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June 17, 1996

HERMAN CRESPO, Plaintiff, against NEW YORK CITY POLICE COMMISSIONER, et al., Defendants.

The opinion of the court was delivered by: KOELTL

 JOHN G. KOELTL, District Judge:

 This is an action alleging violations of 42 U.S.C. § 1983 and New York State law by several New York City Police Officers, the City of New York, and the New York City Police Commissioner. The defendants move pursuant to Fed. R. Civ. P. 12(b)(6) to dismiss this action on several grounds. First, the defendants claim that the plaintiff's claims that he was unlawfully stopped, wrongfully arrested, and subjected to an unreasonable search are barred by the doctrine of collateral estoppel. Second, the defendants argue that the plaintiff's state law claims are barred by the applicable statute of limitations and by the plaintiff's failure to file a notice of claim. Third, the defendants argue that the plaintiff's claims against the City of New York and the New York City Police Commissioner are untimely. Fourth, the defendants contend that because a police officer is entitled to absolute immunity for his testimony before a grand jury, the plaintiff's Fifth, Sixth, and Seventh Claims, which involve this testimony, must be dismissed. Finally, the defendants argue that the plaintiff has failed to allege sufficient facts to support a conspiracy claim. In addition, the plaintiff moves to compel the production of an unredacted version of a document prepared by an assistant district attorney for the State of New York. For the reasons that follow, the defendants' motion is granted in part and denied in part, and the plaintiff's motion is denied.


 A court should dismiss a complaint under Fed. R. Civ. P. 12(b)(6) only "if 'it appears beyond doubt that the plaintiff can prove no set of facts in support of [his] claim which would entitle [him] to relief.'" Valmonte v. Bane, 18 F.3d 992, 998 (2d Cir. 1994) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957)). When considering motions to dismiss, the Court must accept as true the factual allegations in the complaint and construe all reasonable inferences in the plaintiff's favor. Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164, 122 L. Ed. 2d 517, 113 S. Ct. 1160 (1993); Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir.), cert. denied, 130 L. Ed. 2d 63, 115 S. Ct. 117 (1994).

 Crespo alleges that on October 8, 1990, he was attempting to cross the street when he was grabbed by a police officer. This officer, whom the plaintiff identifies as the defendant Police Officer Joseph Truglia, threw Crespo against a parked car and asked, "Where is it?" (Compl. P 18.) *fn1" Truglia then asked Crespo, "Where is the gun?" After Crespo said he did not have a gun and had no idea what the officer was talking about, Truglia searched Crespo but found no weapon. (Compl. PP 19-20.) Defendant Police Officer Byrant Booth joined Officer Truglia during the search. (Compl. P 21.) Booth and Truglia escorted Crespo to a boarding house where Crespo's acquaintance Joe Martinez rented Room 9. (Compl. PP 10, 21.) Crespo had slept on Martinez's couch during the morning of October 8 and had later been outside the boarding house waiting to give a set of keys to Martinez's girlfriend when she arrived. (Compl. PP 10-14.) When Crespo refused to comply with the officers' request to open the door to the boarding house, Officer Truglia banged Crespo's head against the door. (Compl. P 21.) Defendant Police Officers Denis O'Keeffe, Ernest Lungaro, Mark Kugler, James Gallagher, Robert Fitzpatrick, and Edward Griffith joined Officers Truglia and Booth in searching the boarding house. (Compl. P 23, 32.) At one point Crespo asked whether he was under arrest, and Officer Truglia told him he was "under arrest for many things." (Compl. P 25.) Officer Booth then said to Officer Truglia, "You don't have anything on him." (Compl. P 26.) The officers used the keys Martinez had left with Crespo to open Room 9, where the officers discovered three guns, some ammunition, and a hypodermic needle. (Compl. P 13, 36-37.) Crespo was taken to the 52nd Precinct, where he overheard Officer O'Keeffe say to Officer Lungaro, "We are going to have to say we were chasing him." (Compl. P 41.)

 On October 10, 1990, Officer O'Keeffe swore out an accusatory statement against Crespo (Compl. P 46.) Crespo claims that Officer O'Keeffe knew the accusatory instrument was based on false information. (Compl. P 46.) On October 12, 1990, Defendant Officer O'Keeffe testified before a grand jury about the events of October 8, 1990. (Compl. P 47.) Crespo claims that this testimony was malicious and false, that Officers Lungaro, Truglia, Booth, Griffith, Fitzpatrick, and Gallagher were all aware that it was false and that O'Keeffe had falsified documents in connection with his testimony, and that these officers were engaged in a malicious conspiracy to deprive Crespo of his constitutional rights. (Compl. PP 47-48.) No other evidence was presented to the grand jury. (Compl. P 50.) On the basis of Officer O'Keeffe's testimony, Crespo was indicted for three counts of criminal possession of a weapon in the third degree. (Compl. P 49.) One of these counts alleged actual possession of a firearm, and two counts alleged constructive possession of a firearm. Crespo was also charged with one count of criminal possession of stolen property in the fourth degree, and criminal possession of a hypodermic needle. (Compl. P 49.) On January 21, 1991, the charge of possession of stolen property was dismissed for insufficiency of the evidence. (Compl. P 51.)

 At a pretrial suppression hearing, Crespo challenged the constitutionality of the officers' actions and requested that the evidence discovered during the search of Martinez's apartment be suppressed. The State called one witness at the hearing, Officer O'Keeffe, and Crespo called four witnesses, Officers Lungaro and Truglia, Melinda Vega (a woman present at the boarding house when Crespo was arrested), and himself. The trial court denied Crespo's motion, finding that the police officers' testimony was credible and that although the testimony of Crespo and Vega was "not incredible on its face," Crespo failed to prove the illegality of the officer's conduct by a preponderance of the evidence. (Defendants' Memorandum of Law in Support of their Motion to Dismiss the Complaint, Appendix A.) The trial court credited the officers' testimony that they responded to a radio call of a "man with a gun" and found Crespo, who met the description, running with a gun in his hand. They then chased him into the room where the arrest and search occurred. At trial, Crespo was found not guilty of actual possession of a firearm but was found guilty of two counts of constructive possession of a firearm and of one count of criminal possession of a hypodermic instrument. (Compl. P 53.)

 On October 6, 1993, while in keeplock at Green Haven Correctional Facility, Crespo handed the original complaint for the current lawsuit to a corrections officer for filing. The complaint was returned to Crespo, who was told he had failed to provide disbursement forms. (Compl. P 56.) On October 8, 1993, Crespo returned the complaint to a corrections officer for mailing after having obtained the disbursement form. (Compl. P 57.) The complaint was again returned to Crespo with a request that he supply an "advance" disbursement form because he did not have sufficient funds in his account. (Compl. P 57.) Crespo returned the complaint to a corrections officer on October 10, 1993, and did not see it again. (Compl. P 57.)

 Crespo appealed his conviction, arguing among other things that the trial court improperly denied his motion to suppress. Brief for Defendant-Appellant in People v. Crespo at 26-31. On November 16, 1993, Crespo's conviction on the weapons possession charges and the hypodermic needle possession charge was overturned by the New York State Supreme Court, Appellate Division, First Department. People v. Crespo, 198 A.D.2d 85, 603 N.Y.S.2d 838 (1st Dep't 1993), appeal denied, 82 N.Y.2d 923, 632 N.E.2d 485, 610 N.Y.S.2d 175 (1994). The Appellate Division dismissed the indictment against Crespo on the grounds that "the evidence was insufficient to prove the defendant's guilt beyond a reasonable doubt." 198 A.D.2d at 86, 603 N.Y.S.2d at 839. The court stated that the People failed to establish that Crespo had dominion and control over the premises where the contraband was found, an element essential to the People's proof. The Appellate Division also held that even if the evidence were sufficient to convict Crespo, the conviction would nevertheless have to be overturned because the trial court failed to give a circumstantial evidence charge to the jury. 198 A.D.2d at 86-87, 603 N.Y.S.2d at 840.

 After counsel was appointed to represent Crespo, Crespo filed a Second Amended Complaint in this action on December 18, 1995. It was in this complaint that the plaintiff added a § 1983 claim against the City of New York and the Police Commissioner. *fn2"


 The defendants first argue that the plaintiff's claims that he was unlawfully stopped, wrongfully arrested, and subjected to an unreasonable search are barred by the doctrine of collateral estoppel. The defendants claim that the plaintiff had a full and fair opportunity to challenge the constitutionality of the police actions at a pretrial suppression hearing during the prior state criminal proceeding, where the plaintiff's motion to suppress was denied.

 Under 28 U.S.C. § 1738, federal courts "'must give to a state-court judgment the same preclusive effect as would be given that judgment under the law of the State in which the judgment was entered.'" Golino v. City of New Haven, 950 F.2d 864, 869 (2d Cir. 1991), cert. denied sub nom. Lillis v. Golino, 505 U.S. 1221, 120 L. Ed. 2d 902, 112 S. Ct. 3032 (1992) (quoting Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 81, 79 L. Ed. 2d 56, 104 S. Ct. 892 (1984)). This rule applies to suits in federal court brought pursuant to 42 ...

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