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Crews v. County of Nassau

January 30, 2007

RAHEEM CREWS, INDIVIDUALLY AND AS PARENT OF SHAHEEM CREWS, NANCY GILYARD, PATRICK GILYARD, AND SHEMEEKA DAWSON, INDIVIDUALLY AND AS PARENT OF SHAHEEM CREWS, PLAINTIFFS,
v.
COUNTY OF NASSAU, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Joseph F. Bianco, District Judge

MEMORANDUM AND ORDER

Plaintiffs Raheem Crews and Shemeeka Dawson, as individuals and as parents of Shaheem Crews, and Nancy Gilyard and Patrick Gilyard (collectively, "plaintiffs"), bring this action against the County of Nassau (the "County"), the County Police Department, County Police Commissioner James H. Lawrence, the County Sheriff's Department, County Sheriff Edward Reilly, the District Attorney's Office, District Attorney Dennis Dillon, and several named and unnamed employees of the County, the County Police Department, the County Sheriff's Department and the District Attorney's Office (collectively, "defendants"), alleging false arrest, unlawful imprisonment, malicious prosecution, and abuse of process under 42 U.S.C. § 1983, as well as various state law tort claims, all arising from the allegedly unlawful arrest, confinement, and prosecution of Raheem Crews ("Crews").

Defendants move to disqualify Arshad Majid ("Majid") and his firm as counsel for plaintiffs. Defendants contend that Majid's continued representation of plaintiffs violates the witness-advocate rule and also presents a conflict of interest because of Majid's personal involvement as Crews' defense lawyer in the underlying criminal action that gives rise to this civil lawsuit. For the following reasons, defendants' motion is granted.

I. BACKGROUND

A. Facts

According to plaintiffs' complaint, County police arrested Crews on May 27, 2005 for his suspected participation in a robbery. The following day, Crews was arraigned on a felony complaint of robbery in the first degree. The felony complaint listed April 26, 2005 as the date of the robbery in which Crews had allegedly participated. However, the robbery actually occurred on March 26, 2005 (hereinafter, the "March 26 robbery"). Defendants argue that the original complaint listed an inaccurate date due to a "ministerial typographical error." (Defs.' Mem. at 7.) By contrast, plaintiffs argue that defendants purposefully listed an inaccurate date in order to "intentionally, maliciously and/or recklessly misle[a]d" Crews and his criminal defense counsel, Majid. (Compl. ¶¶ 87 & passim.)

Following Crews' arrest, Majid provided the County District Attorney's Office ("DA's Office") with alibi information for Crews' whereabouts on the inaccurate date listed on the original felony complaint. (Id. ¶¶ 109-10.) Subsequently, the DA's Office, in conjunction with the County police, conducted an alibi investigation based on the information provided by Majid. (Id. ¶¶ 111, 119-20.) Thereafter, according to defendants, Assistant District Attorney Kevin Higgins ("ADA Higgins") discovered that the alibi information provided by Majid and the County's alibi investigation did not address the actual date of the robbery. (Defs.' Mem. at 7.) According to defendants, ADA Higgins called Majid on July 15, 2005 and told him about the error. (Id.)

By contrast, plaintiffs assert that ADA Higgins first told Majid about the County's error on August 15, 2005. (Compl. ¶ 124.) Subsequently, according to plaintiffs, Majid contacted Crews' family later in the day on August 15, 2005 to determine Crews' whereabouts on the actual date of the robbery. (Id. ¶ 128.) Plaintiffs allege that Majid discovered an ironclad alibi for his client: Crews had been detained at a County correctional facility from March 20, 2005, to March 31, 2005, thus precluding him from participating in the robbery. (Id. ¶ 134.)

Plaintiffs allege that Majid called ADA Higgins on August 17, 2005 and told Higgins that Crews had been incarcerated at the time of the March 26 robbery, although Majid added that he had yet to confirm Crews' incarceration through documentary evidence. (Compl. ¶ 135.) Plaintiffs also allege that, on September 22, 2005, Majid spoke with another ADA assigned to Crews' case, ADA Greg Madey, and again mentioned Crews' "alibi information" for the March 26 robbery. (Id. ¶ 150.)

Defendants dispute that Majid provided this alibi information in mid-August 2005 and, instead, contend that the County was first notified of Crews' alibi on September 28, 2005.*fn1 (Defs. Mem. at 7-8.) On that date, Majid submitted a notice of alibi (the "Alibi Notice") to the state court asserting that the County Sheriff's Department will "attest that [Crews] was in . . . custody" at the time of the March 26 robbery.*fn2 (Pls.' Ex. 13.)

Certain other facts relating to when and if Crews' alibi was relayed to defendants are not in dispute. First, it is undisputed that, by fax dated August 23, 2005, the County notified Majid that Crews' case would be submitted to the grand jury, and offered Crews the opportunity to testify before the grand jury. Although Majid received the grand jury notice after the date upon which plaintiffs allege that Majid knew of Crews' alibi, Crews did not testify before the grand jury. (Compl. ¶¶ 141-42.) Subsequently, on September 8, 2005, the grand jury indicted Crews on charges of robbery in the second degree and robbery in the third degree.

Second, it is undisputed that, on September 22, 2005, Crews was arraigned on the robbery charges in state court. During the arraignment proceeding, Majid informed the court that the original felony complaint against Crews had listed an inaccurate date for the robbery and argued that "the People's case is very weak." (Defs.' Ex. G.) Although the proceeding took place after the date upon which plaintiffs allege that Majid knew of Crews' alibi, Majid failed to inform the court that Crews had been incarcerated at the time of the March 26 robbery.

Crews was released from custody on September 29, 2005, the day after Majid submitted the Alibi Notice to the Nassau County Court. The County dismissed the charges against Crews on October 17, 2005.*fn3

In the instant action, plaintiffs allege that defendants knew about and intentionally misled Crews and Majid as to the actual date of the crime, and continued to prosecute Crews despite knowing ...


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