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May 6, 2003


The opinion of the court was delivered by: Michael B. Mukasey, United States District Judge


Samantha Richards ("Richards"), along with Wydeia and Shanealya Richards ("the children"), have sued the City of New York and certain law enforcement personnel, including assistant district attorneys ("ADAs") and police officers.*fn1 Richards alleges that, in violation of 42 U.S.C. § 1983, she was arrested and prosecuted without probable cause and deprived of the companionship and custody of her children. The children claim that, in violation of 42 U.S.C. § 1983, they were wrongfully separated from their mother. Both Richards and the children also allege various state torts arising out of Richards' arrest. Defendants move for summary judgment on the § 1983 claims on the grounds that this court lacks jurisdiction over the claims under the Rooker-Feldman doctrine and that defendants had probable cause both to arrest and to prosecute Richards. For the reasons set forth below, the motion is denied.


The following facts are undisputed except as described otherwise. On September 11, 1995, Samantha Richards resided at 277 Eastern Parkway, Apartment 4-F, Brooklyn, New York ("the Richards home"), with Gersham O'Connor and her children Wydeia Richards ("Wydeia") and Shanealya Richards ("Shanealya"). (Defs.' 56.1 ¶ 1) On that date, at approximately 6:45 p.m., O'Connor was shot and killed at the Richards home. (Defs.' 56.1 ¶ 2) Wydeia and Shanealya, who were five and four years old respectively at the time of the shooting, now claim that O'Connor was shot by an unidentified black man in front of Richards and the children. (Children's 56.1 ¶ 1) Richards claims that, after the shooting, she gave a truthful statement to Detective McCann indicating that two men, one "tall, skinny M/B with cornrolls, white sneakers, dark colored jacket" robbed and murdered O'Connor. (Richards' 56.1 ¶¶ 18-19)

Shortly after O'Connor was shot, Richards called the police and reported the shooting. (Defs.' 56.1 ¶ 3) Police Officer Pfeiffer and Police Officer McNamara responded. (Defs.' 56.1 ¶ 4) Thereafter, Police Officer Greco and others responded as well. (Defs.' 56.1 ¶ 5) At the Richards home, Greco saw Richards trying to give the backpacks being worn by the children to her mother, Sheila Richards, and took possession of the backpacks. (Defs.' 56.1 ¶¶ 6-7) Pfeiffer then became aware that one of the backpacks recovered by Greco contained a green leafy substance, which was sent to the New York Police Department ("NYPD") Laboratory and determined to be marijuana. (Defs.' 56.1 ¶ 8-10) Police officers also recovered a .38 caliber revolver, together with five discharged .38 caliber shells, from the home. (Defs.' 56.1 ¶ 11) The officers sent the revolver and the spent shells to the NYPD Ballistics Laboratory. (Defs. 56.1 ¶ 12)

On September 11, 1995, at approximately 9:30 p.m., Detective McCann interviewed Conrad Davis, a neighbor of Richards', at the 77th Precinct Station House. Davis stated that he heard fighting and then gunshots from the Richards home. He stated also that he then ran to the home and saw O'Connor bleeding from the neck. (Defs.' 56.1 ¶ 14; Kitzinger Decl. Ex. K) Richards notes that Davis made several different statements to the police, including a statement that he saw nothing. Richards notes also that, as indicated in the police report cited by defendants, Davis told McCann at one point that Richards "said Gersh was robbed, someone shot him." (Richards' 56.1 ¶ 9)

At approximately 8:00 p.m. on September 11, McCann interviewed Mayland Sinclair, who lived on the same floor as Richards and the children in Apartment 4-D. Sinclair said that on that day, between 6:00 p.m. and 6:15 p.m., she left her home with her cousin. Upon returning to the vicinity of her building, she heard approximately four gunshots. Not seeing anyone entering or leaving the building, she then entered the building, met her mother in the elevator, and returned with her mother to their apartment. Sinclair told McCann also that she did not see anyone else until about 15 minutes later, when, after hearing noises, she looked through the peephole and observed Conrad Davis on the floor with police officers standing over him. (Defs.' 56.1 ¶ 15)

On September 12, 1995, Wydeia, while being questioned at the NYPD's 77th Precinct House, said that her mother shot O'Connor. (Defs.' 56.1 ¶ 16) The children claim that this statement was false and was made at 10:00 p.m. on September 12 outside the presence of either their mother or grandmother. (Children's 56.1 ¶¶ 3-5) Richards claims, and Wydeia has now stated in a declaration, that Wydeia never saw Richards kill O'Connor; rather, the detectives made her tell them that Richards killed O'Connor. (Richards' 56.1 ¶¶ 24-25; Vogelman Decl. Ex. 5, Declaration of Wydeia Richards)

According to both Richards and the children, soon after the shooting, Officer Greco overheard Wydeia tell her grandmother that a black man with dreadlocks shot O'Connor. (Richards' 56.1 ¶ 27; Children's 56.1 ¶ 2) Greco recorded Wydeia's statement in his memo book. (Richards' 56.1 ¶ 28; Cohn Affirm. Ex. E) Richards claims further that, at some point during the evening of September 11, she told Greco that she heard two men fighting and asking "where's the money" and gave Greco a description of the man with dreadlocks. That information is recorded in Greco's memo book as well. (Richards' 56.1 ¶ 29; Vogelman Decl. Ex. 3) Greco, according to Richards, also interviewed two unidentified males who told Greco that they saw two men in the hallway who asked "where's the money" and then ran away when they heard someone coming. That information too is recorded in Greco's memo book. (Richards' 56.1 ¶ 30; Vogelman Decl. Ex. 3) Greco concedes that, on the day of the shooting, he told one of the detectives of the information in his memo book. (Richards' 56.1 ¶ 31; Vogelman Decl. Ex. 3)

The children, following Richards, argue that defendants, at the time of the arrest and charge, were in possession of witness evidence that supported Richards' account and Wydeia's report to her grandmother. Like Richards, the children point out that Greco, in addition to recording Wydeia's exculpatory statement, recorded the statements of two males who overheard male voices arguing in the apartment before they heard gunshots and saw someone coming out of the apartment. (Children's 56.1 ¶ 7) The children note also that Conrad Davis, during an interview with ADA Domanski, provided an account consistent with Richards' when he stated that he overheard two males arguing inside the apartment before shots were fired. (Children's 56.1 ¶ 6; Cohn Affirm. Ex. L) Although defendants do not mention Davis' interviews with ADA Domanski or other prosecutors in their Rule 56.1 Statement, ADA Grossblatt's Dismissal Memo states that Davis contradicted his statement to ADA Domanski the following day, when he said that he heard O'Connor and Richards arguing rather than two men arguing. (Cohn Affirm. Ex. T)

On September 13, 1995, at approximately 3:55 a.m., ADAs Lee Trink and Julie Mendik, in the presence of McCann, interviewed Michael McNeil of 277 Eastern Parkway, Apartment 5-F, at the police precinct. McNeil stated that on the evening of September 11, he heard Richards and O'Connor arguing and then heard gunshots, all from the Richards home. McNeil said that the door was very heavy, and audible when opened or closed; yet he did not hear the door to the Richards home open or close. McNeil stated further that he went down the stairs, saw Conrad Davis standing at the door of Richards' apartment, and then saw Richards open the door and pull Davis into the apartment. (Defs.' 56.1 ¶ 17) Richards states, without citing evidence in the record, that McNeil told police that he saw Davis drop an item out the window and then recover that item after O'Connor was shot. (Richards' 56.1 ¶ 12) According to the transcript of the interview, McNeil said: "I heard him drop or I heard something fall." (Kitzinger Decl. Ex. N, at 7)

On September 13, 1995, defendant Mike Paul interviewed Andrea Johnson, who lived in apartment 4-G of the same building. Johnson stated that on September 11 she was returning home from work when she entered the elevator and saw a dark-skinned man, who appeared to be in his mid-20s and was approximately 6 feet, 1 inch tall. She stated further that both she and the man described got off the elevator on the fourth floor, where he knocked on the door of the Richards home. Finally, she said that she observed the same man on the floor of the fourth floor with police officers standing over him. (Defs.' 56.1 ¶ 18)

On September 13, 1995, at approximately 7:45 p.m., McCann interviewed Kariaska Pilgrim, who lived in apartment 4-D of the same building, at the police precinct. Pilgrim stated that as she got off of the elevator to go to her apartment, she heard O'Connor yelling at Richards and then Richards yelling at O'Connor. A minute or two later, she heard three to four gunshots. Pilgrim stated also that she did not hear the door to the Richards home open or hear anyone in the hallway until the police arrived. (Defs.' 56.1 ¶ 19)

On September 13, 1995, Detective Daniel Carmosin interviewed Marva St. Rose, who also lived in Apartment 4-D. St. Rose stated that while she was in the basement of the building, she heard three gunshots. After taking the elevator to the fourth floor, she observed that the door to apartment 4-F was closed and went into her apartment. (Defs.' 56.1 ¶ 20)

On September 13, 1995, Richards was arrested without a warrant and charged with O'Connor's murder and with criminal possession of a weapon in the second degree. (Defs.' 56.1 ¶ 21) The same day, after the arrest, the New York City Child Welfare Administration ("CWA") took the children into custody and placed them in foster care. (Defs.' 56.1 ¶ 22) On September 14, 1995, CWA filed a petition in the Family Court of the State of New York alleging that Richards abused the children because she (1) shot and killed O'Connor in the children's presence; (2) had a loaded weapon together with spent and live ammunition in the home; (3) placed marijuana in the children's backpack in order to conceal drugs from the police; and (4) had not taken Wydeia for treatment for ringworm. (Defs.' 56.1 ¶ 23) On May 31, 1996, the Honorable Jody Adams, Judge of the Family Court of the State of New York, found that Richards had abused the children for the four reasons stated by CWA. (Defs.' 56.1 ¶ 34) The children assert that, in addition to coercing the children to offer false testimony against their mother in interviews before the arrest, McCann testified falsely in the Family Court proceeding. (Children's 56.1 ¶ 9) The children assert also that evidence exculpating Richards or qualifying as Brady/Giglio evidence, including Conrad Davis' first statement to the police, prior statements by the children identifying a male shooter, and the statement of two males interviewed by Officer Greco, was not presented to the Family Court or turned over to Richards' attorney. (Children's 56.1 ¶ 11; Cohn Affirm. Ex. U, ADA Grossblatt's Rosario List) On March 25, 1999, Judge Adams refused to vacate her May 31, 1996 finding of abuse, despite the intervening dismissal of the murder charge against Richards. (Cohn Affirm. Ex. V)

On September 15, 1995, a Kings County Grand Jury heard testimony from Kariaska Pilgrim and Marva St. Rose relating to O'Connor's murder. (Defs.' 56.1 ¶ 24) On September 18, 1995, the Grand Jury heard testimony from Michael McNeil, Mark Pfeiffer, and Kevin McCann regarding O'Connor's murder. (Defs.' 56.1 ¶ 26) Pfeiffer testified that on September 11, 1995, at approximately 6:45 p.m., he responded to the Richards home; that upon arriving, he observed Conrad Davis running out of the apartment; that he stopped Davis and brought him back to the apartment; that he observed two children in the apartment, fully clothed and wearing coats and backpacks; that at least one of the backpacks was clear with a cartoon character on it; that he recovered a green leafy substance from the backpack; that he saw O'Connor with his hands around his neck, bleeding profusely; that he recovered nine unspent live rounds of .22 caliber ammunition and vouchered the ammunition; and that he identified O'Connor's body at the morgue on September 12. (Defs.' 56.1 ¶ 27) McCann testified that he responded to the Richards home at approximately 7:00 p.m. on September 11; that he observed O'Connor lying face up and bleeding from the neck; that the apartment was in disarray; that a firearm was recovered from between the mattress and box spring in the bedroom; that the firearm was loaded with five spent shells; that the firearm was vouchered; and that the firearm was sent to ballistics for examination. (Defs.' 56.1 ¶ 28)

On September 18, 1995, the grand jury was charged on two counts of murder in the second degree and criminal possession of a weapon in the second degree. (Defs.' 56.1 ¶ 29) The same day, the grand jury returned a true bill against Richards, indicting her on two counts of murder in the second degree and one count of criminal possession of a weapon in the second degree. (Defs.' 56.1 ¶ 30) On September 19, 1995, the grand jury was given the ballistics report and laboratory report. (Defs.' 56.1 ¶ 31) That day, the grand jury received charges on criminal possession of a weapon in the fourth degree and criminal possession of marijuana in the second degree and returned a true bill indicting Richards on one count of each offense. (Defs.' 56.1 ¶¶ 32-33)

In August 1996, Wydeia, during preparation for Richards' trial and upon being told to tell the truth by her foster mother, stated that Sheila Richards told her and Shanealya to say that O'Connor was shot by someone other than Richards, but that "mommy shot Gersh." (Defs.' 56.1 ¶ 35) On October 28, 1996, during Richards' trial, Richards' attorney, Arthur Lewis, stated to the Court that Wydeia told him she witnessed Richards shoot O'Connor. On November 1, 1996, as part of a swearability hearing related to the murder case, Wydeia identified 277 Eastern Parkway as the building in which she lived with her "mother that killed my father." (Defs.' 56.1 ¶ 37)

On November 1, 1996, Wydeia stated that a man killed O'Connor. (Defs.' 56.1 ¶ 38) She stated also that she lied each time she said that Richards killed O'Connor and that she lied for no reason. (Defs.' 56.1 ¶ 39) On or about November 4, 1996, all charges against Richards were dismissed on the prosecutor's motion. (Defs.' 56.1 ¶ 40). Richards insists that neither she nor her mother attempted to influence the children's testimony regarding what they saw on September 11, 1995. (Richards' 56.1 ¶ 20)

The children claim that during preparation for the murder trial, Wydeia told the ADA in charge of the case that a man with braided hair had shot O'Connor. According to the children, the ADA did not report the inconsistency in Wydeia's statements to the defense; instead, she placed Wydeia on the witness stand. (Children's 56.1 ¶ 10) Richards too makes numerous claims about the conduct of the prosecution. According to Richards, Dana Grossblatt, the lead prosecutor, never saw Officer Greco's book entries. Detective McCann never mentioned those entries to her and she therefore never turned over Greco's memo book to defense counsel. (Richards' 56.1 ¶¶ 32-33)

Richards states further that McCann failed to mention in his deposition that Greco overheard Wydeia's statement to her grandmother; instead, he tried to create the impression that the children were not interviewed before the taped statement of September 12. (Richards' 56.1 ¶ 34). According to Richards, Detectives Paul and Carmosin likewise failed to mention Wydeia's statement and tried to create the impression that the children were not interviewed before the taped statement of September 12. (Richards' 56.1 ¶¶ 35-36) Richards notes also that Greco's memo book was not in the defense attorney's or the prosecutor's case file. (Richards' 56.1 ¶ 37)


Plaintiffs assert several federal claims against defendants under 42 U.S.C. § 1983, along with supplemental state law claims.*fn2 Richards asserts § 1983 claims for false arrest and malicious prosecution and both Richards and the children assert a § 1983 claim for wrongful removal of Wydeia and Shanealya from Richards' custody.

The ADA defendants moved to dismiss the complaint against them based on absolute or qualified immunity. In a previous opinion, I granted defendants' motion to dismiss the claims against ADA Grossblatt and granted the motion to dismiss as to the remainder of the ADA defendants to the extent that plaintiffs seek to hold them liable for actions taken in the course of, or in close connection with, the judicial phase of the criminal case against plaintiff . . . Richards v. City of New York, No. 97 Civ. 7990, 1998 WL 567842, at *4 (S.D.N.Y. Sept. 3, 1998) However, I denied the motion to the extent plaintiffs seek to hold the ADA ...

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