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Sebastiano Cannistraci v. Rodger Kirsopp

May 16, 2012

SEBASTIANO CANNISTRACI, PLAINTIFF,
v.
RODGER KIRSOPP, INDIVIDUALLY AND AS AN AGENT, SERVANT, AND/OR EMPLOYEE OF THE STATE OF NEW YORK; JOHN DOE, WHOSE NAME IS PRESENTLY UNKNOWN, INDIVIDUALLY AND AS AN AGENT, SERVANT AND/OR EMPLOYEE OF THE STATE OF NEW YORK; AND RICHARD ROE, WHOSE NAME IS PRESENTLY UNKNOWN, INDIVIDUALLY AND AS AN AGENT, SERVANT AND/OR EMPLOYEE OF THE STATE OF NEW YORK, DEFENDANTS.



The opinion of the court was delivered by: Mae A. D'Agostino, U.S. District Judge:

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

On August 13, 2010, Plaintiff brought this action pursuant to 42 U.S.C. § 1983 alleging that Defendant violated his Fourth, Fifth, Sixth, Eighth and Fourteenth Amendment rights. See generally Dkt. No. 1. Currently before the Court is Defendant's motion for summary judgment. See Dkt. No. 21.

II. BACKGROUND

Defendant is an Investigator with the New York State Police Bureau of Criminal Investigations. See Dkt. No. 21-1 at ¶ 1.*fn1 Defendant's employment is based out of the Clifton Park Barracks (the "Barracks"). See id. at ¶ 5. Defendant's primary investigative responsibilities include the investigation of alleged felonies occurring within his Barrack's geographic region (Clifton Park, Halfmoon, Waterford, and the Mechanicville area). See id. at ¶ 7.

On March 11, 2009, the alleged victim's mother, M.N.,*fn2 and the alleged victim's twenty-year-old sister, K.N., came to the Barracks and reported a series of sexual offenses involving Plaintiff and the alleged victim. See id. at ¶ 8. M.N. and K.N. reported a sexual relationship between Plaintiff, who was fifty-nine years old at that time, and the alleged victim, a fourteen-year-old girl. See id. at ¶ 9. Defendant interviewed M.N., who informed him that her daughter had recently attempted to commit suicide and had been admitted to Ellis Hospital for treatment and counseling. See id. at ¶ 10. M.N. further informed Defendant that, while receiving treatment, the alleged victim disclosed to counselors that Plaintiff sexually abused her. See id. at ¶ 11.*fn3

When questioned regarding Plaintiff's relationship to the family, M.N. informed Defendant that Plaintiff is the ex-boyfriend of the alleged victim's aunt , Ms. G. See id. at ¶ 12. Plaintiff and Ms. G. had lived together for a period of two years, but had since ended their relationship and lived separate from one another. See id. M.N. went on to inform Defendant regarding the nature of her families' relationship with Plaintiff, as well as some details regarding some alleged incidents between Plaintiff and the alleged victim. See id. at ¶ 13.

Following his interview with M.N., Defendant spoke with K.N., who verified the information provided by M.N. See id. at ¶ 14. K.N. further informed Defendant of the following:

(1) she had located $500.00 in the alleged victim's purse; (2) Plaintiff is a flirtatious person who had made passes at her but she had dismissed them; (3) three months earlier, Plaintiff took the alleged victim and a friend to the mall and, when they returned, the alleged victim was upset and stated that Plaintiff was "weird;" and (4) she had listened to at least one recorded telephone conversation where Plaintiff stated that he "wanted to come up and have sex with" the alleged victim. See id.

That same day, Defendant conducted a "Spectrum Justice System" ("SJS") search on Plaintiff, which revealed two prior criminal infractions not related to the alleged crime. See id. at ¶ 16. Later that day, M.N. returned to the Clifton Park Barracks with the alleged victim and A.R., the alleged victim's friend. See id. at ¶ 17. Defendant then proceeded to interview the alleged victim, while Investigator Britten interviewed A.R. See id. at ¶ 18.

While Investigator Britten interviewed A.R. in another room, the alleged victim relayed the following information to Defendant:

(a) She had been having sexual relations with the plaintiff since she was twelve (12) when her aunt first met and started dating him;

(b) Her family was close with the plaintiff and he would invite them to his home for gatherings and to use his pool;

(c) The plaintiff would make comments to the alleged victim stating that she was beautiful and make comments regarding her clothing selection and would call her a "sex pot;"

(d) She thought that the plaintiff was very flirtatious and thought that it was "weird" when he would make comments. She wouldn't get uncomfortable because of the comments but knew that her aunt would get upset by them;

(e) In late June 2007, she and her family were at the plaintiff's residence to use his pool and the plaintiff came up behind her and grabbed her buttocks. At the time she was wearing a bathing suit and was located at the side of the plaintiff's home tending to his garden. She did not do anything about the incident and did not inform her parents as to the inappropriate touching.

(f) At the plaintiff's birthday party, she was passing out pizzas and dropped them to the floor. While picking them [up], the plaintiff knelt down and placed his hand up her shorts to touch her buttocks. Again, she did not tell anyone about the inappropriate touching.

(g) She had been meeting the plaintiff on her own without the knowledge of her parents. This had taken place by either she or the plaintiff calling the other to arrange a meeting, usually once per week. She would sneak out of the house by climbing out of her bedroom window, on to the roof and deck and then walk down her street towards the intersecting road. There, she would get into his car and they would drive around Clifton Park.

(h) From time to time when she would meet him he would give her money, usually around $300 and sometimes more.

(i) The plaintiff would drive her around Clifton Park, take her to Dunkin Donuts and Hannaford where she would purchase food and drinks or buy a magazine.

(j) The meetings would usually coincide with the plaintiff's soccer league that meets on Wednesdays at the Sports Plex, Clifton Park.

(k) The weekend after her school let out in 2008 the plaintiff supplied alcohol for her and her acquaintances.

(l) In the summer of 2008, just prior to leaving for a trip to New York City, the plaintiff persuaded her to meet with him so he could provide her some money for the trip. She agreed to meet with him and once her parents went to sleep, she snuck out of the house to meet with him. The plaintiff picked her up in his car and drove her to the Barney Road Clubhouse. There, he parked in the parking lot on the right side, in the first space directly across from the golf course entrance. She indicated that she did not believe it smart to park there because three cars drove by while they were sitting there. He began to speak to her by asking where her parents were, where her sister was and whether or not anyone would be looking for her. When she indicated that everyone was sleeping, he turned the conversation, stating that he couldn't wait for her to turn eighteen

(18) years old. She responded by [saying] that she too could not wait until she turned eighteen (18) because she wanted to go to parties and to go dancing. The plaintiff then told her that she was beautiful and a "sex pot." The plaintiff then stated that he wanted to have sex with her at that time. He then reached over, pulled on the seat lever and pushed on her shoulder, pushing her back in a laying position. The plaintiff then began to kiss her neck, unbutton her blouse, grab her inner thigh and pull her shorts down to mid-thigh. The plaintiff then climbed over and sat on top of her. While panting and grunting, he managed to insert his penis into her vagina. After pushing approximately two times into her vagina, she told him to stop and pushed him back causing him to strike the car visor. The plaintiff immediately got off of her and sat in the driver's seat. The plaintiff sat silent for approximately one minute, then apologized repeatedly. She told him that it was ok and to drop her off at her house. The plaintiff promised to make it up to her and then dropped her off where he had picked her up. The plaintiff then told her to keep it a secret and that he would make it up to her. She stated that she was with the plaintiff for about an hour and that his penis was approximately five (5) or six (6) inches long and was unsure if he was circumcised. The plaintiff was wearing soccer shorts and an "Italia" t-shirt.

(m) A couple of days after the sexual assault described in sub-paragraph (l), the plaintiff called her and advised that he had some money and asked how much she wanted whereby she responded that she wanted $500.00. Approximately three to four days later, the plaintiff contacted her and requested to meet her. She then met with the plaintiff on Seneca Drive where she gave him a hug and he gave her $500.00. She advised that she spent the money on clothes and various other items.

See id. at ¶ 19.

Investigator Britten's interview with A.R. yielded information that corroborated several of the alleged victim's allegations. Specifically, A.R. (1) verified the existence of the shopping trip that the alleged victim described to Defendant; (2) verified that Plaintiff drove her and the alleged victim to the shopping trip in his white SUV; (3) stated that Plaintiff inappropriately touched the alleged victim; (4) informed Investigator Britten that the alleged victim told her that Plaintiff had previously raped her and was bribing her with money; and (5) informed Investigator Britten that she and the alleged victim conducted a three-way phone call with Plaintiff that they recorded in which Plaintiff allegedly stated that he had "'both hands on [his] dick'" and requested that the alleged victim "talk dirty" to him. See id. at ¶ 22 (citation omitted). Thereafter, Investigator Britten reduced his interview with A.R. to a sworn written deposition. See id. at ¶ 23 (citations omitted).

After his initial interview, Defendant re-interviewed the alleged victim. At this later interview, the alleged victim disclosed additional incidents with Plaintiff she had not previously disclosed. See id. at ¶ 20. The alleged victim described other times when she performed oral sex on Plaintiff, often for money, and other alleged inappropriate incidents. See id.; see also Dkt. No. 22 at 59-64.

After returning home on March 11, 2009, A.R. informed her mother that the alleged victim's mother brought her to the Barracks to give a statement to Defendant. See Dkt. No. 21-3 at 197.*fn4 According to A.R.'s mother, A.R. was upset because she had lied to Defendant. See id. Further, A.R. informed her mother that she had been promised money to be a witness for the alleged victim and to lie. See id. at 199. Upon learning this, A.R.'s mother called the State Police and eventually spoke with Defendant. See id. A.R.'s mother informed Defendant that A.R. had been promised money to be a witness against Plaintiff and to lie. See id. A.R.'s mother asked Defendant to withdraw her daughter's statement in light of what was revealed. See id. at 200.*fn5

On March 12, 2009, Defendant interviewed Ms. G., the alleged victim's aunt. See Dkt. No. 21-1 at ¶ 27. Ms. G. recalled several incidents, including that, in the summer of 2006, she was driving back from New Jersey when she called Plaintiff who advised that he was at their home. See id. When Ms. G. arrived at the home, she found the alleged victim and C.S., one of the alleged victim's friends, at the house. See id. Plaintiff did not tell Ms. G. that the alleged victim was there when she called and Ms. G. recalled that both girls' parents believed that their daughters were at the mall. See id. Moreover, Ms. G. informed Defendant that Plaintiff has a mark on his penis and that it is approximately five-to-seven inches long and uncircumcised. See id. No written statement was taken from Ms. G. at that time because she was unfocused and was unsure about some of the information that she was providing. See id. at ¶ 28.

Also on March 12, 2009, Defendant re-interviewed K.N., who stated that Plaintiff had, on several occasions, made passes at her and that she had found as much as $600 in various belongings of the alleged victim's. See id. at ¶ 29. In addition to discussing several sexual advances that Plaintiff made towards her in the past, K.N. also informed Defendant that the alleged victim had played her a recorded telephone conversation in which Plaintiff stated the following: "'I am going to come up there and fuck you. Is that what you want?'" See id. K.N. indicated that the conversation made it sound like Plaintiff thought that he could improve the alleged victim's mood by having sex with her. See id.

Defendant again re-interviewed the alleged victim on March 24, 2009. See id. at ¶ 34. The alleged victim informed Defendant that the first sexual contact between herself and Plaintiff occurred in June of 2007, when she was twelve-years old. See id. Moreover, the alleged victim admitted to arranging a meeting with Plaintiff on March 22, 2009 at approximately 10:00 p.m., and advised that the purpose of the meeting was to get Plaintiff to admit to having sex with her. See id. The alleged victim also produced her cellular telephone and played Defendant her recorded messages. See id. In one of the previously recorded conversations, Plaintiff "stated that he had 'both hands on [his] dick' and referred to the alleged victim as his 'Dirty.'" See id. In the recording, Plaintiff "also requested that [the alleged victim] perform oral sex on him and she said that she couldn't." See id. On March 25, 2009, Defendant obtained the alleged victim's cellular telephone and the recorded conversations were retrieved using a micro-cassette recorder. See id. at ¶¶ 36-39.

Later in the day on March 25, 2009, Defendant contacted M.N. to make arrangements for a controlled telephone call to Plaintiff from the alleged victim's cellular telephone. See id. at ¶ 40. At 9:57 p.m., in Defendant's presence, the alleged victim contacted Plaintiff and requested that he come to her home to meet with her. See id. at ¶ 42. Plaintiff advised the alleged victim that he was drinking wine with some guys at Sports Plex, but indicated that she should contact him in thirty minutes. See id. At 10:39 p.m., the alleged victim contacted Plaintiff and again requested that Plaintiff meet her. See id. at ¶ 43. Plaintiff advised her that he was just dropping off his neighbor in Colonie, but would meet her in fifteen minutes outside of her residence in Clifton Park. See id.

At this point, Investigator Britten established vehicle surveillance of Plaintiff. See id. at ¶ 45. As Plaintiff approached the residence, Troopers Lasher and Gough executed a vehicle stop and placed Plaintiff into custody without incident. See id. Investigator Britten and Defendant interviewed Plaintiff at the Barracks starting at 11:16 p.m. See id. at ¶ 50. Upon entering the interview room, Plaintiff stated that he wanted to know who made the allegations against him. See id. Plaintiff questioned if the alleged victim's father (D.N.), M.N., or Ms. G. was behind his arrest. See id. Plaintiff stated that he had been called by the alleged victim that night and thought that she needed money, so he agreed to meet her. See id. Plaintiff continued to defend himself by alleging that he was a "nice guy" and that Ms. G. had always accused him of having a relationship with her niece, but that it was not true. See id. Defendant advised Plaintiff of his legal rights, but Plaintiff waived them and continued to speak to Defendant and Investigator Britten. See id. at ¶ 51. While defending himself, Plaintiff admitted that he was going to meet the alleged victim, but only to give her the money that she had requested. See id. At first Plaintiff admitted to having attempted to meet with the alleged victim on one other occasion without her parents' knowledge, but then admitted to having met with her on another occasion. See id. When questioned about the recorded telephone conversation in which Plaintiff stated to the alleged victim that he was masturbating, Plaintiff asked whether he needed to speak to an attorney and the interview ended. See id.

After the interview ended, Plaintiff was processed for Rape in the Second Degree. See id. at ¶ 52. Following processing, Plaintiff's person, including his genitalia, was photographed. See id. Plaintiff was then arraigned at the Clifton Park Town Court and remanded to the Saratoga County jail in lieu of $25,000 cash or $50,000 bond. See id. at ¶¶ 53-54.*fn6

In the days following Plaintiff's arrest, Defendant interviewed several other individuals, including the alleged victim's friend C.S. See id. at ¶¶ 57-61. C.S. informed Defendant that she had observed Plaintiff "kissing, grabbing and touching the alleged victim inappropriately on numerous occasions," that Plaintiff inappropriately touched her leg in the summer of 2007 when they were going to see the play "Grease" in Albany, and that Plaintiff wanted to purchase items for the alleged victim in Victoria's Secret in Crossgates Mall. See id. at ¶ ...


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