Searching over 5,500,000 cases.


searching
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.

Bailey v. City of N.Y.

United States District Court, E.D. New York

January 15, 2015

CLARENCE BAILEY, Plaintiff,
v.
THE CITY OF NEW YORK, JOSEPH TALLARINE, MICHAEL O'KEEFE, and MICHAEL COLLINS (individually and as members of the New York City Police Department), and JOHN DOES #1-10, Defendants

Page 425

[Copyrighted Material Omitted]

Page 426

[Copyrighted Material Omitted]

Page 427

[Copyrighted Material Omitted]

Page 428

[Copyrighted Material Omitted]

Page 429

[Copyrighted Material Omitted]

Page 430

[Copyrighted Material Omitted]

Page 431

For Clarence Bailey: Joshua Douglas Kelner Ronald C. Burke, Kelner & Kelner, Esqs., New York, NY.

For The City of New York, Joseph Tallarine, Michael O'Keefe, Michael Collins, John Does #1-10: Alexandra Corsi, Duane G. Blackman, New York City Law Department, Office of the Corporation Council, New York, NY.

Page 432

MEMORANDUM & ORDER

Jack B. Weinsteink, Senior United States District Judge.

Table of Contents

I. Introduction

II. Facts

A. Crime

B. Investigation

C. Bailey's Arrest and Interrogation

D. Grand Jury Indictment

E. Preparation for Trial

F. Trial

G. Jury Verdict

H. Conviction Overturned

I. Witness Recantation

J. District Attorney's Alleged Policy

Withholding Disclosure of Brady

Materials

III. Summary Judgment Standard

IV. Section 1983

A. Statute

B. Three-Year Statute of Limitations

1. Equitable Tolling

2. Equitable Estoppel

V. Law

A. Municipal Liability Standard

1. Failure to Train, Discipline or Supervise

2. Widespread Unlawful Practices by

Subordinates

B. False Arrest under Fourth Amendment

1. Statute of Limitations

2. Standard

C. Denial of Due Process and Right to a

Fair Trial under the Fifth, Sixth and

Fourteenth Amendments

1. Statute of Limitations

2. Standard

D. Malicious Prosecution under Fourth

Amendment and State Law

1. Statute of Limitations

2. Standard

E. State Law Respondeat Superior

1. Statute of Limitations

2. Standard

F. Qualified Immunity

G. Notice of Claim Requirement under

General Municipal Law

VI. Application of Facts to Law

A. Municipal Liability

B. False Arrest

C. Right to a Fair Trial

1. Accrual Date

2. Merits

D. Malicious Prosecution under

Federal and State Law

1. Accrual Date

2. Merits

VII. Conclusion

Page 433

I. Introduction

This case involves charges of serious misconduct by the District Attorney of Kings County and three detectives. It will be tried by a jury.

On January 14, 2013, after four years of incarceration, Clarence Bailey's conviction for the attempted murder of Terrance Villanueva on May 6, 2007, which resulted in a twenty-year sentence, was reversed by the New York Supreme Court, Appellate Division, Second Department, as against the weight of the evidence.

Freed, Bailey now claims that the detectives and the assistant district attorney (" ADA" ) assigned to his case committed serious infractions during the course of the criminal investigation and trial by threatening and coaching witnesses, and withholding critical exculpatory information.

Murky details surround the homicide of Luis Ruiz and the attempted homicide of Villanueva: More than a score of alcohol- and marijuana-intoxicated people--some armed with dangerous weapons--brawled in the darkness of early morning, so reliable witnesses were likely to be unavailable; and the police investigation may have been inadequate, and possibly rigged. Cf. 4 J. Wigmore, Evidence § 2251, at 827 (1923) (dangers of miscarriage of justice when police coerce witnesses and fail to properly investigate).

Bailey argues that he was falsely arrested, denied the right to a fair trial, and maliciously prosecuted by NYPD detectives Joseph Tallarine, Michael O'Keefe, and Michael Collins. He contends that other unconstitutional acts by ADA Howard Jackson were attributable to the policies of a former Kings County District Attorney, creating a Monell cause of action against the City of New York.

The City's motion for summary judgment with respect to Monell liability is denied.

Defendants' motion for summary judgment regarding the false arrest claim is granted. The statute of limitations has run.

Plaintiff's fair trial and malicious prosecution claims withstand summary judgment. The statute of limitations has not yet accrued on these claims.

Page 434

II. Facts

A. Crime

Evidence to date, analyzed most favorably for plaintiff, shows the following: On the evening of May 5, 2007, Bailey, who has a scar running from his forehead to his chin on the right side of his face and, at the time, sported a goatee, went to the Groove Lounge, a bar/club, in Brooklyn, to watch a boxing match. (Corsi Decl. Ex. A ¶ 18, ECF No. 59-1 (" Compl." ); see also Bailey 50-h Hr'g Tr. 12:11-13, 12:23-25, 13:9-12, 25:7-26:15, ECF No. 62-1.) Some thirty patrons were in the club, including Kalieb Miller (a/k/a " Milk and Pie" ). (Compl. ¶ 18; Villanueva Grand Jury Test. 7:11-13, ECF No. 63-27.)

Upset by the way people were looking at his jewelry, Miller called his friend Terrance Villanueva (a/k/a " Brick" ) to come to the club and start a fight. ( Id. at ¶ ¶ 19-21; see also Villanueva Grand Jury Test. 7:8-25; Villanueva Dep. 50:16-18, ECF No 63-20.) Responding to the call, Villanueva and others arrived. (Bryant V.S. 2-4, ECF No. 63-11; Villanueva Grand Jury Test. 8:17-24.) Ruiz, the murder victim, was already there. (Bryant V.S. 3.) Confusion ensued. (Villanueva Grand Jury Test. 9:3-10:3.)

Villanueva, who had been drinking and was high--in his words, " fucked up" --arrived at the Groove Lounge accompanied by seven men. (Villanueva Grand Jury Test. 7:6-7, 8:9-15; see also Villanueva Dep. 21:20-22:5; Villanueva Aff. ¶ 7, ECF No. 63-24; Corsi Decl. Ex. D 3, 5, ECF No. 59-1 (" Villanueva V.S. Tr." ).) After midnight, on May 6, a fight broke out involving about twenty people. (Bailey 50-h Hr'g Tr. 25:9-15, 30:16-18.) Someone cut Bailey's face. (Bailey 50-h Hr'g Tr.12:16-13:8; Mitchell Dep. 199:8-13, ECF No. 63-45.) To deal with the bleeding, Bailey went to the men's restroom with Karieem Mitchell (a/k/a " Squeaky" ). (Bailey 50-h Hr'g Tr. 32:18-21, 36:20-21; Mitchell Dep. 66:10-16, 201:4-6.) Bailey was still in the restroom when the fight moved outside. (Compl. ¶ 24; see also Bailey 50-h Hr'g Tr. 36:6-7, 36:20-24, 37:25-38:3; Mitchell Dep. 208:14-16.) Villanueva, Ruiz, and others, were pushed out of the club by " bouncers." (Compl. ¶ 24; see Villanueva V.S. Tr. 12-13.)

Outside, a man pointed a silver automatic handgun at Villanueva and pulled the trigger. (Villanueva V.S. Tr. 15, 18, 20; Villanueva Grand Jury Test. 11:6-7.) The gun did not fire. (Villanueva V.S. Tr. 16; Villanueva Grand Jury Test. 11:8, 12:4-8.) Bailey heard gunshots as he was leaving the restroom. (Bailey 50-h Hr'g Tr. 36:22-24.)

Villanueva and Ruiz ran. (Compl. ¶ 25; see also Villanueva V.S. Tr. 16.) According to Kenneth Bryant, an eyewitness, Ruiz tripped and fell. (Bryant V.S. 7-9.) As he lay on the sidewalk, a man with a handgun shot Ruiz several times. ( Id. at 9; see also Villanueva Grand Jury Test. 12:20-13:2, 13:10-14:9; Villanueva Dep. 7:14-23.) The shooter left. ( See id.) Ruiz died before he reached the emergency room. (Complaint Follow-Up Police Reports 7, ECF Nos. 63-13 & 63-14 (" Police Reports" ).)

Later that day, Bryant informed ADA Jonathan Kaye and defendant detective Tallarine that the person firing the fatal shots was wearing a black hooded sweatshirt and jeans. (Bryant V.S. 8; see also Police Reports 21.) Christopher Griffin (a/k/a " Six" ), who had been stabbed in the face, shoulder, and both arms during the fight, urinated on Ruiz. (Griffin V.S. 3, 7, ECF No. 63-2; People v. Bailey, Indictment No. 6908/07, Tr. 563:10-564:6, ECF No. 63-34 et seq. (" Trial Tr." ); see generally Police Reports.)

Page 435

B. Investigation

In the early morning hours of May 6, NYPD officers arrived at the club. (Police Reports 4-5.) At the time, Bailey was inside the Groove Lounge. (Bailey 50-h Hr'g Tr. 36:25-37:2, 37:25-38:3; Mitchell Dep. 213:17-214:12.) He was not arrested or questioned. (Bailey 50-h Hr'g Tr. 38:7-13.)

The same day, defendant detective Tallarine was assigned to investigate the Ruiz homicide. (Tallarine Dep. 32:19-21, 53:24-54:3, ECF No. 63-6.) Assisted by defendant detectives O'Keefe and Collins, Tallarine interviewed many persons over the course of several days. ( Id. at 33:4-7, 35:4-9; Police Reports 36-76.) The three questioned several witnesses who gave them " material" information " that both supported Bailey's alibi and excluded him as a suspect." (Compl. ¶ 31; see also, e.g., Police Reports 8-10, 18, 21, 23-24, 37 (collection of eight witness interviews, none of which note that perpetrator had any facial scarring). They too received a tip through the " Crimestoppers" phone line that two brothers, Claude and Dorian Muller, were responsible for the Ruiz murder. (Police Reports 51-52; O'Keefe Dep. 78:5-17, ECF No. 63-9 (noting that Muller tip called for follow-up investigation).) Theresa Morales and Reneisha Gibson, eyewitnesses at the crime scene who looked at individuals surrounding Ruiz's body as he lay dying, noted that they would be able to identify one or more men involved in the Ruiz murder. (Police Reports 8, 18.) Tallarine did not speak to either of them and neither was shown a photo lineup. (Tallarine Dep. 189:11-192:24, 197:4-199:6.) Though Tallarine stated that he sought to locate eyewitness Gibson, he admits there is no documentation to this effect. ( Id. at 207:14-208:23.)

A number of other witnesses who originally provided witness statements to the police, including Crystal Lemon and Joseph Burkes, were never interviewed or shown a photo lineup. ( Id. at 193:3-206:9.) Though a photo lineup for the Muller brothers was prepared, no documentation reflects that it was ever shown to any eyewitnesses. (Muller Photo Lineup, ECF No. 63-16; see also Police Reports 52.)

On May 22, 2007, Tallarine interrogated Griffin, who had known Bailey for over twenty years. (Police Reports 66; Griffin V.S. Tr. 5:11-16, ECF No. 63-2.) After the interrogation, Tallarine displayed a photo array to Griffin. (Police Reports 66.) The array included Bailey's photograph. ( Id.) Griffin identified Bailey and told Tallarine that Bailey shot Ruiz. ( Id.) Plaintiff alleges that Griffin made this identification only because Tallarine threatened to have Griffin's parole revoked and to charge him with the Ruiz murder. (Compl. ¶ 34; see generally Tallarine Dep. 91:4-96:7, 110:3-111:10, 113:20-114:21, 132:8-148:2, 156:5-157:23; Police Reports 63, 66-68; Griffin Identification Signed by Emmanuel, ECF No. 63-18; Griffin Grand Jury Test. 8:23-10:4, ECF No. 63-28; Villanueva Dep. 12:14-33:13; see also infra Part II.D.)

Two days later, on May 24, at approximately 5:30 p.m., detective O'Keefe interrogated Villanueva. (Police Reports 54.) Villanueva told O'Keefe that a man pointed a gun in his face and pulled the trigger during the fight outside the Groove Lounge, but that the gun did not fire. ( Id.) Villanueva did not provide a detailed description of the man. ( Id.) He did not say that the man had a large scar on his face, nor that the man was bleeding. ( Id.) At approximately 7:00 p.m., he was shown a photo array. ( Id. at 55.) He identified Bailey as the man who pointed the gun at him outside the club. ( Id.) Villanueva has since recanted his identification of Bailey,

Page 436

claiming that he was the subject of police coercion. See infra Part II.I.

At approximately 9:00 p.m., O'Keefe interrogated Villanueva a second time. (Police Reports 56.) Villanueva told O'Keefe that he was very intoxicated on the night of the shooting. (Villanueva V.S. Tr. 2, 22.) He stated that the man with the gun wore a hat and sunglasses. ( Id. at 13-15.) Villanueva affirmed that the man who pulled a gun on him was " [n]ot at all" injured. ( Id. at 15.)

Based on the interrogations of Villanueva and Griffin, Tallarine obtained a warrant for Bailey's arrest. (Tallarine Dep. 169:10-171:14, 183:12-15.) Bailey was taken into custody on July 13. (Bailey 50-h Hr'g Tr. 48:15-18; Tallarine Dep. 179:11-13.)

C. Bailey's Arrest and Interrogation

On July 14, Bailey was brought to the 81st Precinct, where he was questioned without his attorney. (Tallarine Dep. 179:11-13, 183:16-8.) Later that day, without an attorney present, Bailey was placed in a lineup. (Bailey 50-h Hr'g Tr. 50:8-10.) At 10:00 p.m., Villanueva viewed the lineup and identified Bailey as the person who pointed the gun at him. (Police Reports 73.) At 10:10 p.m., Bryant, who had seen the shooter, viewed the lineup but could not identify anyone, including Bailey. ( See supra Part II.A; July 14, 2007 Lineup Documentation, Bates No. D000137.) Griffin viewed the lineup at 10:15 p.m. and recognized Bailey. ( Id.) At 11:30 p.m., Bailey was placed under arrest. (Corsi Decl. Ex S, ECF No. 59-3.)

The following day, July 15, a criminal court complaint, charging Bailey with Murder in the Second Degree and two counts of Criminal Possession of a Weapon in the Second Degree, was filed in the Criminal Court of the City of New York, Kings County. (Corsi Decl. Ex. T, Bates No. D004142, ECF No. 59-3 (" Criminal Compl. and Indictment" ).)

D. Grand Jury Indictment

Before the grand jury, Griffin testified that he did not see Bailey shoot Ruiz. (Griffin Grand Jury Test. 9:20-10:23, ECF No. 63-28.) ADA Jackson then instructed Griffin to step outside. (Jackson Dep. 83:20-84:12, ECF Nos. 29 & 30.) Later that day, Griffin returned and testified that he: (i) did, in fact, see Bailey shoot Ruiz; and (ii) lied initially because he was threatened by an unknown person. ( Id. at 84:13-95:12; Griffin Grand Jury Test. 13:3-14:15.) Villanueva testified that Bailey was the man who had pointed a gun at him. (Villanueva Grand Jury Test. 14:10-15:17.)

On August 17, three months after the Ruiz shooting, Bailey was indicted and charged with Ruiz's murder, the attempted murder of Villanueva, and illegal possession of a handgun. (Criminal Compl. and Indictment, Bates Nos. D004075-4078.)

E. Preparation for Trial

Approximately three months after the indictment, Bailey's defense attorney served discovery requests on the Kings County District Attorney's Office seeking the names and statements of the individuals who had been interviewed by the police. (Compl. ¶ 47; see also Corsi Decl. Ex. U, ECF No. 59-4 (" Discovery Correspondence" ).) When ADA Jackson replied to the discovery request, on February 22, 2008, he did not produce all relevant witness statements. (Discovery Correspondence.)

On July 29, 2008, a Wade hearing was conducted to determine the admissibility of the result of the police identification procedures. (Wade Hr'g Tr., ECF No. 63-33.) During the hearing, ADA Jackson did not

Page 437

disclose the identities of the individuals who had identified Bailey, nor did he relate how Tallarine had found the witnesses. ( Id.)

Ten months later, ADA Jackson announced that he was ready for trial. (Compl. ¶ 49.)

F. Trial

On January 15, 2009, seven days short of the start of Bailey's trial, Jackson presented several folders of information to Bailey's defense attorney, including witness statements. (Discovery Correspondence.) The contact information for the witnesses was redacted. (Redacted Discovery Documents, ECF No. 63-32.) The materials turned over on this date included (i) taped statements and grand jury testimony of Bryant, who had seen the shooter, but had not recognized Bailey in the lineup; and (ii) the Crimestoppers tip regarding the Muller brothers. (Discovery Correspondence.) Bryant's name was redacted from his lineup report, which noted that he had failed to recognize anyone in the lineup. (Redacted Discovery Documents 1.)

Bailey's criminal trial started on January 22, 2009. (Trial Tr. 1)

On January 26, Bailey's defense attorney told the court that there were a number of witnesses he wanted interviewed by an investigator, and that he needed their addresses. ( Id. at 163:3-13.) The next day, Bailey's defense attorney again requested unredacted police reports with the witnesses' contact information. ( Id. at 348:9-23.) The court then ordered ADA Jackson to turn over the requested information. ( Id. at 353:11-21.)

On January 29, at trial, Jackson called Villanueva to testify. ( Id. at 435:7-9.) Villanueva refused to cooperate and Jackson had to secure a material witness order compelling Villanueva to appear. (Corsi Decl. Ex. V 409:13-20 (sealed transcript).) Before Villanueva took the stand, in an ex parte hearing, Jackson disclosed that Villanueva had stated that he could not actually identify Bailey and that " he was coerced by police detectives" to do so. (Trial Tr. 428:18-429:6) Jackson stated that if Villanueva were cross-examined on his admission that he could not identify Bailey, Villanueva would testify that an unknown person had threatened him and told him not to testify against Bailey. ( Id. at 430:13-19.) " [B]y providing this information [just] before Villanueva took the stand, Jackson prevented Bailey's attorney from investigating any of this new information." (Compl. ¶ 57; see also Trial Tr. 430:20-435:9.)

At trial, Villanueva testified that Bailey pointed a gun at him and pulled the trigger, but that the gun did not fire. (Trial Tr. 456:16-459:19.) Villanueva did not recall Bailey's goatee or the scar running from his forehead to his chin on the right side of his face. ( Id. at 459:25-460:4.) Villanueva told the jury that he was " fucked up" that night as a result of drinking alcohol and smoking marijuana. ( Id. at 446:7-447:13, 464:19-24.) During a ten-minute recess taken before Villanueva's cross-examination, Bailey's defense attorney informed the court that he had not received any documents concerning Villanueva. ( Id. at 506:6-507:1.) The court ordered Jackson to provide the documents. ( Id. at 507:2-4.) The documents were handed over; Bailey's attorney was provided with a ten minute recess to review them before cross-examining the witness. ( Id. at 507:14-19.)

Jackson called Tallarine as his last witness. ( Id. at 552:13-16, 586:13-15.) Bailey's defense attorney did not call any witnesses; Bailey exercised his Fifth Amendment right not to testify. ( Id. at 586:20.)

Page 438

G. Jury Verdict

On February 5, 2009, following two days of deliberations, the jury returned a verdict acquitting Bailey of the murder of Ruiz and possession of a handgun, but convicting him of the attempted murder of Villanueva. ( Id. at 776:7-778:8.) On March 16, 2009, Bailey was sentenced to twenty years in prison. (Compl. ¶ 63.)

H. Conviction Overturned

On January 9, 2013, the Appellate Division reversed Bailey's conviction. People v. Bailey, 102 A.D.3d 701, 958 N.Y.S.2d 173 (App.Div. [2d Dep't] 2013). It found that the jury's verdict was against the weight of the evidence. Id. at 175.

Because Bailey claims coercion of witnesses as a basis for his claims here, it is significant that the Appellate Division did not base its decision on coercion as a reason to question the probative force of Villanueva's testimony. Instead, it based it on factors that put in question the identification's reliability. It wrote:

" [W]e conclude, first, that in this one-witness identification case, an acquittal would not have been unreasonable and, second, that the verdict of guilt was indeed against the weight of the evidence. This conclusion is based not on any doubt that the complainant was testifying truthfully . . ., but on a combination of factors negatively affecting the reliability of his identification of the defendant as the perpetrator. First, by the complainant's own admission, he was intoxicated from both alcohol and marijuana at the time of the incident. Additionally, the complainant's attention was focused on the gun, rather than on the gunman, during this brief incident, so the complainant did " not fully" have a good opportunity to view the gunman. Indeed, at trial, the complainant did not remember whether the gunman had facial hair, and he also admitted that he did not notice any scars on the gunman's face. A detective testified at trial, however, that the defendant had a " prominent" scar on his face. Finally, the lineup identification did not take place until more than two months after the incident. These factors, in combination, convince us that the verdict of guilt was against the weight of the evidence.

Id. (internal citations omitted).

I. Witness Recantation

Villanueva is now serving a prison sentence of twenty-five years to life for an unrelated conviction. (Villanueva Dep. 222:24-223:3.) On October 16, 2014, he gave a deposition at the Shawungunk Correctional Facility in connection with the instant civil matter. ( Id. at 1:1-3:21.) He recanted his prior statements to the police and the grand jury, and at Bailey's criminal trial, testifying that his identification of Bailey was compelled by coercion. ( Id. at 12:12-44:16.)

J. District Attorney's Alleged Policy Withholding Disclosure of Brady Materials

Plaintiff alleges that, when Bailey was prosecuted, Charles Hynes, the district attorney of Kings County, " had an official policy in his office requiring assistant district attorneys to delay production of vital information to defendants while he was simultaneously supporting a task force that recommended doing exactly the opposite." (Compl. ¶ 71; see also Trial Tr. 163:3-165:1, 348:9-23, 353:11-21; Discovery Correspondence; Redacted Discovery Documents; Compl. Ex. B.) This policy, Bailey asserts, " demonstrated by the actions of various assistant district ...


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.