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Rosato v. New York County District Attorney's Office

December 14, 2009


The opinion of the court was delivered by: Denise Cote, District Judge


On April 9, 2009, plaintiff filed this lawsuit pursuant to 28 U.S.C. § 1983 and state tort law against the New York County District Attorney's Office ("DA's Office"), Assistant District Attorney ("ADA") John Wolfstaetter ("Wolfstaetter"), ADA William Mahoney ("Mahoney"), and ADA Nancy Ryan ("Ryan") (collectively, the "defendants").*fn1 Plaintiff, who pleaded guilty to criminal charges near the conclusion of a jury trial, principally asserts that the defendants conducted an inadequate investigation and knowingly offered false testimony against him at that trial. Defendants filed a motion to dismiss on August 3, arguing that plaintiff's plea of guilty and conviction bars this litigation. For the reasons stated herein, the motion is granted.


The following facts are taken from the complaint or from documents on which the complaint relies. Plaintiff was employed as an officer with the New York City Police Department ("NYPD") and assigned to Queens Central Booking. Despite NYPD regulations that prohibit officers from engaging in secondary employment in an investigatory capacity, plaintiff was also employed by a private investigation firm, Alpha Group Investigations ("Alpha"), as a "video specialist."

On March 18, 2004, plaintiff was assigned by Alpha to conduct video surveillance of Chris Spencer ("Spencer") and his girlfriend Victoria Hay ("Hay") at the request of Spencer's wife, Kim Spencer Swank ("Swank"). When plaintiff arrived at Hay's apartment building, he was met by the building superintendent, Warren Robateau ("Robateau"). Plaintiff told Robateau that he was a police officer and was conducting an examination of the building. Plaintiff proceeded to Hay's apartment, where he met Hay. Plaintiff showed Hay his NYPD badge and told her that he was investigating an alleged assault that had occurred the day before. Hay invited plaintiff into her apartment, where he remained for approximately five minutes. Plaintiff recorded all of the events at Hay's apartment building using a video camera.

The next day, Spencer informed his friend John Carro, Jr. ("Carro"), a former ADA with the DA's Office, about the incident. Carro contacted Swank to inquire about the incident and Swank told him that she had hired Alpha to watch Hay's apartment. Carro relayed this information to Spencer, who instructed Hay to file a police report about the incident. Hay and Robateau reported the incident to the NYPD, where they spoke with Detective Todd Heiman ("Heiman"). Carro also contacted prosecutors in the DA's Office to advise them about the March 18 incident. Prosecutors, in turn, contacted Detective Heiman to inform him about the incident.

Plaintiff was indicted on two counts of second degree burglary, one count of official misconduct, and one count of second degree criminal impersonation. Plaintiff pleaded not guilty and proceeded to a jury trial. He contends that the DA's Office knowingly relied on false and fabricated evidence at the trial.

Plaintiff alleges that NYPD officers elicited false statements from Hay and Robateau at the request of defendants.*fn2

Plaintiff contends that defendants were aware that Hay and Robateau's statements were inconsistent with the video footage taken by plaintiff and by the security cameras in Hay's apartment building, as well as other evidence, yet still used the statements in the criminal proceedings. Plaintiff alleges that defendants also tampered with both videotapes while they were in their possession and used the tampered evidence at plaintiff's trial. Plaintiff further alleges that Wolfstaetter, the prosecutor assigned to plaintiff's case, failed to conduct a complete investigation that would have uncovered exculpatory evidence, made false and inconsistent statements during trial, and intimidated potential witnesses. Plaintiff contends that he complained to several of Wolfstaetter's superiors at the DA's Office as to Wolfstaetter's failure to conduct a thorough, fair, and complete investigation.

After a two-week trial, plaintiff pleaded guilty during jury deliberations to second degree attempted burglary and official misconduct in satisfaction of all charges in the indictment. Plaintiff contends that he only accepted a plea bargain in order to escape what he expected to be a guilty verdict. On June 7, 2006, plaintiff was sentenced to five years probation and five hundred hours of community service. Plaintiff is presently serving his sentence of probation.

Plaintiff filed this lawsuit on April 9, 2009. Plaintiff's complaint alleges that defendants' conduct during the investigation and prosecution of his criminal case violated 28 U.S.C. § 1983 by depriving him of his due process rights under the Fourteenth Amendment. Specifically, plaintiff alleges that defendants "willfully and maliciously" failed to conduct a thorough and complete investigation; failed to uncover and disclose exculpatory evidence; failed to gather relevant testimony that could have mitigated the evidence of plaintiff's guilt; tampered with evidence; and relied on inconsistent statements and evidence to prosecute him. Plaintiff alleges claims under § 1983 for malicious prosecution, fabrication of evidence, and failure to investigate. In addition, plaintiff alleges that the DA's Office and defendants Mahoney and Ryan are liable for the alleged due process violations under a theory of supervisory liability. Plaintiff's complaint also alleges claims under New York tort law, including prima facie tort, negligence, gross negligence, and negligent hiring, retention, and supervision. Plaintiff seeks monetary damages, attorneys' fees, and equitable relief in the form of disciplinary action against defendants.

On August 3, defendants filed a motion to dismiss. Defendants argue, inter alia, that plaintiff's § 1983 claims challenge the validity of his conviction and are thus barred by Heck v. Humphrey, 512 U.S. 477 (1994).*fn3 Defendants also argue that plaintiff's state law claims must be dismissed for failure to abide by N.Y. Gen. L. §§ 50-e, 50-i. The motion was fully submitted on October 1.


The complaint alleges claims pursuant to 28 U.S.C. ยง 1983 based on malicious prosecution and other violations of plaintiff's due process ...

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