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Ramashwar v. Espinoza

January 5, 2006

TIKAPERSAUD RAMASHWAR, PLAINTIFF,
v.
POLICE OFFICER OTTO ESPINOZA & POLICE OFFICER VINCENT FINNEGAN, DEFENDANTS.



The opinion of the court was delivered by: Andrew J. Peck, United States Chief Magistrate Judge

OPINION AND ORDER

Plaintiff Tikapersaud Ramashwar brought this action pursuant to 42 U.S.C. § 1983 alleging malicious prosecution amounting to a constitutional violation. (Dkt. No. 1: Compl.; see Dkt. No. 19: 9/27/05 Peck Order.*fn1) Presently before this Court is defendants' motion for summary judgment (Dkt. No. 27: Notice of Motion for Summary Judgment).*fn2 The Court held oral argument, at plaintiff's request, on January 5, 2006.

The parties have consented to decision of this case by a Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Dkt. No. 20.)

For the reasons set for below, defendants motion for summary judgment is GRANTED.

FACTS

The Criminal Complaint Describing the Events Precipitating Ramashwar's Arrest

On August 8, 1999, defendant Police Officer Vincent Finnegan arrested Ramashwar. (Ramashwar Rule 56.1 Stmt. ¶ 5; Dkt. No. 23: Defs. Rule 56.1 Stmt. ¶ 5; Dkt. No. 26: Scharfstein Aff. Ex. B: Arrest Record.) Officer Finnegan attested in the criminal complaint filed against Ramashwar that he was informed by complaining witness Dennis Brown that Ramashwar hit Brown in the neck with a glass bottle and that "shortly thereafter" Ramashwar pulled out a gun and "fired a round into the air" and "pointed the gun toward complainant Brown and several other people standing alongside of him, and fired several rounds" from the gun causing Brown and others to run for cover. (Dkt. No. 41: Lichtmacher Aff. Ex. M: Finnegan Criminal Aff. at 1-2.) Officer Finnegan's criminal affidavit also stated that he was informed by another complaining witness, Jimmy Perez, that he tried to wrestle the gun away from Ramashwar and that Ramashwar shot the gun, aiming at Perez but hitting Ramashwar's father instead. (Id. at 2.) Further, Officer Finnegan attested that when he had responded to the incident location, he observed Ramashwar "in possession of a handgun shooting into a crowd of people and then further observed [Ramashwar] drop said handgun to the ground." (Id.)

The Grand Jury

Ramashwar testified before the grand jury. (Ramashwar & Defs. Rule 56.1 Stmt. ¶ 9; Scharfstein Aff. Ex. G: Ramashwar: Grand Jury Transcript ("Tr.").) According to Ramashwar, he was sitting in his backyard when a friend of his ran through his yard followed by about 20 men who were approaching Ramashwar's front yard. (Scharfstein Aff. Ex. G: Ramashwar: Grand Jury Tr. 46, 48-49, 57-58.) The crowd was led by a Hispanic man, later identified as Jimmie Perez, Sr., and approximately 9-12 people from the crowd came into Ramashwar's front yard. (Id. at 49-50.) Ramashwar came to the front yard to try to get everyone to leave. (Id. at 46, 50, 58-59.) Perez said he was looking for the person who hit someone in the head with a bottle and Perez pulled out a gun. (Id. at 46, 49-50, 58-59.) Ramashwar pushed Perez and the two men started "scrambling" while Ramashwar was telling him he had to get out of the yard. (Id. at 46-47, 51-52, 59-61.) Ramashwar's father came over and told the crowd they could not come into the yard and beat his son. (Id. at 46, 51, 52, 62-63.) Perez fired his gun twice before Ramashwar managed to knock the gun out of Perez's hand. (Id. at 51-52, 53, 55.) Ramashwar's father was hit by the first shot. (Id. at 54.) Perez and Ramashwar scrambled for the gun, and Ramashwar picked up the gun just as the police arrived and told him to drop the gun, which he did. (Id. at 52, 53-55.) The police shoved him to the ground and arrested him. (Id. at 57.) Ramashwar testified that the police refused to take a statement from him. (Id. at 56.)

Ramashwar asked Assistant District Attorney ("ADA") Maryam Lipkansky to call his neighbors as witnesses to testify to the grand jury. (Id. at 47-49, 66.) After Ramashwar left the stand, the ADA named the witnesses who Ramashwar requested be called and gave the grand jurors the chance to vote on whether they wanted to hear from them. (Id. at 66.)*fn3

Officer Finnegan testified before the grand jury. (Ramashwar Rule 56.1 Stmt. ¶¶ 10, 31.) Apparently, Officer Espinoza did not testify before the grand jury.

On October 13, 1999, the grand jury indicted Ramashwar on charges of second degree

attempted murder; second, third and fourth degree criminal possession of a weapon; second and third degree assault;*fn4 and first degree reckless endangerment. (Ramashwar & Defs. Rule 56.1 Stmt. ¶ 11; Scharfstein Aff. Ex. H: Indictment.)

Ramashwar moved to dismiss the indictment. ADA Lipkansky submitted an affidavit in opposition stating her "evaluation of the evidence, based on conversations with the complainants and several eyewitnesses . . . that the People's witnesses had been forthright" and truthful before the grand jury. (Ramashwar & Defs. Rule 56.1 Stmt. ¶ 14; Scharfstein Aff. Ex. I: ADA Lipkansky Aff. in Opposition to Motion to Dismiss Indictment at 4.)*fn5

On December 20, 1999, Supreme Court, Queens County, denied Ramashwar's motion to dismiss the indictment, finding that "upon examination of the Grand Jury minutes," there was "sufficient legal evidence" to support the indictment. (Scharfstein Aff. Ex. J: 12/20/99 Justice Grosso Order; see Ramashwar & Defs. Rule 56.1 Stmt. ¶ 15.)

Ramashwar's First Trial

In September 2000, Ramashwar was tried by a jury on the indicted charges. (See Ramashwar & Defs. Rule 56.1 Stmt. ¶ 16.) The prosecution and the defense presented two different versions of the incident to the jury.

The Prosecution Case at Trial

The prosecution's witnesses testified that they saw Ramashwar with the gun and that Ramashwar fired shots into the air and into the crowd. (Ramashwar & Defs. Rule 56.1 Stmt. ¶¶ 16-20; Scharfstein Aff. Ex. K: Brown: Tr. 237-40;*fn6 Livingston: Tr. 382-84; Perez, Jr.: Tr. 462-63, 504; Echevarria: Tr. 538-39, 542.)*fn7 Shaun Livingston, a witness at the scene, testified he heard two shots fired by Ramashwar just as the police were pulling up in their car. (Livingston: Tr. 384.) Jimmy Perez, Jr. testified that Ramashwar fired an additional shot into the air once the police had already arrived. (Perez, Jr.: Tr. 463.) Antonia Echevarria testified that two shots were fired before the police showed up. (Echevarria: Tr. 540.)

The witnesses testified that when the police arrived on the scene, Ramashwar tried to run away into his back yard and threw the gun as he was running. (Ex. K: Brown: Tr. 240; Livingston: Tr. 385; Perez, Jr.: Tr. 463.) Echevarria testified that Ramashwar fired two additional shots in the air as the police were chasing him and then just threw the gun into the air. (Ex. K: Echevarria: Tr. 541.)

Brown, the witness who was hit by the glass bottle, testified that he knew Jimmy Perez, Sr. worked for the police department. ...


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