Stinson et al v. The City of New York

Filing 45

OPINION denying re: 36 MOTION for Reconsideration re; 34 Memorandum & Opinion filed by The City of New York, Raymond W. Kelly. (Signed by Judge Robert W. Sweet on 7/13/2012) (cd)

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK -- X SHARIF STINSON, et ., Plaintiffs, 10 Civ. 4228 against OPINION CITY OF NEW YORK, et al., Defendants. X A P PEA RAN C E S: At Plaintiff COHEN & FITCH LLP 225 Broadway, Suite 2700 New York, NY 10007 Joshua P. Fitch, Esq. Gerald M. Cohen, Esq. THE LAW OFFICES OF JON L. NORINSBERG, 225 Broadway, Suite 2700 New York, NY 10007 Jon L. Norinsberg, Att for the Defendants MICHAEL A. CARDOZO CORPORATION COUNSEL OF THE CITY OF NEW YORK 100 Church Street New York, NY 10007 By: Qiana C. Smith-Williams, Esq. Sweet, D.J. Defendants have moved, pursuant to Local Civil Rule 6.3, "April 23 reconsideration of the April 23, 2012 opinion (t ed Plaintiffs' motion Opinion) in which the Court certification. Because Defendants have fail to identi class any controlling law or facts the April 23 Opinion overlooked, motion for reconsideration is denied. Prior Proceedings A of led recitation of the ior ngs and facts s case is provided in the April 23 Opinion granting Plaintiffs' motion for N.Y., No. 10 C Apr. 23, 2012) ass certification. See Stinson v. Ci of . 4228 (RWS) , 2012 WL 1450553, at *2 5 (S.D.N.Y. Famili ty with t se prior proceedings and facts is assumed. Defendants' motion for reconsideration highlights two aspects of the April 23 nion: (1) the Court's determination that the proposed class was ascertainable, determination that Plainti==s had policy promulgated (2) the Court's t ly al eged a specific De=endants, namely that Defendants have established a practice by which NYPD of 1 cers ssue summonses order to meet a summons quota. probable cause Wl ~t provides a bac round to Defendants' motion, t on will be re il 23 Op of Because se two aspects ewed. A. The April 23 Opinion's Holding Regarding Ascertainability The llpril nion addressed the implied requirement 3 that Fed. R. Civ. P. 23(a) See St;nson, 2012 WL ascertainab e. rea requ res that a proposed c_ass be 4505 3, at w12- 8. n Summons ng this conclus on, the Court noted that the Cityw Operation lves a two-st Receiving Unit conducts a that process: first, rev~ew fec+- review, ude a serious defect such as a srnissi~g the Centra those summonses ssing signature or narrative or improper return date; second, the Assoc;ate Court Clerk and Supervising Judge where the suwmonses are re n each county coo ewed for facial sufficiency. precise~y describe what is meant the 23 Opi on delved es a process To the term "facial sufficiency," o the soecific sections of the New York Criminal Procedure Law applicable to the NYP;J's sumInons issuance ration. The il 23 i "summonses" are better described as " n described how these rance tickets" under the C.P.L., see id. at *13-14, and that a po ice off cer issuing an appearance icket subse the Criminal Court of ly files an "accusatory he nstrument" in Y of New York, id. at *15. 2 The C.P.L. facia ly suff cient, as requires the "accusatory instrument" to N.Y. C.P.L. §§ "00.40 and :00.15. mandated Applying these statutes, the April 23 Opinion held that the facial sufficiency review conducted as part of the Citywide Summons Operation - the second step of the two part review process described above - involved a judicial determination as to whether the summons issued lacked probable cause. As an initial st Court noted that the term "reasonable cause," used 100.40(1) (b) I I the N.Y. C.P.L. § has been held to be synonymous with "probable cause./I See Stinson, 2012 WL 1450553, at *16. The April 23 Opinion then noted that, although other reasons for dismissal at the faci sufficiency review stage are possible, it is unlike that these alternative rationales apply to the summonses at issue in this litigation: As noted above, N.Y. C.P.L. § 100.15 requires smissal of a summons that Is to state the court in which it is filed, the title of the action, the name of the subscribing complainant, the offense charged or a sufficiently descriptive factual statement, and § 100.40(1) (c) requires non-hearsay allegations to est ish each element of the fense. Under the summons review process described above, the technical errors enumerated in N.Y. C.P.L. § 100.15 are addressed in the fect review conducted prior to judicial determination of facial sufficiency. With re to N.Y. C.P.L. § 100.40(1) (c), the offenses for which the summonses in this case are being issued establish lack of non-hearsay allegations to be an improbable reason for smissal. According to the [Office of Court Administration] statistics, the offenses for which the most summonses were issued include 3 consumption of coholon [t street,] disorderly conduct, violations of motor vehicle safety rules, bicycle on the sidewalk, trespass, of matter in the street/public place, failure to comply with signs/parking of s, reckless driving, littering, unlawful being the park after hours, unlawful possession of marijuana, unreasonable noise, unlicensed operation of a vehicle, unlicensed vending and operation of a motor vehicle with a suspended registration. Given the nature of these offenses, and Plaintiffs' deposition testimony describing how summonses were issued on the basis of NYPD officers' personal observations, an overwhelming number of the summonses found to be faci ly sufficient would not be smissed on hearsay grounds pursuant to N.Y. C.P.L. § 100.40(1) (c). Thus, the Citywide Summon Operation's two-step review process and the nature of the offenses involved establi the vast majority of those summonses failing to survive judicial review for l sufficiency to have been smissed for want of probable cause. Stinson, 2012 WL 1450553, at *16. Opinion Accordingly, the April 23 Id that Plaintiffs had established the implied Rule 23(a) requirement of ascertainability. B. The April 23 Opinion's Holding Regarding Commonality In addition to ing on the April 23 Opinion's scussion of ascertainability, Defendants' motion for reconsideration PI so addresses the April 23 Opinion's holding that iffs met the commonality prong of Fed. R. Civ. P. 23(a). In considering Rule 23(a) 's commonality requirement, the April 23 Opinion addressed the Supreme Court's decision in Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541, 180 L.Ed.2d 374 4 (2011), in which the Supreme Court addressed Rule 23(a)'s commonality requirement in the context Wal Mart employees' tIe VII claims alleging unlawful sexual discrimination in pay and promotion. In 1450553, at *8-9. ~~kes, See Stinson, 2012 WL Wal- the Supreme Court held that Mart employees had failed to allege commonality, which requires a "common connection 131 S.Ct. at 2551. fl among putative pIa ~he See Dukes, iffs' claims. Supreme Court held that such a "common connection" was lacking in Dukes because the basis for liability was not y sfavor in pay and promotion[ but the reason why each class member was disfavored: y corporate policy that pI ntiffs' evidence convincingly establishes is Wal Mart's \ icy' of allowing discretion by local supe sors over employment matters. On its face, of course, that is just the opposite of a uniform employment practice would provide the commonality needed for a class action; it is a icy against having form employment practices. ~he Id. at 2554. a corporate Because the wal-Mart employees had failed to i ify icy that led to the local managers' discretion being exercised in a uniformly commonality to be lacking. scriminatory way, the Supreme Court he See . at 2556 57. April 23 Opinion distinguished Dukes from this case, noting t, "[ u] nl i in Dukes where the plaintiffs alleged a corporate policy of discretion to local managers and a corporate advancement of women, Plaintiffs here have all 5 ture hostile to the a specific policy promulgated by Defendants, namely, that Defendants have established a practice by which NYPD officers issue summonses without probable cause in order to meet a summons quota." 2012 WL 1450553, at *9. Stinson, As such, the April 23 Opinion held that Plaintiffs had established the express Rule 23(a) requirement of commonali The Applicable Standard Defendants request reconsideration of the April 23 Opinion pursuant to Local C 1 Rule 6.3. motions under Local Civil Rule 6.3 is The standard governing same as that governing motions made pursuant to Fed. R. Civ. P. 59, see Metro. Bank &TrysL_Co~, He~derson v. 502 F. Supp. 2d 372, 375 (S.D.N.Y. 2007), and a court may grant reconsideration where "the moving party can point to controlling decisions or data that the court overlookedmatters, other words, that might reasonably be expected to alter the conclusion reached by the court.H BDC 56 LLC, 330 F.3d 111, 123 Id. at 376 (quoting In re Cir. 2003)). Additionally, the party moving for reconsideration can obtain relief by demonstrating an "intervening change in controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice. v. II Sol~e(::it'2' Id. (quotation marks and citations omitted) 253 F. Supp. 2d 713, 715 (S.D.N.Y. 2003) 6 Parrish granted to correct clear error ("Reconsideration availabi ity of new evidence.") Ltd. Atl. Ai (cit 956 F.2d 1245, 1255 'I prevent court's decision in light of the fest injustice or review v. Nat'l Mediation l (2d Cir. 1992)); ---------~~~--------------~ Catskill Dev. L.L.C. __ Park Place Entm't v. .._________ __________ ~~~~~~~~~_~~~c~ 696, 701-02 ~.~~~ (S.D.N.Y. 2001) ~ 154 F. Supp. 2d ~ (granting reconsideration due to court's erroneous application of a statute). The moving party must fore the court 1 matters put demonstrate controlling law or on the underlying motion ... ., ~ the movant believes the court overlooked and that might reasonably be expected to alter the court's decision. Fed. Appx. 337, See Linden v. Dist. Council 1707-AFSCME, 415 338-39 (2d Cir. 2011) (affi ng dismis reconsideration motion as movant did not identi facts or cont ling authority that t v. Besi . Inc., 2002) " any relevant lower court overlooked) 28 Fed. Appx. ------------~------~-- ....~~--~------- of 73, 75 i (2d Cir. (affirming dismissal of reconsideration motion where movant led to demonstrate that the [lower] court overlooked any fact of consequence or controlling legal authority at the time the court decided [the case]"). The reason for the rule confining recons ion to matters that were "overlooked" is to "ensure the finality of decisions and to prevent the practice of a losing party examining a decision and then plugging the gaps of a lost motion with 7 additional matters. U v. St. Mart's Press Pol Inc., No. 97 Civ. 690 (MBM) , 2000 WL 98057, at *1 (S.D.N.Y. Jan. 18, 2000) (citation and quotation marks omitted). ly Local Civil Rule 6.3, so as to avoid construe and strictly considered issues, and to prevent ings on previous duplicative A court must narrowly as a substitute for appealing a f the rule from being nco Sec. Derivative judgment. See In re Bear Stearns Cos . ERISA Lit . , 08 M.D.L. No. 1963, 2009 WL 2168767, at *1 ----~~ ......="---- Jul. 16, 2009) reconsideration is not a motion to ("A motion reargue those issues already consi the way red when a party does not like original motion was resolved. U ) (quoting Polan, 496 F. Supp. 2d 387, 389 (S.D.N.Y. 2007)) v. Re i .com v. -~~---------- Lansa, Inc., No. 01 Civ. 3578, 2008 WL 4376367, at *2 Sept. 25, 2008) (" standard (S.D.N.Y. ing such a motion is strict, and reconsideration will generally moving party can deni unless t nt to controlling decisions or court overlooked-matters, in other words, that expected to alter the conclusion and quotation marks omitted) (S.D.N.Y. i ght reasonably be by the court. Ball a that v. Parkstone u) (citations LLC, No. 06 Civ. 13099, 2008 WL 4298572, at *1 (S.D.N.Y. Sept. 19, 2008) ("Local Rule 6.3 is to be narrowly construed and strictly applied in order to avoid repetitive fully considered.") s on issues that the court has (quoting Abrahamson v. Bd. of Educ. of the 8 . Sch. Dist., 237 F. Supp. 2d 507, 510 .. ~~~-=~-----~---~~~ --~~--- (S.D.N.Y. 2002) . Motions for reconsideration "are not vehicles for taking a second bite at the apple, consi facts not in overlooked." 2008) (citat . and [the court] record to d] not facts that the court Rafter v. Liddle, 288 Fed. Appx. 768, 769 (2d Cir. and quotation marks omitted) . Defendants' Motion For Reconsideration Is Denied Defendants request reconsideration of the April 23 Opinion on grounds that the proposed class fails to meet requirements of Fed. R. Civ. P. 23(a). that the proposed class does not meet t requirement of ascertainabili First, Defendants contend implied Rule 23(a) because the April 23 Opinion misinterpreted the applicable provisions of the New York Criminal Procedure Law and overlooked case law interpreting those provisions. incorrectly Second, Defendants contend that the April 23 Opinion sed the issue of commonality, as the proposed class did not meet Rule 23(a) 's commonality requirement because Plaintiffs have fa led to demonstrate a municipa1 policy or practice. Because Defendants have failed to demonstrate that the Court overlooked any fact of consequence or controlling legal 9 authority in the April 23 Opinion, Defendants motion for reconsideration is ed. A. Defendants Raise No Controlling Law Or Facts The April 23 Opinion Overlooked To Warrant Reconsideration Of The Ascertainability Issue Defendants raise three main arguments against the April 23 Opinion's determination that the proposed class is ascertainable under ?ed. R. Civ. P. 23{a). ?irst, Defendants contend that a "reasonable cause" determination under N.Y. C.P.L. is not a merits bas finding of a 1 Defendants contend that, § 100.40(1) (c) 100.40(1) (b) of probable cause. Second, April 23 Opinion ignored the ring non-hearsay that, in addition to § legations, N.Y. C.P.L. res an accusatory instrument to set forth a prima facie case, thereby presenting grounds upon which a summons may have been dismissed independent of Finally, Defendants suggest that the rebuttable presumption in def lack probable cause. 1 23 Opinion's use of a the class is inappropriate. 1. efendants Fail To Raise Controlling Law Or Facts That D The April 23 Opinion Overlooked Concerning N.Y. C.P.L. § 100.40 (1) (b) According to Defendants, proposed class is not ascertainable because a "reasonable cause" determination under N.Y. 10 C.P.L. § 100.40(1) (b) probable cause. ing of a lack of is not a merits based f Defendants contend on April 23 Op t overlooked applicable New York case law concerning the interpretation of the sections of the Cri above and that S case law does not support t dismissal on the basis of faci Law cited nal finding that a insufficiency neces ly implicates a judicial determination of probable cause. Citing the New York Court of Appeals case e v. 15 N.Y.3d 100, 905 N.Y.S.2d 542, 931 N.E.2d 526 that, under N.Y. C.P.L. Defendants cont determination of faci determination § 100.40(1) (b), a sufficiency is not a merits-ba ther there was probable cause to summons an individual, rat it is a j sdictional determinat be made prior to arraignment to ensure t juri (2010), ction to hear a nal matter. t must court has In ----"'~- , the Court of Appeals held that a "valid and sufficient accusatory instrument is a nonwaivable jurisdictional prerequisite to a criminal prosecution," -- ...~'----- , 15 N.Y.3d at 103, and that an arresting officer's allegation fail to provide criminal conduct, thereby violating requirement of N.Y. C.P.L. Court faci Appeals case est 100.40. § i ficient detail of the re e cause Defendants contend that this s that dismissal on the basis of insufficiency is not a merits-based determination of whether 11 an officer had probable cause. According to Defendants, the fact guil pl that the defendant in removes any doubt that probable cause existed and undercuts the idea that a dismissal on the basis of facial insufficiency is merits-based rather than j sdicti Additional , Defendants contend that the fact York courts allow prosecutors to re-file a facial New deficient accusatory instrument in order to cure deficiencies belies the notion that the judiciary engages in a meritsanalysis in smissing a summons basis ed probable cause facial insufficiency. As such, Defendants state that a proposed class of the entire pool summonses dismissed for facial insufficiency is inappropriate, as those dismissals do not neces based determination of a I class is not ascertai e ly implicate a judicial merits of probable cause, and the proposed thout engaging in tens of thousands, if not hundreds of thousands, of mini-tri particular pIa s to assess whether a iff \'Jas issued a summons without probable cause. In further support of this argument, Defendants cite Haus v. Ci of New York, No. 03 Civ. 4915(RWS) (MHD) 2011) where aintiffs (S.D.N.Y. Aug. 31, that the summonses issued to them 1 were devoid of probable cause due to defects on the face of summons. Court ect pI ntiffs' argument, noting that 12 "[t]he existence or non- stence of probable cause is measured by the events occurring at the t of arrest, and whi a defect in the charging document may lead to the dismissal of the charge, that does not demonstrate that the arrest was invalid. Defendants' contentions fail to est recons ration of the April 23 Opinion. u rd. at 245. ish grounds for None of the briefing related to Plaintiffs' class certification motion cited the e decision, nor was the case raised at oral argument. With respect to Haus v. Ci of New York, ~-- .. ~~.~~-~~--~-- .. --~--- the April 23 Opinion squarely addressed the issue Defendants' identify, recognizing that, while there are alternative reasons for dismissal of a summons other than a lack of probable cause, an analysis of the applicable statutes and the Citywide Summons Operation's two-stage review majori s leads to the conclusion that the overwhelming of summonses dismissed at the faci stage were dismissed for want of probable cause. ficiency review See Stinson, 2012 WL 1450553, at *16. Defendants' citations to the decisions f se a point of law or controlling authority the 1 to and Haus April 23 Opinion overlooked. Furthermore, Defendants' contention that the Citywide Summons Operation's facial sufficiency review does not involve a judici determination of whether the summons issued lacked 13 ded. probable cause is mi the April 23 Opinion, As was noted "[t]he term 'reasonable cause' is synonymous cause.'ff th 'probable v. Port Stinson, 2012 WL 1450553, at *16 (cit Auth., 768 F.2d 34, 40 4, 58 820 F. Supp. r. 1985); Hahn v. .. (2d ~C ~~~_,~_ ..~.C....__.C~_ _~_ _~~ (N.D.N.Y. 1993)); see also Williams v. Ward, 845 F.2d 374, 387 n.16 (2d Cir. 1988) ("'Reasonable cause' under Criminal Procedure Law 'is substantially the same as 'probable Fourth Amendment. I") of cause' within the (quoting Greene v. Brown, 535 F. Supp. 1096, 1100 (B.D.N.Y. 1982)). expla in the April 23 Opinion, PIa As was iffs need only establish the Rule 23(a) factors by a preponderance of the evidence, see In re FI Telecom Holdi Ltd. Sec. Lit .3d 29, 35 (2d Cir. 2009), and "[a]lthough other reasons for dismissal at the facial these ficiency ternat this litigat ew stage are poss rationales apply to the summonses at issue in " Stinson, 2012 WL 1450553, at *16. Defendants are correct that di 100.40(1) (b) e, it is unlikely t While ssal pursuant to N.Y. C.P.L. § is not, to the exclusion of all other rationales, a determination that a summons was issued without probable cause, the April 23 Opinion held that \\t~e Citywide Summon Operation's two- step review process and the nature of establi the vast majori offenses involved of those summonses fail to survive judicial review for facial sufficiency to have been d smissed for want of probable cause." Stinson, 2012 WL 1450553, at *16. --~~~- 14 Because Defendants have f I LO raise controlling law ng N.Y. C.P.L. that Lhe April 23 Opinion overlooked 100.40(1) (b)'s reasonable cause requirement, § Defendants' motion for reconsideration based on this issue is denied. 2. efendants Fail To Raise Controlling Law Or Facts That D The April 23 Opinion Overlooked Concerning N.Y. C.P.L. 100.40 (1) (c) § In addition to the argument that a determination that a summons lacked reasonable cause under N.Y. C.P.L. § 100.40(1) (b) does not establish a merits-based determination that a summons was wi i probable cause, Defendants attack Opinion's reasoning concerning N.Y. C.P.L. that this section of c noting in addition to ions, also requires that summons set ement of 100.40(1) (c), Criminal Procedure Law, requiring non hearsay all issuing § April 23 officer allegations supporting every charged. Defendants note that criminal informations are frequently dismissed for failing to satisfy this prima facie requirement. According to Defendants, a summons may be dismissed as facially insufficient as a result of an officer1s failure to mee~ 100.40(1) (c), the prima facie requirement of N.Y. C.P.L. § a standard that has no bearing on the question of probable cause. 15 April 23 Notwithstanding Defendants' contentions, Opinion considered t and 100.40 (1) (c) § nature of the offenses involved in ld that litigation est ished N.Y. C.P.L. improbable reason for *16. requirements of N.Y. C.P.L. smissal. § 100.40(1) (c) s to an See Stinson, 2012 WL 1450553, at None of the cases Defendants cite in support of their argument that reconsideration is warrant on the basis of the April 23 Opinion's misinterpretation of N.Y. C.P.L. were cited in the initial class certificat have thus failed to identi 100.40(1) (c) § brief Defendants an issue the April 23 Opinion overlooked and reconsideration is unwarrant Even if Defendants had identifi controlling law the April 23 Opinion overlooked, applicable precedent from the New York Court of Appeals defining the requirements of N.Y. C.P.L. 100.40(1) (b) and 100.40(1) (c) reveals Defendants' inte these statutes to be incorrect. Appeals addressed the faci §§ ation of In sufficiency of a misdemeanor complaint leging possession of a gravity knife, hoI that instrument lacked reasonable cause under N.Y. C.P.L. 100.40 (4) (b) : 16 accusatory § "The f part of a misdemeanor complaint must allege 'facts an evidentiary ter' [citing N.Y. C.P.L. § 100.15(3)] demonstrat 'reasonable cause' to ieve the de committed the charged [citing N.Y. C.P.L. § 100.40(4) (b)] " e v. Dumas, 68 N.Y.2d 729, 731 (1986). cribed the Here, the misdemeanor complaint, insofar as it officer's conclusion that defendant had a gravi arrest 1 to any support or anation whatsoever knife, ficer's lief. That violation of the "reasonable 1 defect. cause" requirement amounted to a jurisdict Not every knife is a weapon for purposes of Penal Law § 265.01(1), which specifically outlaws possession a gravity knife, among other weapons. . A conclusory statement that an object recovered from a fendant is a gravity kni does not alone meet t Ie cause rement. ---"-­ , 15 N.Y.3d at 102-04. that the N.Y. trument at issue in C.P.L. § d ran afoul of 100.40(4) (b) 's reasonable cause misdemeanor complaints facts As such, the Court of Appeals rement for it failed to provide sufficient leging that the object recovered was a gravity knife. order to satisfy statutory rement that an accusatory instrument allege facts of an evi reasonable cause to In nature demonstrating lieve that the fendant committed t crime charged, an accusatory instrument must estab_ish the requisite elements of that offense. provision of N.Y. C.P.L. Put differently, the reasonable cause § 100.40(4) (b) requires that the accusatory instrument provide a ma facie case. 17 Although N.Y. C.P.L. § 100.40(4) (b) pertains to misdemeanor complaints and not the summonses at issue in this litigation, the Court of Appeal's erpretation of this statute is relevant because the language of N.Y. C.P.L. N.Y. C.P.L. § N.Y. C.P.L. § § Accordingly, the that the reasonable cause 100.40(4) (b) requires a prima ie case applicable to the reasonable cause provision of N.Y. is equal C.P.L. 100.40(4) (b) and 100.40(1) (b) is nearly verbatim. Court of Appeals' holding in provision § 100.40 (1) (b). A basic premise of statutory interpretation "disfavor[s] interpretations of statutes that render language superfluous." Conn. Nat'l Bank v. Germain, 503 U.S. 249, 253, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992) ~~nti2rio:r::, N.Y. C.P.L. i see also 228 F.3d 82, 88 (2d Cir. 2000). § However, erpreting 100.40(1) (b) 's reasonable cause requirement to require that the information lude facts sufficient to allege the elements of the offense charged does not render N.Y. C.P.L. 100.40(1) (b) duplicative of N.Y. C.P.L. C.P.L. § 100.40(1) (c) § 100.40(1) (c). § N.Y. mandates that "[n]on hearsay allegations of the factual part of the information and/or of any supporting depositions establish, if true, every element of the offense charged and the defendant's commission thereof." 100.40(1) (c). N.Y. C.P.L. As such, the focus of this provision 18 § the Criminal Procedure Law is not that the information provide a prima casei instead, the focus is that an ormation provi legations to support each element of the offense. andro, Court of Appeals, in the case of ie non-hearsay The New York irms this interpretation of the statute: The reason for requiring the additi showing of a prima facie case for an information lies in the unique function that an information serves under the statutory scheme established by the minal Procedure Law. An information is often instrument upon which the de~endant is prosecuted for a misdemeanor or a pet offense. Unl a felony compla , it is not f lowed by a preliminary hearing and a Grand Jury proceeding. Thus, Ie need not, at any time pr to t 1, present actual evidence rating a prima fac case, as with an indictment following a felony complaint. Because an information must, for jurisdictional purposes, contain nonhearsay fac allegations sufficient to establish a prima facie case, a prosecutor's statements, set forth in a bill of particulars, cannot supply necessary fac allegations to cure a deficient information. contrast, an indictment, which presupposes that the Grand Jury, before issuance of the indictment, has found t a prima facie case exists may, as a pleading, be corrected by a bill of particulars. That it was this distinguishing characteristic of an information - its use as the sole instrument upon ch the defendant could be prosecuted - which prompted Legislature to write in the special restrictions applicable to informations found in C.P.L. § 100.40(1) (c) and 1CO.15 (3) is confirmed by the legislative history leading to the enactment of these sections as part of the Criminal Procedure Law. e v. Al andro, 7C N.Y.2d 133, 138, 517 N.Y.S.2d 927, 511 N.E.2d 71 (1987) (citations omitted) 19 Thus, the Court of Appeals confirms that purpose of N.Y. C.P.L. § 100.40(1) (cl that an information provi non IS to ensure allegations detailing the offense charged. Defendants' 100.40(1) (c) § t ir contention chat N.Y. C.P.L. § imposes a prima facie case requirement independent of 100.40(l)(b)'s reasonable cause rement wi citations to e v. Jones, 9 N.Y.3d 259, 848 N.Y.S.2d 600, 878 N.E.2d 1016 (2007), and People v. Alejandro, 70 N.Y.2d 33. s, in both cases, the De truments at issue satisfied the reasonable cause rement N.Y. C.P.L. § 0 100.40 (1) (b) but were ul timately dismis il facie requirement of N. Y. C. P. L. that a finding of a lack of a t According to § 100.40 (1) (c), thereby ma facie case is apart from a determination of rea te to establish e cause. in, Defendants fail to offer case law the Opinion , as neither of these cases was rai initial class certification briefing. cons , De s' argument fails. the Court In in the se cases are Ie v. Jones, while rule the accusatory instrument icient that it failed to allege a prima facie case, the Court on of s Even if t 1 23 ma facie case requirement as one imposed by Is both N.Y. C.P.L. §§ 100.40(1) (b) and 100.40(1) (c). 20 See Jones, 9 N.Y.3d at 261 (c) of C.P.L. § 100.40(1), read ("Paragraphs (b) ace the burden on the People to make out the in conjunct prima fac case for the offense informat Court of Appeals in Jones, citing Further, t • 1/) • v. Ale andro, rged in the text of t ized the rat ring non le for hearsay al:egations described above, noting that the purpose of N.Y. C.P.L. 100.40 (1) (c) § safeguards comparable to is to provide a defendant with ~he presence of a Grand Jury for felony complaints and a supporting deposition for misdemeanor complaints. See id. at 262. Finally, there is no indication in Jones that the Court of Appeals found t C.P.L. § 100.40(1) (b) In \\ [t] reasonable cause requiremen~ sa::isfied. le v. Ale andro, 'prima facie case' reauirement Court of Appeals states that that the establish every element of the offense charged C.P.L. § 100.40 (1) (cl] of N.Y. - factua~ [cita~ion part to N.Y. ies, however, to informations alone. However, as described above, the Ale andro Court's desc the reason for ma facie ~he requiremen~ that, because of the 1 all ions in an informa~ion 100.40(1) (c) mus:: be non hearsay. a prosecutor's Furthermore, ing N.Y. C.P.L. suggests the enumerating of elements the concept of reasonable cause, see 21 ion of is focused on the idea 1 safeguards, recen:: Court of Appeals jurisprudence 1I ~o § be linked with le v. Jackson, 18 N.Y.3d 738,741,944 N.Y.S.2d 715,967 N.E.2d 1160 is valid factual (2012) ("An information sdictional purposes if it contains nonconclusory j legations that, if assumed to be true, address each the crime charged, thereby afr element believe that der ng reasonable cause to committed that offense U further ), support to the idea that the purpose behind N.Y. C.P. § 100.40(1) (cl is to ensure that an information includes non-hearsay all ions. Because the April 23 N.Y. C.P.L. § inion addressed the requirements 100.40(1) (c), Defendants have iled to demonstrate that the April 23 Opinion overlooked any fact of consequence or controlling I authority, and reconsideration on the basis of this statutory sion is not warranted. 3. Defendants Fail To Raise Controlling Law Or Facts That The April 23 Opinion Overlooked Concerning The Use Of A Rebuttable Presumption To Define The Class Defendants object to the April 23 Op ion's holding that "[i]ndividuals who were issued summonses that survived the New York City Citywi Summons Operations' de t review but were dismissed during the second-round review process upon a judicial finding of fac insufficiency are presumptive members of the class, but Defendants can challenge any presumptive class membey on grounds 22 lack of probable cause. U reasons other than a smis that the summons at issue was Stinson, 2012 WL 1450553, at *17. satisfies the sumption artifici Defendants contend that this ascertainability requirement for class certification, and, since the presumption is rebuttable, class membership cannot be until t ascerta is of probable cause for each factual ana summons is undertaken. ck v. Alford, 543 U.S. 146, 125 Defendants, cit S.Ct. 588, 160 L.Ed.2d 537 (2004), a case which held that an arrest is valid if valid basis sted even if probable cause did not exist with respect to the stat each summons at issue must probable cause existed basis for the arrest, contend that analyzed to her that the April 23 Opinion inappropriately shifted t burden by presuming that every summons was issued without probable cause. is similar to Morton v. termine Defendants state that sease of Detroit, No. 11-cv 12925, 2012 WL ------------~~------------ 1166984 (E.D. Mich. . 9, 2012), a case where plaintiff brought a class action seeking to declare a loitering ordinance unconstitutional. In that case, the Eastern District of Michigan denied class certification of all individuals ticketed under t ordinance who appeared in court and had their tickets dismissed because the "reason each ticket was dismissed may insufficient probable cause, but other reasons that there was have resulted in a dismis of the ticket, such as when an officer fails to appear ing to in court or the individual entered a plea agreement plead guilty to cert n charges in exchange for the city attorney smissing other charges. u Morton, 2012 WL 1166984, at *3. ~ .... --~.- s or controlling Again, Defendants fail to raise any law the April 23 Opinion overlooked. addressed ------~- .... The April 23 Opinion v. - -Alford, see Stinson, 2012 WL 1450053, at -- -- ... ~~---- *18, and the Morton v. Ci sented in of Detroit case was not ------.--------~~------------- the initial class certification briefi Furthermore, Defendants ignore that that the April 23 Opinion did not blindly impose a presumption that individuals who rece those summonses without probable cause. detailed the two-stage review process of Operation, evaluat all possible ~eans summonses were issued The April 23 Opinion Citywi Summons which a summons could be dismissed at the facial sufficiency review stage and concluded under l t e preponderance of the evidence standard, that it was more likely than not that summonses dismissed at che facial review s were smissed for lack of Defendants' citation to Ie cause. Eastern District of Michigan's decision in Morton is unavailing, as the Court in that case d not confront the two-stage Cicywide Summons Operacion review process or the provisions of che New York Criminal Procedure Law chat make class certification appropriace in t present accion. 24 Defendants, in the briefing supporting the ation of offered an incorrect int holdi Although Defendants' motion, have April 23 Opinion's sinterpretation does not constitute grounds for reconsideration, some clarification is appropriate. Defendants state that "the Court's defendants can truction that lenge any of the presumptive class members only on grounds other than a lack of probable cause is troubling." Def.'s Mem. at 4 n.2. Defendants appear to construe this language to mean that they are only permitted to mount a challenge to a putative plaintiff's membership in the class bas except whether that putat probable cause. opposite, namely on anything plaintiff's summons was issued with The April 23 Opinion, however, held the exact Defendants can mount a challenge based precisely on probable cause as to those summonses Defendants believe were issued with probable cause notwithstanding the presumption that these summonses were wrong ly issued: Defendants, their opposition brief, highlight various aspects Plaintiffs' deposition testimony suggesting that at least some of the summonses Plaintiffs received were issued with probable cause and object to the Court "rubber stamping a proposed class to include anyone who has had a summons dismissed." For this reason, the boundaries of the class have been narrowed to include only those putative plaintiffs whose summonses were dismissed during second-step, ial sufficiency review process, where the applicable statutes suggest the reason for dismis to be a lack of probable cause. Additionally, affording Defendants the abili to 25 challenge any at plaintiff's membership in will ensure that the class is not overly inc ive. class Stinson. 2012 WL 1450553, at *17 n.6. B. Defendants Raise No Controlling Law Or Facts The April 23 Opinion Overlooked To Warrant Reconsideration Of The Commonality Issue In addition to att t April 23 rement of ascertainability, regarding the implied Rule 23 (a) Defendants' attack the April 23 Opinion's hoI express Rule 23(a) requirement of commonali Defendants' object that t controll concerning However, concerning commonality fail to demonstrate April 23 Opinion overlooked 1 inion's holding fact of conseauence or authority so as to require reconsideration of the decision to grant class certification. 1. The April 23 Opinion Addresses The Existence Of A Policy And The Causal Link Between That Policy And The NYPD Issuing Summonses Without Probable Cause According to Defendants, Plaintiffs in this action suffer from t same commonality pitfalls as Plaintiffs in the Dukes case, as the April 23 nion overlooked Defendants' contention that Plaintiffs must present sufficient evide:1Ce of a Inunic 26 1 policy the alleged constitutional deprivation applicable that has caus to the entire proposed class. Defendants contend that, even if a the "s ntiffs have not quota exists, s required under - - - of a munic ficant" proof policy directing officers to issue summonses without probable cause or forcing officers to issue summonses without probable cause in order to meet a quota. Defendants contend t~at upon in the April 23 the evidence reli Opinion, including the Office of Court Administration statistics, tape recordings of roll calls at two police precincts and an employment arbitration decision, fail to satis 23 burden. According to Defendants, t~e insufficiency do not constitute a fi Plaintiffs' Rule dismissals for facial ng of no probable cause, Plaintiffs have made no showing that the two speakers on the roll call tapes are McmE?l~ policymakers or that the content of these tapes represents an NYPD policy sufficient to hold the n' of New Ll York and NYPD liable under Monell, and the arbitration decision finding traffic summons in the 7 Precinct in 2005 does not support an NYPD policy of issuing summonses wit~out probable cause. Defendants note that Plaintiffs have offered no proof t~at officers are issuing similar numbers of summonses, tnereby suggesting the existence of a quota, and that the summons issuance process instead appears to be discretionary, much like the discriminatory policy at issue in Dukes. assumed t~at Defendants also contend that, even if it is a quota policy exists, Plaintiffs have not presented 27 the auota po:icy prompted them to testimony from KYPD officers other issue invalid summonses, nor have Plaintiffs presented evidence suggesting that summonses issued pursuant to this quota lacked probable cause. Notwi anding Defendants' contentions, the April 23 Opinion held that Plaintiffs had established the existence of a common policy or custom - the quota as well as the causal link between that common policy and the harm inflicted on Plaintiffs the issuance of summonses without probable cause. Opinion detailed the s ficant proof establishing the existence of that policy, including from roll call meetings and the January 14, 2006 arbitrator's ruling t Prec tempI The April 23 a quota with held that the 75 th to traffic summonses. Stinson, 2012 WL 1450553, at *4 5. Additionally, the I Opinion noted that 620,149 summonses were dismissed at round facial sufficiency York's Cri See 23 second- ew stage, and an analysis of New nal Procedure Law suggested that the overwhel number of these 620,149 summonses were dismissed because lacked probable cause. See Stinson, 2012 WL 1450553, at The April 23 Opinion express defines the theory *16. Defendants have an unconstitutional quota policy and that this quota icy has caused Defendants to issue Plaintiffs summonses that lacked probable cause. See Stinson, 2012 WL 1450553, at *9 ("Plaintiffs 28 -'- by Defendants, ific policy promulgat a 1 here have namely, that Defendants have est lished a practice by which NYPD r to meet a officers issues summonses without probable cause summons quota. ") . As was noted in the April 23 Opi Defendants' citation to Dukes is discretion afforded to local cent unavail~ng, on, decentralized as -Mart managers is unlike the leged ized, citywide quota policy See id. Defendants fail to raise any controlling law or facts that the I 23 Opinion overlooked and, ng ,have provided no basis upon which the Court's holding can be reconsidered. 2. The April 23 Opinion's Use Of A Presumption Does Not Inappropriately Establish Commonality Si lar to ir concerning ascertainability, Defendants contend that il 23 Opinion's imposition of a sumption that a summons was invali establi s the element of cases of Casale v. Kel v. Kell , 244 F.R.D. 222 ity. De 257 F.R.D. 396 (S.D.N.Y. 2007) certification of a class of summonses y issued artificially s highlight the (S.D.N.Y. 2009), and Brown I which both involved the aintiffs who had been issued violating statutes that had been 19 ously declared unconstitutional. According to Defendants, In those two cases, the Court acknowledged that some of the summonses involved may articulate a charge ba been prev~ously on a statute other than the one that had held unconstitutional, see ding that an arrest is valid f any valid basis existed even if probable cause did not exist with respect to the stated basis for the arrest), and that sub-classes could be employed to address these concerns. According to Defendants, this case, unlike Casale or Brown, involves summonses that address a wide range of criminal violations that are not held together by the glue of having been issued pursuant to a specific unconstitutional statute. the certified class in this case does not have commonali s Because ue of ,Defendants contend that it is, in fact, more like the subclasses for which icularized determinat on of probable cause are necessary. The April 23 and applied the holdings of those cases to the present action. Although the present action, unlike Casale or Brown, does not revolve around a single unconstitutional statute, it does revolve around a single 1 quota policy. Based on the presented, the April 23 Opinion concluded that a preponderance of the evidence suggested the existence of a specific quota policy promulgated Defendants that was common to each 30 Plaintiffs' cl for relief. Defendants have failed to raise new 's holding regarding the ts or law to rebut the April 23 Op existence of this quota poli and are there to not entitl reconsideration. 3. The April 23 Opinion Establishes Rule 23(b) (2) and Rule 23(b) (3) Requirements To Be Met Finally, Defendants state that, because PI not identified a municipal policy, PIa iffs cannot iffs have ~eet the requireTents of Rule 23(b) (2) or the more stringent predominance requirement of Rule 23 (b) (3) See lar v. Customs Enforcement Div. of ion and 't of Homeland Sec., No. 07 Civ. 8225 (KBF) , 2012 vJL '344417, at *9 (S.D.N.Y. Apr. 16, 20:2) ("[F]or the same reasons that commonali aintiffs are unable to satisfy the rement of Rule 23 (a), they are unable to satisfy the requirement of 23 (b) (2) that the party opposing the class has act or re class, thereby to act on grounds ng appropriate final injunct corresponding declaratory whole. H ); ly applicable to the relie~ with respect to the class as a see also Moore v. Paine Webber (2d Cir. 2002). relief or As noted ~nc., April 23 evidence supporting the existence of a munici 306 F.3d 12 7, 1252 inion det I policy. led the Because Defendants' motion for reconsideration has failed to present 31 overlooked law or facts that undermine the April 23 Opinion regarding this issue, Defendants' arguments concerning Plaintiffs' failure to meet the requirements of Rule 23 (b) (2) or Rule 23 (b) (3) are rejected. Conclusion Based on the conclusions set forth above, motion for reconsideration is denied. It is so ordered. New York, NY July /3 ' 2012 ROBERT W. SWEET U.S.D.J. 32 Defendants'

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