Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Collins v. City of New York

United States District Court, E.D. New York

February 15, 2013

Jabbar COLLINS, Plaintiff,
The CITY OF NEW YORK, Michael F. Vecchione, Brian Maher, Stephen Bondor, Sholom Twersky, Anthony D'Angelo, Melanie Marmer, Morgan J. Dennehy, Virginia C. Modest, and Jodi Mandel, as employees of the Kings County District Attorney's Office and Individually, and Vincent Gerecitano and Jose R. Hernandez, Individually and as Members of the New York City Police Department, Defendants.

Page 463

[Copyrighted Material Omitted]

Page 464

[Copyrighted Material Omitted]

Page 465

Joel B. Rudin, Esq., New York, NY, for the Plaintiff.

Michael A. Cardozo, Esq., Corporation Counsel by Arthur G. Larkin, Esq., Elizabeth N. Krasnow, Esq., New York, NY, for the Defendants.

Page 466


BLOCK, Senior District Judge.

Jabbar Collins was incarcerated by state authorities for more than 16 years. On June 9, 2010, Judge Irizarry of this Court issued a writ of habeas corpus ordering the dismissal of the indictment and his immediate release.

Collins now seeks damages stemming from the wrongful deprivation of his liberty. Proceeding under 42 U.S.C. § 1983 and New York law, he sues two members of the New York City Police Department (" NYPD" ), nine members of the Kings County District Attorney's Office (" KCDA" ), and the City of New York (" the City" ).

The KCDA defendants and the City move to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). The KCDA defendants argue that they are entitled to absolute immunity and that certain claims are not viable under the governing law. The City argues that Collins has not alleged a plausible case for municipal liability under either federal or state law. For the following reasons, the motion is granted in part and denied in part.


The facts are drawn from Collins's complaint. The Court must accept them as true and draw all inferences in Collins's favor. See Mills v. Polar Molecular Corp., 12 F.3d 1170, 1174 (2d Cir.1993).

A. Pre-Indictment Events

Shortly before noon on February 6, 1994, Abraham Pollack of Williamsburg was shot and killed during a robbery. Witnesses described the perpetrator as a young black man suffering a stab wound inflicted by a bystander who had come to Pollack's aid.

Police received an anonymous phone call blaming Collins for the crime. Notwithstanding alibis from his mother and girlfriend, police sought Collins for questioning. He voluntarily appeared at the 90th Precinct on February 18, 1994, whereupon he was immediately handcuffed and arrested by police officers Vincent Gerecitano and José R. Hernandez.

These two officers found no evidence of a knife wound on Collins's body. Moreover, Collins was presented to four eyewitnesses in lineups; none recognized him. After several hours of detention, Gerecitano and Hernandez released Collins.

A few days later, Edwin Oliva was booked in the precinct on an unrelated charge of attempted robbery. After several hours of interrogation, Gerecitano and Hernandez " coerced [Oliva] into signing a written statement" that, among other things, falsely accused Collins of planning to rob Pollack at gunpoint. Compl. ¶ 60. The officers offered Oliva, a heroin addict going through withdrawal, methadone treatment and possible leniency on his own charges. Oliva eventually pleaded guilty to a relatively minor charge and, after a few months' incarceration, was placed in a work-release program.

Gerecitano and Hernandez used Oliva's false statement to initiate a criminal complaint. In the complaint, Hernandez falsely stated that he had been " informed by a witness that [Collins] had robbed Pollack at gunpoint and shot him to death." Compl. ¶ 71. Hernandez further stated that a second witness " had identified [Collins] as the assailant." Id. In fact, this second witness, Paul Avery, had told police " he did not recognize [Collins] when he viewed [Collins] at a lineup." Compl. ¶ 73. Based on the complaint, Collins was picked up, arraigned on charges of murder, attempted murder and robbery, and denied bail.

Two witnesses testified before the grand jury. Angel Santos testified that he had

Page 467

seen Collins " running past the window of a furniture store, opposite the building where the shooting had occurred, while he was inside the store reporting the shooting by telephone to a police 911 operator." Compl. ¶ 80. Adrian Diaz claimed to have made a " fleeting observation of an individual, whom he identified as [Collins], leaving the building where shots had been fired." Compl. ¶ 82. The grand jury returned an indictment.

B. Post-Indictment/Pre-Trial Events

The case against Collins quickly began to unravel. First, Oliva told defendant Michael F. Vecchione— the assistant district attorney assigned to the case— as well as two KCDA investigators, defendants Brian Maher and Stephen Bondor, that his prior statement had been coerced, and that he had no knowledge of Collins's involvement in the robbery or shooting. Vecchione obtained a court order to take Oliva into custody for questioning by falsely stating that Oliva had asked to cooperate. Oliva made no such request and continued to insist that his prior statement had been coerced. Vecchione then enlisted Gerecitano, who had by then retired from the force, to help pressure Oliva into standing by his prior statement. The two threatened to prosecute Oliva for perjury and get his work release revoked " unless he adopted the false ‘ sworn’ statement contained in GERECITANO's report." Compl. ¶ 102. They made good on their threat after Oliva refused to cooperate. Vecchione then obtained an order transferring Oliva from state prison to KCDA custody. When Oliva refused to consent to the transfer— upon which the transfer order was expressly conditioned— Maher and Bondor " took custody of Oliva anyway and brought him involuntarily to VECCHIONE's [o]ffice." Compl. ¶ 116.

When Oliva arrived in Vecchione's office, he was threatened with prosecution, imprisonment, and bodily harm unless he agreed to stand by his prior statement accusing Collins of the robbery and shooting. Oliva at last complied. Vecchione had Oliva released one week later.

With respect to Santos, the ostensible 911 caller, Vecchione issued an illegal " office" subpoena requiring Santos to appear for questioning. When, like Oliva, Santos refused to appear, Maher and Bondor " found Santos and forcibly transported him to VECCHIONE's office." Compl. ¶ 124. Vecchione told Santos that if he did not cooperate, Vecchione would " hit Santos over the head with a coffee table, immediately send him to jail, keep him in prison for a long time, and prosecute him for perjury." Compl. ¶ 127. Vecchione then detained Santos under a material witness warrant he obtained under false pretenses. Santos was held in the Bronx House of Detention for a week, after which he was somehow released into KCDA custody without a court order. Santos ultimately agreed to stand by his false testimony. To cover his tracks, Vecchione manufactured false evidence that Santos had been unwilling to testify because of threats he received from Collins and his family. Santos later told authorities that the only threats he had received were from Vecchione.

Finally, Vecchione took steps to return Diaz— the other alleged witness to the perpetrator's flight— from Puerto Rico to New York. He falsely represented to a New York judge that Diaz was unlikely to return to New York voluntarily because he had been threatened. He further promised to allow Diaz to return to Puerto Rico once his testimony had been secured. Vecchione thereby obtained an order authorizing Diaz to be involuntarily returned to the state.

Vecchione also promised to " take care" of the probation violation that had caused Diaz to leave New York in the first place. Compl. ¶ 183. To do this, he told Diaz's

Page 468

probation officer that Diaz had fled because of threats from Collins's family and friends. Diaz later denied having received any threats. After some initial hesitancy, Diaz's probation officer agreed not to pursue the violation.

C. The Trial

Oliva, Santos and Diaz testified at Collins's trial. As alleged in the complaint, Vecchione did not disclose that Oliva had recanted the written statement inculpating Collins, and that the testimony of all three witnesses had been coerced. On March 13, 1995, Collins was convicted of murder, attempted murder, robbery, assault and criminal possession of a weapon; he was sentenced principally to 33-1/3 years to life in prison. The Second Department affirmed, see People v. Collins, 259 A.D.2d 758, 688 N.Y.S.2d 175 (2d Dep't 1999), and leave to appeal to the Court of Appeals was denied, see People v. Collins, 93 N.Y.2d 1016, 697 N.Y.S.2d 575, 719 N.E.2d 936 (1999).

D. FOIL Requests

Beginning shortly after he was convicted, Collins made several requests under New York's Freedom of Information Law (" FOIL" ), N.Y. Pub. Off. Law §§ 84-90. In 1995, he sought from KCDA " all statements made by Oliva, Santos, and Diaz, agreements with or promises to those witnesses, any letters the D.A.'s office wrote to the Probation Department regarding Diaz, information regarding Angel Santos' drug abuse, all witness subpoenas, all material witness applications and orders, and other materials" related to his case. Compl. ¶ 244. Defendants Anthony D'Angelo and Melanie Marmer, acting as KCDA FOIL officers, denied Collins's request on the ground that no such documents were in the office's possession.

In 1996, Collins made another request seeking " all cooperation agreements with, and promises of leniency to, Oliva, Santos, and Diaz." Id. ¶ 259. Defendants Virginia C. Modest and Sholom Twersky, also acting as FOIL officers, again represented that KCDA did not possess any such records.

In 2002, Collins made a third request, this time seeking " all subpoenas, and court and material witness orders, along with their supporting affidavits, to secure the attendance of any out of state or incarcerated witness." Id. ¶ 271 (internal quotation marks omitted). Defendant Morgan J. Dennehy repeated the office's mantra.

Finally, in 2005, Collins requested " the subpoena Vecchione obtained to have Diaz returned from Puerto Rico, the supporting affidavit, records regarding Diaz's failure to comply with the terms of his probation, and all letters between the D.A.'s Office and the Department of Probation." Id. ¶ 277 (internal quotation marks and footnote omitted). Dennehy and defendant Jodi Mandel represented that no records could be located " after an exhaustive search." Id. ¶¶ 278, 280.

Collins alleges that each of the FOIL responses he received were prepared with Vecchione's knowledge and at his direction.

E. State Collateral Proceedings

In March 2006, Collins, represented by his counsel in this action, moved to vacate his conviction and sentence.[1] In an affirmation submitted in opposition to the motion, Vecchione denied that any witness had recanted, that any witness had been coerced, and that any exculpatory material had been withheld. The state court ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.