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Fappiano v. City of New York

United States District Court, E.D. New York

January 7, 2015

THE CITY OF NEW YORK, et al., Defendants.


SANDRA L. TOWNES, District Judge.

Plaintiff Scott Fappiano, who spent more than twenty years in prison for a crime he did not commit, brings claims under 42 U.S.C. § 1983 and New York state law against New York City Police detectives Chester Stoyeck, Edward Masin, [1] John Ulsamer, Helene Gottlieb, Gerald Donohue, and Clyde Dunbar and the City of New York (together "Defendants"), alleging that their misconduct - allegedly amounting to malicious prosecution and a deprivation of his right to a fair trial - led to his wrongful conviction. Defendants move for summary judgment. For the reasons stated below, Defendants' motion for summary judgment is granted, except as to Plaintiff's state law negligence claims, over which this Court declines to exercise jurisdiction.

Legal Standard

Summary judgment is only appropriate where, considering "the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials, " Fed.R.Civ.P. 56(c), "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law, " Fed.R.Civ.P. 56(a). The role of the court is not "to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Cioffi v. Averill Park Cent. Sch. Dist. Bd. of Educ., 444 F.3d 158, 162 (2d Cir. 2006) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)); Douglas v. City of New York, 595 F.Supp.2d 333, 339 (S.D.N.Y. 2009) (citing Anderson, 477 U.S. at 252) (The role of the Court in deciding a summary judgment motion is not to ask whether "the evidence unmistakably favors one side or the other but whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented.") "Because the Court's role is limited in this respect, it may not make factual findings, determine credibility of witnesses, or weigh evidence." Douglas, 595 F.Supp.2d at 339 (citations omitted). Rather, on summary judgment, the Court must accept the "plaintiff's version [of the facts]-given under oath-as true." Id. at 340. A genuine issue of fact exists when there is sufficient "evidence on which the jury could reasonably find for the plaintiff." Anderson, 477 U.S. at 252. However, "[a] party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment, " and "[m]ere conclusory allegations or denials... cannot by themselves create a genuine issue of material fact where none would otherwise exist." Hicks v. Baines, 593 F.3d 159, 166 (2d Cir. 2010) (citation and quotation marks omitted). In determining whether there is a genuine issue of material fact, a court resolves all ambiguities and draws all justifiable inferences in favor of the non-moving party. Id. at 255.

With that standard in mind, the pertinent facts, undisputed, or where disputed considered in Plaintiff's favor, are as follows:


A. The Underlying Crime

On December 1, 1983, sometime after midnight, an armed man broke into the home of T.S. (a woman), F.S. (her husband, a police officer), and their six-month old son. (Defendants' Local Rule 56.1 Statement of Material Facts ("Defs. SOF") ¶¶ 1-3; Aug. 2-15, 1985 Trial Tr. ("1985 Tr."), 110:16-113:22.) The assailant tied F.S.'s hands behind his back with a telephone cord and forced him against a wall. (Defs. SOF ¶ 4.) The assailant then raped T.S. numerous times in various locations around the apartment, repeatedly penetrating her vaginally and forcing her to perform oral sex on him. (Id. at ¶¶ 5-10, 20, 22, 25.) Throughout the assault, the assailant was unmasked and ungloved and touched various items in the apartment. (Id. at ¶¶ 14-16, 37.) The assailant took a beer from the refrigerator and smoked a cigarette, which he put out in an ashtray next to the bed. (Id. at ¶¶ 16-18.) After the assailant ejaculated, T.S. asked the assailant if she could use the bathroom. (Id. at ¶ 29.) The assailant allowed her to leave the room and, while she was in the bathroom, T.S. wrapped herself in a towel. (Id. at ¶ 30; Plaintiff's Local Rule 56.1 Response to Defendants' Statement of Facts ("Pl. SOF") ¶¶ 29-30.) T.S. then ran out the front door of the apartment into the hall and yelled that she had been raped and to call the police. (Defs. SOF ¶¶ 30-31.) The assailant opened the front door, said "stupid bitch, " retrieved his jacket and the bottle of beer that he had been drinking, and fled the building. (Id. at ¶¶ 32-33.) After T.S. untied F.S.'s hands, he asked her "what did he look like, which way did he go?" and left to try to find the assailant. (Id. at ¶ 35; Pl. SOF ¶ 35.) T.S. went back into the apartment and put on the pair of white jogging pants and the terry cloth shirt that she had been wearing before the rape. (Defs. SOF ¶ 36.)

B. The Police Investigation

T.S. testified that fifty police officers arrived on the scene, "it was just a zoo, " and police were "yelling" questions at her, "asking, how tall, what he looked like, how tall. What color hair[?]" (1985 Tr. at 166:6-12; 163A:6-164A:2.) T.S. was taken to Lutheran Medical Center, where a doctor examined her and collected samples for a rape kit, called a "Vitullo kit." (Pl. SOF. at ¶ 44.) The Vitullo kit contained vaginal, cervical, and oral swabs, as well as slides made from those swabs. (Id. at ¶ 45.)

1. Photo Showing 1

After leaving the hospital, in the middle of the night of December 1, 1983, T.S. was interviewed by Detective Clyde L. Dunbar at the 68th Precinct Detective's Unit. (Id. at ¶ 47.) Dunbar reported that during the interview, T.S. described the assailant as soft-spoken, 5'10" tall, 160 lbs., olive complexion with dark hair, wearing old-fashioned low cut white sneakers, faded but clean blue jeans, a red and green plaid shirt, black leather jacket and keys hanging from his belt. (Id. at ¶¶ 49-50.)

Police department policy in 1983 required police officers to include in their investigation reports, referred to as "DD5s, " if a witness viewed photos of possible suspects and/or made a positive identification while viewing those photos; the policy did not require that officers describe which photos were viewed or where they came from. (Defs. Ex. RR, Gottlieb Dep. 186:17-21; Defs. Ex. L, Sciallo Dep. at 64:5-65:22.) In practice, this requirement was not "followed all the time." (Defs. Ex. L, Sciallo Dep. at 65:1-22.)

The parties dispute whether Dunbar showed T.S. any photographs that day. Dunbar's December 1, 1983 report ("DD5") indicates that T.S. did not view any photos. (Defs. SOF ¶ 56.) However, during an interview with the Internal Affairs Bureau ("IAB") that occurred after Plaintiff's conviction, Dunbar recalled showing photos of possible suspects, not including Plaintiff, to T.S. ("Photo Showing 1"). (Id. at ¶¶ 53-54; Plaintiff's Statement of Additional Facts ("Pl. Add'l SOF") ¶ 16; Ps. Ex. 18, IAB Report ¶ 20.) According to the IAB Report, Dunbar told an investigator that T.S. did not identify her assailant, but did direct Dunbar's attention to an individual who she said "resembled" the suspect. (IAB Report ¶ 20.) Dunbar did not inform an Assistant District Attorney ("ADA") of Photo Showing 1, and Photo Showing 1 was never disclosed to the defense. (Defs. SOF ¶ 57.) In a 2009 deposition, Dunbar testified that the IAB Report was mistaken and stated: "Let me make it abundantly clear, at no time did I ever show photos to [T.S]." (Defs. Ex. OO, Dunbar Dep. at 120:4-6.)

2. Photo Showing 2

The parties dispute whether T.S. viewed photographs during a second photographic lineup, later - in the middle of that night. According to Detective Frank Sciallo, Sciallo showed T.S. photos of mug shots from a file cabinet at the 68th precinct ("Photo Showing 2").[2] (Defs. SOF ¶¶ 58-59.) The cabinet contained at least one photograph of Plaintiff, and Sciallo believed that T.S. might have viewed it, but T.S. did not identify anyone as her assailant. (Id. at ¶¶ 61, 63.)

During an interview with the IAB, Sciallo stated that prior to Plaintiff's trial, he informed ADA Bonnie Nathan, who was one of the prosecutors in charge of Fappiano's prosecution, that he had shown photos to T.S. and that T.S. had "failed to identify [Plaintiff]." (Id. at ¶ 67.) Sciallo said that he did not inform any other police personnel that he had shown photos to T.S, nor did he prepare a DD-5 concerning Photo Showing 2. (Id. at ¶¶ 69-71.) However, in his October 2009 deposition, Sciallo testified that he informed Dunbar of Photo Showing 2 and expected Dunbar to include the information in his report. (Id. at ¶ 72.) Dunbar, however, did not note Photo Showing 2 in any of his reports. (Pl. Add'l SOF ¶ 20.) ADA Nathan ultimately chose not to disclose Photo Showing 2 to defense counsel. She testified that, because she did not find Sciallo credible, she independently questioned T.S. about whether T.S. had participated in Photo Showing 2, and T.S. denied that the she had been shown any photographs until Photo Showing 3. (Pl. Ex. 19, Nathan Dep. at 87:12-22, 88:8-90:25, 89:11-91:22.)[3]

3. Interview with Detective Gottlieb

At around 8:00 a.m. on December 1, 1983, T.S. described the details of the rape to Detective Helene Gottlieb, a detective in the Sex Crimes Unit who was the primary officer assigned to the case. (Defs. SOF ¶ 84; 1985 Tr. at 438:6-11.) Gottlieb testified that during that interview, T.S. was precise, clear, descriptive, and very detailed. (Pl. SOF ¶ 68.) As part of standard procedure, Gottlieb would have asked T.S. whether her assailant had any distinguishing marks or tattoos. (Id. at ¶ 70.) T.S. did not report noticing any tattoos. (Id. ) According to Gottlieb's DD5, T.S. stated that, at one point, "he pulled his pants down" and that "[e]very time after every sex act, [the assailant] would zipper his pants up and then unzip them. There were a lot of keys jingling on the left side of his pants." (Defs. SOF ¶ 87; Pl. SOF ¶ 87; Pl. Ex. 31, 12/1/83 DD5 at 2.)

4. Photo Showing 3

After the interview, Gottlieb took T.S. to look at photographs ("Photo Showing 3"). (Defs. SOF at ¶ 89.) In the 67th Precinct, thousands of photographs were organized in drawers according to height, age, and race. (Id. at ¶ 90; Wade Tr. at 34:2-5.) T.S. looked through a drawer of photos and selected one, put it aside and continued looking, and then selected a second photo. (Defs. SOF ¶¶ 91-92.) Because the photographs were both pictures of Plaintiff taken at different times, Gottlieb reported that T.S. made a positive identification. (Id. at ¶ 94; Pl. Add'l SOF ¶ 34.)

5. Collection of Physical Evidence

On December 1, 1983, the police made multiple "runs, " or visits to the crime scene to collect evidence. On the first run, which was conducted at approximately 3:25 a.m., Officer Chester Stoyeck and another officer took photographs and dusted for fingerprints. (Defs. SOF ¶¶ 117-18.) The Crime Scene Unit collected twelve usable prints from the scene, two of which were identified as T.S.'s. (Pl. Add'l SOF ¶ 87.) There were as many as thirty-one individuals present at the crime scene on December 1, 1983. (Id. ) The NYPD's Latent Print Unit compared the remaining prints to the thirty-one people who might have left prints at the scene and found no other matches. (Id. )

On the afternoon of December 1st, during a second run, Gottlieb, accompanied by T.S. and F.S., collected a bottle opener and bottle top that the assailant had touched, the jogging pants that T.S. wore immediately after the rape, a bra the assailant had sucked on, a brown towel, a white towel, and T.S.'s bed sheet. (Id. at ¶¶ 85, 99; 1985 Tr. at 374:16-377:23; Defs. SOF ¶ 120.) In addition, Detective Gerald Donohue, from the Crime Scene Unit, collected five cigarette butts: four Newport brand cigarette butts, the brand both T.S. and F.S. smoked, and one Salem brand cigarette butt, all from the ashtray next to T.S. and F.S.'s bed. (Defs. SOF ¶¶120, 124.) Gottlieb's December 1, 1983 report states that "cigarette butts allegedly smoked by the perpetrator were recovered." (Ex. 31, 12/1/83 DD5 at 4.) No contemporaneous police reports reveal any concerns about the potential usefulness of the evidence collected. T.S. and Gottlieb both testified at trial that during the second run, police officers and civilians were smoking in the apartment. (1985 Tr. at 177:9-13; 374:25-75:2.)

6. Photo Showing 4

Several days later, on December 5, 1983, at the direction of then-ADA Suzanne Melendez, [4] Gottlieb showed photo arrays to T.S. and F.S. at the Sex Crime Squad Office at the 71st precinct ("Photo Showing 4"). (Defs. SOF ¶¶ 97, 101; Wade Tr. at 13:13-25 (stating Photo Showing 4 was organized because an ADA instructed Gottlieb "there was somebody that possibly looked similar... [and] ha[d] a record for rape.").) T.S. viewed a photo array that included a photo of an individual named Richard Alexandria, who resembled Plaintiff and who had previously been arrested on rape charges. (Defs. SOF at ¶ 97.) The array did not include a photo of Plaintiff, and T.S. did not identify anyone from that array as her assailant. (Id. at ¶¶ 98-100.) F.S. viewed a photo array that contained photographs of both Plaintiff and Alexandria, as well as four other fillers; F.S. identified Plaintiff as the assailant. (Pl. SOF ¶ 102.)

7. Lineup and Arrest

The next day, on December 6, 1983, T.S. and F.S. viewed a lineup at the 71st precinct. (Defs. SOF ¶ 103.) Gottlieb did not arrest Plaintiff prior to the lineup, but rather asked him to come in voluntarily, which he did. (Pl. Add'l SOF ¶ 48.) During the days between Photo Showing 3 and the lineup, police officers had continued their investigation. (Id. ) T.S. viewed the lineup and selected Plaintiff, who was seated in position number four, as her assailant. (Defs. SOF ¶¶ 105-06.) Gottlieb escorted T.S. out of the lineup room and brought in F.S. (Pl. Add'l SOF ¶ 50.) Before F.S. entered the room, Plaintiff changed his seat and moved from position number four to position number six. (Defs. SOF ¶ 107.) The parties dispute which position F.S. selected. (Id. at ¶ 108; Pl. SOF ¶ 108.) It appears that the number originally typed on the lineup card was a "four" and was crossed out and changed to the number "five." (Defs. SOF ¶ 109.) There was an audio recording made of T.S.'s lineup viewing, but there was no recording of F.S.'s lineup viewing. After he was identified by T.S. at the lineup, Plaintiff was arrested. (Defs. SOF ¶ 112.)

8. Crime Lab Testing

In 1983, forensic testing was significantly less sophisticated than it is today. At the time, forensic scientists could test for the presence of semen in a Vitullo kit by examining a slide made from a swab under a microscope or by conducting an acid phosphatase test on a portion of the swab. (Pl. Add'l SOF ¶ 126.) If a swab tested positive for semen or sperm, forensic scientists could follow up by performing an ABO test on the remaining portion of the swab to determine the ABO blood group of the semen donor. (Id. )

In 1983, the NYPD maintained a custom or policy of fully submerging swabs from rape kits in acid phosphatase when testing for the presence of semen, thereby corrupting the sample and making subsequent ABO testing on those swabs impossible. (Id. at ¶ 123.) This practice had been criticized by Dr. Robert Shaler, who was the director of the serology laboratory at the Office of the Chief Medical Examiner of New York City ("OCME"). (Id. at ¶ 124.) Shaler testified that in late 1979 or early 1980, he realized that the NYPD was "dunking the entire swab in the special reagent" rather than using threads from the swab, "thus needlessly washing away the seminal plasma in which ABO blood groups are found and preventing any ABO blood group testing on the swabs." (Id. at ¶ 127.) Shaler received swabs sent by the NYPD lab to the OCME for further testing that were entirely purple, indicating that the entire swab had been submerged in an acid phosphatase reagent. (Id. ) Shaler promptly brought this issue to the attention of the supervisor of the NYPD serology lab, informing him that this practice prevented the OCME from performing ABO testing on the swabs. (Id. at ¶ 128.) Nevertheless, several years later, in 1983, fully submerging swabs continued to be the NYPD lab's practice.

After Plaintiff was arrested on December 6, 1983, Gottlieb contacted the NYPD Crime Lab and informed them of the arrest. (Id. at ¶ 131.) On December 7, 1983, Edward Masin, who worked in the Crime Lab, tested the Vitullo kit, jogging pants, bed sheet, and bra for the presence of sperm and semen by fully submerging samples taken from them in acid phosphatase reagent. (Id. ) Vaginal and cervical swabs from the Vitullo kit returned positive for semen, but the oral swabs did not. (Id. ) Masin also determined that sperm was present on the jogging pants that T.S. wore immediately after the attack and on the white towel that was collected from T.S.'s apartment. (Id. )

About six months later, Shaler attempted to perform ABO testing on the physical evidence but, because Masin had fully submerged the swabs, Shaler was only able to detect blood group substances on the white towel. (Id. at ¶ 132.) Shaler also detected blood group substances only on each of the cigarettes, on which Masin had not performed tests. (Defs. SOF ¶ 129.) The ABO tests that were run on the cigarettes and white towel excluded Plaintiff as the donor of the saliva on the cigarettes or the semen on the white towel. The serology tests performed indicated that the saliva on the cigarette butts and semen on the towel was from an individual with blood type A, such as F.S., and not from an individual with blood type O, such as Plaintiff.

C. Trials

T.S., F.S., and Gottlieb testified before the grand jury, which indicted Plaintiff on charges of rape in the first degree, sodomy in the first degree, sexual abuse in the first degree, burglary in the first degree, unlawful imprisonment in the first degree, and criminal use of a firearm in the first degree. (Id. at ¶¶ 114-15; Defs. Ex. W, Indictment.) Before presenting the case to the grand jury, ADA Melendez met with Gottlieb, who debriefed ADA Melendez about the investigation and discussed, without mentioning any concerns about the evidence, the white towel and cigarette butts that had been submitted for serological testing (while the results were still pending). (Pl. SOF ¶ 154; Melendez Decl. ¶¶ 1-2; Pl. Ex. 30, Melendez Dep. at 37:16-25, 38:10-19; 43:17-23.) ADA Melendez testified that she would have expected Gottlieb to reveal if there was any contamination at the crime scene "[b]ecause that's very important in terms of the case, " and she would not have expected Gottlieb to voucher and discuss "irrelevant" evidence. (Pl. Ex. 30, Melendez Dep. at 38:25-39:3; 39:4-17.) ADA Melendez introduced the white towel and cigarette butts before the grand jury so that they "could be utilized in further proceedings." (Id. at 39:18-40:2.) She further testified that if she was aware of "any problems with any of the physical evidence" she would have affirmatively brought the problems out to the grand jury. (Id. at 44:14-22.)

On October 14 and November 1, 1984, Justice Lagana of the New York Supreme Court, Kings County ("Kings County Supreme Court") conducted a Wade hearing[5] to determine the admissibility of T.S. and F.S.'s identifications of Plaintiff. (Pl. Add'l SOF ¶ 35; Wade Tr. at 215:21-216:8.) T.S. testified as follows:

A: I was going through, it was in the first drawer, I went through the whole one side, however many pictures that is, and I was about a quarter way down the second side and I stopped because I saw the picture and I said, this could be him. And I took it out and put it on the table and I held my finger there and I don't know why, I kept looking. I continued down that isle [sic] and then I got one and I said, but this is him. Then Helene came back in the room and I said, I got a problem, I think this is him but I pulled this already, I thought this was him too. And she laughed and said, They are the same one. ( Wade Tr. at 105:7-19.) Gottlieb confirmed that T.S. had made a positive identification. (Pl. Add'l SOF ¶ 34; Wade Tr. at 10:22-11:19.) At the time of the Wade hearing, the police had not disclosed Photo Showings 1 or 2 to the ADAs. (Pl. Add'l SOF ¶ 25.) Accordingly, those photo showings were not discussed. (Id. at ¶¶ 25, 33, 35.) After considering the evidence presented at the Wade hearing, Justice Lagada found T.S.'s identification testimony admissible but F.S.'s inadmissible. ( Wade Tr. at 215:21-216:8.)

At Plaintiff's first jury trial in November of 1984, among the evidence heard by the jury was: F.S. and T.S.'s testimony about the break-in and rape, T.S.'s identification testimony, testimony from Officers Donohue, Dunbar, and Gottlieb about the investigation and collection of evidence, and testimony regarding the forensic evidence from Detective Masin and Dr. Shaler. The 1984 trial ended in a mistrial. (Defs. SOF ¶¶ 162, 165.) During Plaintiff's second trial in August of 1985, the jury again heard: testimony about the break-in and rape from F.S. and T.S., identification testimony from T.S., testimony from Officers Donohue, Dunbar, and Gottlieb about the investigation, and testimony regarding the forensic evidence from one of Detective Masin's colleagues and Dr. Shaler. The 1985 trial resulted in Plaintiff's conviction for first degree rape, first degree burglary, and weapons charges. (Id. at ¶ 166.) On or around September 11, 1985, Plaintiff was sentenced to 20 5/6 to 50 years in prison. (Id. at ¶ 171.) Plaintiff appealed to the New York Supreme Court, Appellate ...

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