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Carr v. City of New York

April 19, 2013


The opinion of the court was delivered by: Shira A. Scheindlin, U.S.D.J.



Plaintiff Vincent Carr spent four and a half years in prison following his conviction for criminal possession of a controlled substance with intent to sell. Following his release from prison, Carr was subject to parole conditions. Carr successfully filed a habeas corpus petition claiming he was being held in state custody in violation of his due process rights to a fair trial. This Court granted his petition and the Second Circuit affirmed. Plaintiff filed this action, pursuant to 42 U.S.C. § 1983 ("section 1983"), against the City of New York and certain law enforcement officers alleging violations of his civil rights as a result of malicious prosecution, fabrication of false "evidence," and failure to intervene.

Defendants now move for summary judgment, seeking to dismiss the Complaint in its entirety. For the reasons stated herein, defendants' motion is granted and this case is dismissed.


A. Underlying Criminal Conduct

On February 15, 2001, Police Officer Joseph Barosa, then a member of the Street Narcotics Enforcement Unit, was surveying the vicinity of 47th Street, between Eighth and Ninth Avenues, in an "observation post."*fn1 In the field were Police Officers John G. Hawthorne and Mark MacDonnell, Detective Gregory Thornton, and Sergeant McCord.*fn2 Officer Barosa was situated on the roof of a five-story building located on the north side of 47th Street.*fn3

Carr was in the area of observation on the evening of February 15, 2001.*fn4 Officer Barosa claimed to have seen an individual, later identified as Ronald Paine, approach Carr.*fn5 Officer Barosa alleged that he observed a hand-to-hand drug sale between Carr and Paine.*fn6 Afterward, Officer Barosa stated that he observed Paine smoke what appeared to be crack cocaine from a pipe in the vestibule of a storefront.*fn7 Carr denies that he had any interaction with Paine, much less that he sold him crack cocaine.*fn8

In his grand jury testimony, Carr denied that he sold crack cocaine to Paine or anyone else. Carr explained that, earlier in the evening, he ran into a prostitute friend with whom he had previously shared drugs.*fn9 The prostitute gave Carr approximately $175 and asked him to purchase twenty bags of crack cocaine for their mutual use later that evening.*fn10 After purchasing the drugs (earlier and at a different location), Carr waited for the prostitute on the corner of 47th Street and Eighth Avenue, where he was approached by police officers.*fn11

After observing the alleged hand-to-hand sale, Officer Barosa communicated the physical description of the participants to the officers in the field.*fn12 Carr was arrested by Police Officer Hawthorne and Detective Thornton at approximately 1:12 a.m., four minutes after Paine was arrested.*fn13 Carr was searched incident to the arrest and seventeen bags of crack cocaine were recovered from his jacket pocket.*fn14 Carr and Paine were then transported to the Midtown North Police Precinct.*fn15 Later that morning, Officer Barosa signed a criminal complaint charging Carr with criminal possession of a controlled substance with intent to sell and two counts of sale of a controlled substance.*fn16

B. Procedural History

On February 23, 2001, Carr was indicted on all charges listed in the criminal complaint.*fn17 On April 4, 2001, Judge Renee A. White conducted an in camera review of the grand jury minutes and found them legally sufficient to establish the offenses charged.*fn18 On June 27, 2001, following a combined Mapp/Dunaway/Wade hearing, Judge Marcy L. Kahn found that Carr's arrest was based upon probable cause and that he was lawfully searched incident to arrest.*fn19

At the trial, the portion of plaintiff's grand jury testimony containing the admission that, on the night in question, he bought crack cocaine to share with his prostitute friend was read into the record.*fn20

At the charging conference, the trial judge denied defense counsel's request to charge the jury with the agency defense.*fn21 In summation, the prosecutor argued that Carr's concession that he intended to give the crack cocaine he purchased to his prostitute friend met the definition of "intent to sell," as defined in the jury charge.*fn22 The court instructed the jury that "sell" was defined as "to sell, exchange, give or dispose of to another or to offer or agree to do the same."*fn23
Defense counsel unsuccessfully moved for a mistrial twice on the basis of the court's refusal to charge the agency defense.*fn24 Additionally, at the conclusion of the jury charge, defense counsel once again objected to the trial court's refusal to charge the agency defense.*fn25

During deliberations, the jury sent a note which asked whether plaintiff's grand jury testimony constituted an admission of guilt in light of the definition of "intent to sell" given by the judge.*fn26 On November 7, 2001, Carr was acquitted of both sale counts but was convicted of criminal possession of a controlled substance with intent to sell in the third degree.*fn27 On December 12, 2001, Carr was sentenced to four and a half to nine years of imprisonment.*fn28 On July 29, 2004, the Appellate Division, First Department, affirmed Carr's conviction and upheld the trial judge's decision not to instruct the jury with the agency defense.*fn29 In August 2005, Carr was released from prison but remained on parole.*fn30 On August 15, 2007, this Court granted Carr's petition for habeas corpus, finding that the trial judge's decision not to charge the jury on the agency defense was in error and resulted in a violation of due process.*fn31 On December 4, 2008, the Second Circuit affirmed the grant of Carr's habeas corpus petition.*fn32

C. Causes of Action

On October 5, 2011, Carr filed the instant action against the City of New York and certain law enforcement officials. Carr alleges the following causes of action: First, Officers Barosa and Hawthorne, acting in concert and within the scope of their authority, caused Carr to be imprisoned and maliciously and criminally prosecuted without probable cause in violation of Carr's Fourth and Fourteenth Amendment Rights.*fn33 Specifically, the Officers allegedly deprived Carr of his liberty without probable cause by using "false, misleading or inherently unreliable 'evidence.'"*fn34 Second, the acts of defendants constituted malicious prosecution under the laws of the State of New York and the Fourth Amendment.*fn35

Third, defendants had an affirmative duty to intervene on behalf of Carr and failed to do so.*fn36 Carr withdrew his fourth cause of action, alleging municipal liability against the City of New York.*fn37 Carr also withdrew all of his claims against Police Officers Gregory Thornton and Mark MacDonnell and Sergeant Conor McCord.*fn38


A. Summary ...

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