.

Count I: Fair Trial Claim Against Defendants Cerminaro, Paladino and
Dougherty Arising from Plaintiff’s Criminal Conviction

Construed liberally, Plaintiff’s fair trial claim against Defendants Cerminaro, Paladino
and Dougherty may be reasonably read as proceeding under two separate legal theories: (1) a
Brady claim based on these Defendants’ failure to turn over the twenty-two allegedly
exculpatory photographs15 during Plaintiff’s criminal trial; and (2) a fabrication of evidence
claim based on Plaintiff’s allegations that these Defendants picked up loose contraband off the
ground along the chase route, improperly commingled it with an empty bag, and charged
Plaintiff with possession of that contraband, relying on Defendant Cerminaro’s false testimony
that he had seen Plaintiff possess the bag. The Court evaluates both theories with respect to all
three Defendants.

13

Plaintiff attempted to file unauthorized sur-replies to Defendants’ replies, (Dkt. Nos. 350-53), but as this District’s
Local Rule 7.1(b) does not permit sur-replies on summary judgment motions, these sur-replies were stricken from the
record and have not been considered by the Court.

14

Plaintiff states in his affidavit supporting his Rule 56(d) request that he has “concurrently filed an FRE 201(e)
request to be heard on whether the Court should take judicial notice of the 8/10/2015 dismissal transcript and am
requesting a hearing to determine the actual basis for dismissal of the indictment and the admissibility of that
transcript.” (Dkt. No. 317-3, at ¶¶ 25; Dkt. No. 319-3, at ¶¶ 25; Dkt. No. 325-3, at ¶¶ 25). Based on the Court’s review
of the docket, no such request has been filed.

15

In his opposition to the City Defendants’ motion, Plaintiff provides a litany of other evidence that he believes
constitutes Brady material, but his list includes evidence that arose after Plaintiff’s conviction (including statements
Defendant Dougherty made during the secretly recorded December 2012 meeting) and references to “true
observations” and “personal knowledge” of several Defendants with no ties to any concrete evidence existing at the
time of Plaintiff’s trial. (Dkt. No. 325, at 7-8). Plaintiff’s contentions that certain Defendants fabricated evidence using
loose contraband they found on the ground and falsely testified that Plaintiff had possessed it are addressed separately
in the context of Plaintiff’s fabrication of evidence claim.

28

1.

Brady Claim

The Second Circuit has recognized Brady violations as actionable under 42 U.S.C. §
1983. Poventud v. City of New York, 750 F.3d 121, 132 n.12 (2d Cir. 2014) (en banc). “A classic
Brady violation contains three elements: ‘The evidence at issue must be favorable to the accused,
either because it is exculpatory, or because it is impeaching; that evidence must have been
suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.’”
Fappiano v. City of New York, 640 F. App’x 115, 118 (2d Cir. 2016) (quoting United States v.
Rivas, 377 F.3d 195, 199 (2d Cir. 2004)). However, the Second Circuit has “never held that
anything less than an intentional Brady violation establishes a [civil] § 1983 due process claim
for damages.” Id. at 118. The City Defendants and Defendant Dougherty argue that Plaintiff’s
Brady claim must be dismissed because he cannot establish any of the foregoing three elements.
(Dkt. No. 300-39, at 9-22; Dkt. No. 307-16, at 8-11).
a.

Exculpatory or Impeachment Evidence

As to the first element, the City Defendants spend a significant portion of their briefing
on their contention that the photographs are not “exculpatory.” (Dkt. No. 300-39, at 11-16).
However, they fail to address whether the photographs constitute impeachment evidence,
particularly in light of testimony during Plaintiff’s criminal proceedings which suggested that no
contraband was located other than the knotted bag. (Dkt. No. 300-22, at 184-85, 188, 266-68;
Dkt. No. 308-4, at 8). For purposes of this analysis, the Court assumes, without deciding, that
Plaintiff has raised a genuine dispute of material fact as to the first element of his Brady claim.
b.

Intentional Suppression
i.

Defendant Dougherty

Plaintiff points to no record evidence from which a reasonable jury could find that
Defendant Dougherty intentionally, purposefully or willfully suppressed the photographs taken
29

on the day of Plaintiff’s arrest. Plaintiff has, at most, established that Defendant Dougherty’s
delay of several days in uploading the photographs to the RMS, combined with his failure to
prepare a radio log or narrative documenting the fact that those photographs were taken, violated
the Utica Police Department’s policies, and that these policy violations contributed to the fact
that the photographs were never located and provided to the DA’s office for production during
Plaintiff’s criminal trial. (Dkt. No. 307-13, at 39-40 (Defendant Dougherty’s acknowledgment to
Plaintiff, in a surreptitiously-recorded meeting, that he should have uploaded the pictures the day
he took them, and that his failure to do so led to them not being available for Plaintiff’s
preliminary hearing); Dkt. No. 300-4, at 32, 136 (Defendant Dougherty’s deposition testimony
acknowledging that he did not complete a radio log as required by policy); Dkt. No. 300-5, at 4041 (same); Dkt. No. 300-32, at 43-44 (Chief of Police Mark Williams’ testimony that the failure
to complete such a radio log violates police department policy); Dkt. No. 319-27, at 85-87
(same); Dkt. No. 300-4, at 34 (Defendant Dougherty’s deposition testimony acknowledging that
a radio log or narrative would have alerted “someone looking” to the fact that photographs
existed)). Plaintiff has also raised evidence suggesting that Defendant Dougherty at some point
reviewed Defendant Cerminaro’s Supporting Deposition, which did not mention the existence of
any photographs, and did not require him to amend his narrative to add the fact that photographs
were taken. (Dkt. No. 300-4, at 88-91).
However, all of Defendant Dougherty’s explanations for his actions contained in the
record—including in his surreptitiously-recorded December 2012 meeting with Plaintiff, his
May 2015 narrative prepared for ADA Garramone, his deposition testimony, and his affidavit in
support of his summary judgment motion—have been consistent. Namely, Defendant Dougherty
has always averred that he was not performing the role of an evidence technician while taking

30

the photographs;16 that he took them in order to completely and accurately document the chase
scene for purposes of a potential use-of-force investigation; that he did not view them as
potential evidence for Plaintiff’s criminal prosecution that needed to be documented pursuant to
the policies applicable to evidence technicians; and that his five-day delay in uploading the
photographs to the RMS was due to neglect and intervening vacation days. (Dkt. No. 307-13, at
9-10, 12, 17, 24-26; Dkt. No. 300-4, at 21-23, 28-29, 31-33, 44-45; Dkt. No. 307-3, at ¶¶ 8-9, 12,
13-14, 16 & p. 37-38). Plaintiff clearly does not believe these explanations, but points to no
record evidence beyond his own speculation that would cast doubt on them, such as inconsistent
explanations by Defendant Dougherty or contradictory statements by any other witnesses. While
the Court may not evaluate Defendant Dougherty’s credibility on a summary judgment motion,
his consistent and uncontroverted testimony may serve as a basis for summary judgment in his
favor where Plaintiff has adduced no evidence to rebut it. Cf., e.g., Holmes v. City of New York,
No. 14-cv-5253, 2018 WL 1604800, at *5, 2018 U.S. Dist. LEXIS 53419, at *13-14 (S.D.N.Y.
Mar. 29, 2018) (granting summary judgment on § 1983 claim based on officer’s uncontroverted
testimony regarding his policymaking authority); Mackinney v. Burger King Corp., No. 05-cv188, 2006 WL 3501142, at *2, 2006 U.S. Dist. LEXIS 87515, at *6-7 (E.D.N.Y. Dec. 4, 2006)
(finding that, in the face of uncontroverted testimony rebutting constructive notice claim, “it was
incumbent upon plaintiff to produce evidence raising a question as to the Defendant’s
constructive notice”).
Moreover, other than neglecting to write a narrative documenting the existence of the
photographs or require Defendant Cerminaro to do so, there is no evidence that Defendant

16

Defendant Dougherty’s assertion is consistent with Defendant Cerminaro’s testimony at Plaintiff’s trial that he
never called an evidence technician to take photographs for use as evidence. (Dkt. No. 300-22, at 184-85, 188).

31

Dougherty took any action to suppress the photographs from Plaintiff’s criminal proceedings. To
the contrary, he uploaded them to the RMS (albeit five days after they were taken, but well in
advance of Plaintiff’s criminal trial and the associated discovery requests), where they could
have been accessed by searching the assigned RMS number for Plaintiff’s case and selecting the
“Photographs” tab. (Dkt. No. 300-4, at 33-34; Dkt. No. 300-5, at 40-41 (Defendant Dougherty’s
testimony that uploading the photographs to the RMS is “the extent of what [he] would do” to
fulfill his obligation to “provide all the evidence [he] had relating to the case of this incident to
the prosecutor,” other than preparing an accompanying radio log)).17 Furthermore, as Plaintiff
concedes, Defendant Dougherty played no role in Plaintiff’s prosecution, never testified in any
of Plaintiff’s criminal proceedings, and was not aware of either Plaintiff’s discovery requests or
Judge Dwyer’s orders requiring the production of photographs related to Plaintiff’s arrest. (Dkt.
No. 307-15, at ¶¶ 27, 34, 38-40; Dkt. No. 319-1, at ¶¶ 27, 34, 38-40). Thus, during Plaintiff’s
criminal proceedings, Defendant Dougherty had no opportunity to make the prosecution or
Plaintiff’s counsel aware of the photographs. The record is unclear as to the reason why the
photographs were never identified and turned over to the DA’s office during Plaintiff’s criminal
proceedings, but there is simply no evidence suggesting that Defendant Dougherty’s intentional
suppression of the photographs was that reason.

17

Plaintiff cites the deposition testimony of Edin Selimovic, the Utica Police Department’s Sergeant Unit Commander
for Management Information Systems, for the proposition that “Defendant Dougherty was able to intentionally upload
photograph and not be added to the 09-52210 RMS file by not adding a narrative.” (Dkt. No. 319-1, at ¶¶ 28-30).
However, even read in the light most favorable to Plaintiff, the cited portion of Selimovic’s testimony merely suggests
that Defendant Dougherty was not listed on the “officers” tab in Plaintiff’s case file within the RMS because he was
not included in the police report documenting Plaintiff’s arrest and did not manually add himself to the list of involved
officers. (Dkt. No. 319-23, at 80-81). It does not contradict Defendant Dougherty’s testimony that the uploaded
pictures were available on the “photographs” tab, or otherwise suggests that he did anything to hide the existence of
these photographs.

32

Plaintiff’s reliance on Goudy v. Cummings, 922 F.3d 834 (7th Cir. 2019), is misplaced. In
Goudy, an officer removed an exculpatory video from the police evidence room and retained it
for 14 months with no explanation, returning it only after trial prosecutors tried and failed to
locate it and the judge definitively blocked defense counsel from seeing the police reports
describing it. Id. at 839-40. This case does not contain the same type of circumstantial evidence
from which malicious intent can be inferred. Defendant Dougherty made the photographs
available in the RMS only five days after he took them, and months in advance of Plaintiff’s
trial. His blunder was his failure to document his involvement with an accompanying narrative
so that the photographs’ existence would be obvious to anyone reviewing Plaintiff’s case file.
For the reasons discussed, there is no evidence suggesting that that failure was motivated by an
intent to withhold the photographs from Plaintiff’s criminal proceedings. Therefore, because
Plaintiff has failed to raise a genuine issue of material fact as to Defendant Dougherty’s intent,
Defendant Dougherty is entitled to summary judgment on Plaintiff’s Brady claim against him.
ii.

Defendant Paladino

Plaintiff also has put forth no evidence suggesting that Defendant Paladino’s failure to
inform prosecutors of the existence of the photographs, or his trial testimony that he was not
aware of any such photographs, was done with the intent to suppress the photographs. All of the
relevant record evidence—including Defendant Dougherty’s statements to Plaintiff during their
December 2012 secretly recorded meeting; Defendant Dougherty’s May 2015 narrative prepared
for ADA Garramone; Defendant McNamara and Garramone’s recollections from their interviews
with all three Defendants during Plaintiff’s post-conviction proceedings; and the deposition
testimony of Defendants Paladino and Dougherty—suggests that Defendant Paladino did not
interact with Defendant Dougherty at the scene of Plaintiff’s arrest, did not observe Defendant
Dougherty taking the photographs, and was not aware of their existence at the time of Plaintiff’s
33

trial. (Dkt. No. 307-13, at 38; Dkt. No. 307-3, at 37; Dkt. No. 300-16, at 74-75, 80; Dkt. No. 30018, at 80, 101, 104, 140; Dkt. No. 300-4, at 29, 31, 93-94, 169; Dkt. No. 300-30, at 27, 110, 122).
Plaintiff has presented no evidence to the contrary. Thus, Defendant Paladino is entitled to
summary judgment on Plaintiff’s Brady claim against him as well.
iii.

Defendant Cerminaro

The issue of whether Defendant Cerminaro acted with the intention of suppressing the
photographs—by failing to inform prosecutors of their existence, and by not referencing them in
his Supporting Deposition, subsequent narratives regarding Plaintiff’s arrest, or testimony during
Plaintiff’s criminal proceedings—presents a closer question. Unlike Defendant Paladino,
Defendant Cerminaro does not seriously dispute that he was with Defendant Dougherty when the
photographs were taken, and thus was or should have been aware of their existence prior to
Plaintiff’s trial. (Dkt. No. 346-2, at 15 n.10 (confirming that “Defendant Cerminaro
unquestionability [sic] admits being in the Kemble Street alleyway part of the crime scene” while
Defendant Dougherty was taking photographs)). Defendant Cerminaro’s explanation for his
failure to disclose the photographs—both during interviews conducted by Defendant McNamara
and his staff in connection with Plaintiff’s post-conviction proceedings, and during his
deposition in these proceedings—has consistently been that, at the time of Plaintiff’s criminal
proceedings and to this day, he simply did not, and does not, remember observing Defendant
Dougherty take the photographs. (Dkt. No. 300-6, at 53-54, 63-65, 81, 90-91, 123-24, 154-55;
Dkt. No. 300-16, at 75, 82, 86-87, 129, 133-34; Dkt. No. 300-18, at 100-03). Plaintiff has
pointed to no concrete evidence to rebut this explanation.
However, given Defendant Cerminaro’s presence during Defendant Dougherty’s efforts
to photograph the scene, his significant involvement in every stage of Plaintiff’s criminal
proceedings, and the specific, pointed questions about the existence of photographs he was asked
34

at Plaintiff’s trial, (Dkt. No. 300-22, at 184-85, 188), a jury could reasonably find that his
explanation for not disclosing the photographs’ existence in his Supporting Deposition or at any
subsequent point—that he forgot about the photographs almost immediately after they were
taken, and never remembered them at any point throughout Plaintiff’s criminal proceedings, even
when specifically asked about photographs—stretches credulity. Thus, the Court finds that
Plaintiff has raised a triable issue of fact with respect to the intent element of his Brady claim
against Defendant Cerminaro.
c.

Prejudice

Nonetheless, even though Plaintiff has raised a triable issue of fact as to the intent
element with respect to his Brady claim against Cerminaro, and even assuming he could do so
with respect to either or both of the other Defendants, his Brady claim against all three
Defendants must fail because he has not raised a triable issue of fact as to the prejudice element.
The prejudice element of a Brady claim is essentially an inquiry into the materiality of the
withheld evidence. Undisclosed “evidence is material only if there is a reasonable probability
that, had the evidence been disclosed to the defense, the result of the proceeding would have
been different.” United States v. Payne, 63 F.3d 1200, 1209 (2d Cir. 1995) (quoting United
States v. Bagley, 473 U.S. 667, 682 (1985)). A showing of materiality:
“does not require demonstration by a preponderance that disclosure of the suppressed
evidence would have resulted ultimately in the defendant’s acquittal (whether based on
the presence of reasonable doubt or acceptance of an explanation for the crime that does
not inculpate the defendant) . . . . [The] touchstone of materiality is a reasonable
probability of a different result, and the adjective is important. The question is not
whether the defendant would more likely than not have received a different verdict with
the evidence, but whether in its absence he received a fair trial, understood as a trial
resulting in a verdict worthy of confidence. A reasonable probability of a different result
is accordingly shown when the government’s evidentiary suppression undermines
confidence in the outcome of the trial.”

35

Leka v. Portuondo, 257 F.3d 89, 104 (2d Cir. 2001) (quoting Kyles v. Whitley, 514 U.S. 419,
434-35 (1995)). In the context of civil Brady claims under § 1983, the Second Circuit has
explained:
To prevail on such a claim, a plaintiff must show the materiality of the nondisclosed
evidence, a showing that “does not depend on factual innocence, but rather what would
have been proven absent the violation . . . [with] reference to the likely effect that the
suppression of [the] particular evidence had on the outcome of the trial.” Poventud v. City
of New York, 750 F.3d 121, 134 (2d Cir. 2014) (en banc) (internal quotation marks and
emphasis omitted). Stated differently, to show prejudice the claimant “must demonstrate
a reasonable probability that, had the evidence been disclosed, the result of the
proceeding would have been different.” United States v. Ulbricht, 858 F.3d 71, 112 (2d
Cir. 2017) (internal quotation marks omitted). For example, a § 1983 plaintiff proceeding
on a Brady theory can succeed on his claim if, had the withheld information been
disclosed prior to trial, “he would have been acquitted based on reasonable doubt or
convicted on a lesser charge.” Poventud, 750 F.3d at 134-35.
Bellamy v. City of New York, 914 F.3d 727, 751 (2d Cir. 2019).
Here, the withheld photographs portray the route along which Defendant Cerminaro
chased Plaintiff. (Dkt. No. 300-7). They show a small, knotted bag on the ground, with
additional white chunky and powdery substance scattered along the chase route. (Id.). They also
depict Plaintiff’s rental vehicle and the five cell phones discovered in the vehicle. (Id.). Several
pictures depict Plaintiff’s injuries incurred during the chase, and one appears to show a white
powdery substance on his black shirt. (Id.). Overall, the pictures do not facially contradict, and
appear generally consistent with, Defendant Cerminaro’s trial testimony that he stopped Plaintiff
in a vehicle containing multiple disposable cell phones, pursued Plaintiff after he fled from the
scene, and, during the chase, observed Plaintiff rip open a bag containing a white chunky and
powdery substance, pour it out as he ran, and discard it on the ground before being
apprehended.18

18

Defendants argue that these photographs, had they been produced, would not have changed the outcome of
Plaintiff’s trial. They present sworn affidavits from six of the jurors from Plaintiff’s criminal trial who initially voted
to convict Plaintiff, and who have since reviewed the photographs. (Dkt. Nos. 300-23, 300-24, 300-25, 300-26, 300-

36

Plaintiff’s only evidence to the contrary is an affidavit from the defense attorney who
represented him in his criminal case, Rebecca Wittman. (Dkt. No. 325-17). In her affidavit,
Wittman explains that, had the photographs been available during Plaintiff’s trial, she would
have used the photographs to impeach the testimony of Defendants Cerminaro and Paladino, and
specifically their testimony that the knotted bag was the only contraband observed or collected at
the scene of Plaintiff’s arrest. (Id. ¶¶ 3-4). She further argues that, in one of the pictures, the torn
plastic bag “appears to be empty,” which raises “reasonable doubt as to whether the 1.2 grams of
cocaine sought to be introduced at trial was actually discarded in a bag by Mr. Jeanty or was in
fact collected from loose contraband on the ground.” (Id. ¶ 10). She believes that her efforts
could have led to the suppression of “certain evidence,” “could have affected the jury verdict and
may have led to an acquittal.” (Id. ¶ 9). She states that her opinion “is based in part on the
content of the 3/23/10 jury notes,” but does not explain this statement further or reference any
specific portion of the jury notes that supports her conclusion. (Id.).19
Wittman’s affidavit explains how she could have used the photographs to defend Plaintiff
at trial, impeach the credibility of the prosecution’s key witnesses, and cast doubt on the validity
of the drug evidence used to convict Plaintiff, either for purposes of an evidence suppression

27, 300-28, 300-29). Each juror avers that, after reviewing the photographs, they still believe Plaintiff is guilty beyond
a reasonable doubt and would still vote to convict him. (Id.). One of the jurors, who identifies himself as the “final
hold out for a not guilty verdict” at Plaintiff’s trial, states that he believes the photographs “are more incriminating of
[Plaintiff] as they depict his multiple disposable cell phones and white powder on his shirt,” and that none of the facts
that he believed supported a conviction “are in anyway [sic] undermined by the pictures.” (Dkt. No. 300-24, at ¶¶ 812). Defendants also point out that, according to Plaintiff’s own testimony, the attorney who represented him in his §
440 proceedings reviewed the photographs and, after doing so, made clear to Plaintiff that he believed Plaintiff was
guilty and should accept a disorderly conduct plea. (Dkt. No. 300-8, at 214-15; Dkt. No. 300-9, at 92-93).
19

Wittman also makes a number of contentions regarding her beliefs about how the photographs would have assisted
Plaintiff had he been re-tried following the vacatur of his conviction, including in combination with other evidence
post-dating Plaintiff’s conviction, such as Defendant McNamara’s deposition testimony and Plaintiff’s recording of
his December 2012 meeting with Defendant Dougherty. (Id. ¶¶ 5-8). These assertions are not relevant to the question
of whether the failure to produce the photographs prejudiced him in his original trial, when the other evidence Wittman
cites did not yet exist.

37

motion or before a jury at trial. When read in contrast to Plaintiff’s prosecuting attorneys’
concrete explanations of how they believe the photographs would have been beneficial to their
case and supported a conviction,20 Wittman’s affidavit may raise a triable issue of fact as to
whether the photographs should be considered “exculpatory” or “impeachment” evidence for
Brady purposes. However, standing on its own, the affidavit does not support a finding that there
is a “reasonable probability” that the outcome would have been different had the photographs
been disclosed. Wittman’s opinions that the jury at Plaintiff’s trial would have been sufficiently
swayed by her arguments regarding the photographs to rule in Plaintiff’s favor, or that the
presiding judge would have accepted her arguments and suppressed “certain evidence” from
trial, are conclusory and unsupported by any concrete evidence.
To be sure, Wittman may very well have been able to use the photographs to crossexamine Defendants Cerminaro on certain issues, such as whether any contraband was observed
on the ground outside the knotted bag Defendant Cerminaro collected. However, withheld
impeachment evidence is only material for Brady purposes if it would “likely have placed the
government’s evidence against [Plaintiff] in such a different light as to undermine . . . confidence
in the outcome of the trial.” Payne, 63 F.3d at 1210. Here, Wittman offers no concrete reason
why the photographs damage the credibility of officers so significantly as to raise a triable issue
of fact regarding whether their introduction at trial would have led to a different outcome,
particularly given that: (1) the photographs facially corroborate Defendant Cerminaro’s
20

Specifically, Defendant McNamara testified that he believed the photographs were generally favorable to the
prosecution, and that had the pictures been available, the DA’s office could have used them at trial to corroborate the
police’s testimony and clarify the prosecution’s narrative for the jury. (Dkt. No. 300-16, at 262-65; Dkt. No. 300-17,
at 27). ADA Garramone testified that the photograph of the cell phones found in Plaintiff’s vehicle could have been
used at trial to show that Plaintiff had fled the scene and left his personal belongings in the vehicle, and to suggest that
Plaintiff was using “burner phones,” a typical practice employed by drug dealers to evade detection. (Dkt. No. 30018, at 169-71, 175-77). Kurt Schultz, the ADA who prosecuted Plaintiff, testified to his belief that the photographs
would have directly undermined an argument Plaintiff’s defense attorney made at trial regarding the lack of a
photograph showing white powder on Plaintiff’s black shirt. (Dkt. No. 300-20, at 25, 28).

38

testimony that he saw Plaintiff tear open a bag of contraband, scatter its contents, and discard the
bag on the ground before being apprehended in the area in which the contraband was located;21
(2) laboratory testing of the recovered contraband revealed no traces of environmental
contaminants, undermining any argument (either before a jury or for purposes of an evidence
suppression motion) that Defendant Cerminaro collected contraband from the ground and
charged Plaintiff with it; (3) Defendant Paladino’s testimony suggests he was never present on
the ground in the alley where the contraband was located and the photographs were taken; and
(4) the photographs do not call into question other key aspects of Defendant Cerminaro’s
testimony, including that he found Plaintiff driving a rental car containing multiple cell phones,
that Plaintiff fled the scene when questioned and left his driver’s license and rental agreement in
Defendant Cerminaro’s hands, and that Plaintiff led Defendant Cerminaro on a rooftop chase
before being apprehended in the location where the contraband was found. Cf., e.g., Gonzalez v.
U.S., No. 12-cv-5226, 2013 WL 4584794, at *15-16, 2013 U.S. Dist. LEXIS 123950, at *50-54
(S.D.N.Y. Aug. 29, 2013) (finding undisclosed impeachment evidence regarding an arresting
officer’s credibility may have led the jury to conclude that “he misrepresented some of the
circumstances of an armed confrontation or shooting” he observed, but that the evidence
nonetheless did not undermine the Court’s confidence in the criminal defendant’s gun possession
conviction, as the conviction was supported by other evidence that “corroborated key aspects of

21

Wittman asserts that the knotted plastic bag located at the scene of Plaintiff’s arrest “appears to be empty” in one of
the photographs, and that this raises “reasonable doubt as to whether the 1.2 grams of cocaine sought to be introduced
at trial was actually discarded in a bag by Mr. Jeanty or was in fact collected from loose contraband on the ground.”
(Id. ¶ 10). The parties dispute whether the photograph depicts an empty bag or, instead, a small amount of contraband
near the knot of the bag. Even assuming the jury agreed with Wittman that the photographs depict an empty bag with
separate contraband strewn across the ground, Wittman offers no reason to believe that there is a “reasonable
probability” that the jury would not simply have concluded that the “loose contraband on the ground” came from the
bag, consistent with Defendant Cerminaro’s testimony that Plaintiff had torn the bag open and spilled out its contents
as he ran. Furthermore, a photograph of a seemingly empty bag is consistent with Defendant Paladino’s trial testimony
that Plaintiff was charged with a small amount of contraband that remained near the knot of the bag, rather than all
the contraband that had initially been in the bag itself before being spilled out. (Dkt. No. 300-22, at 244).

39

[the officer’s] testimony relevant to the gun possession charge,” including “the recovery of two
guns from the location” and the defendant’s “capture shortly thereafter, in the area”), report and
recommendation adopted 2013 WL 5289793, 2013 U.S. Dist. LEXIS 134303 (S.D.N.Y. Sept.
19, 2013). While it is often possible for skilled attorneys to find ways to successfully spin even
seemingly damning evidence in their client’s favor, here, Wittman’s assertions that she would
have been able to do so are insufficient to raise this possibility from the level of pure speculation
to the level of “reasonable probability,” and therefore fail to present a genuine issue of material
fact sufficient to survive summary judgment.
Given the totality of the evidence, Plaintiff has not raised a triable dispute of fact as to
whether there is a reasonable probability that the use of the photographs to impeach officers’
testimony suggesting that no other contraband was found at the scene would have altered the
jury’s verdict. Therefore, all three Defendants are entitled to summary judgment on Plaintiff’s
Brady claim.
2.

Fabrication of Evidence Claim

Fabrication of evidence claims relate to the right “not to be deprived of liberty as a result
of the fabrication of evidence by a government officer acting in an investigative capacity.”
Zehrey v. Coffey, 221 F.3d 342, 349 (2d Cir. 2000). Thus, “[w]hen a police officer creates false
information likely to influence a jury’s decision and forwards that information to prosecutors, he
violates the accused’s constitutional right to a fair trial, and the harm occasioned by such an
unconscionable action is redressable in an action for damages under 42 U.S.C. § 1983.” Ricciuti
v. N.Y.C. Transit Auth., 124 F.3d 123, 130 (2d Cir. 1997). The traditional elements for such a
claim are: “(1) [an] investigating official (2) fabricates evidence (3) that is likely to influence a
jury’s decision, (4) forwards that information to prosecutors, and (5) the plaintiff suffers a
deprivation of liberty as a result.” Jovanovic v. City of New York, 486 F. App’x 149, 152 (2d Cir.
40

2012). Defendants argue that, in McDonough v. Smith, 139 S. Ct. 2149 (2019), the Supreme
Court added a “favorable termination” element akin to the “favorable termination” element in a
malicious prosecution claim. (Dkt. No. 300-39, at 23-24). Defendants argue that Plaintiff has
failed to raise a triable issue of fact as to the “fabrication of evidence” or “favorable termination”
elements of his claim against all three Defendants. (Id. at 17-20; Dkt. No. 307-16, at 8 n.3).
a.

Fabrication of Evidence
i.

Defendant Cerminaro

Plaintiff’s fabrication-of-evidence theory with respect to Defendant Cerminaro is that: (1)
while chasing Plaintiff, Defendant Cerminaro never saw Plaintiff possess any contraband at any
time; (2) after Plaintiff was apprehended, while searching the area, Defendant Cerminaro found
loose bits of a substance with the appearance of cocaine scattered across the ground; (3)
Defendant Cerminaro either found an empty knotted bag also lying on the ground, or had one on
his person; (4) Defendant Cerminaro picked up pieces of loose substance off the ground and
commingled them with the empty bag; (5) Defendant Cerminaro constructed a false narrative
that he had seen Plaintiff pull a bag out of his waistband, ripped it open and spilled out its
contents during the chase; (6) Defendant Cerminaro wrote this false narrative in his Supporting
Deposition and maintained throughout Plaintiff’s criminal proceedings; (7) during Plaintiff’s
criminal proceedings, Defendant Cerminaro did not reveal that contraband other than the bag had
been found at the chase scene, in order to conceal the fact that he had improperly commingled
the loose contraband with the bag; and (8) Defendant Cerminaro’s false testimony and the
substance he had collected off the ground were improperly used as evidence to convict Plaintiff.
(Dkt. No. 317-1, at ¶¶ 5, 7-8; Dkt. No. 319-1, at ¶ 15; Dkt. No. 325-1, at ¶¶ 31-32, 34, 36, 53, 59,
65-66, 70).

41

Plaintiff’s “commingling” theory rests on little more than speculation. Plaintiff concedes
that he did not see Defendant Cerminaro, or anyone else, commingle loose contraband with an
empty bag, and that Defendants Cerminaro and Paladino both testified that they did not do so.
(Dkt. No. 300-38, at ¶¶ 53-54; Dkt. No. 325-1, at ¶¶ 53-54). Plaintiff also does not raise evidence
challenging the New York State Police Forensic Investigation Center’s findings that the
substance used to charge Plaintiff contained no traces of grass, dirt, or other environmental
contaminants. (Dkt. No. 300-19, at 2-43).
Plaintiff relies heavily on statements made by Defendant Dougherty in their secretly
recorded December 2012 meeting which, Plaintiff argues, suggest that loose contraband on the
ground was, in fact, observed, collected and possibly even added to the knotted bag in
connection with Plaintiff’s arrest. (Dkt. No. 307-13, at 14, 28, 44). However, the context of these
statements and Defendant Dougherty’s use of the third person make clear that Defendant
Dougherty was not describing actions he personally participated in, but merely his imprecise
understanding of evidence collection activities performed by others. (Dkt. No. 307-13, at 14, 28,
44). In his subsequent sworn deposition testimony and affidavit, Defendant Dougherty testified
that the bag Defendant Cerminaro showed him already had white substance in it when Defendant
Dougherty arrived on the scene; that Defendant Dougherty did not personally participate in the
collection of evidence at the scene of Plaintiff’s arrest; that Defendant Dougherty never saw
Defendant Cerminaro or anyone else pick up materials from the ground and place them in the
knotted bag; and that based on Defendant Dougherty’s subsequent investigation into the
circumstances of Plaintiff’s case, he understands that the loose contraband was left on the ground
and not collected, and that Plaintiff was charged based only on the substance found in the bag
itself. (Dkt. No. 307-3, at ¶¶ 12, 26; Dkt. No. 300-4, at 20-21, 28-29, 45-46, 171-74; Dkt. No.

42

300-5, at 26). Taken in context of the entire record, the statements Plaintiff relies on can only be
reasonably read as speculation about events Defendant Dougherty did not personally witness or
participate in, not reliable statements establishing Defendant Dougherty’s firsthand knowledge.
Plaintiff also relies heavily on certain statements in Defendant McNamara’s deposition
testimony, in which he described his questioning of Defendant Cerminaro during his 2015
investigation into Plaintiff’s case. Specifically, Defendant McNamara testified that he “got the
impression that [Defendant Cerminaro] found the bag and he was going back and picking
everything up, trying to pick up everything that he could, that [Plaintiff was] discarding”; that
Defendant Cerminaro told him he “picked up a bag that [Plaintiff] had discarded and he picked
up all the other chunks that he could locate that he saw [Plaintiff] throwing”; that he
“remember[ed] Cerminaro saying that he went back and picked up all the cocaine”; and that “it
was my understanding it was cocaine in its crack form so he could pick it up.” (Dkt. No. 300-16,
at 170-73). However, when specifically asked if he had questioned the officers as to whether
they had picked up additional contraband from the ground and added it to the bag, Defendant
McNamara said “I don’t remember asking that question,” and “I don’t believe they would do that
because it doesn’t make any sense.” (Dkt. No. 300-16, at 165-66). The following day, Defendant
McNamara clarified that “what I remember specifically [Defendant Cerminaro] telling me was
that he picked up a baggy and he collected that,” and that he did not “remember anyone talking
about picking up pieces of crack cocaine and putting it back in the bag.” (Dkt. No. 300-17, at
23).22 He further testified that, in 2015, he had specifically asked ADA Garramone to review the
lab reports for evidence of such commingling, and no such evidence was found. (Id. at 23-24).

22

Plaintiff claims that this clarification was the result of improper witness coaching, (Dkt. No. 334, at 6-8), but there
is no evidence in the record from which the Court can reasonably draw this inference.

43

Especially in light of his subsequent clarifications, which are uncontroverted, Defendant
McNamara’s imprecise recollections from a meeting that took place several years before his
deposition are insufficient to raise a genuine dispute as to whether Defendant Cerminaro
improperly commingled evidence.
Finally, Plaintiff argues that the withheld photographs clearly show an empty bag,
undermining Defendant Cerminaro’s narrative that it contained white substance in it when he
found it. (Dkt. No. 317-1, at ¶¶ 7-8; Dkt. No. 325-1, at ¶¶ 31, 65; Dkt. No. 325-17, at ¶ 10). The
parties dispute whether the photograph depicts a white substance in the bag, and the picture itself
is not perfectly clear. But even crediting Plaintiff’s contention that the photograph depicts an
empty bag, it does not support Plaintiff’s commingling theory, as it is consistent with Defendant
Paladino’s testimony that the substance Plaintiff was charged with was caught in the knot of the
bag (where it would not necessarily be clearly visible in the photograph), rather than in the bag
itself. (Dkt. No. 300-30, at 139-41).
While Plaintiff has failed to raise a genuine dispute of fact as to his commingling theory,
reading his submissions “to raise the strongest arguments that they suggest,” McPherson 174
F.3d at 280, he has raised a genuine dispute of fact as to whether Defendant Cerminaro’s
narrative that he saw Plaintiff possess, rip open and discard a bag of contraband was false.
Because only Plaintiff and Defendant Cerminaro were present during the chase that led to
Plaintiff’s arrest, the question of whether or not Plaintiff ever possessed such a bag essentially
requires a determination of which witness’s version of events is more credible. Plaintiff has
steadfastly and adamantly maintained his innocence since his conviction. Defendants have
pointed to no record evidence suggesting he ever conceded to possessing, ripping open or
discarding a bag of narcotics on October 15, 2009, nor to any material inconsistencies in his

44

testimony that would undermine his denials. Furthermore, in his depositions, when questioned
about his reasons for possessing multiple cell phones, possessing a large amount of money and
driving a rental car (facts which Defendants claim are indicative of drug trafficking), Plaintiff
provided explanations that, on their face, are not inconsistent or unreasonable. (Dkt. No. 300-2,
at 60-61, 76-78, 183; Dkt. No. 300-8, at 192-96, 251-54).
On the other hand, the Court notes that there were omissions in Defendant Cerminaro’s
testimony during Plaintiff’s criminal proceedings concerning the existence of photographs and
the fact that several pieces of a white chunky substance were scattered across the ground. See
Section II.E supra (summarizing the material portions of Defendant Cerminaro’s testimony
during Plaintiff’s criminal proceedings); Section IV.B.1.b.iii (concluding that a reasonable jury
could find Defendant Cerminaro’s explanations for failing to disclose the existence of
photographs during Plaintiff’s trial not credible). And there is some record evidence, albeit
minimal, that a reasonable jury could conclude supports the contention that Defendant
Cerminaro happened to find contraband on the ground near the chase scene and constructed a
false narrative to link it to Plaintiff. (Dkt. No. 300-30, at 23 (Paladino’s testimony that he found
no contraband or other evidence when he searched the roof, arguably contradicting Defendant
Cerminaro’s testimony that Plaintiff ripped open the bag and began spilling its contents while
running across the roof); Dkt. No. 300-22, at 242 (same testimony at Plaintiff’s trial); Dkt. No.
33-5, at ¶ 11 (Defendant McNamara’s affidavit affirming that the area of Plaintiff’s arrest is a
“well known location for active narcotics trafficking,” which could support a jury finding that
narcotics unrelated to Plaintiff were on the ground at the time of Plaintiff’s arrest); Dkt. No. 3259, at 75 (Defendant Cerminaro’s trial testimony that, on the day of Plaintiff’s arrest, no cocaine
residue was observed on his mouth, face or clothing)).

45

Under these circumstances, where Plaintiff’s version of events is not “so replete with
inconsistencies and improbabilities that no reasonable juror would undertake the suspension of
disbelief necessary to credit” his testimony, the Court cannot simply disregard that testimony on
a summary judgment motion. Jeffreys v. City of New York, 426 F.3d 549, 551 (2d Cir. 2005); see
id. at 554 (holding that a District Court may disregard a plaintiff’s testimony on a summary
judgment motion “in the rare circumstance where the plaintiff relies almost exclusively on his
own testimony, much of which is contradictory and incomplete”); Frost v. New York City Police
Dep’t, 980 F.3d 231, 245 (2d Cir. 2020) (reiterating that “[i]t is a bedrock rule of civil procedure
that ‘a district court generally cannot grant summary judgment based on its assessment of the
credibility of the evidence presented,’” and warning that the Jeffreys exception is “narrow” and
applies only where “a witness’s testimony is so problematic that no reasonable juror could credit
it”). Because granting Defendant Cerminaro summary judgment on the “fabrication” element of
Plaintiff’s claim against him would require the Court to credit Defendant Cerminaro’s version of
events and discount Plaintiff’s, the Court finds that Plaintiff has raised a genuine dispute of
material fact as to that element.
ii.

Defendant Paladino

By contrast, Plaintiff has raised no genuine dispute of material fact as to his fabrication of
evidence claim against Defendant Paladino. Defendant Paladino’s testimony at Plaintiff’s trial
and at his deposition consistently suggests that his search for evidence was confined to the
rooftops on which the chase occurred, and that while he was on the Kemble Street side of the
rooftops at one point, he never stepped foot in the alleyway where the contraband was found.
(Dkt. No. 300-30, at 30, 32-33, 74-75, 122; Dkt. No. 300-22, at 260). It also consistently
suggests that, from his vantage point on the rooftop, he saw Defendant Cerminaro in the process
of collecting evidence, but did not see him pick up any specific item of evidence off the ground.
46

(Dkt. No. 300-30, at 28, 75, 146-50; Dkt. No. 300-22, at 242). Defendant Paladino’s version of
events is corroborated by Defendant Dougherty, who testified that he never saw or spoke to
Defendant Paladino on Kemble Street on the day of Plaintiff’s arrest, (Dkt. No. 300-4, at 29, 31,
94, 169); Defendant Cerminaro, who has consistently averred that he met Defendant Paladino
and gave him the bag of contraband on Park Avenue, and has never suggested that Defendant
Paladino ever joined him on Kemble Street or in the adjacent alleyway, (Dkt. 300-3; Dkt. No.
300-6, at 100-01); and Plaintiff himself, who testified that he never saw Defendant Paladino on
Kemble Street during his arrest, (Dkt. No. 300-8, at 205-06). Plaintiff has raised no evidence to
contradict these facts, or to suggest that Defendant Paladino participated in, or was aware of, any
improper “commingling” of evidence.
Plaintiff has also raised no evidence calling into question Defendant Paladino’s testimony
that, after obtaining the bag of contraband from Defendant Cerminaro, he took it back to the
police station, removed the contraband from the knot of the bag in which it was caught, weighed
and tested it, and secured it in a safe in his office. (Dkt. No. 300-30, at 32-41, 80-81, 84-85, 139,
141). Plaintiff attempts to draw sinister conclusions from the six-day delay between Defendant
Paladino’s receipt of the contraband and his completion of the corresponding property log, his
testimony that he has no documentation to prove that the evidence remained secure during the
intervening period, and his acknowledgement that he theoretically could have tampered with the
evidence during the intervening period. (Dkt. No. 300-30, at 40, 69-71, 76-79, 191-96). But
Plaintiff provides no evidence beyond mere speculation to suggest that the contraband was
actually tampered with by Defendant Paladino or anyone else. Therefore, because Plaintiff has
failed to raise a triable issue of fact with respect to his fabrication of evidence claim against
Defendant Paladino, Defendant Paladino is entitled to summary judgment on this claim.

47

iii.

Defendant Dougherty

Plaintiff also has adduced no evidence to support his fabrication of evidence claim
against Defendant Dougherty. As previously discussed, the record evidence suggests that
Defendant Dougherty did not directly participate in the collection of evidence, let alone see
anyone improperly commingling contraband, at the scene of Plaintiff’s arrest. See Section
IV.B.2.a.i. supra (reviewing and analyzing evidence). To the extent any statements he made in
the secretly recorded December 2012 meeting can arguably be read to imply otherwise, those
statements are speculative and unreliable.23 (Id.). The fact that Defendant Dougherty at one point
asked Defendant Cerminaro to place the bag of contraband down in the place where he found it
so he could photograph it, (Dkt. No. 307-15, at ¶¶ 15-16), hardly constitutes the fabrication of
evidence, especially since the resulting photograph was never even given to prosecutors or used
as evidence at Plaintiff’s trial. Furthermore, Defendant Dougherty’s failure to require Defendant
Cerminaro to amend his Supporting Deposition to specifically mention the additional loose
contraband found on the ground does not constitute the fabrication of evidence, as there is no
evidence that Defendant Dougherty was attempting to conceal, or was even aware of, improper
commingling of evidence by Defendant Cerminaro. Therefore, Defendant Dougherty is entitled
to summary judgment on Plaintiff’s fabrication of evidence claim against him.

23

Plaintiff’s argument that Defendant Dougherty’s interrogatory responses establish his awareness of misconduct by
Defendants Cerminaro and Paladino, (Dkt. No. 319, at 7-8), is meritless. In his interrogatory responses, Defendant
Dougherty averred, in relevant part, that he “did not ‘collect’ anything depicted in the photographs and does not know
who may have done so,” that he “is informed and believes that Defendant Cerminaro may have retrieved certain items
and/or materials,” and that he “is further informed and believes that some or all of the injury allegedly sustained by
Plaintiff was or may have been the result of the actions of police officers other than Defendant.” (Dkt. No. 319-11, at
8, 23). The plain language of these responses cannot reasonably be read as an admission that Defendant Dougherty
actually knew or believed that any other Defendant had violated the law, or that he saw Defendant Cerminaro pick up
materials other than the knotted bag. (Dkt. No. 300-4, at 136-44). Furthermore, Defendant Dougherty’s conduct
towards Plaintiff at the deposition, however unprofessional and offensive, is irrelevant to the question of his
culpability.

48

b.

Favorable Termination

The City Defendants argue that, even if Plaintiff has raised a triable issue of fact with
respect to the “fabrication” element, his fabrication of evidence claim must be dismissed because
he cannot meet the “favorable termination” requirement the Supreme Court articulated in
McDonough v. Smith, 139 S. Ct. 2149 (2019). The City Defendants assert that the “favorable
termination” analysis in the context of a fabrication of evidence claim is equivalent to the
“favorable termination” analysis in the context of a malicious prosecution claim, and thus rest
solely on their arguments regarding Plaintiff’s malicious prosecution claims. (Dkt. No. 300-39, at
23-24 & n.23). Because the Court is not convinced that the analyses are necessarily the same,
and Defendants have made no other arguments on this point, the Court declines to grant
Defendant Cerminaro summary judgment on this element of Plaintiff’s claim against him.
In McDonough, the Court considered when the statute of limitations began to run for a
fabricated evidence claim by a plaintiff who alleged he was indicted, arrested, and prosecuted
twice based on fabricated evidence before ultimately being acquitted. McDonough, 139 S. Ct. at
1253-54. The Court held:
There is not “a complete and present cause of action,” to bring a fabricated-evidence
challenge to criminal proceedings while those criminal proceedings are ongoing. Only
once the criminal proceeding has ended in the defendant’s favor, or a resulting conviction
has been invalidated within the meaning of Heck, will the statute of limitations begin to
run.
Id. at 2158 (citations omitted) (quoting Wallace v. Kato, 549 U.S. 384, 388 (2007). In so ruling,
the Court analogized fabricated evidence claims to malicious prosecution claims, reasoning that
both types of claims “challenge the integrity of criminal prosecutions undertaken ‘pursuant to
legal process’” and implicate the Court’s long-standing concerns with “parallel criminal and civil
litigation over the same subject matter and the related possibility of conflicting civil and criminal
judgments.” Id. at 2156-57 (citations omitted). At the same time, the Court acknowledged that,
49

“[b]ecause [the plaintiff’s] acquittal was unquestionably a favorable termination, we have no
occasion to address the broader range of ways a criminal prosecution (as opposed to a
conviction) might end favorably to the accused . . . Such considerations might call for a contextspecific and more capacious understanding of what constitutes ‘favorable’ termination for
purposes of a § 1983 false-evidence claim, but that is not the question before us.” Id. at 2160
n.10.
Although McDonough was fundamentally a statute of limitations case, “[m]ost courts in
this Circuit read McDonough to require favorable termination in fair trial claims that allege a
deprivation of liberty resulting from the use of fabricated evidence in a criminal proceeding.”
Gondola v. City of New York, No. 16-cv-369, 2020 WL 1433874, at *4, 2020 U.S. Dist. LEXIS
50972, at *8-9 (E.D.N.Y. Mar. 24, 2020) (collecting case law). However, courts disagree on
whether the “favorable termination” analysis for purposes of a fabricated evidence claim is the
same as the analysis for purposes of a malicious prosecution claim. Some courts, relying on
McDonough’s observation that both types of claims implicate similar concerns about using civil
litigation to collaterally attack criminal proceedings, have applied the same “favorable
termination” standards used in the malicious prosecution context when analyzing fair trial
claims. See, e.g., id. at *3-6, 2020 U.S. Dist. LEXIS 50972, at *6-15; Hagans v. Nassau Cty.
Police Dep’t, No. 18-cv-1918, 2020 WL 1289529, at *6-7, 2020 U.S. Dist. LEXIS 47090, at
*14-18 (E.D.N.Y. Mar. 18, 2020); Daniels v. Taylor, 443 F. Supp. 3d 471, 478-80 (S.D.N.Y.
2020), appeal docketed, No. 20-1331 (2d Cir. Apr. 20, 2020).
Other courts, however, have reached a different conclusion. For example, in evaluating
whether an Adjournment in Contemplation of Dismissal (“ACD”) constituted a “favorable
determination” for fair trial purposes, one court reasoned that:

50

[B]ecause fair trial jurisprudence, starting with Heck and continuing through
McDonough, is primarily concerned with the potential for invalidating criminal
convictions, the favorable termination requirement for fair trial claims (assuming there is
one) is necessarily different and more expansive than the one for malicious prosecution
claims. Thus, although this Court, like many, has found in the context of malicious
prosecution claims that an ACD is not a favorable termination, it does not find that this
ruling applies to a fair trial claim. Nor does the Court find that the Second Circuit’s
recent clarification of the favorable termination standard in Lanning v. City of Glens
Falls, 908 F.3d 19, 25 (2d Cir. 2018), applies to Plaintiff's fair trial claim. Rather,
because the Heck bar only considers whether a judgment in favor of the plaintiff would
necessarily imply the invalidity of his conviction or sentence, the Court finds, consistent
[with] the well-established rule in this Circuit, that an ACD does not preclude Plaintiff’s
fair trial claim.
Ross v. City of New York, No. 17-cv-3505, 2019 WL 4805147, at *8, 2019 U.S. Dist. LEXIS
169762, at *18-20 (E.D.N.Y. Sept. 30, 2019) (citations and internal quotation marks omitted).
Another court reached a similar conclusion and found that a dismissal in the interest of justice,
similar to the one Plaintiff obtained here, constituted a “favorable determination” for purposes of
the plaintiff’s fabrication of evidence claim, even though it did not constitute a favorable
determination for purposes of his malicious prosecution claim. Simon v. City of New York, No.
16-cv-1017, 2020 WL 1323114, at *3-6, 2020 U.S. Dist. LEXIS 47919, at *8-19 (E.D.N.Y. Mar.
19, 2020). The court explained:
Assuming, as did Ross, that the dicta in McDonough introduced a favorable termination
element into Plaintiff’s fair trial claim, it does not follow that the strict “affirmative
indication of innocence” standard [used in § 1983 malicious prosecution claims]
necessarily applies. To hold otherwise would be to abandon the longstanding distinction
between malicious prosecution claims and fair trial claims based on the fabrication of
evidence. As the Second Circuit explained in Lanning, “[a] § 1983 claim for malicious
prosecution essentially alleges a violation of the plaintiff’s right under the Fourth
Amendment to be free from unreasonable seizure.” Lanning, 908 F.3d at 28. Because
“[t]he touchstone of the Fourth Amendment is reasonableness,” an affirmative indication
of innocence is necessary to allege malicious prosecution because, “absent an affirmative
indication that the person is innocent of the offense charged, the government’s failure to
proceed does not necessarily imply a lack of reasonable grounds for the prosecution.” Id.
In contrast, a fair trial claim based on the fabrication of evidence arises out of the
principle that “[n]o arrest, no matter how lawful or objectively reasonable, gives an
arresting officer or his fellow officers license to deliberately manufacture false evidence

51

against an arrestee” and that to find otherwise “would make a mockery of the notion that
Americans enjoy the protection of due process of the law and fundamental justice.”
Ricciuti, 124 F.3d at 130. Because the fabrication of evidence is definitionally
unreasonable, the favorable termination requirement for a fair trial claim does not stem
from the nature of the constitutional violation, but from the prudential best practice of
avoiding conflicting civil and criminal judgments resulting from parallel civil and
criminal litigation. McDonough, 139 S. Ct. at 2157 (citing Heck, 512 U.S. at 484-85).
In sum, McDonough does not alter the enduring distinction between malicious
prosecution and fair trial claims; the two claims arise out of different constitutional rights,
protect against different constitutional injuries, and implicate different constitutional
concerns. Favorable termination is required for a fair trial claim insofar as it is necessary
to avoid the risk that a judgment for the plaintiff on his civil claim would conflict with or
impugn the validity of the earlier criminal proceeding against him. McDonough, 139 S.
Ct. at 2157-58. Here, the risk is nonexistent. A jury verdict that Cruz violated Plaintiff’s
due process right to a fair trial by falsifying evidence would not conflict with or challenge
the validity of the dismissal of charges against Plaintiff in the interest of justice.
Therefore, Plaintiff’s dismissal in the interest of justice is a favorable termination for the
purposes of his § 1983 fair trial claim.
Id. at *5-6, 2020 U.S. Dist. LEXIS 47919, at *15-19.
Here, Defendants have not addressed the case law drawing a distinction between the fair
trial “favorable termination” analysis and the malicious prosecution “favorable termination”
analysis. The Court finds the reasoning of Ross and Simon persuasive under these circumstances
where, as in Simon, Plaintiff’s conviction has been vacated and his indictment dismissed, and
thus the “the risk that a judgment for [Plaintiff] on his civil claim would conflict with or impugn
the validity of the” final outcome of his criminal proceedings is “nonexistent.” Id. at *6, 2020
U.S. Dist. LEXIS 47919, at *17. Given Plaintiff’s pro se status and the Court’s obligation to
construe his submissions “to raise the strongest arguments that they suggest,” McPherson 174
F.3d at 280, as well as Defendants’ failure to address the question, the Court declines to grant
summary judgment to Defendant Cerminaro on this ground.24

24

The Court separately evaluates whether the dismissal of Plaintiff’s indictment in the interest of justice constitutes a
“favorable termination” for purposes of his malicious prosecution claims below, in connection with its analysis of
those claims. See Section IV.D.2 infra.

52

3.

Count I Summary

For the foregoing reasons, with respect to Plaintiff’s first cause of action, the Court finds
that: (1) Defendants Cerminaro, Paladino and Dougherty are all entitled to summary judgment on
Plaintiff’s Brady claim against them; (2) Defendants Paladino and Dougherty are entitled to
summary judgment on Plaintiff’s fabrication of evidence claim against them; and (3) Plaintiff’s
fabrication of evidence claim against Defendant Ceramino may proceed to trial.
C.

Count II: Fair Trial Claim Against Defendants Cerminaro, Paladino and
Dougherty Arising from Plaintiff’s Post-Conviction Proceedings

The City Defendants argue that Plaintiff’s second cause of action “relates to the same
inculpatory photographs and allegedly fabricated evidence as the first cause of action,” that both
causes of action “are the same and originate from the same indictment,” and that the second
cause of action is thus “totally duplicative of Plaintiff’s first cause of action and thus risks
inconsistent verdicts.” (Dkt. No. 300-39, at 29-30). From the face of the Amended Complaint,
however, Plaintiff’s second cause of action appears to be based on a related, but distinct, set of
facts as his first cause of action. Specifically, his first cause of action contends that Defendants
Cerminaro, Palladino and Dougherty withheld and fabricated evidence in his criminal trial,
leading to his conviction and incarceration. (Dkt. No. 33, at ¶¶ 630-41). By contrast, his second
cause of action alleges that, during Plaintiff’s post-conviction proceedings, rather than confess
the truth to the DA’s office, these Defendants continued to stand by the fabricated narrative
regarding Plaintiff’s guilt, leading the DA’s office to oppose Plaintiff’s § 440 motion and begin
the process of a retrial before ultimately moving to dismiss the indictment in the interest of
justice. (Dkt. No. 33, at ¶¶ 642-47). Unlike Plaintiff’s first cause of action, Plaintiff’s second
cause of action proceeds solely on a fabrication of evidence theory, not a Brady theory, as

53

Plaintiff does not allege that any exculpatory or impeachment evidence was withheld during his
post-conviction proceedings. (Id.).
As to Defendant Cerminaro, the Court has already found that Plaintiff has raised a
genuine dispute of fact as to whether he fabricated his narrative regarding Plaintiff’s actions on
the day of his arrest. It is undisputed that he stood by this narrative when interrogated by
Defendant McNamara and his staff in connection with Plaintiff’s post-conviction proceedings. It
logically follows that there is a genuine dispute of fact as to whether Defendant Cerminaro
forwarded false information to prosecutors in connection with Plaintiff’s post-conviction
proceedings. It would not necessarily be inconsistent for a jury to find for Plaintiff on the first
cause of action, but for Defendant Cerminaro on the second.25 In any event, Defendants have
cited no authority for the proposition that a mere risk of inconsistent judgments requires
dismissal at the summary judgment stage before any jury verdict has actually been reached.26
Defendants make no other argument as to why Plaintiff’s second cause of action should be
dismissed. Therefore, the Court denies Defendants’ motion for summary judgment with respect
to Plaintiff’s second cause of action against Defendant Cerminaro.
As to Defendants Dougherty and Paladino, the Court has already found that Plaintiff has
failed to adduce any record evidence suggesting that they either fabricated evidence themselves
or were aware of any fabrication of evidence by Defendant Cerminaro. Plaintiff has similarly
adduced no record evidence suggesting that, during Plaintiff’s post-conviction proceedings,

25

For example, the jury could find that Defendant Cerminaro did indeed fabricate evidence and caused Plaintiff to
suffer a “deprivation of liberty” in the form of conviction and incarceration, but that Plaintiff suffered no additional
“deprivation of liberty” during his post-conviction proceedings as a result of Defendant Cerminaro’s continued
fabrications.

26

The case Defendants cite, Kosmynka v. Polaris Indus., Inc., 462 F.3d 74 (2d Cir. 2006), involved an appeal from
the District Court’s denial of a motion to set aside a jury verdict, and the rule they cite, Fed. R. Civ. P. 49, merely
provides rules governing special verdicts and general verdicts with answers to written questions.

54

either Defendant became aware that Defendant Cerminaro’s narrative about seeing Plaintiff
possessing a bag of contraband was false. Therefore, both Defendants are entitled to summary
judgment on Plaintiff’s second cause of action against them.
D.

Count III: Malicious Prosecution Claim Against Defendants Cerminaro,
Paladino and Dougherty Arising from Plaintiff’s Criminal Conviction

“In order to prevail on a § 1983 claim against a state actor for malicious prosecution, a
plaintiff must show a violation of his rights under the Fourth Amendment, and must establish the
elements of a malicious prosecution Claim under state law.” Manganiello v. City of New York,
612 F.3d 149, 160-61 (2d Cir. 2010) (internal citations omitted). The elements for a malicious
prosecution claim in New York are: “(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.”
Jocks v. Tavernier, 316 F.3d 128, 136 (2d Cir. 2003) (quotation omitted). Additionally, a federal
claim of malicious prosecution requires a § 1983 plaintiff to show some deprivation of liberty
consistent with the concept of “seizure” within the meaning of the Fourth Amendment. Singer v.
Fulton Cty. Sheriff, 63 F.3d 110, 116 (2d Cir. 1995). The City Defendants argue that Plaintiff has
failed to raise a genuine dispute of material fact with respect to the “probable cause” or
“favorable termination” elements, (Dkt. No. 300-39, at 30-39), and Defendant Dougherty argues
that the claim against him must be dismissed for the additional reason that he “had no role in and
did not participate in bringing criminal proceedings against Plaintiff,” (Dkt. No. 307-16, at 1112).
1.

Probable Cause

“The existence of probable cause is a complete defense to a claim of malicious
prosecution in New York, and indictment by a grand jury creates a presumption of probable

55

cause.” Norwood v. Mason, 524 F. App’x 762, 766 (2d Cir. 2013) (internal quotations omitted).
The presumption, however, is rebuttable “by evidence that the indictment was procured by
‘fraud, perjury, the suppression of evidence or other police conduct undertaken in bad faith.’”
Savino v. City of New York, 331 F.3d 63, 72 (2d Cir. 2003) (quoting Colon v. City of New York,
60 N.Y.2d 78, 83 (1983)). Moreover, if the prosecutor “relied on independent, untainted
information to establish probable cause, a complaining official will not be responsible for the
prosecution that follows.” Rentas v. Ruffin, 816 F.3d 214, 221 (2d Cir. 2016) (citations omitted).
As discussed in this Court’s analysis of Plaintiff’s fabrication of evidence claim against
Defendant Cerminaro, Plaintiff has raised a genuine dispute of material fact as to whether
Defendant Cerminaro fabricated his narrative about seeing Plaintiff possess, rip open and discard
a bag of contraband. See Section IV.B.2.a.i. supra. Defendant Cerminaro’s testimony, and this
allegedly fabricated narrative in particular, was crucial evidence on which the prosecution relied
in procuring Plaintiff’s indictment. (Dkt. No. 308-4, at 4-11). Therefore, Plaintiff has raised a
genuine dispute as to whether the presumption of probable cause arising from Plaintiff’s
indictment has been rebutted.
The City Defendants argue that, even assuming Defendant Cerminaro did not actually see
Plaintiff discard a bag of contraband, probable cause for possession of cocaine nonetheless
existed because:
(1) Plaintiff was stopped in a rental car by Defendant Cerminaro; (2) Plaintiff had five
cell phones in said car; (3) Plaintiff ran from Defendant Cerminaro during the police stop,
(4) cocaine was found along the chase route containing cocaine [sic], (5) Defendant
Cerminaro found a torn corner knotted plastic bag along the chase route; (6) Plaintiff
presented with a white powdery substance on his shirt while at the Utica Police
(inculpatory and booking photographs); (7) Plaintiff was found with $1,739 of cash on
his person.

56

(Dkt. No. 300-39, at 35). The City Defendants argue that, viewed collectively, the facts that
Plaintiff was driving a rental vehicle, possessed multiple cell phones, carried a large amount of
cash on his person, and fled from the traffic stop leaving his driver’s license and other
possessions behind constitute evidence of narcotics trafficking, and thus independently constitute
probable cause to prosecute Plaintiff for narcotics possession. (Dkt. No. 300-38, at ¶ 38 & n.4
(citing record evidence); Dkt. No. 33-5, at ¶ 11(a)-(d)). However, while this circumstantial
evidence supported a prosecution for narcotics possession (and eventual guilty verdict) when
viewed in combination with Defendant Cerminaro’s eye-witness testimony, it is questionable
whether these facts would provide probable cause for a possession charge in the absence of that
testimony, which was the key evidence establishing that Plaintiff actually possessed narcotics on
the day in question.
Thus, if, as Plaintiff contends, Defendant Cerminaro never actually saw Plaintiff in
possession of any narcotics, there is at least a serious question as to whether the mere presence of
narcotics on the ground near him (in a neighborhood known for being a center of narcotics
trafficking, see Dkt. No. 33-5, at ¶ 11(a)), combined with the other facts Defendants cite,
constituted probable cause to prosecute Plaintiff for possessing cocaine. As such, Plaintiff has
raised a genuine dispute of material fact with respect to the “probable cause” element of his
malicious prosecution claim against the City Defendants.
2.

Favorable Termination

As to the “favorable termination” element, the standard for determining whether the
dismissal of Plaintiff’s conviction in the interest of justice constitutes a “favorable termination”
for purposes of his § 1983 claim differs from the standard used for purposes of his New York
state law claim. Simon, 2020 WL 1323114, at *3, 2020 U.S. Dist. LEXIS 47919, at *8-10
(explaining the differing standards). For purposes of a § 1983 claim, a Plaintiff can only satisfy
57

the favorable termination element by showing that “the prosecution terminated in some manner
indicating that the person was not guilty of the offense charged,” and thus “a dismissal in the
interest of justice [that] leaves the question of guilt or innocence unanswered . . . cannot provide
the favorable termination required.” Lanning v. City of Glens Falls, 908 F.3d 19, 26, 28-29 (2d
Cir. 2018) (citations omitted).
However, “for malicious prosecution claims brought under New York law, federal courts
must faithfully apply New York tort law.” Id. at 28. For purposes of a New York state law
malicious prosecution claim, “any termination of a criminal prosecution, such that the criminal
charges may not be brought again, qualifies as a favorable termination, so long as the
circumstances surrounding the termination are not inconsistent with the innocence of the
accused.” Cantalino v. Danner, 96 N.Y.2d 391, 395 (2001). Even under New York law,
however, a termination does not qualify as “favorable” “if charges are dismissed out of mercy,
since mercy presupposes the guilt of the accused.” Id. For dismissals in the interest of justice,
“the question is whether, under the circumstances of each case, the disposition was inconsistent
with the innocence of the accused.” Id. at 396. “A case-specific rule is particularly appropriate
for dismissals in the interest of justice, since the trial court is required to state on the record its
reasons for dismissing the criminal charges.” Id.; see also Jeanty v. City of Utica, No. 16-cv0966, 2017 WL 6408878, at *6, 2017 U.S. Dist. LEXIS 218307, at *15-16 (N.D.N.Y. Aug. 18,
2017) (collecting cases applying New York “favorable termination” standard to dismissals in the
interest of justice).
Here, Plaintiff cannot meet the “favorable termination” element under either standard.
The record of Plaintiff’s § 440 proceedings makes very clear that the only basis on which Judge
Donalty granted an evidentiary hearing on Plaintiff’s motion was Plaintiff’s allegation that a

58

Brady and/or Rosario violation occurred during his trial; that Plaintiff’s conviction was vacated
on that basis alone after the prosecution chose to consent to the vacatur; and that the prosecution
chose to proceed with a retrial at that time. (Dkt. No. 317-4, at 9-10; Dkt. No. 325-21).
Later, when Defendant McNamara moved to dismiss Plaintiff’s indictment in the interest
of justice, he stated on the record that he believed the “evidence was pretty clear” that Plaintiff
was properly convicted, but that he nonetheless believed that the indictment should be dismissed
for reasons unrelated to Plaintiff’s guilt or innocence. These reasons included that Plaintiff had
already served a full prison sentence for the conviction, that Plaintiff was not a known drug
dealer in the community, that he had a family and a job, that the drug evidence used in Plaintiff’s
conviction had long since been destroyed, and that a conviction could lead to Plaintiff’s
deportation. (Dkt. No. 325-13, at 5-9). In granting Defendant McNamara’s motion, Judge Dwyer
explicitly “agree[d] with all of the statements” that Defendant McNamara made, and added his
observations that “[i]f there was a second conviction I would not give [Plaintiff] anymore jail or
prison time,” that Plaintiff “has family that he works very hard in supporting,” and that “he’s
done well for himself” and is “working to better himself.” (Id. at 16-17). Moreover, after hearing
Plaintiff’s argument that he should have a retrial to prove that his conviction was procured by
fabricated testimony, Judge Dwyer made clear that “the Court is not saying that . . . it does not
feel that there was sufficient evidence on the record to support the original conviction.” (Id. at 917).
The foregoing record evidence shows that, not only did the dismissal of Plaintiff’s
indictment fall short of establishing Plaintiff’s actual innocence as required for a § 1983
malicious prosecution claim, it was a dismissal based on merciful and practical considerations,
and thus is not a “favorable termination” even under the more lenient state law standard. Plaintiff

59

argues that Defendant McNamara’s true motivations in moving to dismiss Plaintiff’s conviction
were his knowledge that there was insufficient evidence to convict Plaintiff and his desire to
keep evidence of police misconduct out of the public eye, (Dkt. No. 325, at 33-36), but points to
no evidence in the record that would support this contention. To the contrary, all the record
evidence regarding Defendant McNamara’s motivations supports the conclusion that he believed
Plaintiff was guilty and could have been convicted on a re-trial (including as a result of the
prosecution’s use of the photographs that were withheld in his original trial), but that he moved
to dismiss the indictment for the reasons stated on the record before Judge Dwyer. (Dkt. No.
300-16, at 113-15, 188-90, 259-65; Dkt. No. 33-5, at ¶ 12(a)-(e)).27 Even if Plaintiff were to
prove at trial that his prosecution was based on false testimony by Defendant Cerminaro that he
had seen Plaintiff possess a bag of contraband, and that there was otherwise no probable cause
for his prosecution, there is no evidence in the record from which the Court can infer that the
dismissal of his indictment was based, even in part, on a suspicion by prosecutors or Judge
Dwyer that Defendant Cerminaro had fabricated his version of events, or otherwise by any
serious doubt of Plaintiff’s guilt.
The cases Plaintiff relies on are not to the contrary. In Thompson v. Clark, 364 F. Supp.
3d 178 (E.D.N.Y. 2019), the court found that the fact that a prosecutor moved to dismiss
criminal charges “in the interest of justice” did not mean that the dismissal was not a “favorable
termination,” noting that the “court did not give its reasons on the record for a dismissal in the
interest of justice,” and opining that “any ambiguity on whether the dismissal was on the merits
should be decided in defendant’s favor.” Id. at 196-97. That conclusion does not apply here,

27

The Court finds no support in the record for Plaintiff’s contention that his dismissal-in-the-interest-of-justice
proceedings should not be afforded the presumption of regularity because of bias or misconduct by Judge Dwyer and
other court officers. (Dkt No. 325, at 17-22).

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where both the prosecution and the presiding judge articulated specific reasons for the
indictment’s dismissal, and explicitly disavowed any notion that their belief in Plaintiff’s
innocence was one of those reasons. In the other case Plaintiff cites, Hincapie v. City of New
York, 464 F. Supp. 3d 61 (S.D.N.Y. 2020), a plaintiff established favorable termination where he
alleged that his indictment was dismissed based on newly discovered exculpatory evidence that a
state court had “determined on the merits . . . . would have produced a more favorable verdict at
trial,” and the prosecution chose not to retry him “because it did not believe it could prove the
case.” Id. at 71-73. By contrast, here, Plaintiff has failed to muster any evidence that the
photographs withheld at his trial would have proved his innocence, see Section IV.B.1.c supra,
and while Defendant McNamara did cite evidentiary problems as one reason for dismissing the
indictment, it was for the practical reason that the crucial drug evidence had been destroyed
pursuant to a court order, not because any newly surfaced evidence cast doubt on the validity of
Plaintiff’s conviction.
Because there is no evidence from which a jury could find that the dismissal of Plaintiff’s
indictment constituted a “favorable termination” under either § 1983 or New York state law, all
three Defendants are entitled to summary judgment on his federal and state malicious
prosecution claims.
3.

Lack of Prosecution

The Court also agrees with Defendant Dougherty that, even assuming Plaintiff has
demonstrated a genuine dispute as to all the other elements of his malicious prosecution claims,
his claim against Defendant Dougherty must be dismissed because of Defendant Dougherty’s
limited role in Plaintiff’s prosecution. “While police officers do not generally ‘commence or
continue’ criminal proceedings against defendants, a claim for malicious prosecution can still be
maintained against a police officer if the officer is found to ‘play[ ] an active role in the
61

prosecution, such as giving advice and encouragement or importuning the authorities to act.’”
Bermudez v. City of New York, 790 F.3d 368, 377 (2d Cir. 2015) (quoting Manganiello, 612 F.3d
at 163).28 It is undisputed that, after taking photographs of the scene of Plaintiff’s arrest and
uploading them to the RMS system, Defendant Dougherty played no further role in Plaintiff’s
prosecution. (Dkt. No. 307-15, at ¶ 27; Dkt. No. 319-1, at ¶ 27). He did not testify in any of
Plaintiff’s criminal proceedings, did not make any representation or presentation to the District
Attorney’s office in connection with those proceedings, and did not otherwise participate in
Plaintiff’s indictment, prosecution or conviction. (Dkt. No. 307-15, at ¶¶ 38-40; Dkt. No. 319-1,
at ¶¶ 38-40). Based on these undisputed facts, Plaintiff cannot maintain a malicious prosecution
claim against Defendant Dougherty.
E.

Count IV: Malicious Prosecution Claim Against Defendants Cerminaro,
Paladino and Dougherty Arising from Plaintiff’s Post-Conviction
Proceedings

The City Defendants argue that Plaintiff’s fourth cause of action relates to the same
prosecution that is the subject of his third cause of action, and must be dismissed to avoid the
risk of inconsistent verdicts. (Dkt. No. 300-39, at 40). From the face of the Amended Complaint,
Plaintiff’s fourth cause of action alleges distinct facts related to his post-conviction proceedings
rather than his original criminal proceedings. (Dkt. No. 33, at ¶¶ 656-66). However, the ultimate
dispensation—the vacatur of Plaintiff’s conviction and the dismissal of his indictment in the
interest of justice—is the same. The Court’s analysis finding that this dismissal was not a
“favorable termination” for purposes of his third cause of action applies with equal force to his

28

Defendants Cerminaro and Paladino do not argue that their role in Plaintiff’s criminal proceedings does not satisfy
this standard.

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fourth cause of action. See Section IV.D.2 supra. Therefore, all three Defendants are entitled to
summary judgment on Plaintiff’s fourth cause of action against them.
F.

Counts I-IV Qualified Immunity Defense

The City Defendants and Defendant Dougherty raise qualified immunity defenses with
respect to the Brady and malicious prosecution claims alleged in Plaintiff’s first through fourth
causes of action. (Dkt. No. 300-39, at 48-54; Dkt. No. 307-16, at 16-17). However, the only
remaining claim from Plaintiff’s first four causes of action is his fabrication of evidence claim
against Defendant Cerminaro. The City Defendants do not raise a qualified immunity defense
with respect to this particular claim, and in any event, it is clear that no such defense could lie.
See Zahrey v. Coffey, 221 F.3d 342, 355 (2d Cir. 2000) (“It is firmly established that a
constitutional right exists not to be deprived of liberty on the basis of false evidence fabricated
by a government officer.”). Because Plaintiff’s other claims have been dismissed on their merits,
the Court need not address whether any or all of the City Defendants would be entitled to such a
defense to those claims.
G.

Count V: Failure to Intervene Claim against Defendants Paladino and
Dougherty

“[A]ll law enforcement officials have an affirmative duty to intervene to protect the
constitutional rights of citizens from infringement by other law enforcement officers in their
presence.” Anderson v. Branen, 17 F.3d 552, 557 (2d Cir. 1994). Therefore, “[a]n officer who
fails to intercede is liable for the preventable harm caused by the actions of the other officers
where that officer observes or has reason to know: (1) that excessive force is being used . . . (2)
that a citizen has been unjustifiably arrested . . . or (3) that any constitutional violation has been
committed by a law enforcement official.” Id. To prevail on a failure to intervene claim, a
plaintiff must establish that the defendant had a “realistic opportunity to intervene to prevent the

63

harm from occurring.” Id. “Moreover, the failure to intervene claim is contingent upon the
disposition of the primary claims underlying the failure to intervene claim.” Matthews v. City of
New York, 889 F. Supp. 2d 418, 443-44 (E.D.N.Y. 2012).
Here, the only “primary claim[] underlying the failure to intervene claim,” id., that has
survived summary judgment is Plaintiff’s fabrication of evidence claim against Defendant
Cerminaro.29 The only “constitutional violation . . . by a law enforcement official,” Anderson, 17
F.3d at 557, as to which Plaintiff has established a genuine dispute is Defendant Cerminaro’s
alleged construction of a false narrative that he saw Plaintiff possess and discard a bag of
contraband. Neither Defendant Paladino nor Defendant Dougherty were present while Defendant
Cerminaro chased Plaintiff across the rooftops, and there is no evidence suggesting they ever had
any reason to doubt his story that, during that chase, he saw Plaintiff discard the bag of
contraband he showed them. Furthermore, as previously discussed at length, there is no evidence
in the record suggesting that either Defendant Dougherty or Defendant Paladino saw Defendant
Cerminaro pick loose pieces of contraband up off the ground and add them to the evidence used
to charge Plaintiff. See Section IV.B.2.a.ii-iii supra. Therefore, there is no evidence suggesting
that either Defendant had a “realistic opportunity to intervene to prevent the harm from
occurring,” Anderson, 17 F.3d at 557, and both Defendants are entitled to summary judgment on
Plaintiff’s failure to intervene claim against them.

29

While the Court has found that Plaintiff raised a genuine dispute as to whether Defendant Cerminaro’s failure to
disclose the photographs taken at the scene, in his Supporting Deposition or subsequently, was intentional, see Section
IV.B.1.b.iii supra, the Court found that Plaintiff’s Brady claim against him could not be sustained because Plaintiff
did not show a “reasonable probability” that disclosure of the photographs would have changed the outcome of his
trial, see Section IV.B.1.c. Accordingly, Plaintiff may not sustain a failure to intervene claim against Defendant
Dougherty based on his failure to require Defendant Cerminaro to amend his Supporting Deposition to disclose the
photographs’ existence.

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H.

Count VI: Monell Claim against Defendant City of Utica, and Supervisory
Liability Claims against Defendants Williams and Dougherty

Plaintiff’s sixth cause of action is a Monell claim against Defendant City of Utica.
Additionally, in his briefing, Plaintiff makes arguments in support of supervisory liability claims
against Defendants Williams and Dougherty. (Dkt. No. 319, at 17-20; Dkt. No. 325, at 36-39).
The Amended Complaint itself does not explicitly contain such claims, and as the City
Defendants correctly point out, the Court did not read such claims into Plaintiff’s complaint on
its Rule 12 review, (Dkt. No. 346, at 14-15), though Plaintiff’s sixth cause of action in the
Amended Complaint does include allegations that could be read to imply such claims, (Dkt. No.
33, at ¶¶ 676-702). For purposes of the present summary judgment motions, and in light of its
obligation to construe Plaintiff’s pleadings liberally, the Court will evaluate the merits of the
supervisory liability claims against Defendants Williams and Dougherty suggested by the
Amended Complaint and Plaintiff’s briefing, in addition to Plaintiff’s Monell claim against
Defendant City of Utica.
1.

City of Utica

It is well-established that a municipality may not be held liable under § 1983 on the basis
of respondeat superior. Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 694-95
(1978). Rather, municipalities are responsible only for “their own illegal acts,” Pembaur v.
Cincinnati, 475 U.S. 469, 479 (1986), and are not vicariously liable for civil rights violations
perpetrated by their employees, see Monell, 436 U.S. at 691. In order to sustain a § 1983 claim
for municipal liability, a plaintiff must show that he suffered a constitutional violation, and that
the violation resulted from an identified municipal policy or custom. Id. at 694-95. A municipal
policy or custom may be established by any of the following: 1) a formal policy, officially
promulgated by the municipality, id. at 690; 2) action taken by the official responsible for

65

establishing policy with respect to a particular issue, Pembaur, 475 U.S. at 483-84; 3) unlawful
practices by subordinate officials so permanent and widespread as to practically have the force of
law, City of St. Louis v. Praprotnik, 485 U.S. 112, 127-30 (1985) (plurality opinion); or 4) a
failure to train or supervise that amounts to “deliberate indifference” to the rights of those with
whom the municipality's employees interact, City of Canton v. Harris, 489 U.S. 378, 388 (1989).
In order to support a claim based on a failure to train and supervise, Plaintiff must prove:
“(1) that a policymaker of the municipality knows to a moral certainty that its employees
will confront a given situation; (2) that the situation either presents the employee with a
difficult choice of the sort that training or supervision will make less difficult or that there
is a history of employees mishandling the situation; and (3) that the wrong choice by the
employee will frequently cause the deprivation of a citizen’s constitutional rights.”
Young v. County of Fulton, 160 F.3d 899, 903-04 (2d Cir. 1998) (citing Walker v. City of New
York, 974 F.2d 293, 297-98 (2d Cir. 1992) (internal quotations and alterations omitted)).
Here, the only misconduct of a constitutional magnitude that Plaintiff has presented any
evidence of is Defendant Cerminaro’s alleged fabrication of evidence against him in the form of
false testimony. On this record, Plaintiff has, at the most, raised a question as to whether one
officer deliberately falsified testimony to secure Plaintiff’s conviction. He has presented no
evidence that the City of Utica has a widespread policy or custom of allowing police officers to
fabricate evidence or present intentionally false testimony against criminal defendants, or that the
City of Utica systematically fails to train police officers on the importance of testifying
truthfully.
Plaintiff’s arguments supporting his Monell claim largely rely on the City of Utica’s
alleged failure to properly investigate his January 2011 civilian complaint filed with the Utica
Police Department and hold the subject officers accountable. (Dkt. No. 325, at 39-43).
“[E]vidence that the municipality had notice of but repeatedly failed to make any meaningful

66

investigation into charges that police officers” violated complainants’ civil rights certainly may
form the basis of a Monell claim. Ricciuti, 941 F.2d at 123. However, even assuming that the
police department’s actions with respect to his civilian complaint (discussed further below, see
Section IV.H.2 infra) constituted a failure to properly investigate his complaint, a single incident,
without more, is insufficient to establish the systemic and repeated failure necessary for a “policy
or custom” under Monell. See, e.g., Nguedi v. Caulfield, 813 F. App’x 1, 3 (2d Cir. 2020) (“[A]
single case is insufficient to establish the existence of” a policy or custom for purposes of a
Monell claim (citing Mitchell v. City of New York, 841 F.3d 72, 80 (2d Cir. 2016))); Sarus v.
Rotundo, 831 F.2d 397, 402 (2d Cir. 1987) (finding that there no Monell claim existed where
“the only relevant evidence presented by appellees was the manner in which they themselves
were” treated). Therefore, Defendant City of Utica is entitled to summary judgment on Plaintiff’s
Monell claim against it.30
2.

Defendants Williams and Dougherty

Traditionally, to state a claim based on supervisory liability in the Second Circuit, a
plaintiff must allege that:
(1) the defendant participated directly in the alleged constitutional violation, (2) the
defendant, after being informed of the violation through a report or appeal, failed to
remedy the wrong, (3) the defendant created a policy or custom under which
unconstitutional practices occurred, or allowed the continuance of such a policy or
custom, (4) the defendant was grossly negligent in supervising subordinates who
committed the wrongful acts, or (5) the defendant exhibited deliberate indifference . . . by
failing to act on information indicating that unconstitutional acts were occurring.

30

Plaintiff’s argument that Defendant City of Utica must be denied summary judgment because, as the City of Utica’s
30(b)(6) representative, “Defendant Williams coul[d] not answer questions about training, prior lawsuits and prior
instances of Utica Police Officer misconduct of the type complained of in this lawsuit,” (Dkt. No. 325, at 43), is
without merit. Plaintiff fails to point to any specific defects in Defendant Williams’ testimony that he believes prevent
him from being able to adduce the evidence necessary to prove a failure-to-train claim. Plaintiff’s remaining
contentions regarding his inability to obtain the “correct” training material, (id.), largely seek to re-litigate discovery
disputes that have already been resolved.

67

Shaw v. Prindle, 661 F. App’x 16, 18 (2d Cir. 2016) (quoting Colon v. Coughlin, 58 F.3d 865,
873 (2d Cir. 1995)). However, the Second Circuit recently held that the Colon test was abrogated
by the Supreme Court’s decision in Ashcroft v. Iqbal, 556 U.S. 662 (2009). The Court held that:
[A]fter Iqbal, there is no special rule for supervisory liability. Instead, a plaintiff must
plead and prove “that each Government-official defendant, through the official’s own
individual actions, has violated the Constitution.” Iqbal, 556 U.S. at 676, 129 S. Ct. 1937.
“The factors necessary to establish a [§ 1983] violation will vary with the constitutional
provision at issue” because the elements of different constitutional violations vary. Id.
The violation must be established against the supervisory official directly.
Tangreti v. Bachmann, No. 19-3712, 2020 WL 7687688, at *6, 2020 U.S. App. LEXIS 40392, at
*17 (2d Cir. Dec. 28, 2020). Tangreti was decided in the context of an Eighth Amendment
deliberate indifference claim against a prison official, and therefore did not specify the “factors
necessary” to establish a claim against a supervisor for the types of claims Plaintiff alleges here.
Id. However, the Court need not address this issue, because on the record here, it is clear that
Plaintiff cannot establish a constitutional claim against Defendants Williams and Dougherty.
As to Defendant Williams, Plaintiff argues that he first “became aware of the wrong
inflicted on Plaintiff” when Plaintiff filed a civilian complaint in January 2011. (Dkt. No. 325, at
37). After a preliminary investigation, Defendant Williams chose not to take action because he
felt Plaintiff’s complaints were best addressed in the context of his criminal matter, a decision
which Plaintiff alleges violates the Utica Police Department’s policies on how such complaints
should be handled. (Id.). He further argues that, when Defendant Dougherty again brought
Plaintiff’s complaint to Defendant Williams’ attention in 2012, Defendant Williams again failed
to conduct a meaningful investigation or bring disciplinary action, instead allowing Defendant
Dougherty to address the issue directly with Plaintiff. (Id. at 38).
As with Plaintiff’s Monell and failure to intervene claims, the only possible constitutional
violation for which Defendant Williams could be liable is Defendant Cerminaro’s allegedly false

68

testimony that he saw Plaintiff possess the bag of contraband collected at the scene of his arrest.
Construing the facts in the light most favorable to Plaintiff, there is no evidence in the record
from which a factfinder could reasonably infer that Defendant Williams was ever presented with
any concrete evidence, beyond Plaintiff’s own allegations in his January 2011 civilian complaint,
that Defendant Cerminaro had fabricated evidence or testified falsely against Plaintiff.31 “The
mere failure to investigate an allegation of unconstitutional activity, without more . . . does not
provide a basis for finding liability under section 1983.” Toole v. Connell, No. 04-cv-0724, 2008
WL 4186334, at *7, 2008 U.S. Dist. LEXIS 123184 (N.D.N.Y. Aug. 1, 2008), (citing Wingate v.
Horn, No. 05-cv-2001, 2007 WL 30100, at *6, 2007 U.S. Dist. LEXIS 203, at *19-20 (S.D.N.Y.
Jan. 4, 2007)), report and recommendation adopted 2008 WL 4186334, 2008 U.S. Dist. LEXIS
73760 (N.D.N.Y. Sept. 10, 2008). Furthermore, according to Plaintiff’s own account of events,
Defendant Williams did conduct at least a preliminary investigation, and determined that
Plaintiff’s allegations were best addressed through his criminal proceedings and, later, through a
meeting between Plaintiff and Defendant Dougherty. Assuming Plaintiff is correct that his
civilian complaint was handled improperly under the Utica Police Department’s policies, he has
failed to provide any evidence suggesting that Defendant Williams’ chosen course of action was
so utterly inadequate as to violate Plaintiff’s constitutional rights.
Plaintiff’s supervisory liability arguments with respect to Defendant Dougherty are
largely duplicative of the arguments made in the context of his other claims. (Dkt. No. 319, at
17-20). The Court has already addressed these arguments at length in the its analysis of

31

Assuming Plaintiff’s civilian complaint did provide Defendant Williams with evidence that Defendant Cerminaro
failed to disclose the existence of photographs during Plaintiff’s criminal proceeding—a failure which the Court has
found did not, in itself, amount to a constitutional violation, see Section IV.B.1.c supra—there is no evidence that this
would give Defendant Williams reason to believe that Defendant Cerminaro’s entire testimony about what he observed
on the day of Plaintiff’s arrest was false, particularly given that, as discussed in Section IV.B.1.c supra, the
nondisclosed photographs, on their face, appear to generally corroborate Defendant Cerminaro’s version of events.

69

Plaintiff’s fair trial claims against Defendant Dougherty, and has found that there is no evidence
from which Plaintiff can establish that any of Defendant Dougherty’s actions, directly or as a
supervisor, violated Plaintiff’s constitutional rights. See Sections IV.B.1.b.i, IV.B.2.a.iii, supra.
For the same reasons, Plaintiff has failed to raise a triable issue of fact with respect to a
supervisory liability claim against Defendant Dougherty.
I.

Count VII: Defamation Claim against Defendants McNamara and County of
Oneida Arising from the August 2015 Observer-Dispatch Article

In general, to state a claim for defamation under New York law, a plaintiff must allege:
“(1) a false statement about the plaintiff; (2) published to a third party without authorization or
privilege; (3) through fault amounting to at least negligence on part of the publisher; (4) that
either constitutes defamation per se or caused ‘special damages.’” Gargiulo v. Forster & Garbus
Esqs., 651 F. Supp. 2d 188, 192 (S.D.N.Y. 2009) (citations omitted). “To be actionable . . . the
statement must do more than cause discomfort or affront; the statement is not measured by the
sensitivities of the maligned, but the critique of reasonable minds that would think the speech
attributed odious or despicable characterizations to the subject.” Chau v. Lewis, 771 F.3d 118,
127 (2d Cir. 2014).
Even otherwise defamatory statements may be protected by certain qualified, or
conditional, privileges. For example, a qualified privilege “attaches to statements in which the
party communicating possesses a legal duty to communicate information about another, provided
that the communicator has a good faith belief that the information is true.” Chase v. Grilli, 512
N.Y.S.2d 125, 126 (2d Dep’t 1987). Another qualified privilege is the so-called “common
interest privilege,” which extends to “communication made by one person to another upon a
subject in which both have an interest.” Liberman v. Gelstein, 80 N.Y.2d 429, 437 (1992)
(citation omitted). Courts have found that statements to the media by district attorneys, or their

70

representatives, are covered by such qualified privileges. See Friedman v. Rice, 5 N.Y.S.3d 816,
824-25 (N.Y. Sup. Ct. 2015) (statements to the media by information officers at Nassau District
Attorney’s Office protected by the common interest privilege); Wyllie v. Dist. Atty. of Cnty. of
Kings, 770 N.Y.S.2d 110, 115 (2d Dep’t 2003) (statements to press by spokesman for King’s
County D.A. protected by common interest privilege); Chase, 512 N.Y.S.2d at 126 (“[A]
qualified privilege attaches to the allegedly defamatory statements, inasmuch as the defendants,
acting in their capacity as representatives of the Nassau County District Attorney’s office,
communicated certain information about the plaintiff’s arrest and conviction.”).
However, “[t]he shield provided by a qualified privilege may be dissolved if plaintiff can
demonstrate that defendant spoke with ‘malice.’” Liberman, 80 N.Y.2d at 437. There are two
standards for malice: 1) “the constitutional standard which requires the statements to be made
with a high degree of awareness of their probable falsity”; and 2) “the common law standard
which requires a showing of ill will as the speaker’s sole motivation for making alleged
defamatory statements.” Friedman, 5 N.Y.S.3d at 824 (citing Liberman, 80 N.Y.2d at 438).
Applying the foregoing standards, there is no evidence in the record from which Plaintiff
can sustain a defamation claim against the County Defendants with respect to any of the
statements attributed to Defendant McNamara in the August 2015 Observer-Dispatch article.32
First, as the case law the County Defendants cite makes clear, Defendant McNamara’s
statement that Plaintiff is a “bit of a difficult individual” is merely a statement of opinion, and is
thus cannot be the basis of a defamation claim. See, e.g., Chau, 771 F.3d at 128 (“New York law
protects derogatory statements which may be categorized as ‘opinion’ as opposed to ‘fact’ . . . .

32

Because Plaintiff’s defamation claims against Defendant McNamara fail on their merits, and because the County
Defendants do not argue that Defendant County of Oneida may not be held liable for defamatory statements made by
Defendant McNamara, the Court does not consider that question.

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[S]tatements more likely to be characterized as fact are readily understood by the reader to have
a precise, unambiguous and definite meaning and can be objectively characterized as true or
false.”); Williams v. Varig Brazilian Airlines, 564 N.Y.S.2d 328, 331 (1st Dep’t 1991) (finding
that employer’s statements that terminated employee was “difficult to work with” were nonactionable opinions, and citing case law finding statements that certain property owners “are very
difficult to deal with” “have been held to be protected expressions of opinion”); North State
Autobahn, Inc. v. Progressive Ins. Grp., 953 N.Y.S.2d 96, 100 (2d Dep’t 2012) (noting lower
court’s decision finding statements that auto body shop was a “problem shop/difficult to deal
with” were non-actionable statements of opinion). Plaintiff does not meaningfully argue to the
contrary; he explains why he believes Defendant McNamara’s opinion is unreasonable, but does
not present a basis for finding the opinion actionable. (Dkt. No. 317, at 14-15).
Second, assuming Defendant McNamara made the statement that “[t]he cocaine in
evidence was destroyed following [Plaintiff’s] conviction, as is standard for the office,” and
assuming that statement was false,33 the statement is not defamatory. It does not “attribute[]
odious or despicable characterizations” to Plaintiff. Chau, 771 F.3d at 127. Indeed, it does not
say or imply anything about Plaintiff at all.
Third, the record does not support a finding that Defendant McNamara’s use of the term
“crack” to describe the substance found at the scene of Plaintiff’s arrest was false or defamatory.
The deposition testimony (including from Plaintiff’s own criminal defense attorney) and other
record evidence reflects that the evidence found at the scene of Plaintiff’s arrest included an off-

33

Plaintiff claims that “there is no policy for destroying evidence,” and that the “purpose of destroying the evidence
in Plaintiffs [sic] case was to deny Plaintiff the opportunity to have the drugs and bag tested after conviction.” (Dkt.
No. 317, at 17). The Court need not resolve this dispute for purposes of evaluating Plaintiff’s defamation claim, but
notes that the statement as written appears to reference a policy by which, “[a]fter a conviction, and the passage of
time within which an appeal can be perfected,” Defendant McNamara’s office “obtains court orders authorizing the
destruction” of drug evidence. (Dkt. No. 33, at ¶ 7(b)).

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white, chunky substance consistent with “crack” cocaine; that Defendant McNamara understood
from his investigation into Plaintiff’s case that the substance Plaintiff was charged with was
“crack”; that the terms “cocaine” and “crack” are often used interchangeably; and that the term
“crack” was used to describe the substance during Plaintiff’s criminal proceedings. (Dkt. No.
300-16, at 84, 136, 170-71, 204; Dkt. No. 33-5, at ¶ 11(c); Dkt. No. 317-30, at 106; Dkt. No.
300-6, at 21, 92; Dkt. No. 300-22, at 187; Dkt. No. 308-4, at 7-9). Plaintiff alleges that
Defendant McNamara’s motivation in using that term was its “well known” “negative
connotation in regards to black males,” (Dkt. No. 317, at 17), but he points to no evidence to
support that contention, and the Court’s review of the record reveals none.34
The remainder of the statements Plaintiff alleges are defamatory reflect Defendant
McNamara’s understanding of the events surrounding Plaintiff’s arrest and conviction.35 As
statements made by a DA to the media about a case the DA’s office was involved in, they are
protected by a qualified privilege. See, e.g., Friedman, 5 N.Y.S.3d at 824; Wyllie, 770 N.Y.S.2d
at 115; Chase, 512 N.Y.S.2d at 126. Thus, even assuming that there is a genuine dispute as to
whether each of the allegedly defamatory statements are false and may be fairly attributed to
Defendant McNamara, Plaintiff’s defamation claim fails because there is no evidence in the
record from which a reasonable jury could find that Defendant McNamara acted with the malice
required to overcome this qualified privilege.

34

Plaintiff argues that statements made by Defendant McNamara with respect to a case involving a different factual
context—the reversal of a public official’s sex offense conviction by the New York Appellate Division based on
prosecutorial misconduct—constitute evidence of Defendant McNamara’s racial bias against Plaintiff. (Dkt. No 317,
at 18-19). This argument is conjectural and does not provide a basis for the Court to infer racist or malicious intent on
Defendant McNamara’s part.

35

Plaintiff concedes that Defendant McNamara’s technically false statement that Plaintiff was found with six, rather
than five, cell phones in his vehicle on the day of his arrest “can’t be said to be defamatory” standing alone, (Dkt. No.
317, at 15), and challenges this statement as defamatory only to the extent that it contributes to an overall false
impression that Plaintiff was guilty of a crime.

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To the contrary, all the record evidence reflects that Defendant McNamara’s statements
were based on, and consistent with, the information he received through his investigation into
Plaintiff’s case, including his discussions with the officers involved in the case, and that he
believed the statements to be substantially true at the time he made them. (Dkt. No. 300-16, at
192-206; Dkt. No. 308-5, at ¶¶ 23-27 (describing investigation and citing record evidence)).
There is no evidence from which a jury could infer that his statements were made with a “high
degree of awareness of their probable falsity.”36 Friedman, 5 N.Y.S.3d at 824; see also Moore v.
Dormin, 676 N.Y.S.2d 90, 91 (2d Dep’t 1998) (Rosenberger, J. concurring) (finding statements
by prosecutor about police officer’s perjury were not made with malice where he “took great
pains to substantiate his claims” and “was clearly not indifferent to the question of truth”).
Furthermore, the fact that Defendant McNamara did not tell the reporter that evidence was
intentionally withheld or fabricated, or that officers committed perjury, in Plaintiff’s case is
entirely consistent with his conclusion, based on his investigation, that no such willful
misconduct occurred. (Dkt. No. 308-5, at ¶ 27; Dkt. No. 317-1, at ¶ 27; Dkt. No. 307-15, at ¶ 53;
Dkt. No. 319-1, at ¶ 53).
Nor is there any evidence to infer that Defendant McNamara’s statements were made
with the “ill will” sufficient to overcome a qualified privilege. The fact that Defendant
McNamara found Plaintiff to be a “difficult individual,” standing alone, does not establish that
his statements to the Observer-Dispatch—which appear to be a straightforward recitation of his
understanding of the facts of Plaintiff’s case in response to a reporter’s questions—were made
with malice. See, e.g., Liberman, 80 N.Y.2d at 439 (“If the defendant’s statements were made to

36

Plaintiff’s contention that Defendant McNamara’s deposition statements prove his knowledge that Defendant
Cerminaro improperly picked loose substance up off the ground and improperly attributed it to Plaintiff, (Dkt. No.
317, at 12-13), has already been addressed in the context of Plaintiff’s fabrication of evidence claim, and is without
merit. See Section IV.B.2.a.i supra.

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further the interest protected by the privilege, it matters not that defendant also despised plaintiff.
Thus, a triable issue is raised only if a jury could reasonably conclude that ‘malice was the one
and only cause for the publication.’”) (citation omitted). The record as a whole is also
inconsistent with a finding of ill will given the evidence that, whatever his personal feelings
about Plaintiff may have been, Defendant McNamara investigated Plaintiff’s allegations of
impropriety; consented to a vacatur of Plaintiff’s conviction; and moved to dismiss Plaintiff’s
indictment, explaining in open court that he believed Plaintiff was deserving of clemency and
articulating his reasoning. (Dkt. No. 308-5, at ¶¶ 23-27; Dkt. No. 325-13, at 6-9; Dkt. No. 30016, at 59-60, 95-107, 113-14, 235-36). For the foregoing reasons, the County Defendants are
entitled to summary judgment on Plaintiff’s seventh cause of action against them.
J.

Count VIII: Defamation Claim against Defendants McNamara and County
of Oneida Arising from Defendant McNamara’s May 2016 Affidavit

Plaintiff’s eighth cause of action is a defamation claim against the County Defendants for
statements made in an affidavit Defendant McNamara submitted in connection with a motion to
dismiss Plaintiff’s complaint in a state court proceeding. The County Defendants argue that
Plaintiff’s claim must be dismissed both because the statements are not defamatory, and because
they are “statements contained within an affidavit submitted to Court in a judicial proceeding,”
and thus are “entitled to an absolute privilege.” (Dkt. No. 308-6, at 25-27). Plaintiff does not
respond to these contentions. (Dkt. No. 317).
As with his statements in the Observer-Dispatch article, the statements about Plaintiff
that Defendant McNamara makes in his affidavit are materially consistent with his on-the-record
statements during Plaintiff’s post-conviction proceedings, and the record establishes that they
reflect his truthful understanding of Plaintiff’s case as determined by the investigation he
conducted in response to Plaintiff’s § 440 motion. As such, the Court’s analysis with respect to

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Plaintiff’s seventh cause of action, see Section IV.I supra, applies with equal force here.
Furthermore, in the absence of any argument by Plaintiff to the contrary, the Court agrees with
the County Defendants that the affidavit reflects Defendant McNamara’s statement as a litigant
in a judicial proceeding, and thus is subject to an absolute privilege that bars Plaintiff’s
defamation claim. (Dkt. No. 308-6, at 25-27 (collecting relevant case law)).
K.

Count XI:37 Defamation Claim against Defendants Cerminaro and City of
Utica

The City Defendants argue that, after dismissing Plaintiff’s federal claims, the Court
should decline to exercise supplemental jurisdiction over his eleventh cause of action, which is a
state-law defamation claim against Defendants Cerminaro and the City of Utica arising from
Defendant Cerminaro’s allegedly false Supporting Deposition. (Dkt. No. 300-39, at 53). Because
the Court has determined that Plaintiff’s § 1983 fabrication of evidence claim against Defendant
Cerminaro survives summary judgment, and because the City Defendants make no other
argument in favor of the defamation claim’s dismissal, the Court will not grant summary
judgment to Defendants Cerminaro and the City of Utica on Plaintiff’s eleventh cause of action.
L.

Summary/Conclusion

Based on the foregoing analysis, the Court finds that Plaintiff’s fabrication of evidence
claim against Defendant Cerminaro and his defamation claim against Defendants Cerminaro and
the City of Utica survive summary judgment and may proceed to trial. As to Plaintiff’s other
claims, the Court has carefully reviewed all of Plaintiff’s arguments, including those explicitly
analyzed above and all other arguments he raises, and finds them without merit. Therefore, all

37

Count IX, a defamation claim against Gatehouse Media and various individuals, and Count X, a respondeat superior
and joint and several liability claim against Gatehouse Media, have been previously dismissed. (Dkt. No. 99).

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other claims alleged in Plaintiff’s Amended Complaint shall be dismissed with prejudice. Given
that, the Court need not address the remaining arguments Defendants raise in their briefing.38
V.

OTHER PENDING MOTIONS
A.

Motion for Sanctions

In their motion for sanctions, the City Defendants ask the Court to draw an adverse
inference that the five cell phones found in Plaintiff’s possession contained evidence of drug
trafficking, on the grounds that Plaintiff failed to preserve the contents of these phones. (Dkt. No.
310-7). However, it appears that these phones left Plaintiff’s possession years before he filed this
litigation in 2016. (Dkt. No. 310-5, at 5-6). The City Defendants rely heavily on the fact that
Plaintiff admitted in his deposition that he contemplated bringing civil litigation against the City
Defendants as early as the day of his arrest, and argue that his obligation to preserve the cell
phones accrued at that time. (Id. at 6; Dkt. No. 348, at 1-2). Even crediting Plaintiff’s testimony
that he contemplated bringing this litigation much earlier than 2016, it is not clear whether he
“should have known that the [cell phones] may be relevant to future litigation,” Kronisch v. U.S.,
150 F.3d 112, 126-27 (2d Cir. 1998), particularly in light of the fact that the cell phones were
returned to him shortly after his arrest and were not used, or even collected, as evidence in his
criminal case. In any event, drawing the requested adverse inference would not change the
outcome of the Court’s analysis with respect to any of Plaintiff’s claims. Therefore, the Court
declines to draw such an inference, and as such, the Court need not address the arguments raised
in the parties’ briefing on the motion. This is without prejudice to Defendants’ ability to renew

38

In several places in his briefing, Plaintiff appears to suggest that the Court should grant summary judgment in his
favor, see, e.g., (Dkt. No. 325, at 45-46), but he has not filed a cross-motion for summary judgment. Even assuming
that any of Plaintiff’s opposition filings could be reasonably construed as cross-motions for summary judgment,
Plaintiff has, at most, demonstrated that a genuine dispute of material fact exists with respect to one of his claims; he
has not proven that he is entitled to summary judgment on any of his claims.

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this motion in a pretrial submission after considering this decision and the claims remaining for
trial.
B.

Rule 56(d) Motion

Plaintiff has also filed an affidavit with each of his opposition filings requesting that,
pursuant to Fed. R. Civ. P. 56(d), the Court delay resolution of the pending summary motions to
allow Plaintiff time to take depositions of Judge Dwyer, Micaela Parker (a reporter with the
Observer-Dispatch and a former Defendant in this matter), ADA Sarah Demellier, and Attorney
Zachary C. Oren (counsel to the City Defendants). (Dkt. Nos. 317-3, 319-3, 325-3). Fed. R. Civ.
P. 56(d) provides:
If a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot
present facts essential to justify its opposition, the court may:
(1) defer considering the motion or deny it;
(2) allow time to obtain affidavits or declarations or to take discovery; or
(3) issue any other appropriate order.
“A party seeking to delay resolution of a summary judgment motion on grounds that he has been
deprived of certain discovery materials ‘must show that the material sought is germane to the
defense, and that it is neither cumulative nor speculative, and a bare assertion that the evidence
supporting a plaintiffs allegation is in the hands of the defendant is insufficient.’” Alphonse Hotel
Corp. v. Tran, 828 F.3d 146, 151 (2d Cir. 2016) (citing Paddington Partners v. Bouchard, 34
F.3d 1132, 1138 (2d Cir. 1994)).
Plaintiff’s basis for deposing ADA Demellier is a May 3, 2016 email in which she wrote
that, on the morning of August 10, 2015, she “spoke with [Defendant McNamara] about [her]
concerns with the case,” and following that discussion and a meeting with Defendant Paladino,
Defendant McNamara moved to dismiss Plaintiff’s indictment in the interest of justice. (Dkt. No.
317-3, at 133; Dkt. No. 319-3, at 133; Dkt. No. 325-3, at 133). Plaintiff contends that
Demellier’s testimony is necessary to establish what these “actual concerns” were, as he believes
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that this would help him prove that the dismissal of his indictment was a “favorable termination.”
(Dkt. No. 317-3, at ¶¶ 21-22; Dkt. No. 319-3, at ¶¶ 21-22; Dkt. No. 325-3, at ¶¶ 21-22). The
information Plaintiff seeks is not essential to justify his opposition. Plaintiff has already deposed
multiple representatives from the Oneida County DA’s office, including Defendant McNamara
himself. He has had ample opportunity to thoroughly examine their recollection of what the
office’s “concerns” were in Plaintiff’s case, as well as to question them regarding Demellier’s
email and the meetings referenced therein. He has elicited significant, detailed and consistent
testimony explaining the DA’s office’s conclusions regarding Plaintiff’s case and their reasons
for moving to dismiss his indictment. Plaintiff offers no reason to believe that ADA Demellier’s
testimony would differ so materially from that of her colleagues as to alter the Court’s “favorable
termination” analysis.
In a similar vein, Plaintiff contends that Judge Dwyer must be deposed so that he can
“explain the statement he made before dismissing the indictment” and reveal his true reasons for
doing so. (Dkt. No. 317-3, at ¶¶ 23; Dkt. No. 319-3, at ¶¶ 23; Dkt. No. 325-3, at ¶¶ 23). This
information is not essential to justify Plaintiff’s opposition. At the August 10, 2015 hearing,
Judge Dwyer very clearly stated his reasons for dismissing Plaintiff’s indictment, and Plaintiff
offers no legitimate reason to believe that his testimony regarding his reasoning would materially
conflict with the reasons he gave on the record in open court. Plaintiff’s other contentions—
including those regarding his beliefs about the prosecution’s true motivations for dismissing the
indictment, and how a full evidentiary hearing may have impacted Judge Dwyer’s analysis had
one been held—are speculative and irrelevant to the Court’s “favorable termination” analysis.
Plaintiff contends that Micaela Parker’s testimony is necessary to establish her sources of
information for the allegedly defamatory Observer-Dispatch article, particularly in light of

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Defendant McNamara’s statements suggesting that some of the statements in the article did not
come from him. (Dkt. No. 317-3, at ¶¶ 26-28; Dkt. No. 319-3, at ¶¶ 26-28; Dkt. No. 325-3, at ¶¶
26-28). This information is not essential to justify Plaintiff’s opposition. Plaintiff’s defamation
claims against Parker and her fellow media Defendants have already been dismissed. (Dkt. No.
99). For purposes of Plaintiff’s defamation claim against the County Defendants, the Court
construed the facts in the light most favorable to Plaintiff and found that, even assuming that
Defendant McNamara was the source for all of the allegedly defamatory statements in the article,
Plaintiff’s defamation claim could not be sustained. See Section IV.I supra.
Plaintiff argues that Zachary Oren’s testimony is necessary to establish whether the feet
visible in one of the photographs taken at the scene of Plaintiff’s arrest belonged to Defendant
Cerminaro. (Dkt. No. 317-3, at ¶¶ 29-38; Dkt. No. 319-3, at ¶¶ 29-38; Dkt. No. 325-3, at ¶¶ 2938). Even assuming Plaintiff’s contention in his affidavit regarding attorney-client privilege
waiver has any merit, the information Plaintiff seeks is not essential to justify his opposition.
Regardless of whose feet appear in the particular photograph Plaintiff focuses on, Defendants do
not reasonably dispute that Defendant Cerminaro was present when Defendant Dougherty was
photographing the scene, and that he witnessed Defendant Dougherty take those photographs.
Especially given its obligation to construe the facts in the light most favorable to Plaintiff, the
Court assumed that fact to be true when analyzing Plaintiff’s claims. Thus, establishing
definitively that the feet in the photograph belong to Defendant Cerminaro would not assist
Plaintiff’s opposition or alter the Court’s analysis in any way.
For the foregoing reasons, Plaintiff’s request pursuant to Fed. R. Civ. P. 56(d) is denied.
C.

Motion to Disqualify Counsel

Plaintiff brings a motion to disqualify counsel for the City Defendants and Defendant
Dougherty, based on “unprofessional and unethical conduct.” (Dkt. No. 334). Plaintiff’s
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argument that Zachary Oren must be disqualified because he may be called to testify on whether
the feet in a particular photograph belong to Defendant Cerminaro, (id. at 3-6), has been
addressed above, see Section V.B supra, and is without merit, particularly in light of the fact that
Plaintiff’s Brady claim has been dismissed and the question of whose feet were in the
photograph is no longer a relevant issue. Plaintiff also argues that Charles Brown, an attorney in
the corporation counsel’s office who was present at the December 2012 meeting Plaintiff
surreptitiously recorded, may be called as a witness regarding Plaintiff’s fabrication of evidence
claim. (Id. at 3, 6). Plaintiff has sought corporation counsel’s disqualification on this basis before
without success, (Dkt. No. 55, 63, 180, 193), and has presented no reason for the Court to
reconsider those decisions. The Court has reviewed Plaintiff’s remaining arguments, and finds
that none provide a basis for disqualification at this time.
VI.

CONCLUSION
For these reasons, it is hereby
ORDERED that Plaintiff’s request to delay resolution of the pending summary judgment

motions and conduct additional discovery pursuant to Fed. R. Civ. P. 56(d), (Dkt. Nos. 317-3,
319-3, 325-3), the City Defendants’ motion for sanctions, (Dkt. No. 310), and Plaintiff’s motion
to disqualify counsel, (Dkt. No. 334), are DENIED; and it is further
ORDERED that the City Defendants’ motion for summary judgment (Dkt. No. 300) is
DENIED with respect to Plaintiff’s fabrication of evidence claim (First and Second Causes of
Action) against Defendant Cerminaro and his defamation claim (Eleventh Cause of Action)
against Defendants Cerminaro and City of Utica, and GRANTED in all other respects; and it is
further
ORDERED that the motions for summary judgment by Defendant Dougherty (Dkt. No.
307) and the County Defendants (Dkt. No. 308) are GRANTED in their entirety; and it is further
81

ORDERED that the following claims are DISMISSED with prejudice: Plaintiff’s
Brady claim (First Cause of Action); Plaintiff’s fabrication of evidence claim (First Cause of
Action) against Defendants Dougherty and Paladino; Plaintiff’s fabrication of evidence claim
(Second Cause of Action) against Defendants Dougherty and Paladino; Plaintiff’s malicious
prosecution claims (Third and Fourth Cause of Action); Plaintiff’s failure to intervene claim
(Fifth Cause of Action); Plaintiff’s Monell claim (Sixth Cause of Action); and Plaintiff’s
defamation claims (Seventh and Eighth Causes of Action) against Defendants McNamara and
the County of Oneida.
IT IS SO ORDERED.
Dated: January 14, 2021
Syracuse, New York

82