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Noel v. County of Nassau

United States District Court, E.D. New York

February 7, 2015

PATRICK NOEL, Plaintiff,
v.
COUNTY OF NASSAU, POLICE OFFICER WILLIAM J. CARDONE, SERGEANT STEVEN CATES, and ASSISTANT DISTRICT ATTORNEY MAUREEN McCORMICK, Defendants.

Amy Beth Marion, Esq., Bruce A. Barket, Esq., Barket Marion Epstein & Kearon LLP, Garden City, NY, for Plaintiff.

Liora M. Ben-Sorek, Esq., Nassau County Attorney's Office, Mineola, NY, Peter A. Laserna, Esq., Melter Lippe Goldstein & Breitstone LLP, Mineola, NY, for Defendants.

MEMORANDUM & ORDER

JOANNA SEYBERT, District Judge.

Plaintiff Patrick Noel ("Plaintiff") commenced this action pursuant to 42 U.S.C. § 1983 against defendants Nassau County (the "County"), Police Officer William J. Cardone ("Officer Cardone"), Sergeant Steven Cates ("Sergeant Cates"), Assistant District Attorney Maureen McCormick ("ADA McCormick") (collectively "Defendants"), and other County defendants, [1] alleging violations of his civil rights and related state law claims arising out of his arrest in connection with an automobile accident in which Plaintiff's vehicle struck and killed a pedestrian. Defendants now move for summary judgment. (Docket Entry 43.) For the following reasons, Defendants' motion for summary judgment is GRANTED.

BACKGROUND

I. Factual Background[2]

On the morning of August 17, 2010, Joseph McCormack, the Chief of the Vehicular Crimes Bureau of the Bronx District Attorney's Office ("Chief McCormack"), e-mailed several New York State prosecutors attaching a news article that described two new traffic laws designed to give prosecutors greater leeway in bringing charges against reckless drivers. (Defs.' 56.1 Stmt., Docket Entry 43-3, Ex. K at 3-5[3].) According to the article, one of the laws, referred to as "Elle's Law, " mandated the automatic, six-month suspension of the license of "any driver who causes serious physical injury to another person while committing a traffic violation."[4] (Defs.' 56.1 Stmt. Ex. K at 4.) About an hour later, one of the prosecutors who received Chief McCormack's e-mail responded and asked, "Joe, when do these [statutes] take effect?" (Defs.' 56.1 Stmt. Ex. K at 3.) Chief McCormack responded four minutes later stating, "I did not look yet but I think 90 days." (Defs.' 56.1 Stmt. Ex. K at 2.)

Six minutes later, Young Choi, a Staff Attorney with the New York Prosecutor's Training Institute, e-mailed Chief McCormack, attaching a link to the New York State Senate's website that contained what he believed to be the language of Elle's Law. (Defs.' 56.1 Stmt. Ex. K at 2.) In his e-mail, he asked whether Elle's Law had taken effect "[i]mmediately??" (Defs.' 56.1 Stmt. Ex. K at 2.) According to Defendants, the link indicated that Elle's Law was newly passed, that it was an E class felony, and that it took effect immediately. (Defs.' 56.1 Stmt. ¶ 19.) Eleven minutes later, ADA McCormick sent an e-mail on behalf of Chief McCormack to the prosecutors on the original e-mail chain stating, "Young, you are the boss!" and "BTW, Elle's Law is an E Felony." (Defs.' 56.1 Stmt. Ex. K at 2.)

The next afternoon, on August 18, 2010, ADA McCormick emailed the Nassau County District Attorney's Office and several County police officers, advising them that "Governor Patterson signed Elle's Law' (Penal Law 120.03-a, Vehicular Assault 3rd Degree) on August 13, 2010, " and that it was "EFFECTIVE IMMEDIATELY." (Defs.' 56.1 Stmt. Ex. L at 2 (capitalization in original).) ADA McCormick included what she believed to be the language of the statute, which she apparently lifted from the link to the New York State Senate's website that Young Choi provided the day before. She summarized the statute as follows: "The language of the statute is below but the bottom line is that a driver who causes SPI[5] (including death) to a pedestrian by a moving violation is subject to an E' Felony and a VTL 510 suspension up to 7 years." (Defs.' 56.1 Stmt. Ex. L at 2 (footnote added).)

However, the version of Elle's Law that ADA McCormick circulated that afternoon was actually the original version of Elle's Law, which had not passed the New York Legislature (i.e., both the Senate and the Assembly). The version that did pass, and which was subsequently signed into law, was markedly different. It did not create a felony offense under the New York Penal Law. Instead, it only amended the New York Vehicle and Traffic Law to require the automatic, six-month suspension of the license of any driver who commits a moving violation that causes serious physical injury to another person. See N.Y. VEH. & TRAF. LAW § 510(2)(b)(xiv)(A)-(B).

Later that evening, Plaintiff, who was twenty-one years old at the time, was driving to a local Target store for his first night of work. (Noel Dep. Tr., Docket Entry 47-4, at 16-18[6].) While traveling westbound on Old Country Road in Westbury, New York, Plaintiff's vehicle struck and killed a pedestrian near the intersection of Carleton Street and Old Country Road. (Defs.' 56.1 Stmt. Ex. X.) Plaintiff claims that the pedestrian was jaywalking and was "extremely intoxicated, " (Pl.'s Opp. Br., Docket Entry 47, at 2), and one witness stated that the pedestrian was "in the street in the middle... just standing still." (Ex. E to Pl.'s Opp. Br., Docket Entry 47-5.)

Officer Cardone was the first police officer to arrive at the accident scene. At his deposition, he testified that right before the accident occurred, he was in his vehicle in a parking lot on Old Country Road when he observed Plaintiff's vehicle "pass [him] at a high rate of speed" and with only one functional headlight. (Cardone Dep. Tr., Docket Entry 43-9, at 28:16-19.) He also previously testified before the New York State Department of Motor Vehicles Administrative Hearings Board that he estimated Plaintiff's vehicle to be traveling at approximately sixty-five miles per hour-well above the posted speed limit of forty miles per hour. (Defs.' 56.1 Stmt. Ex. W, Docket Entry 44, at 7.) However, Officer Cardone was not using radar detection, nor did he have any written certifications demonstrating that he was capable of estimating speed on his own, (Pl.'s 56.1 Counterstmt., Docket Entry 33-2, ¶ 45), although he did testify at his deposition that he received speed estimate training in the police academy, (Cardone Dep. Tr. at 15:11-21). He also testified at his deposition that he attempted to ascertain Plaintiff's speed using his own estimate plus pacing, but that Plaintiff's vehicle struck the pedestrian before he could do so. (Cardone Dep. Tr. at 28:14-29:4.) Plaintiff disputes that he was speeding. (Pl.'s Dep. Tr. 19:23-20:2 (responding, "No, " to the question, "At any point on your way to Target, were you traveling in excess of 40 miles per hour?").) There is no dispute, however, that Plaintiff was driving with an inoperable headlight.

When Officer Cardone arrived at the accident scene, he radioed for an ambulance and assistance. (Defs.' 56.1 Stmt. ¶ 39.) Detective Gary Ferrucci, a detective in the Vehicular Crimes and Reconstruction Center, was the first police officer to respond to Officer Cardone's request. (Defs.' 56.1 Stmt. ¶ 42.) After Detective Ferrucci arrived, he asked Officer Cardone whether he saw the collision, and Officer Cardone responded that he "didn't see the collision but [that he] observed the [moving] violation prior to the collision." (Cardone Dep. Tr. at 26:6-13.)

Shortly thereafter, Detectives David Nystrom and John Lapine arrived at the scene to help with the investigation. (Defs.' 56.1 Stmt. ¶¶ 47-48.) The officers took statements from two witnesses. One stated that she was traveling westbound on Old Country Road and observed Plaintiff's vehicle "traveling at about 60 miles per hour" before it struck the pedestrian. (Defs.' 56.1 Stmt. Ex R at 2-3.) The other witness did not provide an estimate of Plaintiff's speed, but noted that she was traveling at "about 30 miles per hour" and that Plaintiff's vehicle passed her before it struck the pedestrian. (Defs.' 56.1 Stmt. Ex S at 2.)

According to Officer Cardone, at some point after the scene was "settled, " Detective Ferrucci advised him that Elle's Law "came into enactment that day" and that the case therefore was a "must arrest." (Cardone Dep. Tr. at 32:8-24.) Thus, believing that Elle's Law created a new felony offense for any moving violation that caused serious physical injury, Officer Cardone arrested Plaintiff for committing a felony in violation of Elle's Law, as well as on charges of speeding, in violation of Section 1180(d) of the New York Vehicle and Traffic Law, and driving with an inoperable headlight at night, in violation of Section 375(2)(a)(1) of the New York Vehicle and Traffic Law. (Defs.' 56.1 Stmt. ¶¶ 55-56; Pl.'s 56.1 Counterstmt. ¶¶ 55-56.) Although Officer Cardone was technically the "arresting officer, " Detective Ferrucci testified at his deposition that he called ADA McCormick from the accident scene and that ADA McCormick and the responding officers decided as a group that they had probable cause to arrest Plaintiff for violating Elle's Law.[7] (See Ferrucci Dep. Tr., Docket Entry 43-11, at 35:11-37:10 (testifying that the officers at the scene and ADA McCormick "believed that th[e] case fit the parameters" of Elle's Law and that ADA McCormick "played a part in the decision whether or not an arrest should [have been] made").) Plaintiff was booked and held overnight at the Nassau County Police Department headquarters so that he could be transported to court for arraignment the next morning. (Defs.' 56.1 Stmt. ¶ 57.)

The next morning, on August 19, 2010, approximately twelve hours into Plaintiff's detention, Peter Goldwasser, the General Counsel and Senior Police Advisor for Transportation Alternatives, [8] e-mailed ADA McCormick to advise her that the version of Elle's Law she circulated the day before was not the version passed by the New York State Legislature:

Bad news.... the description of Elle's law you sent was the original version.
Unfortunately, the "A" revised version which passed looks about 110% different (after Assembly Codes had a look I presume).... It no longer talks about VA in the 3rd, and instead says that if you commit a moving violation and cause SPI or death, then there is an automatic license suspension for 6 months. Twice in 5 years, ...

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