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Frankie Pinero v. John Casey; Rockland County Narcotic Task Force

March 13, 2012


The opinion of the court was delivered by: TO The Honorable Jed S. Rakoff, U.S.D.J.


Frankie Pinero brings this action pro se pursuant to 42 U.S.C. § 1983 and state law against defendants John Casey of the Rockland County Narcotics Task Force; William J. Clark, Chief of the Rockland County Correctional Facility; Thomas Zugibe, District Attorney; Maria T. DeSimone, Senior Assistant District Attorney; and Police Officer David DelaRosa (John Doe) of the Haverstraw Town Police Department, alleging violations of his Fourth, Fifth, and Sixth Amendment rights*fn1 in connection with his arrest, criminal prosecution, and incarceration. The plaintiff asserts claims for (1) wrongful imprisonment, (2) malicious prosecution, (3) denial of an adequate law library, (4) denial of free postage while incarcerated, (5) denial of due process resulting from his segregated confinement in prison, and (6) denial of due process in connection with prison disciplinary proceedings. Mr. Pinero also asserts various state law claims. The plaintiff seeks dismissal of his criminal cases*fn2 and $2.5 billion in punitive and compensatory damages. Defendants now move under Rule 12(c) of the Federal Rules of Civil Procedure for judgment on the pleadings dismissing the plaintiff's Amended Complaint for failure to state a cause of action. For the reasons that follow, I recommend that the motions be granted.


On January 8 and January 9, 2009, Mr. Pinero allegedly sold crack cocaine to an undercover police officer but was not arrested at that time. (Indictment No. 2009-471 dated October 2, 2009 ("Indictment"), attached as Exh. C to Declaration of Robert Weissman dated August 11, 2011 ("Weissman Decl.")).

On July 1, 2009, Mr. Pinero was again arrested for selling crack. (Plaintiff's Amended Complaint dated December 23, 2010 ("Am. Compl.") at 5). The arresting officer was David DelaRosa of the Town of Haverstraw Police Department. (Affidavit of David DelaRosa dated July 1, 2009 ("DelaRosa Aff."), attached as Exh. D to Weissman Decl.). As a result of this arrest, the plaintiff was incarcerated at Rockland County Correctional Facility until September 3, 2009, when he was released on his own recognizance. (Addendum*fn3 to Am. Compl. at 2-3).

On October 2, 2009, a grand jury indicted Mr. Pinero for the January 8 and 9 drug sales, charging him with two counts of Criminal Sale of a Controlled Substance in the Third Degree under New York Penal Law ("NYPL") § 220.39, and two counts of Criminal Possession of a Controlled Substance in the Third Degree under NYPL § 220.16. (Indictment). Judge Catherine Bartlett of the County Court for Rockland County issued a warrant for Mr. Pinero's arrest the same day. (Warrant of Arrest dated October 2, 2009 ("Arrest Warrant"), attached as Exh. 1 to Plaintiff's Complaint dated June 21, 2010 ("Compl.")). On the basis of this warrant, Mr. Pinero was again arrested by Officer DelaRosa on October 7, 2009, and subsequently incarcerated at Rockland County Correctional Facility. (Add. at 3-4a*fn4 ; Am. Compl. at 7). When the plaintiff arrived at the police station, John Casey, a member of the Rockland County Narcotic Task Force, told him, "We got you once again Pinero," and displayed the warrant for his arrest. (Add. at 4a).

On November 9, 2009, the plaintiff's defense attorney filed a motion seeking various forms of relief, including dismissal of the indictment "on the grounds that the evidence presented to the grand jury failed to establish legally sufficient grounds for all counts returned or any lesser offenses."*fn5 (Notice of Motion, Indictment

No. 2009-471 dated November 9, 2009 ("Motion to Dismiss Indictment"), attached as Exh. 4 to Compl.). On January 4, 2010, Justice Kelly issued a Decision and Order denying the motion to dismiss, finding that the prosecution's presentation of evidence "was legally sufficient to support the charges within the indictment," but granting the defense request for a hearing on the admissibility of the plaintiff's past crimes or bad acts and a hearing to determine the propriety of the police identification procedures. (Decision and Order dated Jan. 4, 2010, attached as Exh. 5 to Compl., at 1-2).

On February 17, 2010, Mr. Pinero pled guilty to one count of Criminal Sale of a Controlled Substance in the Third Degree based on an agreement that the prosecution would recommend one year imprisonment. (Transcript of plea allocution dated February 17, 2010 ("Plea I"), attached as Exh. E to Weissman Decl., at 2-5). The plaintiff allocuted as follows:

[JUSTICE KELLY]: Your attorney said you wish to plead guilty to the first count of this indictment, criminal sale of a controlled substance in the third degree, a Class B felony. [MR. PINERO]: Yes, sir.

. . . . [JUSTICE KELLY]: The [prosecution] allege[s] in the County of Rockland on January 8, 2009 you sold a narcotic drug, cocaine, to another individual for a sum of currency.

Do you admit that? [MR. PINERO]: Yes. (Plea I at 3, 6). Assistant District Attorney Jessica Fein then conducted voir dire examination of the plaintiff:

[THE PROSECUTOR]: On January 8, 2009 you were on Main Street in Haverstraw, New York? [MR. PINERO]: Yes. [THE PROSECUTOR]: And at that time you sold two vials containing a substance that was cocaine for $60 United States currency to another person? [MR. PINERO]: Yes.

. . . . [THE PROSECUTOR]: Do you have any reason to refute that the substance you sold was cocaine? [MR. PINERO]: No, I don't. [THE PROSECUTOR]: You believe it to be cocaine? [MR. PINERO]: Yes.

. . . . [THE PROSECUTOR]: And you know it was unlawful to sell cocaine in the State of New York? [MR. PINERO]: Yes, ma'am. (Plea I at 6-8).

After voir dire was concluded, Mr. Pinero told Justice Kelly that he understood that the prosecution would recommend a sentence of one year. (Plea I at 9). In his Amended Complaint, the plaintiff states, "I cop-out to one year in the County Jail," explaining, "[m]y lawyer got four years down for one year." (Add. at 7, 8).

Mr. Pinero subsequently denied his guilt to the probation department, stating that he had an alibi -- namely, that he and his girlfriend were in a hotel on January 8 and 9, 2009. (Plea II at 3). He also told the probation department that "[t]he indictment is not signed and it's fabricated and bogus." (Plea II at 3). On May 12, 2010, Justice Kelly permitted the plaintiff to withdraw his guilty plea. (Plea II at 6).

On May 18, 2010, the plaintiff again pled guilty, this time on the basis of an agreement that the prosecution would recommend one year imprisonment and dismiss the unindicted case from July 1, 2009. (Plea II at 3). The plaintiff allocuted as follows:

[JUSTICE KELLY]: So your formal application will be to enter a plea of guilty to all four counts of the indictment, first and third counts, criminal sale of a controlled substance, third; second and fourth counts, criminal possession of a controlled substance, third degree, all "B" felonies, correct? [THE PROSECUTOR]: Yes. [JUSTICE KELLY]: Did you hear that, Mr. Pinero, is that what you wish to do?

[MR. PINERO]: Yes.

. . . . [JUSTICE KELLY]: So, Mr. Pinero, you understand that you're pleading guilty to all four of the "B" felonies in this indictment, correct? [MR. PINERO]: Yes, sir.

. . . . [JUSTICE KELLY]: Is it your position that you're not guilty or you're admitting that you are guilty? [MR. PINERO]: I'm admitting at this point that I am guilty. [JUSTICE KELLY]: All right. . . . [Y]ou claim[ed] that you had an alibi . . . you were with your girlfriend, is that your position now or do you ...

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