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SAVINO v. THE CITY OF NEW YORK

October 30, 2001

JOSEPH
v.
SAVINO AND ERNESTINE SAVINO, PLAINTIFFS, V. THE CITY OF NEW YORK, KYLE RAYMOND STURCKEN, MICHAEL GARGAN, RAYMOND DOWD, DAVID BARTHOLOMEW, JOHN BANER, SHARON BROOKS, JOSE PEREZ, HOWARD WILSON AND JOHN DOES 1 THROUGH 3, DEFENDANTS.



The opinion of the court was delivered by: Miriam Goldman Cedarbaum, United States District Judge.

  OPINION

Plaintiff Joseph Savino, a former medico-legal investigator in the New York City Office of the Chief Medical Examiner, sues the City of New York and several members of the New York Department of Investigation ("DOI") and the New York Police Department, asserting claims for (1) violation of his civil rights under 42 U.S.C. § 1983, (2) false arrest, malicious prosecution, abuse of process, defamation, and negligence under state law and (3) violations of the New York Constitution.*fn1 Plaintiff Ernestine Savino, wife of Joseph Savino, asserts a claim for loss of services and society. All claims arise from the criminal prosecution and subsequent acquittal of Joseph Savino for the theft of a ring from a death scene. Defendants have moved for summary judgment. For the following reasons, that motion is granted in part and denied in part.

BACKGROUND

In February of 1995, plaintiff Joseph Savino was working as a medico-legal investigator ("MLI") at the Office of the Chief Medical Examiner for the City of New York ("OCME"). In late 1994, Savino had been widely described in the New York news media as the highest paid City employee based on his overtime earnings, and was dubbed the "King of Overtime." OCME policies also allowed other MLI's to earn large amounts of overtime. In fact, the top six overtime earners in the City in 1994 were MLI's. Newly elected Mayor Rudolph Giuliani took steps to reduce what was considered to be excessive overtime. He issued a policy directive to the Office of Management and Budget to track overtime costs at every City agency and report the findings to him on a monthly basis. Defendant Howard Wilson, Commissioner of the DOI, spent considerable time over the course of two years beginning in the fall of 1994 on the issue of excessive overtime at OCME. Defendant Kyle Sturcken, who was employed by the DOI as Inspector General of the Department of Health, investigated and prepared a report on overtime earnings by MLI's at OCME. Following the investigation, it was determined that plaintiff's overtime earnings were lawful and in accordance with OCME regulations. Savino continued to accrue extremely large amounts of overtime throughout 1995, and in September of 1995 he was again reported by the media to be the highest paid City employee.

At approximately 4:00 PM on February 12, 1995, Police Officers Raymond Dowd and Michael Gargan arrived at Room 4254 of the Marriott Marquis Hotel in Manhattan, which was the scene of an apparent suicide. Defendant Sergeant Sharon Brooks arrived a short time later. According to Gargan and Dowd, they searched the decedent's pocketbook and wallet and discovered some cash and a gold ring inset with five clear stones in a zippered pocket of the wallet. Dowd testified that he returned the ring to the pocket of the wallet. Gargan testified before the Grand Jury that he observed Dowd return the ring to the wallet. However, Gargan wrote in his contemporaneous notes that Dowd had informed him that he returned the ring. No other officer observed the ring in the wallet.

Detectives John Baner and David Bartholomew arrived at the scene at approximately 4:30 PM. The officers had noticed three prescription pill bottles in Room 4254. The pill bottles were ordinary prescription bottles made of orange plastic with prescription labels covering most of the outside surface. Bartholomew says that he looked at the pill bottles and did not recall seeing a ring inside. He did not, however, pick up the bottles or open them to examine their contents. The detectives also read a suicide note left by the decedent, in which she stated that she had placed a gold ring in her wallet that she wanted her sister to have.

Savino arrived at the death scene at approximately 5:30 PM. Sturcken and defendant José Perez, a DOI investigator, say that Savino told them that he had searched the decedent's wallet for identification, but Savino denies it. According to the police, the officers left Savino alone in the room with the decedent and her effects for approximately five minutes while he took pictures. Savino denies being in the room alone. In any event, Brooks testified that she watched Savino through the doorway and could also see the decedent's pocketbook, which had the wallet and ring inside. She did not see Savino approach the pocketbook or remove the ring from the wallet during the five minutes that he was allegedly alone in the room. After Savino completed his investigation, he took possession of the pill bottles, a common practice of MLI's, and left the scene.

While vouchering the decedent's property after Savino had left the scene, Gargan and Dowd discovered that the ring was missing. After an unsuccessful search for the ring, the officers called Baner and Bartholomew to find out if they had taken the ring. Neither Baner nor Bartholomew had taken the ring, and both returned to the death scene to help look for it. After also failing to find the ring, Bartholomew telephoned OCME at approximately 11:00 PM to speak to Savino. The woman with whom Bartholomew spoke said that Savino was not there, and that she would page him and ask him to call the hotel room. At approximately 11:15, Savino returned Bartholomew's call from his home in Tarrytown and spoke with Baner. Baner told Savino that they were having trouble with some "property" at the scene. Savino replied that he had a ring, which he had found in one of the pill bottles he took from the scene. They agreed that Savino's brother, Lawrence, who was also an MLI, would bring the ring to the police station that night.

Savino prepared an Investigator's Report and a Supplemental Case Information ("SCI") form relating to the investigation of the death scene. On the SCI form, Savino stated that he had found "a yellow ring with five white stones" in one of the pill bottles he had removed from the scene. The Investigator's Report was faxed to OCME at 12:20 AM and the SCI form at 7:38 AM on February 13. Savino states that he tried to fax the forms sooner, but the OCME's line was busy.

The Police Department filed a complaint with the DOI on February 28, 1995 alleging that Savino had stolen the ring from the death scene. Prior to that report, the DOI had received other reports about property missing from death scenes. Defendant Sturcken opened a new investigation into the criminal allegations against Savino. By the end of March 1995, Sturcken, with the assistance of Perez, had interviewed all of the officers and detectives who had been present at the death scene, and informed Wilson of their findings. On September 26, 1995, two weeks after Savino's overtime earnings for the year were reported in the New York Post, Sturcken met with Assistant District Attorney ("ADA") Joseph Sullivan and his supervisor, ADA William Burmeister about the Savino case. ADA Sullivan re-interviewed all of the police witnesses. Sullivan's affidavit does not indicate whether he was informed that Brooks had observed Savino while he was alone in the room, and had seen that he did not take the ring. During the investigation, Sullivan decided that Savino had taken the ring and submitted a false SCI form in which he claimed to have found the ring inside a pill bottle. In early 1996, various unsuccessful sting operations were attempted to catch Savino in the act of stealing from a death scene. It appears from Wilson's deposition that, in late June of 1996, he contacted the District Attorney's office to encourage them to approve the arrest of Savino before the end of the fiscal year, although Wilson denies influencing the outcome of the investigation or the decision to arrest Savino.

On June 26, 1996, Savino was arrested without a warrant by the DOI in Sturcken's office, and charged with (1) Petit Larceny, in violation of New York Penal Law § 155.25, (2) Falsifying Business Records in the First Degree, in violation of New York Penal Law § 175.10, (3) Offering a False Instrument in the First Degree, in violation of New York Penal Law § 175.35, and (4) Official Misconduct, in violation of New York Penal Law § 195.00. He was held in custody until the following day. On that day, the DOI issued a press release, edited by Commissioner Wilson, announcing Savino's arrest. The press release referred to the fact that Savino had been reported as the City's highest overtime earner. As a result of the arrest, Savino was suspended by OCME for 30 days without pay.

In September 1996, Savino was indicted by a Grand Jury for all four crimes with which he was charged and, in addition, for the crime of Tampering with Public Records in the First Degree, in violation of New York Penal Law § 175.25. All of the police witnesses except Brooks testified before the Grand Jury, as did defendant Sturcken. On January 27, 1997, after approximately 17 minutes of deliberation, a trial jury acquitted Savino of all criminal charges.

DISCUSSION

Standard For Summary ...


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