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RICHARDS v. CITY OF NEW YORK

United States District Court, Southern District of New York


May 6, 2003

SAMANTHA RICHARDS, WYDEIA RICHARDS, AND SHANEALYA RICHARDS, PLAINTIFFS, AGAINST THE CITY OF NEW YORK; NEW YORK CITY DETECTIVES KEVIN MCCANN, DANIEL CARMOSIN AND MIKE PAUL; DETECTIVES/POLICE OFFICERS JOHN AND JANE DOE; ASSISTANT DISTRICT ATTORNEYS ANGELA DOMANSKI, LEE TRINK JULIE MENDIK, KEN TAUB, AND JOHN AND JANE ROE, DEFENDANTS.

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

OPINION AND ORDER

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.

I.

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)

II.

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 defendants liable for supervising, participating with, and assisting the police in their investigation of O'Connor's murder. Id. Plaintiffs then amended their complaint.

Defendants now move for summary judgment on the false arrest, malicious prosecution, and wrongful removal claims under Rule 56(b) of the Federal Rules of Civil Procedure. Defendants claim that summary judgment should be granted on two separate grounds. First, defendants argue that this court lacks subject-matter jurisdiction over the claims under the Rooker-Feldman doctrine. Second, defendants argue that because they had probable cause both to arrest Richards and to prosecute her, Richards' false arrest and malicious prosecution claims, as well as all supplemental claims, should be summarily dismissed. The police officer defendants, despite pleading qualified immunity as an affirmative defense (see Answer to Second Am. Compl. ¶ 70), have not moved for summary judgment based on qualified immunity; this opinion does not address that issue.

Summary judgment is appropriate if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c). The movant for summary judgment "always bears the initial responsibility of informing the district court of the basis for its motion" and identifying which materials "demonstrate the absence of genuine issues of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once this showing has been made, the burden shifts to the non-movant who "must set forth facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).

Claims brought under 42 U.S.C. § 1983 are guided by the tort law of the forum state. Russell v. Smith, 68 F.3d 33, 36 (2d Cir. 1995). All relevant events in this case took place in New York. Moreover, the parties' briefs assume that New York law controls. Such "implied consent . . . is sufficient to establish choice of law." Tehran-Berkeley Civil & Envtl. Eng'rs v. Tippetts-Abbett-McCarthy-Stratton, 888 F.2d 239, 242 (2d Cir. 1989). New York law applies.

III.

Before addressing the two grounds on which defendants seek dismissal of the complaint, several evidentiary issues raised by the parties must be addressed briefly. First, Richards contends that the documents cited to support the facts set forth in paragraphs 3, 4, 8-20, 25, and 36 of defendants' Rule 56.1 statement would not be admissible at trial, and therefore should not be considered. See S.D.N.Y. & E.D.N.Y. R. 56.1(d) ("Each statement of material fact by a movant or opponent must be followed by citation to evidence which would be admissible, set forth as required by Federal Rule of Civil Procedure 56(e)."). Specifically, Richards argues that each of the police reports and other records cited by defendants in these paragraphs amounts to inadmissible hearsay.*fn3

For the most part, Richards is incorrect. First, each of the police reports offered by defendants (see Defs.' 56.1 ¶¶ 3, 4, 8-20, and 25) is a record of regularly conducted activities. Such records are admissible pursuant to Fed.R.Evid. 803(6). Moreover, the contents of the police reports and the other documents, to the extent that they reflect statements made to police officers or other defendants before the indictment on September 18, 1995, are not offered for the truth of the matter asserted but for the purpose of showing that these statements were made to the officers and provided probable cause to arrest and prosecute Richards. As they are not offered for the truth of the matter asserted, they do not constitute hearsay as defined in Fed.R.Evid. 801(c). Finally, the document cited in paragraph 36 of defendants' Rule 56.1 Statement, namely the transcript of Richards' trial showing that Richards' attorney told the court that Wydeia told him that she saw her mother shoot O'Connor, may be inadmissible. However, it has no bearing on the issues presented by defendants' summary judgment motion, and therefore there is no need to decide on its admissibility here.

Additionally, Richards states that the results of her August 4, 1998 polygraph examination would be admissible at trial.*fn4 (See Richards' 56.1 ¶ 21) During that test, Richards was asked whether she "shot Gersh" and she answered "no." The polygrapher's opinion was that she was telling the truth. (Id.) The Second Circuit has "not decided whether polygraphy has reached a sufficient state of reliability to be admissible." United States v. Messina, 131 F.3d 36, 42 (2d Cir. 1997). Yet even if polygraphs are admissible under some circumstances, there is no need to decide now whether Richards' polygraph test, completed almost three years after the operative events in this case, is admissible, because the polygraph test has no bearing on the issues raised in defendants' summary judgment motion. The test cannot be used to negate probable cause, which is evaluated based on the information available at the time a criminal defendant is arrested and prosecuted. See Peterson v. County of Nassau, 995 F. Supp. 305, 313 (E.D.N.Y. 1998) (citing Anderson v. Creighton, 483 U.S. 635, 641 (1987)).

Defendants also cite a polygraph test. (See Defs.' 56.1 ¶ 25) They claim, and plaintiffs do not dispute, that Conrad Davis underwent a polygraph test on September 15, 1995, three days before the Grand Jury indicted Richards. During the test, Davis stated that Richards did not tell him that she shot O'Connor and that he did not do anything to cover up or conceal the shooting. The examiner determined that he was "attempting deception" when he made these statements. (Id.) Because Davis' polygraph test was conducted after Richards was arrested for O'Connor's murder, it is immaterial to the false arrest claim. However, for reasons discussed below, the test could be relevant to the malicious prosecution claim, because defendants were aware of its results before the grand jury indicted Richards. Nevertheless, defendants do not argue, nor could they, that the polygraph established probable cause as a matter of law. As outlined in detail below, in light of Wydeia's statement to her grandmother exculpating her mother, defendants are not entitled to summary judgment on the issue of probable cause to prosecute Richards. Thus, I need not decide now whether Davis' polygraph test would be admissible at trial as evidence of probable cause.

IV.

Defendants argue that this court lacks jurisdiction over plaintiffs' federal claims under the Rooker-Feldman doctrine. A challenge under the Rooker-Feldman doctrine is a challenge to a court's subject-matter jurisdiction. Moccio v. New York State Office of Court Admin., 95 F.3d 195, 198 (2d Cir. 1996). Because all other defenses become moot if a complaint is dismissed for lack of subject-matter jurisdiction, defendants' Rooker-Feldman defense must be addressed first.

Under the Rooker-Feldman doctrine, inferior federal courts lack subject-matter jurisdiction "over cases that effectively seek review of judgments of state courts and that federal review, if any, can occur only by way of a certiorari petition to the Supreme Court." Moccio, 95 F.3d at 197. In Rooker v. Fidelity Trust Company, 263 U.S. 413, 416 (1923), the Supreme Court held that no federal court, besides the Supreme Court of the United States, can consider a claim to reverse or modify a state court judgment. In District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983), the Supreme Court expanded on Rooker by stating that where a plaintiff's claims in federal court are "inextricably intertwined" with a state court's determinations, the district court lacks jurisdiction to entertain those claims. Id. at 483 n. 16.

The Supreme Court has not explained exactly when a claim is inextricably intertwined with a state court determination. Plainly, Rooker-Feldman bars claims raised in a state court proceeding that are then raised in a subsequent federal proceeding and does not bar claims that were never presented in a state court proceeding and could not have been presented in that proceeding. Moccio, 95 F.3d at 199. The harder cases, as the Second Circuit has noted, are those in which a plaintiff could have raised constitutional claims in state court but failed to do so. In these situations, "`inextricably intertwined' means, at a minimum, that where a federal plaintiff had an opportunity to litigate a claim in a state proceeding (as either the plaintiff or defendant in that proceeding) subsequent litigation of the claim will be barred under the Rooker-Feldman doctrine if it would be barred under the principles of preclusion." Id. at 199-200. The parties to this case agree that plaintiffs could have raised federal constitutional claims in the Family Court. Thus, as interpreted by Moccio, the Rooker-Feldman doctrine demands that this court consider two categories of preclusion: claim preclusion and issue preclusion. Id. at 200. Defendants do not assert that claim preclusion is applicable to this case. However, they do contend that, under New York law, issue preclusion applies.

Under New York law, issue preclusion, or collateral estoppel, applies if "(1) the issue in question was actually and necessarily decided in a prior proceeding, and (2) the party against whom the doctrine is asserted had a full and fair opportunity to litigate the issue in the first proceeding." Moccio, 95 F.3d at 200; Colon v. Coughlin, 58 F.3d 865, 869 (2d Cir. 1995). Collateral estoppel will apply only if it is "quite clear" that these elements have been met so that a party is not "precluded from obtaining at least one full hearing on his or her claim." Id. at 869 (citations omitted). The burden rests upon the proponent of collateral estoppel to demonstrate that the issues in question were actually and necessarily decided. The burden rests upon the party opposing collateral estoppel to establish the absence of a full and fair opportunity to litigate those issues. Ryan v. New York Tel. Co. et al., 62 N.Y.2d 494, 501, 478 N.Y.S.2d 823, 827 (1984); accord Colon, 58 F.3d at 869. I find that the issues in this case were actually and necessarily decided by the Family Court; however, because Richards did not have a full opportunity to litigate those issues, Rooker-Feldman does not control.

A. Were the Issues Actually and Necessarily Decided?

The preliminary question is whether the issues in question were actually and necessarily decided by the Family Court. For collateral estoppel purposes, "[i]ssues are considered identical if a different decision in the second suit would necessarily `destroy or impair rights or interests established by the first.'" Application of Am. Tobacco Co., 880 F.2d 1520, 1527 (2d Cir. 1989) (quoting Ryan, 62 N.Y.2d at 501, 478 N.Y.S.2d at 826) (other citations omitted); see also Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 25 (1987) (Marshall, J., concurring) ("[T]he federal claim is inextricably intertwined with the state-court judgment if the federal claim succeeds only to the extent that the state court wrongly decided the issues before it."). In this case, the issues in question were actually and necessarily decided by the Family Court because plaintiffs' federal claims could succeed only to the extent that the Family Court erred.

1. False Arrest

In order to state a claim for false arrest or false imprisonment under New York law, a plaintiff must prove that: (1) the defendant intended to confine him, (2) the plaintiff was conscious of the confinement, (3) the plaintiff did not consent to the confinement and (4) the confinement was not otherwise privileged. Broughton v. State, 37 N.Y.2d 451, 456, 373 N.Y.S.2d 87, 93 (1975). However, "[t]he existence of probable cause to arrest constitutes justification and is a complete defense to an action for false arrest, whether that action is brought under state law or under § 1983." Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996) (internal quotations omitted) (citations omitted). The crucial question, then, is whether the Family Court's findings in the abuse proceeding compel the conclusion that the police had probable cause to arrest Richards. If they do, then Judge Adams actually and necessarily decided the issue at hand.

The New York Court of Appeals' decision in Ryan indicates that the Family Court's decision in this case should be viewed as a determination that the police had legal justification to arrest Richards. In Ryan, security investigators at a company saw Ryan removing company property and called the police. The police arrested Ryan and charged him with petit larceny and criminal possession of stolen property. Following his discharge from work, Ryan applied for unemployment insurance benefits, but his application was denied. On appeal, an administrative judge found that Ryan was discharged because he removed and possessed company property and, therefore, was not entitled to unemployment benefits. During the administrative proceedings, the criminal action against Ryan was dismissed on a motion by the District Attorney. Ryan then brought an action asserting claims for, inter alia, false arrest and malicious prosecution. Defendants pleaded an affirmative defense of issue preclusion.

The Court of Appeals concluded that Ryan's false arrest claim was precluded on the following ground: "The lack of legal justification is an essential element of the tort of false arrest, but the administrative determination of criminally chargeable misconduct is dispositive of the presence of such justification and, consequently, grounds for dismissal of the cause of action." Ryan, 62 N.Y.2d at 502, 478 N.Y.S.2d at 827 (citations omitted). Thus, the Court determined that where an administrative judge finds that a defendant engaged in criminally chargeable misconduct, that determination precludes a subsequent false arrest claim because it disposes of an essential element of that claim, i.e., lack of justification.

Like the Administrative Law Judge in Ryan, the Family Court in this case found, by a preponderance of the evidence, that the party bringing a false arrest claim engaged in the criminally chargeable misconduct for which she was arrested. Under Ryan, the Family Court's determination is sufficient to establish justification for the arrest.

2. Malicious Prosecution

To sustain a § 1983 claim based on malicious prosecution, a plaintiff must demonstrate conduct by the defendant that is tortious under state law and that results in a constitutionally cognizable deprivation of liberty. Singer v. Fulton County Sheriff, 63 F.3d 110, 116 (2d Cir. 1995). To state a claim for malicious prosecution under New York State law, a plaintiff must prove "(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." Russell, 68 F.3d at 36; accord Murphy v. Lynn, 118 F.3d 938, 947 (2d Cir. 1997). The existence of probable cause to commence a proceeding bars a claim of malicious prosecution.

In Ryan, the Court of Appeals concluded that the trial court lacked jurisdiction over Ryan's malicious prosecution claim because the administrative judge had effectively determined that there was probable cause to prosecute Ryan. According to the Court, "the second cause of action alleging malicious prosecution requires a lack of probable cause for instituting the criminal proceeding, but the prior determination is decisive that defendants' investigators actually witnessed Ryan removing the property and, therefore, had probable cause to bring charges against him." Ryan, 478 N.Y.S.2d 823 (citations omitted)

In this case, the Family Court specifically found that Wydeia saw her mother shoot O'Connor. (Kitzinger Decl. Ex. Y, at 18) Pursuant to Ryan, in which the Court concluded that the administrative judge's finding that investigators saw Ryan take company property was equivalent to a finding that there was probable cause to charge Ryan, I conclude that the Family Court's finding in this case that the children saw their mother kill O'Connor amounts to a determination that there was probable cause to charge Richards with O'Connor's murder.

3. Wrongful Removal

Substantive due process protects against government interference with the right of parents to have custody of their children. e.g., Kia P. v. McIntyre, 235 F.3d 749, 758 (2d Cir. 2000); Park v. City of New York, No. 99 Civ. 2981, 2003 WL 133232, at *10 (S.D.N.Y. Jan. 16, 2003). However, this liberty interest is balanced against the state's interest in protecting children's welfare. E.g., Kia P., 235 F.3d at 758. Such balancing requires deference toward caseworkers who assume custody of children when they perceive signs of abuse. Id.; Park, 2003 WL at *10. To avoid a substantive due process violation, caseworkers need have only a "reasonable basis" for their findings of abuse and their decisions to remove children from abusive situations. Kia P., 235 F.3d at 758-59. Thus, if the Family Court in this case decided that defendants had a reasonable ground to separate Richards from the children, the Court actually and necessarily decided the issue presented in this § 1983 action.

The Second Circuit recently applied the "actually and necessarily decided" prong of the collateral estoppel test to a case involving the removal of a neglected child. In Phifer, 289 F.3d at 49, hospital staff became concerned about the medical care provided by the plaintiff-mother to her eight year-old daughter. After receiving reports of suspected maltreatment, an ACS caseworker filed a petition in family court alleging that the child was in imminent danger and was being neglected by her parents. The Family Court granted ACS temporary custody of the child, and ACS ultimately placed her in foster care. At subsequent hearings, the Family Court found that returning the child to her mother's custody would place her health and life in imminent risk, issued an order of protection suspending the mother's visitation rights, and concluded that the child had been lawfully placed in the custody of ACS. In his final decision, the Family Court judge found that ACS had proved by a preponderance of the evidence that the child was neglected. Phifer, 289 F.3d at 52-54. The mother sued in federal court, alleging that the defendants violated her constitutional rights by removing her daughter from her custody and depriving her of custody for the ensuing two years.

The Second Circuit barred the plaintiff's substantive due process and Fourth Amendment claims against the medical staff under Rooker-Feldman. The Court concluded that, in order to evaluate those claims, the district court would have to determine whether the hospital had a "reasonable basis" for refusing to allow the child to be left in her mother's custody and if "exigent circumstances" justified the seizure of the child — issues that the Family Court had decided adversely to the plaintiff. Id. at 60-61.

As in Phifer, determining whether the children in this action were wrongfully removed from Richards' custody would require this court to reexamine the Family Court's finding that the children had been abused. On May 31, 1996, the Family Court found for four reasons that Richards abused her children. To conclude that defendants lacked a reasonable basis to remove the children from Richards' custody, this court would have to decide that Judge Adams erred. See Park, 2003 WL 133232, at *10 ("For ACS caseworkers to lack a reasonable basis for removal, and for the [parents of removed children's] substantive due process claim to succeed, the state court must have wrongly decided the[] issues of removal and neglect. The `inextricably intertwined' principle prohibits precisely this type of review by a federal court.")

For the same reasons, any Fourth Amendment claim by the children related to their removal was also actually and necessarily decided by the Family Court.*fn5 The warrantless seizure of a child by government officials pursuant to a child abuse or neglect proceeding is reasonable if it is justified by "exigent circumstances." Phifer, 289 F.3d at 61. Such circumstances exist if the state actors "have reason to believe that life or limb is in immediate jeopardy." Phifer, 289 F.3d at 61. The Family Court found, by a preponderance of the evidence, that the children were abused because Richards shot and killed O'Connor in the children's presence, had a loaded gun and spent ammunition in the home, and failed to take Wydeia for treatment for ringworm. These findings show that the seizure of the children did not violate the Fourth Amendment.

B. Did Plaintiffs Have a Full and Fair Opportunity?

Because the Family Court actually and necessarily decided the issues underlying plaintiffs' federal claims, the claims will be barred if plaintiffs had a full and fair opportunity to litigate them in the Family Court. In Ryan, New York's Court of Appeals laid out the factors to be considered in determining whether a plaintiff has been given a full and fair opportunity to litigate claims in a state proceeding:

A determination whether the first action or proceeding genuinely provided a full and fair opportunity requires consideration of the realities of the prior litigation, including the context and other circumstances which may have had the practical effect of discouraging or deterring a party from fully litigating the determination which is now asserted against him. Among the specific factors to be considered are the nature of the forum and the importance of the claim in the prior litigation, the incentive and initiative to litigate and the actual extent of litigation, the competence and expertise of counsel, the availability of new evidence, the differences in the applicable law and the foreseeability of future litigation.
Ryan, 62 N.Y.2d at 501, 478 N.Y.S.2d at 826-27 (citations omitted) (internal quotation marks omitted); see also Buechel v. Bain, 97 N.Y.2d 295, 303, 740 N.Y.S.2d 252, 257 (2001) ("The doctrine . . . is a flexible one, and the enumeration of these elements is intended merely as a framework, not a substitute, for case-by-case analysis of the facts and realities."). After enumerating the factors to be considered, the Ryan Court found that Ryan, who had testified in his own defense and cross-examined witnesses at the administrative proceeding, had a full and fair opportunity to litigate the question of his misconduct.

Plaintiffs offer two persuasive arguments to support their claim that, even if the issues decided by Judge Adams were the same as the issues presented in this case, plaintiffs did not have a full and fair opportunity to litigate those issues in the Family Court. Plaintiffs argue first that Richards did not have the proper "incentive and initiative to litigate" in the Family Court while facing a life sentence on murder and criminal possession charges. According to plaintiffs, the Family Court judgment was, in essence, a default judgment because Richards, who was the only competent witness available to rebut police testimony, had an overpowering disincentive to testify on the crucial issue of whether she killed O'Connor.

Here, plaintiffs cite SEC v. Monarch Funding Corp., 192 F.3d 295 (2d Cir. 1999). The question presented in that case was whether findings in a criminal sentencing proceeding may preclude relitigation of an issue in a later civil case. Although the Court declined to adopt a per se rule that sentencing findings can never be given preclusive effect in civil cases, the Court acknowledged that "the arguments for a per se prohibition are attractive," and concluded that the proponent of preclusion had failed to meet its burden in the case at issue. Id. at 305-06. The Court found the arguments against preclusion attractive because, among other things, "the incentive to litigate a sentencing finding is frequently less intense, and certainly more fraught with risk, than it would be for a full-blown civil trial." Id. at 305. The Court noted also that "a criminal defendant will often choose not to challenge sensitive issues during sentencing." Id.

The Second Circuit's analysis in Monarch Funding applies forcefully to the present case. Although Richards undoubtedly wanted to prevent a finding of abuse in the Family Court, she also needed to avoid jeopardizing her murder defense and her Fifth Amendment right to remain silent. In deciding not to testify, Richards did not make a strategic decision based exclusively on the her interest in the outcome of the abuse proceeding; rather, she may have chosen to preserve her murder defense. If a sentencing finding can be relitigated because defendants are deterred from challenging that finding in the first instance, surely the finding in this case, made in the shadow of an impending murder trial, can be relitigated. As in Monarch Funding, plaintiffs in this case have identified "circumstances which may have had the practical effect of discouraging or deterring [Richards] from fully litigating the determination which is now asserted against [her]." Ryan, 62 N.Y.2d at 501, 478 N.Y.S.2d at 827. Both New York's Court of Appeals and the Second Circuit have warned against applying collateral estoppel in such a situation.

Plaintiffs argue also that new evidence has emerged since the Family Court's finding of abuse that could have undermined the government's case in the Family Court. Once again, I agree. Greco's memo book was not presented to the Family Court in the abuse trial. (Cohn Affirm. ¶ 12) Based on that evidence, which Richards and the children did not know about until the present lawsuit commenced, it is conceivable that the Family Court would not have found that Richards shot O'Connor, and thus that there was probable cause to arrest and charge Richards. Moreover, because the Family Court's abuse determination — along with the loss of custody that followed from it — was based in part on the finding that Richards shot O'Connor in the children's presence, Greco's memo book could have affected the Family Court's custody decision as well. (See Kitzinger Decl. Ex. Y (making abuse determination based on four factors)). Plaintiffs did not have a full opportunity to litigate the issues raised here, and Rooker-Feldman does not apply.

V.

Defendants' second argument in favor of summary judgment on the false arrest and malicious prosecution claims is that defendants had probable cause to arrest and commence a criminal proceeding against Richards. A false arrest claim under § 1983 "is substantially the same as a claim for false arrest under New York law." Weyant, 101 F.3d at 852 (citations omitted). Under New York law, "a plaintiff claiming false arrest must show, inter alia, that the defendant intentionally confined him without his consent and without justification." Id. Probable cause constitutes justification, and therefore probable cause is a complete defense to an action for false arrest. Jocks v. Tavernier, 316 F.3d 128, 134-35 (2d Cir. 2003). However, "neither actual malice nor want of probable cause is an essential element" of an action for false arrest when the arrest is effected without a warrant. Broughton, 37 N.Y.2d at 457, 373 N.Y.S.2d at 93. Thus, it is defendants' burden to establish probable cause.

To state a claim for malicious prosecution under New York State law, "a plaintiff must prove (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." Murphy v. Lynn, 118 F.3d 938, 947 (2d Cir. 1997). Therefore, unlike false arrest, the absence of probable cause is an essential element of an action for malicious prosecution. Broughton, 37 N.Y.2d at 456-57, 373 N.Y.S.2d at 92-93. However, with respect to both claims, if defendants establish probable cause, summary judgment is appropriate.

For the purposes of Richards' malicious prosecution claim, her indictment by a grand jury creates a rebuttable presumption that there was probable cause to charge her with murder. See Bernard v. United States, 25 F.3d 98, 104 (2d Cir. 1994); see also Broughton, 37 N.Y.2d at 456, 373 N.Y.S.2d at 93 (concluding that the rebuttable presumption "applies only in causes of action for malicious prosecution and is totally misplaced when applied in false imprisonment actions"). The presumption may be overcome "only by evidence establishing that the police witnesses have not made a complete and full statement of facts either to the Grand Jury or to the District Attorney, that they have misrepresented or falsified evidence, that they have withheld evidence or otherwise acted in bad faith." Colon v. New York, 60 N.Y.2d 78, 82-83, 468 N.Y.S.2d 453, 455-56 (1983); see also Harris v. State, 2003 N.Y. App. Div. LEXIS 1260, at *4, 756 N.Y.S.2d 302 (Feb. 13, 2003) (citations omitted) (internal quotation marks omitted) ("A grand jury indictment creates a presumption of probable cause that can be overcome by a showing by claimant that the conduct of the police deviated so egregiously from acceptable police activity as to demonstrate an intentional or reckless disregard for proper procedures or, alternatively, by presenting evidence of fraud, perjury or suppression of evidence by the police."). Although the government has no constitutional obligation to present exculpatory material to a grand jury, United States v. Williams, 504 U.S. 36, 51-52 (1992), New York law thus strips an indictment of its presumptive force in a malicious prosecution action when the indictment was obtained through improper means.

Here, plaintiffs have presented evidence that Greco's memo book, in which he recorded eyewitness testimony and other testimony exculpating Richards, was not in the District Attorney's case file. (Vogelman Decl. ¶ 5) Moreover, plaintiffs have presented evidence in the form of Greco's own deposition testimony that Greco shared the contents of his memo book with another police officer and perhaps with McCann. (Vogelman Decl. Ex. 3, at 21) Thus, plaintiffs have offered evidence to support the inference that police officers withheld material information from the District Attorney. Under Colon, such evidence is sufficient to overcome the presumption of probable cause created by the indictment. See Colon, 60 N.Y.2d at 82-83; Savino v. City of New York, 168 F. Supp.2d 172, 178 (S.D.N.Y. 2001) ("It is unclear from the record whether the police defendants disclosed [exculpatory] information to the ADA or the DOI. If they did not, the failure to do so would be sufficient evidence of bad faith to rebut the presumption created by the indictment with respect to them.")

Absent the presumption, there are genuine issues of fact with respect to probable cause that preclude summary judgment on either the false arrest claim or the malicious prosecution claim. Probable cause to arrest exists "when the arresting officer has `knowledge or reasonably trustworthy information sufficient to warrant a person of reasonable caution in the belief that an offense has been committed by the person to be arrested.'" O'Neill v. Town of Babylon, 986 F.2d 646, 650 (2d Cir. 1993) (quoting Calamia v. City of New York, 879 F.2d 1025, 1032 (2d Cir. 1989)). The amount of evidence required to establish probable cause "need not reach the level of evidence necessary to support a conviction . . . but it must constitute more than rumor, suspicion, or even a strong reason to suspect." United States v. Fisher, 702 F.2d 372, 375 (2d Cir. 1983) (citations omitted) (internal quotation marks omitted). In evaluating probable cause to arrest for the purposes of a false arrest claim, the court evaluates the information available at the time of the arrest. E.g., Peterson v. County of Nassau, 995 F. Supp. 305, 313 (E.D.N.Y. 1998) (citing Anderson v. Creighton, 483 U.S. 635, 641 (1987)). The parties agree that Samantha Richards was arrested on September 13, 1995.

Probable cause to initiate criminal charges "consists of such facts and circumstances as would lead a reasonably prudent person in like circumstances to believe plaintiff guilty." Colon, 60 N.Y.2d at 82, 468 N.Y.S.2d at 455. In evaluating probable cause to prosecute for the purposes of a malicious prosecution claim, the court evaluates the information available at the time the prosecution was initiated. E.g., Rounseville v. Zahl, 13 F.3d 625, 630 (2d Cir. 1994). Where a prosecution follows a warrantless arrest, as in this case, the prosecution is initiated at the time of the first judicial proceeding, i.e., the arraignment or an indictment by a grand jury. Melia v. City of New York, 119 F. Supp.2d 232, 254 (E.D.N.Y. 2000); Broughton, 37 N.Y at 457, 373 N.Y.S.2d at 94. The grand jury indicted Samantha on two counts of murder in the second degree on September 18, 1995, five days after the arrest. (See Kitzinger Decl. Ex. W) During those five days, Conrad Davis submitted to a polygraph test; otherwise, neither party points to new information that emerged between the arrest and the indictment.

Under New York law, "the issue of probable cause is a question of law to be decided by the court only where there is no real dispute as to the facts or the proper inferences to be drawn from such facts." Parkin v. Cornell Univ., Inc., 78 N.Y.2d 523, 529, 577 N.Y.S.2d 227, 229 (1991); see also Weyant, 101 F.3d at 852 ("The question of whether or not probable cause existed may be determinable as a matter of law if there is no dispute as to the pertinent events and the knowledge of the officers."); Murphy, 118 F.3d at 947 ("Where the question of whether an arresting officer had probable cause is predominantly factual in nature, as where there is a dispute as to the pertinent events, the existence vel non of probable cause is to be decided by the jury.").

Summary judgment on the issue of probable cause may be appropriate even if the police could have taken additional steps to secure evidence or rule out alternatives. Thus, the Court of Appeals in Gisondi v. Harrison, 72 N.Y.2d 280, 532 N.Y.S.2d 234 (1988), held that the plaintiff could not recover from a town on claims of false arrest and malicious prosecution where he alleged that town officers seeking a warrant failed to disclose to the court discrepancies in the victim's identification of her attacker and then failed to investigate an alibi plaintiff gave at the time of his arrest. The Court reasoned that "the police are not obligated to pursue every lead that may yield evidence beneficial to the accused, even though they had knowledge of the lead and the capacity to investigate it." 72 N.Y.2d at 285, 532 N.Y.S.2d at 237. The Court explained:

In any investigation the police are likely to encounter discrepancies, particularly in cases involving eyewitness identification. These matters may impair their ability to prove guilt beyond a reasonable doubt at trial, but they generally have little bearing at preliminary stages where the only relevant concern is whether there is sufficient evidence to show probable cause to believe the defendant committed the crime. The police and prosecutors are not required to disclose all of their evidence in an application for an arrest warrant or at a felony hearing and are not generally required to disclose all discrepancies or potential weaknesses in the case uncovered during the investigation.
Id. (citations omitted); see also Ricciuti v. New York City Transit Auth., 124 F.3d 123, 128 (2d Cir. 1997) ("Once a police officer has a reasonable basis for believing there is probable cause, he is not required to explore and eliminate every theoretically plausible claim of innocence before making an arrest."); Krause v. Bennett, 887 F.2d 362, 372 (2d Cir. 1989) ("It would be unreasonable and impractical to require that every innocent explanation for activity that suggests criminal behavior be proved wrong, or even contradicted, before an arrest warrant could be issued with impunity.").

Nevertheless, the police may not purposely withhold or ignore exculpatory evidence that, if taken into account, would void probable cause. See Gisondi, 72 N.Y.2d at 285, 532 N.Y.S.2d at 237 (noting that police may be liable for withholding evidence where "discrepancies are so substantive that failure to disclose them would be comparable to fraud or perjury"). In Ramos v. City of New York, 285 A.D.2d 284, 729 N.Y.S.2d 678 (1st Dep't 2001), the Appellate Division thus denied summary judgment on a malicious prosecution claim against New York City's Human Resources Administration ("HPA") where the plaintiff, whose rape conviction had been vacated, presented proof that HRA had sent a report to the District Attorney omitting evidence that the child victim's physical symptoms may have been caused by masturbation or by another child's physical contact with the victim. The Ramos Court reasoned:

In the context of a malicious prosecution action, probable cause consists of such facts and circumstances as would lead a reasonably prudent person in like circumstances to believe plaintiff guilty. Although a mistake of fact as to the identity of the criminal might not void probable cause, a failure to make further inquiry when a reasonable person would have done so may evidence a lack of probable cause. New York law has long equated the civil defendant's failure to make a full and complete statement of the facts to the District Attorney or the court, or holding back information that might have affected the results, with that defendant's initiation of a malicious prosecution.
Id. at 299-300, 729 N.Y.S.2d at 690 (citations omitted)

Had Wydeia Richards made just one statement in which she identified her mother as the killer, that statement would have been sufficient to establish probable cause. See, e.g., Singer, 63 F.3d at 119 (concluding that an unequivocal identification of a suspect by an eyewitness is sufficient to provide probable cause); Carson v. Lewis, 35 F. Supp.2d 250, 260 (E.D.N.Y. 1999) (noting that eyewitness identification of a suspect provides probable cause even where it is based upon mistaken information, so long as the arresting officer reasonably relied on that information). Under Gisondi, neither Conrad Davis' conflicting statements about what he saw nor witness testimony that two men left the scene of the crime would have undermined probable cause, although such evidence might have impeded the government's case at trial.

However, based on Greco's memo book, it is apparent that Wydeia told her grandmother soon after the shooting that someone besides Richards killed O'Connor. That salient fact, as the Ramos Court put it, "might have affected the results" of the probable cause determination. Ramos, 285 A.D.2d at 299-300, 729 N.Y.S.2d at 690. Faced with Wydeia's statement exculpating Richards, and assuming as I must at this stage that all other facts would be interpreted in the light most favorable to plaintiffs, a reasonable juror could conclude that defendants lacked probable cause to arrest and prosecute Richards. In sum, this case is more like Ramos than like Gisondi.

That is not to say that Wydeia's exculpatory statement necessarily voided probable cause. Rather, summary judgment for either party is inappropriate here because there is a substantial gap between the parties' accounts of the circumstances surrounding Wydeia's two critical statements. On the one hand, plaintiffs suggest that Wydeia's statement to her grandmother exculpating Richards was a spontaneous statement made outside Richards' presence only minutes after the shooting, and was therefore reliable. Defendants, on the other hand, insinuate that Richards, who had already stuffed marijuana in her daughter's bag, instructed Wydeia to lie to the police and to tell her grandmother a story consistent with her own. A jury must evaluate the reliability of Wydeia's statement to her grandmother in its context and determine, based on that evaluation, whether defendants reasonably believed that Richards killed O'Connor at the time of the arrest and the indictment.*fn6

Plaintiffs claim also that Wydeia's statement to the police that Richards shot O'Connor was coerced. Although nothing in the transcript of Wydeia's police interview supports that claim, Wydeia has offered a sworn statement that the police "made" her implicate her mother. (See Kitzinger Decl. ¶ M) On its own, this bald assertion by a minor carries little weight. However, there is also evidence in the record that Detectives McCann and Paul, who interviewed Wydeia and Shanealya on September 12, spoke to the children before the audio tape began. At the end of the transcript of her recorded interview, Shanealya told the detectives that there was a man in the apartment on the night of the shooting. (Cohn Affirm. ¶ X) When Shanealya stated that she did not know what the man looked like, an officer responded: "Didn't you say what his hair look like?" (Id.) No explanation has been provided for the officer's reference to a prior conversation. Although it is possible that there was no prior conversation between the detectives and the children, a reasonable juror, with evidence that statements by the children that incriminated their mother were drawn from an incomplete transcript, could discount those statements.

Both Richards' arrest and her prosecution were predicated on the children's statements inculpating her. Indeed, at the time Richards was arrested and charged with O'Connor's murder, there was no forensic evidence directly supporting the theory that Richards shot O'Connor. (See Cohn Affirm. Ex. T, Prosecutor's Memo of Dismissal) Assuming that the individual defendants knew about Wydeia's statement to her grandmother — itself a disputed issue of fact in light of Greco's admission that he passed on that information to other officers — there is substantial uncertainty regarding defendants' knowledge at the time of the probable cause determination. Numerous cases support the proposition that, under such circumstances, where material facts underlying a probable cause determination are disputed, summary judgment is inappropriate. E.g., Rounseville, 13 F.3d at 630 (denying summary judgment on the issue of probable cause where the "sparse factual record" prevented the court from determining whether lay defendants could reasonably have concluded that the tax assessor plaintiffs had engaged in official misconduct); Kurschus v. Painewebber, Inc., 16 F. Supp.2d 386, 394 (S.D.N.Y. 1998) (denying summary judgment on the issue of probable cause where parties offered conflicting accounts of events underlying forcible sodomy charge that was later dismissed by the District Attorney); Parkin, 78 N.Y.2d at 529-530, 577 N.Y.S.2d at 229-230 (refusing to conclude that the issue of probable cause was an issue of law in a false arrest and malicious prosecution case where couriers charged with stealing envelopes raised factual issues as to whether departures from the university delivery documentation system were common and as to whether plaintiffs intended to return the envelopes in their possession); Lutz v. Watson, 136 A.D.2d 888, 525 N.Y.S.2d 80 (4th Dep't 1988) (concluding that where police officers investigating theft of chain saw failed to mention in their arrest warrant application a discrepancy in size between the saw seized from the plaintiff suspect and the stolen saw, or that they had a receipt indicating that the plaintiff purchased the saw, triable issues existed as to whether officers could have obtained warrant without omissions).

In this case, as in the cases cited, plaintiffs have not merely suggested that the police could have found more evidence to support their case or that a specific piece of evidence relied on by the police would not have survived closer scrutiny. Rather, plaintiffs have offered proof that defendants had evidence in their possession on September 13, 1995 that negated probable cause. A jury must decide if that proof is sufficient to meet plaintiffs' burden.

For the reasons stated above, defendants' motion for summary judgment is denied. This court has subject-matter jurisdiction over plaintiffs' federal claims. Moreover, plaintiffs have raised genuine issues of material fact that preclude summary judgment on the issue of probable cause.


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