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Vazquez v. City of New York

United States District Court, S.D. New York

September 5, 2014

JESSENIA VAZQUEZ, as administrator of the Estate of Israel Vasquez, Plaintiff,
CITY OF NEW YORK et al., Defendants.


JESSE M. FURMAN, District Judge.

Jessenia Vazquez, as administrator of the estate of her late husband Israel Vasquez ("Plaintiff"), brings this action, pursuant to Title 42, United States Code, Section 1983, against former New York City Police Department ("NYPD") Detectives Michael Donnelly and Thomas Aiello (together, "Defendants"). Plaintiff seeks damages arising from his 1996 murder conviction in New York state court, which the Appellate Division reversed in 2007 - after he had spent more than twelve years in prison - based on insufficiency of the evidence. Pending before the Court are three motions. Defendants move, pursuant to Rule 702 of the Federal Rules of Evidence, to exclude the testimony of Plaintiff's proposed expert (Docket No. 125); and move, pursuant to Rule 56 of the Federal Rules of Civil Procedure, for summary judgment (Docket No. 145). Plaintiff moves, pursuant to Rule 11 of the Federal Rules of Civil Procedure, for sanctions against Defendants based on their motion for summary judgment. (Docket No. 163). For the reasons stated below, all three motions are DENIED.


The following facts - derived from the Amended Complaint (Docket No. 37), Defendants' Answer (Docket No. 77), and the admissible material submitted by the parties with respect to the three motions - are viewed in the light most favorable to Plaintiff, the non-moving party. See, e.g., Gould v. Winstar Commc'ns, Inc., 692 F.3d 148, 157-58 (2d Cir. 2012).

A. The Murders, the Investigations, and the Prosecution

On January 17, 1995, thirty-nine-year-old Denise Raymond was murdered inside of her apartment in the Bronx. (Am. Compl. ¶ 14, 22; Decl. Shlomit Aroubas (Docket No. 147) ("Aroubas Decl."), Ex. B ("Apr. 1998 Decision") 1). Two days later, on January 19, 1995, Baithe Diop, a livery cab driver, was shot and killed inside of his taxi. (Am. Compl. ¶ 15; Apr. 1998 Decision 3). Defendant Thomas Aiello, of the 43rd Precinct Detective Squad, was assigned as the lead detective on the Raymond homicide; it was his last investigation before retirement. (Aroubas Decl., Ex. D ("Aiello Dep.") 31, 56-57, 61, 64; Aroubas Decl., Ex. E ("Donnelly Dep.") 23; see Decl. David A. Lebowitz (Docket No. 156) ("Lebowitz Decl."), Ex. 12). Defendant Michael Donnelly, also of the 43rd Precinct Detective Squad, was assigned as the lead detective; it was his second homicide investigation. (Donnelly Dep. 18, 22; see Lebowitz Decl., Ex. 12, at 46). Although he could not "recall the exact conversation" or any of the "specifics, " soon after he began investigating, Donnelly came to believe that the two crimes were linked. (Donnelly Dep. 82, 93-96, 99). A few weeks after the murders, Donnelly called Aiello and explained that he thought the homicides were related and that a witness - a sixteen-year-old named Cathy Gomez - had described to him "the people [who] were involved, " "why... it happened, " and facts "that were not reported to the public." (Aiello Dep. 94, 97, 99-100, 147-48; Dep. Non-Party Witness, Catherine Gomez ("Gomez Dep.")) 12-13; see Donnelly Dep. 21, 82, 96). After that call, Aiello and Donelly began working together; "the investigation started." (Aiello Dep. 102; Donnelly Dep. 21-22; see also Lebowitz Decl., Ex. 12).

What Defendants did and did not do as part of their investigation are hotly contested. In any event, on March 14, 1995, a grand jury in New York State Supreme Court, Bronx County, returned an indictment charging Plaintiff and six others - Eric Glisson, Michael Cosme, Cathy Watkins, Carlos Perez, Charles McKinnon, and Devon Ayers - with one or both murders. (Aroubas Decl., Ex. AA). The indictment was based in substantial part on the testimony of two civilian witnesses: Gomez and Miriam Tavares, a known drug addict. ( See Aroubas Decl., Ex. Z). Gomez testified that she had overheard Plaintiff and his co-defendants planning the murders at Cosme's house and later bragging about both murders, confirming non-public details about the murder. ( Id. at NYC14218-28, NYC14235-36). Tavares claimed that she had witnessed the Diop murder while standing on her toilet seat looking out a four-inch gap in the window - approximately three-hundred feet away from where Diop's taxi came to rest. ( Id. at NYC14148-52, NYC14154-55; see also Lebowitz Decl., Ex. 15 at V6923, V7130). Among other things, she testified that she saw Glisson and Cosme steal a radio from the taxi, Perez make a slashing gesture across his neck; and someone who looked like Plaintiff from behind. (Aroubas Decl., Ex. Z at NYC14150-51, NYC 14176; see also Lebowitz Decl., Ex. 15 at V7061-64, V7074-75, V7394, V7631).

Plaintiff and his co-defendants were tried in three separate jury trials. In the first trial, which began in December 1996, Plaintiff, Ayers, Cosme, and Perez were tried for both homicides. (Lebowitz Decl., Ex. 15 at V6100). The prosecution's theory at trial was that Raymond's murder was a contract killing carried out at the behest of McKinnon, Raymond's former boyfriend who regularly supplied drugs for Plaintiff and the others to sell. (Aiello Dep. 117; Lebowitz Decl., Ex. 15 at V6113). The prosecution's theory with respect to the Diop murder was that the defendants were carrying drugs "from one place to another, and then they shot the cabdriver." (Aiello Dep. 127; Lebowitz Decl., Ex. 15 at V6113). Gomez and Tavares both testified at the trial. (Gomez Dep. 300-01, 305; Lebowitz Decl., Ex. 15 at V6419-59, V7060-76). On February 26, 1997, the jury acquitted Plaintiff of the Diop homicide, but found him guilty of the Raymond murder. The jury found Ayers, Cosme, and Perez guilty of both murders. (Lebowitz Decl., Ex. 15 at V9120-9129; Apr. 1998 Decision 1). In the second trial, Wakins and Glisson were tried and convicted of participating in the Diop murder. (Pl.'s Mem. Law Opp'n Defs.' Mot. Summ. J. (Docket No. 157) ("Pl.'s Summ. J. Mem.") 5). On May 8, 1997, Plaintiff was sentenced to twenty-five years to life. See People v. Vasquez, 841 N.Y.S.2d 261, 261 (App. Div. 1st Dept. 2007). (Lebowitz Decl., Ex. 15 at V9154-55). The other convicted defendants were sentenced to similarly long terms of imprisonment.

In the third trial, of McKinnon alone, the tide began to turn against the prosecution. ( See Lebowitz Decl., Ex. 16). Kim Alexander, who had been Raymond's co-worker, had testified that she recalled a man, possibly Jamaican, at their workplace on the day of the murder who was waiting behind a column, "startled" her and Raymond, had an argument with Raymond, and then took the elevator and left the building with them. (Aiello Dep. 181-85). During the investigation, several detectives, including Aiello, reviewed security footage that would have recorded what Alexander recalled, but did not identify Raymond or McKinnon on the tapes. ( Id. at 186, 190-98). Aiello told ADA McCarthy that the video had negative results with respect to McKinnon; in turn, the prosecution did not turn over the tapes as potentially exculpatory material. ( Id. at 192; Lebowitz Decl., Ex. 16 at V1765-66). When the issue was raised at McKinnon's trial, the Court directed McCarthy to contact Aiello "with respect to whether or not he did or did... not have tapes at any point in time." (Lebowitz Decl., Ex. 16 at V1765, V1796). McCarthy, upon speaking with Aiello, found a videotape and turned it over. ( Id. at V1796, V1816). The Court admonished the prosecution for a "serious" failure in not turning the tapes over "sooner." ( Id. at V1817). The Court found that "the tape [w]as Brady material, " its "disclosure [was] late, " and the failure to disclose "possibly may have [a]ffected who [the defense] presented to the juries as... witnesses." ( Id. at V1818). The Court offered McKinnon a mistrial, which he declined; the jury ultimately acquitted McKinnon. ( Id. at V2153-54).

The cases against Plaintiff and the other defendants eventually unraveled too, albeit not until many years later. First, and most relevant to this case, on August 23, 2007, the Appellate Division, First Department unanimously reversed Plaintiff's conviction. Vasquez, 841 N.Y.S.2d at 261. The court wrote that "the only evidence offered by the People at trial even remotely linking [Plaintiff] to [the Raymond murder] was the testimony of an 18-year-old witness [Cathy Gomez] (she was 16 at the time of the crime)." Id. at 262. After examining her testimony, the court concluded that the prosecution's theory of the crime was "based on speculation unsupported by any credible evidence." Id. at 264. "[G]iven the insufficiency of the circumstantial evidence and the inconsistent and contradictory testimony of the witness at issue, " the court reasoned, "even viewing such testimony and comments in the light most favorable to the People and despite the great deference to be accorded to a jury's credibility determinations, there is simply nothing that could lead a rational trier of fact to conclude that defendant was proven guilty beyond a reasonable doubt of this allegedly well-planned' contract murder." Id. Approximately four days later, Plaintiff was released from prison. (Am. Compl. ¶ 20). He had served more than twelve years of his sentence. ( Id. ¶ 21).

In 2012, nearly five years after Plaintiff was released, an investigator in the United States Attorney's Office for the Southern District of New York, John O'Malley, received a letter from Glisson - who had been convicted of the Diop murder - describing the circumstances and asserting his innocence. (Lebowitz Decl., Ex. 3 ("O'Malley Aff.") ¶ 7). O'Malley "immediately recognized" Glisson's description of the murder as "matching" a robbery and shooting to which two gang members and former cooperating witnesses, Gilbert Vega and Jose Rodriguez, "had confessed" in 2003. ( Id. ). O'Malley then led an independent investigation into the murder. O'Malley confirmed that the details of Vega and Rodriguez's confession matched the details of the Diop murder. ( Id. ¶ 16; Lebowitz Decl., Ex. 9 at V10418-19; Lebowitz Decl., Ex. 10 at V10436-37). According to O'Malley, the investigation also established that Gomez and Tavares had lied to the grand jury and that Vega and Rodriguez acted alone in the Diop murder. (O'Malley Aff. ¶¶ 16-17). Plaintiff's co-defendants - that is, the other five defendants who had been convicted at the first two trials - were eventually released and their convictions vacated. (Pl.'s Summ J. Mem. 6-7).

B. The Civil Litigation

On August 20, 2010, Plaintiff filed this lawsuit. (Compl. (Docket No. 1)). Plaintiff's original co-defendants who had also been convicted, Cosme, Perez, Ayers, Watkins, and Eric Field (formerly Eric Glisson), as well as Field's daughter, Cynthia Morales, have since filed their own lawsuits, which were designated as related to this case. See Watkins v. City of New York, 14-CV-887 (JMF); Field v. City of New York, 14-CV-1378 (JMF); Cosme v. City of New York, 14-CV-1653 (JMF); Perez v. City of New York, 14-CV-1654 (JMF); Ayers v. City of New York, 14-CV-1655 (JMF); Morales v. City of New York, 14-CV-2896 (JMF). Plaintiff initially named as Defendants Donnelly, Aiello, Annabella Nieves, the NYPD, and the City of New York. (Compl. ¶¶ 6-10; Am. Compl. ¶¶ 7-11). On December 11, 2012, the Court dismissed all claims against the City of New York and the NYPD (and all claims against Aiello and Donnelly in their official capacities). (Tr. Dec. 11, 2012 (Docket No. 73), at 13-16; Order of Dec. 12, 2012 (Docket No. 70)).[1] Less than two weeks later, on December 22, 2012, Plaintiff was murdered, and his widow, Jessenia Vazquez (who apparently spells her last name differently), was substituted as plaintiff, in her capacity "as Administrator of the Estate of Israel Vasquez." (Docket Nos. 71-72, 76). On August 23, 2014, the parties stipulated to dismissal of all claims against Nieves. (Docket No. 121). The claims remaining, brought against Donnelly and Aiello in their individual capacities pursuant to Section 1983, are for malicious prosecution (Am. Compl. ¶¶ 83-94); and denial of due process and a fair trial ( id. ¶¶ 95-103).

Plaintiff's claims rely heavily on the fact that Gomez, the principal witness against him with respect to the Raymond murder, has recanted much if not all of her testimony. Specifically, in deposition testimony taken last year (the admissibility of which is discussed below), Gomez testified that she met repeatedly with Defendants before she gave her testimony; that they coerced her into giving false testimony by threatening to jail her, arrest her family, and deport her parents; and that they fed her (and Tavares, with whom they met together) non-public details about the crimes to make her testimony seem more believable. ( See, e.g., Gomez Dep. 135, 168-69, 232, 237, 273-74, 276-80, 305, 383-85; Lebowitz Decl., Ex. 5, at 977; Lebowitz Decl., Ex. 28, at 3:00-3:54, 12:19-12:40, 15:33-36). Among other things, Gomez now claims that "most of" her testimony came from the police and that Donnelly showed her pictures and told her "how [Raymond] got killed and all that." (Gomez Dep. 232, 274). In fact, Gomez stated in her deposition that she did not even know that the Raymond murder had occurred until Defendants told her about it. ( Id. at 135-36).

Relying on the results of the O'Malley investigation and Gomez's deposition testimony, among other things, Plaintiff also impeaches the testimony of Tavares, who implicated him in the Diop murder (of which he was acquitted at trial). Tavares - a known drug addict who allegedly harbored a personal bias against Glisson and did not speak English (Lebowitz Decl., Ex. 5 at V975-76; Aroubas Decl., Ex. H at 146; Aroubas Decl., Ex. Z at NYC14152-53; Gomez Dep. 251; see Pl.'s Summ. J. Mem. 10) - gave an initial statement to the police on February 1, 1995 (the only time she met with the police with an official interpreter present), in which she said nothing about Plaintiff or about seeing anyone with a gun. (Lebowitz Decl., Ex. 26 at 120 (NYC12580)). After multiple meetings with Defendants and Gomez (who served as a translator for Tavares), during which Defendants allegedly fed both women information about the Diop murder, Tavares's testimony changed to implicate Plaintiff and to include many more details. ( Compare Aroubas Decl., Ex. K at NYC4733-34, with Lebowitz Decl., Ex. 15 at V7061-62, 7074-75, V7130, V7394, V7631, and Lebowitz Decl., Ex. 26, at 120 (NYC12580), 141 (NYC5482)). According to Gomez, for example, when Tavares's narrative departed from the crime scene evidence, Donnelly told her that "[Diop] didn't [get] killed like that." (Gomez Dep. 234). After repeated meetings with Donnelly, Tavares also identified Watkins in a line-up, even though she had never seen her before. ( Id. at 83, ...

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