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Blake v. Race

March 29, 2007

JEFFREY BLAKE, PLAINTIFF,
v.
MICHAEL S. RACE, RICHARD B REW, DAVID C ARBONE, AND PHILIP J. SAURMAN INDIVIDUALLY, AND JOHN DOES 1-10, POLICE OFFICERS AND SUPERVISORY OFFICERS OF THE NEW YORK CITY POLICE DEPARTMENT, INDIVIDUALLY, THE IDENTITY AND NUMBER OF WHOM IS PRESENTLY UKNOWN, DEFENDANTS.



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

MEMORANDUM AND ORDER

Plaintiff Jeffrey Blake ("Blake") filed the complaint in this action on October 19, 2001, against Sergeant Michael S. Race and Detectives Richard Brew, David Carbone, and Philip Saurman, and ten John Does*fn1 alleging violations of his rights under 42 U.S.C. § 1983, as well as pendent state law claims.

The events underlying this lawsuit relate to Blake's arrest and conviction for a double homicide that occurred in Brooklyn, New York on June 18, 1990, during which approximately 50 rounds were fired from an automatic weapon into a moving car killing Everton Denny and Kenneth Felix. A police informant, Dana Garner, claimed to have seen the shooting and was the sole witness implicating Blake in the homicides. Garner testified at Blake's 1991 trial, at which Blake was convicted and sentenced to consecutive terms of imprisonment of 18 years to life. In 1998, after Blake had been incarcerated for over eight years, the Kings County District Attorney's Office joined in Blake's motion to vacate the conviction and dismiss the indictment because it had been determined that, contrary to his trial testimony, Garner had not witnessed the crime. Although the prosecutor did not take a position on Blake's actual innocence in consenting to the motion, he acknowledged that Garner's discredited testimony was the only identification evidence linking Blake to the crime. The State Supreme Court granted the joint motion on October 29, 1998, and the conviction was vacated and the indictment dismissed. Garner now claims that, prior to Blake's arrest, he was fed details regarding the homicides by the police and pressured by the police to falsely implicate Blake in the homicides. Defendants, who were police officers involved in the investigation and prosecution of Blake, categorically deny coaching or pressuring Garner in any way, or having any knowledge at the time of Blake's arrest or trial that Garner's information and testimony were false.

Defendants now move for summary judgment on all claims. In support of their motion, defendants argue, among other things, that no reasonable juror could believe the "conclusory allegations of a self-proclaimed perjurer" like Garner about police misconduct in Blake's arrest and prosecution. (Defs.' Mem. at 38.) Specifically, defendants outline the substantial impeachment material undermining Garner's credibility, including a conclusion by a district court judge in another proceeding in 2001 that Garner is "a witness who no longer cares about the truth or falsity of his testimony." Ortega v. Duncan, No. 00- CV-4726, 2001 WL 1152805, at *12 (E.D.N.Y. Sept. 20, 2001), rev'd, 333 F.3d 102 (2d Cir. 2003). Blake counters that the Court cannot resolve the issues regarding Garner's credibility on summary judgment and, in any event, asserts that there is evidence in the record to corroborate Garner's serious allegations of police misconduct in Blake's arrest and prosecution.

For the reasons discussed below, having carefully reviewed the record, the Court finds that this case cannot be resolved by way of summary judgment; rather, a jury will need to hear Garner's testimony and the other evidence in the record to resolve the issues of fact surrounding the drastically different version of events offered by the parties in this case as it relates to Blake's arrest and prosecution. Accordingly, with the exception of the abuse of process and negligent infliction of emotional distress claims, defendants' motion for summary judgment is denied.

I. BACKGROUND

A. Facts

The facts described below are taken from the parties' depositions, declarations, affidavits, exhibits and respective Local Rule 56.1 statements of facts. Upon consideration of a motion for summary judgment, the Court shall construe the facts in the light most favorable to the non-moving party. See Capobianco v. City of New York, 422 F.3d 47, 50 (2d Cir. 2001).

In June 1990, David Carbone ("Carbone"), Richard Brew ("Brew") and Philip Saurman ("Saurman") were Detectives assigned to the New York City Police Department's 75th Precinct Detective Squad ("75th PDS") located in the East New York section of Brooklyn, New York. (Defs.' 56.1 Stmt. ¶¶ 1, 3-4; Pl.'s 56.1 Stmt. ¶¶ 1, 2-4.)*fn2 In June 1990, Michael Race ("Race") was a Sergeant assigned to the 75th PDS. (Defs.' 56.1 ¶ 2; Pl.'s 56.1 Stmt. ¶ 2.) Race had been on the police force since 1973, was promoted to Sergeant in 1984, and joined the 75th PDS in 1985. (Race Dep. at 80-81.)

1. The Denny/Felix Homicides

On June 18, 1990, at approximately 1:45 p.m., Police Officer Werner Ay ("Ay") responded to an emergency radio call at the corner of Ashford Street and Dumont Avenue in Brooklyn, New York ("Crime Scene"), located within the confines of the 75th Precinct. (Defs.' 56.1 Stmt. ¶ 5.) Ay was the first officer to respond to the scene. (Id. ¶ 6.) Ay observed two males, who had been shot, inside a car. (Id. ¶ 7.) The driver's side window of the car was almost completely open and the passenger's side window was shot out. (Id.) Ay also observed shell casings from bullets that had been ejected from an automatic pistol around the area of the car. (Id. ¶ 8.) Ay called for Emergency Medical Services ("EMS"). (Id. ¶ 9.) The male in the driver's seat, later identified as Everton Denny, was still alive at the time and was taken to Brookdale Hospital, where he was later pronounced dead. (Id. ¶ 10; Pl.'s Exs. E, N.) EMS determined that the male in the passenger's seat, later identified as Kenneth Felix, a/k/a James Grant, was dead. (Id. ¶ 11.)

On that same day, at approximately 1:47 p.m., Carbone, who was assigned to what came to be known as the "Denny/Felix homicides," went to the Crime Scene in response to a radio call concerning two males who had been shot. (Id. ¶ 12.) Carbone observed a black male, Felix, in the passenger seat, suffering from multiple gun shot wounds. (Id. ¶ 13.) At approximately 2 p.m., accompanied by Detective Smith, Carbone followed Denny to Brookdale Hospital. (Id. ¶ 14, Pl.'s 56.1 Stmt. ¶ 12-14.)

Detectives Redmond and Hall canvassed the crime scene for witnesses. (Defs.' 56.1 Stmt. ¶ 15.) At approximately 2:45 p.m., Redmond interviewed Chris Celenti ("Celenti"), a foreman for Northern Electronics who was doing work on buildings near the area. (Pl.'s Ex. E.) According to the DD-5 prepared by Redmond, Celenti stated that he heard what sounded like a tire blowing out and, when he looked out the window, he saw a car driving backward with a black male running next to the driver, shooting into the car. (Id.) Celenti described the perpetrator as a slim black male with short hair, wearing a green t-shirt and tan pants. (Id.) Carbone and Race reviewed Redmond's DD-5. (Carbone Dep. at 178; Race Dep. at 222-223.)

NYPD's Crime Scene Unit ("CSU"), which had been called to the scene at approximately 2:00 p.m., arrived at the scene at approximately 3:30 p.m. (Defs.' 56.1 Stmt. ¶ 16.) CSU did not discover a weapon at the crime scene, but CSU did recover fourteen shell casings and six deformed lead bullets, all of which were vouchered by Ay. (Id. ¶ 17.) According to CSU, the shells were all fired from the same gun, "NCCII, manufacturing designation, .9 millimeter Lugar W," and the shooter, following the car, had fired at the passenger side of the car as it was backing up.*fn3 (Id. ¶ 18; Blake Trial Tr. at 291-292.)

2. The Diaz Homicide*fn4

On June 25, 1990, at approximately 3:50 a.m., on Livonia Avenue and Hendrix Street in the confines of the 75th Precinct in Brooklyn, Lionel Diaz, Angel Narvaez, and Ricardo Betances were approached by three armed men and Diaz, Narvaez, and Betances were shot with a shotgun by one of the men. Diaz died, but Narvaez and Betances survived. (Pl.'s Ex. KK.)

3. Dana Garner Speaks with Police

On June 25, 1990, at approximately 2:00 p.m., Dana Garner ("Garner") went to the 75th PDS and met with Saurman for approximately thirty minutes while Saurman interviewed Garner and took a written statement. (Defs.' 56.1 Stmt. ¶ 19.) This interview occurred in the interview room, which adjoins the main detective squad room. (Id. ¶ 20.)

The events surrounding Garner's statements during this interview are one of the main points of contention in this case.

According to Garner, on June 25, 1990, Garner went to the 75th PDS to inquire about James Crosby's ("Crosby") sentence in a case that Detective Race and Brew had worked on, where Garner was a kidnap victim. (Garner Dep. at 9.) Garner testified at his deposition that, while he was there, Race asked Garner whether he heard about what had happened on the corner of Ashford and Dumont, to which Garner responded that he "heard that two guys had got killed." (Garner Dep. at 9.) Garner testified that he told Race that he did not know who did it. (Id.) Garner also testified that Race first mentioned Blake. (Id. at 10.) Race allegedly proceeded to describe the details of the crime, or, according to Garner, "paint[] a picture" for Garner. (Id. at 11.) According to Garner, another officer stepped into the room at some point and Race stepped out. (Id. at 12.) Blake asserts, based upon police documents, that this second officer was Saurman.*fn5 Garner testified that he told Saurman that he did not know about the Denny/Felix Homicides, but Saurman continued to question him and discuss his familiarity with Blake. (Id.) Saurman then stepped back out of the room and Race entered and closed the door behind him. (Id. at 15.) According to Garner, Race then told Garner how the police had helped him with Garner's case, and Race then instructed Garner to help them charge Blake. (Id. at 16.)

Garner stated that Race threatened to charge him if he did not help them. (Id. at 17.) Garner understood that Race wanted him to repeat the details regarding Blake's alleged involvement in the Denny/Felix Homicides. (Id. at 19.) Eventually, Race stepped out and Garner repeated the details to Saurman. (Id. at 23.)

Race and Saurman deny engaging in this alleged misconduct. According to defendants, Saurman had never previously spoken to Garner before taking his statement on June 25, 1990, and Garner told Saurman that he was on his way to a store when he saw Blake at the intersection of Dumont and Cleveland Street and was advised by Blake "to get off the block because something is getting ready to go down." (Saurman Dep. at 127; Defs.' Ex. D.) According to defendants, Garner identified Blake as the perpetrator of the Denny/Felix homicides and told Saurman that he saw a car backing down the block, with Blake "running along side . . . firing shots into the car . . . until he ran out of bullets." (Defs.' Ex. D.)

After taking Garner's statement, Saurman and another detective took Garner to the King's County District Attorney's Office to provide a taped statement. (Defs.' 56.1 Stmt ¶ 25.) With Saurman present, Garner gave a taped statement to an ADA about the Denny/Felix Homicides (hereinafter, "Garner DA Statement"). (Defs.' 56.1 Stmt. ¶ 26.) Garner told the ADA that Blake ran alongside the car as it was moving backwards and started shooting an "Uzi" into the car from the passenger's side.*fn6 (Defs.' 56.1 Stmt. ¶ 27.)

According to defendants, Carbone did not receive a copy of the Garner DA Statement or the underlying tape. (Carbone Dep. at 246.) Though Garner testified that he knew Carbone, having had conversations with him regarding the kidnapping case*fn7 (Garner Dep. at 93), Carbone testified that he first encountered Garner on June 26, 1990. (Carbone Dep. at 221-222.)

4. Arrest of Blake

On June 26, 1990, at approximately 10:00 p.m., Race, Brew, Saurman, and another detective asked Blake to accompany them to the 75th Precinct. (Defs.' 56.1 Stmt. ¶¶ 29- 30; Pl.'s 56.1 Stmt. ¶ 29.) Carbone was not working on that day and Race called him at home to tell him to come to the 75th Precinct to conduct a line-up for the Denny/Felix Homicides. (Defs.' 56.1 Stmt. ¶¶ 31-32.) That evening, in the presence of Race, Carbone conducted a line-up wherein Garner identified Blake as the perpetrator of the Denny/Felix Homicides. (Id. ¶ 33; Pl.'s 56.1 Stmt. ¶ 33; Wade Hearing Tr., at 23.) According to Garner, the detectives told him to point out Blake, stating, "I know you see him, just go ahead and point him out," reminding Garner that he was "looking in [Blake's] direction . . . leaning in his direction." (Garner Dep. at 31.)

On June 26, 1990, with Carbone present, Blake was interviewed by two ADAs. (Defs.' 56.1 Stmt. ¶ 34; Defs.' Ex. I.) Blake told the ADAs that he was at work at a place called Religious Supplies on June 18, 1990, the day of the shooting, and was at lunch at the time of the shooting. (Defs.' 56.1 Stmt. ¶ 35; Defs.' Ex. I.) Blake informed them that he was working with his boss, Bob, as well as Yvette and Dorothy, on the day of the shooting. (Defs.' Ex. I.) He also stated that he had lunch at his sister's house, provided the address, and said that his sister, her daughter, and the sister's boyfriend were present. (Id.)

The Blake scratch sheet indicates that the DA's Office authorized Blake's arrest on June 26, 1990. (Defs.' 56.1 Stmt. ¶ 36.) However, the Deputy Chief in the Homicide Bureau at the time of the incident testified that the police did not need the DA's authorization, but might discuss whether there was sufficient evidence to make an arrest. (Besunder Dep. at 152.) Blake was arrested and charged with Murder in the Second Degree. (Defs.' 56.1 Stmt. ¶ 37.) He remained in pretrial detention from that date until his trial in March 1991.

On June 27, 1990, Carbone interviewed Blake's boss, who told Carbone that on the date of the incident, Blake worked for him, clocked out for lunch, and then returned. (Carbone Dep. at 294.)

5. Garner Speaks with Brew About Ortega

Also on June 27, 1990, at approximately 5:00 p.m., Brew took a statement from Garner about the Diaz murder. (Defs.' 56.1 ¶ 40.) During that interview, Garner identified Ortega and Alejandro Ortiz as the Diaz homicide shooters.*fn8 (Defs.' 56.1 Stmt. ¶ 41.)

According to Garner, the following police misconduct took place during the interview: In the presence of Carbone and Brew, Garner told Race that he had not witnessed the shooting on the morning of June 25 and Race proceeded to feed him details about the Diaz shooting, which Garner knew he was expected to recite during a formal interview. (Garner Dep. at 45.) Race threatened Garner that the 75th Precinct officers would go after him unless he implicated Ortega in the Diaz shooting. (Id. at 46.) Though Garner first testified that Race was alone, Garner later recollected that Brew and Carbone were allegedly present when Race made those threats. (Id. at 47.) Garner then gave a statement implicating Ortega in the Diaz homicide using details that had been fed to him and identified Ortega as the Diaz shooter from a photo array and a subsequent lineup. (Garner Dep. at 33-35, 44-49, and 56-57.)

On June 28, 1990, Brew interviewed Ricardo Betances, a non-fatal victim of the shooting in which Diaz was killed, who corroborated Garner's identification of Ortega.*fn9 (Defs.' 56.1 Stmt. ¶¶ 43, 44; Pl.'s 56.1 Stmt. ¶¶ 43-44.)

6. Grand Jury Proceeding Against Blake

An ADA elicited Carbone's testimony before the Blake Grand Jury regarding the line-up Carbone conducted on June 26, 1990 in which Blake held the number four position, and testified that he placed Blake under arrest. (Defs.' 56.1 Stmt. ¶¶ 45-46.) The ADA also elicited Garner's testimony before the Blake Grand Jury. (Id. ¶ 47.) Garner testified, stating for the first time, that his girlfriend was with him at the Crime Scene when he observed Blake with an Uzi. (Defs.' 56.1 Stmt. ¶ 48.) Garner also testified that Blake approached him and advised him to, "`Do me a favor and step down the block.' Because something was getting ready to go down." (Id. ¶ 49.) Garner stated that he saw a car "back up down Ashford Avenue into Dumont" and that "as the car got to the corner, . . . Blake opened fire at the car." (Id. ¶¶ 50-51.) He further testified that "as the car was going back, . . . Blake was running alongside the passenger side of the car, continuing to shoot . . . [in] the direction of the car" and that "he was shooting to [sic] the passenger side of the car . . . into those windows." (Id. ¶¶ 52-53.) Garner testified that there were two occupants and that "a friend . . . by the name of Felix . . . was in the passenger side" and that "they were shot up very bad." (Id. ¶ 54.) He also testified regarding the line-up he viewed on June 26, 1990, in which he recognized Blake, who was holding number four, as "the shooter at the scene." (Id. ¶ 55.)

7. Blake's Criminal Trial

Blake was indicted on or about August 1, 1990 for, inter alia, Murder in the Second Degree. (Defs.' 56.1 Stmt. ¶ 56.) In the trial of People v. Jeffrey Blake, Indictment No. 7376-90 ("Blake Trial"), Garner was called to testify as a witness for the prosecution; neither Carbone, Race, Saurman, nor Brew were called to testify. (Id. ¶¶ 57-59.) Garner testified that he was staying at his grandmother's house on June 19, 1990, at the time he had witnessed Blake commit the Denny/Felix homicides. (Id. ¶ 60.) He also testified that his cousin, Otis Garry ("Garry"), also lived with their grandmother on that date. (Id. ¶ 61.)

Garry, a member of the Army National Guard, testified that whenever Garner was in New York, he stayed at Garry's house and that Garner was not staying with Garry on June 18, 1990. (Id. ¶ 62.) Garry testified that the first time he saw Garner after the Denny/Felix homicides was three days to one week later. (Id. ¶ 63.) According to Garry, after Garner arrived at his home, everyone in the house and in the neighborhood was talking about the Denny/Felix homicides, and that he himself discussed the homicides with Garner after he arrived. (Id. ¶ 64.)

Garry testified that the grocery store that Garner said he visited just before he encountered Blake on the afternoon of June 18, 1990, was only open from midnight until 7:00 a.m. (Id. ¶ 65.) He also testified that he and Garner had a verbal confrontation in the DA's office during the Blake criminal trial, in front of an ADA and two detectives employed by the DA, during which Garner admitted that he had lied to the DA and to the Grand Jury when he identified Blake as the shooter in the Denny/Felix Homicides. (Id. ¶ 66.)

Blake's criminal defense counsel, Howard Kirsch ("Kirsch"), stated in his summation to the jury that Garner was a liar not only for the reasons given by Garry, but also because Garner (1) was an admitted drug dealer who had been arrested and convicted in North Carolina several times, (2) was a convicted felon who was then serving time in jail in North Carolina, and (3) had gone to a mental institution for an evaluation to see if he was telling the truth. (Id. ΒΆ 67.) Krisch told that jury that Garner (1) could not remember what he had told the DA or the Grand Jury, at or about the time of the double homicide, (2) had testified that the shooting took place on the passenger side, when the evidence showed that the gun likely was fired from the driver's side, (3) had testified that he did not know who was in the car, but was on tape telling the DA that "Felix was in the car," and (4) had denied having been convicted of larceny and the possession of stolen property, when a transcript from North Carolina ...


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