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Subgidio v. Graiani

March 16, 2006

KELVIN SUBGIDIO, PLAINTIFF,
v.
KEVIN GRAIANI, SPRING VALLEY POLICE OFFICER; DAVID HUGHES, SPRING VALLEY POLICE OFFICER; JOHN DOE A/K/A MARCIANO, SPRING VALLEY POLICE OFFICER; ANTHONY FURCO, CHIEF OF POLICE, SPRING VALLEY POLICE DEPARTMENT; RICHARD OLESZCZUK, MEMBER OF THE DETECTIVE DIVISION OF ROCKLAND COUNTY NARCOTICS TASK FORCE AGENCY; JOHN DOE A/K/A GOLDRICK SHIELD #815, MEMBER OF THE DETECTIVE DIVISION OF ROCKLAND COUNTY NARCOTICS TASK FORCE AGENCY; JAMES KRALIK, SHERIFF OF THE COUNTY OF ROCKLAND; DAVID ZAGON, ASST. DISTRICT ATTORNEY OF ROCKLAND; STEPHANIE SMALL, SENIOR ASST. DISTRICT ATTORNEY OF COUNTY OF ROCKLAND; MICHAEL BONGIORNO, DISTRICT ATTORNEY OF COUNTY OF ROCKLAND AND OVERSEER OF OPERATIONS OF ROCKLAND COUNTY NARCOTICS TASK FORCE AGENCY; WILLIAM KELLY, ROCKLAND COUNTY COURT JUDGE; EDWARD GORMAN, ROCKLAND COUNTY SUPREME AND COUNTY COURT CLERK; JOHN DOE (1-5), UNKNOWN DEFENDANTS; THE COUNTY OF ROCKLAND, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Gabriel W. Gorenstein, United States Magistrate Judge

REPORT AND RECOMMENDATION

Plaintiff Kelvin Subgidio has filed a complaint pro se asserting various claims under 42 U.S.C. § 1983 and state law. Subgidio alleges that the defendants arrested him using excessive force and without probable cause, that he was arrested based on forged arrest warrants, and that he was prosecuted based on a forged indictment. Subgidio was convicted by a jury in New York County Court, Rockland County, on October 22, 1999, of three counts of criminal sale of a controlled substance in the third degree and three counts of criminal possession of a controlled substance in the third degree.

The "State Defendants" -- consisting of the Honorable William Kelly, County Court Judge for the County of Rockland, and Edward Gorman, Clerk of the Rockland County Supreme and County Courts -- now move to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6). Richard Oleszczuk, James Kralik, David Zagon, Stephanie Small, Michael Bongiorno, and the County of Rockland (the "County Defendants") move pursuant to Fed. R. Civ. P. 12(c) and 56 for a judgment dismissing the complaint. For the following reasons, the defendants' motions to dismiss should be granted.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. The Complaint

The following facts are alleged in Subgidio's complaint, and are assumed to be true for purposes of this motion.

On April 16, 1999, Subgidio was entering the parking lot of an apartment complex in Spring Valley, New York where his infant son resided. See Civil Complaint, filed Apr. 22, 2005 (Docket #2) ("Complaint"), ¶ 27. Officer Kevin Graiani was parked in a marked police car across from the entrance of the parking lot. Complaint ¶ 28. As Subgidio entered the parking lot, Officer Graiani glared at him and made a hand gesture mimicking the shooting of a handgun; in response, Subgidio raised his middle finger at the officer. Id. ¶¶ 29-30. Subgidio entered one of the apartment buildings, and later exited carrying his infant son in a car seat. Id. ¶ 31. Upon leaving, Subgidio noticed another police cruiser occupied by Officer David Hughes. Id. ¶ 32. Officer Graiani again made the same handgun hand gesture to Subgidio, who was holding his son. Id. ¶ 33. Subgidio got in his car and "made an exaggerated showing" of securing himself with a seat belt, and securing his son in the car seat. Id. ¶ 34. Subgidio drove out of the parking lot while Officers Hughes and Graiani glared at him but did not pursue him. Id. ¶ 35.

At approximately 12:30 p.m., Subgidio returned with his son to the parking lot and parked his car. Complaint ¶ 36. As Subgidio removed the seat belt straps from his son's car seat, Officer Graiani sped into the lot and came to a halt approximately 150 feet in front of Subgidio. Id. ¶ 37. Officer Graiani jumped out of the police cruiser crouched behind the driver's side door, and pointed a gun at Subgidio, yelling, "Hands-up!" and "Don't fucking move'm Kelvin!" Id. ¶ 38 (capitalization omitted). Subgidio removed his wallet, placed it in his son's jump-suit pocket, and zippered it shut. Id. ¶ 39. After Officer Graiani repeated his order, Subgidio complied and said that his son was in the car. Id. ¶ 40. Officer Graiani ordered Subgidio to come out from behind his vehicle and towards the cruiser. Id. ¶ 41. Subgidio began complying, and told the officer that the car was his and all his papers were in order. Id. Officer Graiani said this was "not about the car or your papers Kelvin." Id. ¶ 42. When he reached Graiani, Subgidio tossed his driver's license and insurance card held together by a rubber band towards Graiani, and requested to get his infant son out of the car because the door was closed. See id. ¶ 43. Officer Graiani refused and said, "stay put or your son's a bastard Kelvin." Id. ¶ 44. Subgidio again pleaded to get his son out of the car, but Officer Graiani refused, saying, "Don't. I think you got a warrant. Don't go back to that car. Stay right fuckin' there Kelvin or I'll cap you're [sic] ass. I owe you one from last year anyway." Id. ¶¶ 45-46.

Then Officer Hughes arrived at the scene in another police cruiser, almost hitting Subgidio as he sped into the parking lot. Complaint ¶ 48. Officer Hughes came out of his cruiser and jumped onto Subgidio, who was already on the ground after falling while trying to avoid being hit by the police car. Id. ¶¶ 48-49. Subgidio was hurt by the weight of Officer Hughes, and began fighting back. Id. ¶ 50. He managed to shove and wrestle Officer Hughes off of him just as Officer Graiani attempted to tackle him. Id. ¶ 51. Subgidio pushed Officer Graiani into Officer Hughes, and then ran to open his car door to reach his son. Id. ¶ 52. Officer Hughes hit Subgidio on his right leg with a police baton as he reached the car, and Subgidio fell down screaming in severe pain. Id. ¶¶ 53-55. Both officers then beat Subgidio on the back and legs with "clubs with metal in [them] that extend out like antennae." Id. ¶ 56. Subgidio received more blows from the officers after he was handcuffed. Id. ¶ 57.

Thereafter, other Spring Valley officers arrived at the scene and began searching Subgidio's car while Officer Graiani searched his son. Complaint ¶ 58. Officer Hughes struck Subgidio and shoved him inside the back of a police car. Id. ¶ 59. Then, Subgidio's fiancée ran outside of the apartment building and demanded the release of her son. Id. ¶ 60. Officer Graiani did not release her son; instead, he removed Subgidio's wallet from the infant's pocket. Id. ¶ 61. The officer then placed the wallet, which contained $5,500, inside his own pocket. Id.

Next, Subgidio was transported to the Spring Valley Police Department. Complaint ¶ 67. Once there, he requested medical attention because he was hurt, but Officer Hughes and Graiani refused and stated:

[M]edical attention? You hurt me and you want medical attention? This ain't N.Y.C. "Homie." This be the "Valley." You'll see a doctor in Attica. Our policy here don't include medical attention for assholes. And right now that's all you are until we figure out what to charge you with.

Complaint ¶¶ 68-69. Subgidio was in severe pain from his back, the back of his head, and his right calf, which had swollen to the size of a grapefruit. Id. ¶ 73. Subgidio was booked without being told what he was being charged with, despite inquiries made to Officers Graiani and Hughes, and he was "strip searched." Id. ¶¶ 74-75. Then he was placed in a holding cell where an Officer Marciano began interrogating him. See id. ¶ 81. Marciano told Subgidio he was under arrest for the attempted murder of two police officers and possession of a stolen car. Id. ¶ 86. Marciano said, "we don't like you New York niggers up in our County. You either cooperate or be charged with a bunch of shit [that] you'll never get out of if you had Johnny Cochran himself." Id. ¶ 88. Marciano continued to interrogate Subgidio even after Subgidio repeatedly requested an attorney. See id. ¶¶ 82, 89, 92. While he was transporting Subgidio to the Rockland County Jail, Marciano kept threatening Subgidio if he did not reveal who was driving the stolen car that almost ran over Marciano and his partner, Graiani, the previous summer. Id. ¶ 91.

Once he arrived at the Rockland County Jail, Subgidio overheard Sheriff James Kralik, the Rockland County Sheriff, conversing with Officer Marciano and referring to the fact that they did not have "any paperwork on him." Complaint ¶ 94. Sheriff Kralik said, "[g]et him out of my jail until you got something to hold him with," and asked Subgidio if he was hurt and wanted medical attention. Id. ¶¶ 94, 96. Subgidio told the sheriff that he needed medical attention because he was in pain from being beaten by the officers. Id. ¶ 97. Sheriff Kralik told Officer Marciano to take him to the hospital. Id. ¶ 98.*fn1

Marciano took Subgidio to the Rockland County Narcotics Task Force Agency, whose operations were overseen by Rockland County District Attorney Michael Bongiorno. Id. ¶ 99 & p. 14. Subgidio overheard Officer Marciano telling Detective Richard Oleszczuk and another officer that there was a problem because there was no warrant and the sheriff would not take him. Id. ¶¶ 99-100 & p. 14. Oleszczuk told Officer Marciano not to worry and that a warrant could be obtained "one way or another." Id. ¶ 101 & p. 14. Officer Marciano said he would take Subgidio to the hospital to allow time for a warrant to be procured. See id. ¶ 102 & p. 14. Thereafter, Subgidio was transported to the hospital where he was treated for his injuries, and then taken back to the Rockland County Jail. Id. ¶ 105-106.

Three days later, on Monday, April 19, 1999, Subgidio was taken to the Rockland County Courthouse and brought before Judge Kelly. Complaint ¶ 107. Judge Kelly informed Subgidio that he was arrested on a warrant based on a sealed indictment that had been filed March 26, 1999, and that charged him with various narcotics offenses. Id. ¶ 108. Subgidio learned in 2004 that no such sealed indictment had been filed on March 26, 1999, and that the arrest warrant was invalid and forged. Id. ¶ 110. Subgidio alleges he was actually charged on April 16, 1999. Id. ¶ 123. The indictment charged him (falsely, he alleges) with obstructing governmental justice, aggravated assault, resisting arrest, criminal possession of a controlled substance, and criminal sale of a controlled substance. Id. Subgidio was subsequently tried before Judge Kelly, convicted on October 22, 1999, and "sentenced to an indeterminate term of imprisonment of eight to sixteen years for the drug offenses listed in the April 16, 1999 arrest report." See id. ¶¶ 132, 149. On the date of his conviction, October 22, 1999, Subgidio filed a notice of appeal to the Appellate Division. See Brief of Defendant-Appellant in People v. Subgidio, (2d Dep't) (filed Oct. 14, 2003) (available at 2003 WL 23318231).*fn2

While his direct appeal was pending, Subgidio moved pursuant to New York Criminal Procedure Law ("CPL") § 440.10(1) for an order vacating the judgment of conviction on the grounds that he was "denied the effective assistance of counsel, that his right to testify before the Grand Jury was impaired, that the prosecutor failed" to produce exculpatory materials and witness statements, "that his arrest was improper, and that the prosecutor offered false evidence." Decision & Order, dated Mar. 3, 2003 ("Judge Kelly Decision") (reproduced as Ex. A to the Affirmation of Constantine A. Speres (annexed to Notice of Motion to Dismiss Complaint, filed June 22, 2005 (Docket #6) ("State Def. Motion")), at 1. Judge Kelly denied the motion. Id. at 2.

On November 3, 2003, Subgidio's conviction was affirmed by the New York State Appellate Division, Second Department. See People v. Subgidio, 1 A.D.3d 388 (2d Dep't 2003). On March 31, 2004, the Court of Appeals denied Subgidio's application for leave to appeal. See People v. Subgidio, 2 N.Y.3d 746 (2004). On April 30, 2005, the Court of Appeals again denied leave to appeal "on reconsideration." People v. Subgidio, 4 N.Y.3d 857 (2005).

At some point after his direct appeal was decided, Subgidio sought a writ of error coram nobis to vacate his conviction on the ground of ineffective assistance of appellate counsel. On October 12, 2004, the Second Department denied the application. See People v. Subgidio, 11 A.D.3d 569 (2d Dep't 2004). On January 19, 2005, the Court of Appeals denied Subgidio's application for leave to appeal from this decision as well. See People v. Subgidio, 4 N.Y.3d 768 (2005).

While Subgidio's conviction was still on appeal in 2003, Subgidio learned of "two felony warrants for his arrest out of Spring Valley, one of which related to the case he was tried on." Complaint ¶ 120. Subgidio "later learned that the two warrants . . . were the result of the vexatious, malicious, retaliatory actions taken by Defendants Graiani, Hughes, John Doe Marciano, and Bongiorno." Id. ¶ 121. The warrants falsely accused Subgidio of "attempted assault on a police officer and criminal possession of stolen property resulting from an alleged incident wherein [Subgidio] tried to run down" Officer Graiani with his car a year before his 1999 arrest. See id. ¶ 122. Subgidio alleges that he was also falsely accused in a warrant of "obstructing governmental justice, aggravated assault, resisting arrest, criminal possession of a controlled substance [three counts], and criminal sale of a controlled substance [three counts], on April 16, 1999." See id. ¶ 123. The April 16, 1999 charges are "the very same charges named in the . . . arrest report that was suppressed by the Defendants." Id. ¶ 124.

After learning of the two warrants, Subgidio repeatedly requested Clerk Gorman to provide him with copies of the arrest warrant and indictment that led to his conviction. Complaint ¶¶ 117-18. Subgidio received a copy of the "real" indictment in 2004. Id. ¶ 114. Subgidio received copies of the arrest reports after several requests from the Spring Valley Police Department, "overseen by Defendant Furco." Id. ¶ 116. The copies Subgidio received of the warrants, the indictment, and the arrest reports revealed to him that no sealed indictment or warrant had been filed before his arrest, and that both the indictment and the warrants were "forged" documents with retroactive dates inserted in order to legitimate the grounds for the arrest listed in the arrest reports. Id. ¶¶ 110, 115, 117, 133. Subgidio attaches to his motion papers a note that Clerk Gorman sent Subgidio confirming that the warrant was not filed until April 20, 1999, and that the indictment was not filed until April 29, 1999, although Clerk Gorman's note asserts that both were signed on March 26, 1999. See Message, dated Jan. 23, 2004 (reproduced as Ex. G to Pl. Opp. Aff.); see also Complaint ¶ 145 (referring to Clerk Gorman's note). Subgidio claims that the drug offenses listed on the arrest report were the ones named in the purportedly forged indictment. See id. ¶ 133. Although the indictment is dated March 26, 1999, Subgidio seems to be claiming that the indictment was not actually created until April 19, 1999. See id.

Judge Kelly and Assistant District Attorney David Zagon allegedly conspired to withhold this fraud from Subgidio, thereby denying him access to the courts. Complaint ¶ 134. On or about April 29, 1999, Judge Kelly and Zagon had a conference at the bench regarding the indictment, which was not yet filed, and Subgidio heard Zagon ask Judge Kelly if he could amend the date of the indictment off the record. See id. ¶¶ 135-137. Subgidio ...


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