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Creighton v. City of New York

United States District Court, S.D. New York

February 14, 2017

KENNETH CREIGHTON, Plaintiff,
v.
THE CITY OF NEW YORK, DETECTIVE DEAN ROBERTS (Shield No. 05861), DETECTIVE GLENN GODINO (Shield No. 2756), ASSISTANT DISTRICT ATTORNEY BRUCE BIRNS, ASSISTANT DISTRICT ATTORNEY ED TALTY a/k/a ED TULTY, and ASSISTANT DISTRICT ATTORNEY MICHAEL COOPER, Defendants.

          MEMORANDUM OPINION & ORDER

          PAUL G. GARDEPHE UNITED STATES DISTRICT JUDGE.

         On January 10, 2007, Plaintiff Kenneth Creighton was arrested by New York City Police Department ("NYPD") officers and charged with criminal facilitation and criminal possession of a weapon in connection with December 26, 2006 shootings in the Bronx. Bail was set in the amount of $10, 000, Creighton was not able to post bail, however, and he remained in pre-trial detention for the next five years. On January 19, 2012 - at the recommendation of the Bronx County District Attorney's Office - all charges against Creighton were dismissed.

         In this action against the City of New York (the "City"), two of the NYPD detectives who investigated the shootings, and three Bronx County Assistant District Attorneys involved in the prosecution, [1] Creighton alleges claims for, inter alia, false arrest, malicious prosecution, and unreasonably prolonged detention under 42 U.S.C. § 1983 and New York law.

         Defendants have moved for summary judgment on all of Plaintiff s remaining claims, (Dkt. No. 164) Plaintiff has moved for summary judgment on his claims for (1) false arrest under New York law as against all Defendants other than Michael Cooper; (2) malicious prosecution under New York law as against the City and Defendants Glenn Godino and Dean Roberts; (3) malicious prosecution under Section 1983 as against Defendants Godino and Roberts; and (4) deprivation of his Due Process rights under Section 1983 as against Defendant Godino, (Dkt. No. 172) Plaintiff has also moved for sanctions pursuant to Federal Rule of Civil Procedure 37 based on Defendants' alleged spoliation of evidence. (Dkt. No. 173)

         BACKGROUND

         I. FACTS[2]

         A. The Investigation

         On December 26, 2006, at approximately 5:50 p.m., two people were shot in the vicinity of 810 East 168th Street in the Bronx. (Def. R. 56.1 Stmt. (Dkt. No. 167) at ¶ 1; Pltf. Resp. to Def. R. 56.1 Stmt. (Diet. No. 189) at ¶ 1) John Caldwell was shot in the head and later died, while Lisette Ayala suffered a gunshot wound to her left leg. (Def. R. 56.1 Stmt, (Dkt. No. 167) at ¶¶ 2-3; Pltf. Resp. to Def. R. 56.1 Stmt. (Dkt. No. 189) at ¶¶ 2-3; see also Gross Decl, Ex. W (Dkt. No. 214-26) (Crime Scene Unit Report))

         Fawaz Terab owns a bodega - the Prospect Mini Mart (the "Mini Mart") - located at 820 East 168th Street, near the site of the shootings. (Pltf. R. 56.1 Stmt. (Dkt. No. 178) at ¶ 12; Def. Resp. to Pltf. R. 56.1 Stmt. (Dkt. No. 176) at ¶ 12) Terab was working as the cashier at his bodega when the shootings took place. (Gross Decl., Ex. O (Dkt. No. 214-17) (Terab Dep.) at 9:3-16[3]) Terab knows Plaintiff Kenneth Creighton and his brother, Dior Creighton. (Pltf. R. 56.1 Stmt. (Dkt, No. 178) at¶¶ 14-15; Def. Resp. to Pltf. R. 56.1 Stmt. (Dkt. No. 176) at ¶¶ 14-15)

         When police canvassed the area on the night of the shootings, Terab did not volunteer any information and stated that he "didn't see anything." (Gross Decl,, Ex. 0 (Dkt. No. 214-17) (Terab Dep.) at 32:19-33:23, 64:18-65:2; Def. Resp. to Pltf. R. 56, 1 Stmt. (Dkt. No. 176) at ¶ 20) During a meeting with NYPD Detective Glenn Godino on December 31, 2006, however - five days after the shootings - Terab stated that Kijafa Spruell, a regular customer at the Mini Mart, had passed a gun to Dior Creighton shortly before the shootings. (Gross Decl., Ex. K-l (Dkt. No. 214-11) (Godino Dep.) at 137:20-152:7; Gross Decl, Ex. O (Dkt. No. 214-17) (Terab Dep.) at 10:6-18, 34:3-37:3; Gross Decl, Ex, II (Dkt. No. 214-38) (Dec. 31, 2006 Terab Stmt.); Pltf. R. 56.1 Stmt, (Dkt. No. 178) at ¶¶ 16, 20, 31-32; Def, Resp. to Pltf. R. 56.1 Stmt. (Dkt. No. 176) at ¶¶ 16, 20, 31-32) Terab told Detective Godino that the gun he had seen was silver and black. (Pltf. R. 56.1 Stmt. (Dkt. No. 178) at ¶ 33; Def. Resp. to Pltf. R. 56.1 Stmt. (Dkt. No. 176) at ¶ 33; Gross Decl, Ex, K-l (Dkt. No. 214-11) (Godino Dep.) at 149:9-16) Terab had not observed Dior Creighton shooting the gun outside the Mini Matt, however. (Gross Decl., Ex. K-l (Dkt. No. 214-11) (Godino Dep.) at 154:11-23; Gross Decl, Ex. O (Dkt. No. 214-17) (Terab Dep.) at 30:6-12)

         On January 2, 2007, police conducted a computer search concerning Spruell. (Pltf. R. 56.1 Stmt. (Dkt. No. 178) at ¶ 38; Def. Resp. to Pltf. R. 56.1 Stmt. (Dkt. No. 176) at ¶ 38; Gross Decl, Ex. K-3 (Dkt. No. 214-13) (Godino Dep.) at 394:22-398:5) The search disclosed an address and other pedigree information for Spruell. (See Gross Decl, Ex. BB (Dkt. No. 214-31) (Spruell Records)) Godino also obtained Spruell's photograph. (Gross Decl, Ex. K-3 (Dkt. No. 214-13) (Godino Dep.) at 393:20-394:2) The NYPD made no further effort to locate Spruell, however, and did not question him at that time.[4] (Pltf. R. 56.1 Stmt. (Dkt. No. 178) at ¶41; Def. Resp, to Pltf. R. 56.1 Stmt. (Dkt. No. 176)at ¶41; Gross Decl, Ex. K-3 (Dkt. No. 214-13) (Godino Dep.) at 397:8-20)

         After Terab's December 31, 2006 identification of Spruell as the source of the gun, Detective Godino interviewed a second eyewitness to the passing of the gun. (Def. R. 56.1 Stmt. (Dkt. No. 167) at ¶ 4; Pltf. Resp. to Def, R. 56.1 Stmt. (Dkt. No. 189) at ¶ 4; see Gross Decl, Ex. K-1 (Dkt. No. 214-11) (Godino Dep.) at 146:7-13, 155:17-24, 173:16-25) This witness (the "CI") had previously served as an NYPD confidential informant and had given Detective Godino information about an earlier shooting in front of the same building where Caldwell had been shot. (Def. R. 56.1 Stmt. (Dkt. No. 167) at ¶ 5; Pltf. Resp. to Def, R. 56.1 Stmt. (Dkt. No. 189) at ¶ 5; Gross Decl., Ex. K-l (Diet. No. 214-11) (Godino Dep.) at 116:23-118:2) The CFs information had led to an arrest and a guilty plea in that case, (Id.)

         The CI called his NYPD handler - Detective John Elliott - shortly after the December 26, 2006 shootings, told Elliott that he had been "right there, " and reported that he had seen Plaintiff pass the gun to his brother, Dior Creighton.[5] (Gross Decl., Ex. U (Dkt. No. 214-24) (Informant Dep.) at 22:4-9, 56:15-57:15, 197:10-16) Detective Elliott told the CI he would call him back, which he did later that same evening. (Id. at 57:6-22) Detective Elliott also reported to Detective Godino that the CI had information about the shootings outside the Mini Mart. (Gross Decl, Ex. K-3 (Dkt. No. 214-13) (Godino Dep.) at 479:21-480:15)

         The CI later met with Detective Godino (id. at 482:16-25), who took the following handwritten notes during the interview:

Dior. . . comes back with a black hoody. Kenny had a white and burgundy shirt. Dior and Ken went into the store. The CI was by the plastic door that goes behind the counter getting his scratch off tickets. Kenny passed the gun to Dior inside the store. . . . Dior was shooting from behind a car just inside the street,

(Def. R. 56.1 Stmt. (Dkt, No. 167) at ¶ 9; Pltf. Resp. to Def. R. 56.1 Stmt. (Dkt. No. 189) at ¶ 9; June 27, 2016 Thadani Deck, Ex. F (Dkt. No. 166-6) (Godino Notes))[6]

         At the time of the shootings, the Mini Mart contained a surveillance camera that recorded onto a digital video recorder ("DVR") maintained in the store's basement.[7] (Pltf. R. 56.1 Stmt. (Dkt. No. 178) at ¶ 18; Def. Resp. to Pltf. R. 56.1 Stmt. (Dkt. No. 176) at ¶ 18; Gross Decl., Ex. O (Dkt. No. 214-17) (Terab Dep.) at 13:20-18:12) After the shootings, Terab-the owner of the Mini Mart - arranged for the NYPD to obtain a VHS copy of what had been recorded on the DVR's hard drive. (Def. R. 56.1 Stmt. (Dkt. No. 167) at ¶ 10; Pltf. Resp. to Def. R. 56.1 Stmt. (Dkt. No, 189) at ¶ 10; Gross Deck, Ex. O (Dkt. No. 214-17) (Terab Dep.) at 13:20-18:12, 33:5-34:2; Gross Deck, Ex. K-l (Dkt. No. 214-11) (Godino Dep.) at 52:12-22; Gross Deck, Ex. E (Dkt. No. 214-5) (Afrides Decl.) at ¶¶ 7-8)

         The surveillance footage shows the following: a man in a burgundy-and-white striped shirt enters the Mini Mart with Dior Creighton, who is wearing a black jacket. The two men are shown standing in the front area of the store, by the front corner of the checkout counter and near the store's entrance. The man in the striped shirt appears to pass an object to Dior while standing face-to-face with him. Dior then turns around, towards the surveillance camera. He appears to be holding an object that briefly reflects a glint from the store's lighting. The man in the striped shirt then walks out of the store. Dior Creighton walks toward the back of the store, and is off-camera briefly. He then re-appears, pulls up the hood of his jacket, and walks out the store's front door, (See Gross Deck, Ex. CC (Dkt, No. 214) (Mini Mart Surveillance Footage)) According to the surveillance system's time stamp, the encounter and events described above consume about twenty-one seconds. (Id.) Other customers are present in the store at the time of the exchange. The hands and arms of someone working behind the checkout counter are briefly visible from time to time, but no more of this person can be seen, because of shelving and the angle of the surveillance camera. (Id.)

         Detective Godino testified that - based on the surveillance footage - he could not identify the man who had passed the gun to Dior Creighton. (Def. R. 56.1 Stmt. (Dkt. No. 167) at ¶ 11; Pltf. Resp. to Def. R. 56.1 Stmt. (Dkt. No. 189) at ¶ 11; Gross Decl, Ex. K-1 (Dkt. No. 214-11) (Godino Dep, ) at 137:15-19, 197:16-20) Detective Dean Roberts testified that, "as the investigation ensued, " he watched the Mini Mart surveillance footage, and "based ... on [his] experience of Kenneth Creighton and the general makeup of him, the physical appearance, " he "believed" that Plaintiff was the individual who passed the gun to Dior Creighton.[8] (Gross Decl, Ex. OO-1 (Dkt. No. 214-44) (Roberts Dep.) at 44:19-45:5, 58:16-60:7, 130:9-20)

         Godino testified that after the CI had identified Plaintiff as the source of the gun, Godino contacted Terab and asked whether Terab was sure that Spruell was the source of the gun. (Gross Decl, Ex. K-l (Dkt. No. 214-11) (Godino Dep.) at 182:23-183:5) Godino told Terab that another witness had identified someone else, (Id.) Terab said that his view had been partially blocked, and that he had assumed that Spruell was the source of the gun because he and Dior Creighton were always together. (Id. at 182:17-183:12, 208:5-16)

         Godino then asked Terab to come to the 42nd Precinct to view the surveillance footage, (Id.) After looking at the surveillance footage, Terab identified Plaintiff as the person who had passed the gun to Dior Creighton.[9] (Id. at 131:10-23, 182:9-183:12, 207:25-210:9, 292:9-25) Although Godino could not precisely date Terab's recantation, it took place before Plaintiffs January 10, 2007 arrest. (See Id. at 131:10-132:2, 182:17-21, 185:10-16) Detective Godino and ADA Theresa Gottlieb testified that Terab was shown the surveillance footage again on August 9, 2011, at the Bronx County District Attorney's Office, and that he again identified Plaintiff as the person who passed a gun to Dior Creighton. (Id. at 210:10-20, 211:8-13, 212:8-9; Gross Decl., Ex. R (Dkt. No. 214-20) (Gottlieb Dep.) at 134:13-19, 136:11-137:5, 143:2-19, 218:25-219:18; see also Thadani Deci., Ex. I (Dkt. No. 175-9) (Aug. 19, 2011 Gottlieb Ltr.))

         At his deposition, Terab recalled meeting Godino at the 42nd Precinct, and also recalled a later meeting with Godino and a female assistant district attorney, who showed him the surveillance video. (Gross Decl., Ex. O (Dkt. No. 214-17) (Terab Dep.) at 34:3-38:21, 40:22-41:13, 45:6-46:12, 47:3-48:14, 50:16-22, 85:7-87:4) Terab denied that he ever told Detective Godino or the female ADA that Plaintiff had passed a gun to his brother Dior Creighton, however.[10] (Id. at 45:18-48:6, 50:16-52:2, 55:5-56:6, 84:24-86:23) Terab also testified that he was contacted by Detective Godino two days after Plaintiffs arrest, and that Terab told Detective Godino that the police had arrested the wrong person. (Id. at 83:7-84:4)

         Detective Godino informed ADA Bruce Birns of the CI's identification of Plaintiff as the individual who had passed the firearm to the shooter. (Def. R. 56.1 Stmt. (Dkt. No, 167) at ¶ 14; Pltf. Resp. to Def, R. 56.1 Stmt. (Dkt. No. 189) at ¶ 14) ADA Birns then interviewed the CI, (Def. R. 56.1 Stmt. (Dkt. No. 167) at ¶ 16; Pltf. Resp. to Def. R. 56.1 Stmt, (Dkt. No. 189) at ¶ 16) Birns testified that the CI "provided a completely reasonable explanation of how he knew [Plaintiff and Dior], where he was, [and] what he witnessed.. . ." (Def. R. 56.1 Stmt. (Dkt. No, 167) at ¶ 18; Pltf. Resp. to Def. R, 56, 1 Stmt. (Dkt. No. 189) at ¶ 18; Gross Decl., Ex. M (Dkt. No. 214-15) (Birns Dep.) at 227:7-228:13) Birns further noted that the CI's account of the events in the Mini Mart was corroborated by the Mini Mart surveillance footage. (Gross Deck, Ex. M (Dkt. No. 214-15) (Birns Dep.) at 227:7-228:13) Based on the CI's account, Birns believed "[w]ithout question" that there was probable cause to arrest Plaintiff, (Id. at 228:14-17)

         B. Plaintiffs Arrest and Detention

         Plaintiff was arrested on January 10, 2007, [11] and was charged in a criminal complaint with Criminal Facilitation in the Second Degree, Criminal Possession of a Weapon in the Second Degree, and Criminal Possession of a Weapon in the Third Degree. (Def. R, 56.1 Stmt. (Diet. No. 167) at ¶ 21; Pltf. Resp. to Def. R. 56.1 Stmt. (Dkt. No, 189) at ¶ 21) ADA Birns and ADA Ed Talty authorized the arrest, and Detective Roberts was the arresting officer. (Def, R, 56.1 Stmt. (Dkt, No. 167) at ¶¶ 20, 23; Pltf. Resp. to Def. R. 56.1 Stmt. (Dkt. No. 189) at ¶¶ 20, 23) The NYPD arrest report for Plaintiff- which was prepared by Detective Roberts - states that Plaintiff "hand[ed] a loaded firearm to an unapprehended subject who then used the firearm which resulted in the fatal shooting of [John Caldwell] as well as the non-fatal shooting of [Lisette Ayala]." (Def. R. 56.1 Stmt. (Dkt. No. 167) at ¶ 22; Pltf, Resp. to Def. R. 56.1 Stmt. (Dkt. No. 189) at ¶ 22; June 27, 2016 Thadani Decl., Ex. H (Dkt. No. 166-8) (Arrest Report))

         The criminal complaint against Plaintiff- which was signed by Detective Roberts - states the following:

Deponent states, based upon official investigation, and witnesses known to the Police Department, that, at the above time and place, inside a bodega, defendant and a separately unapprehended individual engaged in a brief conversation, after which defendant passed a shiny metallic object to the separately unapprehended individual. Deponent further states that immediately afterwards, the separately unapprehended individual and defendant went outside the above location.
Deponent further states that he is informed by [Lisette] Ayala that informant was standing outside the above location at the above time, and informant observed the above-described separately unapprehended individual pointing a metallic object in both her direction and in the direction of John Caldwell, and then heard several loud noises and observed several flashes coming from the above-mentioned object, and then immediately felt a sharp pain on her left calf, Deponent is further informed that informant then observed her left leg to be bleeding severely.
Deponent further states that, based upon official police investigation and witnesses known to the police department, also at the above time and place, John Caldwell was struck on the side of his head by one of the above-mentioned shots, causing his death.

(June 27, 2016 Thadani Decl, Ex. C (Dkt, No. 166-3) (Criminal Cmplt.))

         The New York City Criminal Justice Agency conducts pre-arraignment interviews of arrestees and makes release recommendations to the court that assess a defendant's likelihood of returning to court. Here, the Criminal Justice Agency concluded that Plaintiff was a "HIGH RISK FOR FTA, " or failure to appear. (Def, R. 56.1 Stmt. (Dkt. No. 167) at ¶¶ 26-27; June 27, 2016 Thadani Decl,, Ex. I (Dkt. No. 166-9) (Criminal Justice Agency Interview Report)) The court set bail in the amount of $10, 000. (Def. R. 56.1 Stmt. (Dkt. No, 167) at ¶ 28; Pltf. Resp. to Def. R. 56.1 Stmt. (Dkt. No. 189) at ¶ 28) Plaintiff did not post bail and remained in pre-trial detention for the next five years - until January 19, 2012. (Pltf. R. 56.1 Stmt. (Dkt. No. 178) at ¶ 189; Def, Resp. to Pltf. R. 56.1 Stmt. (Dkt. No. 176) at ¶ 189; June 27, 2016 Thadani Decl., Ex. Z (Dkt. No. 166-26) (Jan. 19, 2012 Supreme Court Proceedings) at 6:22-7:3)

         In 2006, ADA Ed Talty was the Chief of Homicide at the Bronx County District Attorney's Office. (Gross Decl., Ex. N (Diet. No. 214-16) (Talty Dep.) at 10:21-11:3, 12:7-9) Talty testified that, at that time, it was the policy of the District Attorney's Office to require that the NYPD obtain approval from an ADA before preparing a criminal complaint in a homicide case, (Id. at 127:14-22) He also testified that, before authorizing an arrest, it was his practice to determine whether there was probable cause for the arrest, (Id. at 133:21-135:7) Moreover, where "a detective told [Talty that] the only evidence that exists is a confidential informant, [Talty] would probably want to have them bring the confidential informant in to have an ADA speak to that confidential informant about the fact that confidentiality was no - would be an issue, " (Id. at 136:4-19) Talty does not recall speaking with the CI prior to the issuance of a criminal complaint against Plaintiff. (Id. at 42:2-15) As noted above, however, ADA Birns recalls interviewing the CI prior to authorizing the arrest of Plaintiff, and concluding that the CI's account "without question" constituted probable cause. (Gross Decl., Ex. M (Dkt. No. 214-15) (Birns Dep.) at 228:14-17)

         On January 16, 2007, the CI was called to testify before a grand jury. (Def. R. 56.1 Stmt. (Dkt. No. 167) at ¶ 29; Pltf. Resp. to Def. R. 56.1 Stmt. (Dkt. No. 189) at ¶ 29) The CI testified that he had known Plaintiff and his brother, Dior Creighton, since 1993. (Id. at ¶ 32; June 27, 2016 Thadani Decl., Ex. K (Dkt. No. 166-11) (CI's Grand Jury Testimony) at ¶ 5:7-8, DJ6:16-DJ7:3) The CI described his observations in the Mini Mart as follows: "I walked into the store to buy my scratch off. And as I was going into the store Kenny was passing something. He was passing a gun to Dior. . .. Dior went outside the store . . . [and he] just pulled out and started shooting." (Def. R. 56.1 Stmt. (Dkt. No. 167) at ¶¶ 30-31; Pltf. Resp. to Def. R. 56.1 Stmt, (Dkt No. 189) at ¶¶ 30, 31; June 27, 2016 Thadani Decl., Ex, K (Dkt. No. 166-11) (CI's Grand Jury Testimony) at ¶ 9:3-6, DJ11:9, DJ12:16-17) The District Attorney's Office did not call Terab to testify before the grand jury, (Pltf. R. 56.1 Stmt. (Dkt. No, 178) at ¶ 108; Def. Resp. to Pltf. R. 56.1 Stmt. (Dkt. No, 176) at ¶ 108) On January 23, 2007, the grand jury voted an indictment that charged Plaintiff with Criminal Facilitation in the Second Degree and two counts of Criminal Possession of a Weapon in the Second Degree, (Def. R. 56.1 Stmt. (Dkt. No. 167) at ¶ 33; Pltf. Resp. to Def. R. 56.1 Stmt. (Dkt No. 189) at ¶ 33; June 27, 2016 Thadani Decl., Ex. L (Dkt. No. 166-12) (Kenneth Creighton Indictment))

         On January 26, 2007, Dior Creighton was arrested and charged with murder and other crimes. (Pltf. R. 56.1 Stmt. (Dkt. No. 178) at ¶ 176; Def, Resp. to Pltf. R. 56.1 Stmt. (Dkt. No. 176) at ¶ 176) On February 1, 2007, a grand jury issued an indictment charging Dior Creighton with, inter alia. Murder in the Second Degree, Attempted Murder in the Second Degree, Manslaughter in the First Degree, and Criminal Possession of a Weapon in the Second Degree. (Gross Decl., Ex. NN (Dkt. No. 214-43) (Dior Creighton Indictment))

         On May 10, 2007, Plaintiff moved to inspect the grand jury minutes and to dismiss the indictment. (Def. R. 56.1 Stmt. (Dkt. No. 167) at ¶ 40; Pltf. Resp. to Def. R. 56, 1 Stmt. (Dkt. No. 189) at ¶ 40) On October 3, 2007, a Supreme Court justice issued an order granting Plaintiffs motion for an inspection of the grand jury minutes. (Id. at ¶ 41) After reviewing the minutes, the judge determined that "[t]he evidence presented to the Grand Jury establishes a prima facie case of the defendant's commission of the charges contained in the indictment." (June 27, 2016 Thadani Decl, Ex. T (Dkt. No. 166-20) (Oct. 3, 2007 Supreme Court Order)) The judge did not authorize Plaintiffs criminal defense lawyer to inspect the minutes, explaining that "[i]t is not necessary to release the minutes or any portion thereof to the defendant's attorney to assist the court in making the determination, " (Id.) Plaintiff thus did not learn of the CPs identity at that time, and he was not aware that the eyewitness who testified before the grand jury had previously served as an NYPD confidential informant. (Pltf. R. 56, 1 Stmt. (Dkt, No. 178) at ¶ 102; Def. Resp. to Pltf. R. 56.1 Stmt. (Dkt. No. 176) at ¶ 102)

         On May 12, 2008, ADA Bims filed a motion to consolidate the indictments against Plaintiff and his brother, Dior Creighton. (June 27, 2016 Thadani Decl., Ex. U (Dkt. No. 166-21) (Affirmation in Support of Motion to Consolidate Indictments); Def. R. 56.1 Stmt. (Dkt. No. 167) at ¶ 44; Pltf Resp. to Def. R. 56.1 Stmt. (Dkt, No. 189) at ¶ 44) On August 7, 2008, a Supreme Court justice issued an order stating that the consolidation motion would be stayed "pending resolution of all pre-trial hearings." (Thadani Decl., Ex. V (Dkt. No. 166-22) (Aug. 7, 2008 Supreme Court Order))

         During discovery in Plaintiffs criminal case, the Bronx County District Attorney's Office produced to Plaintiff, inter alia, the following materials: (1) Terab's statement to the NYPD - in which he identified Spruell as the source of the gun; (2) a photo array from which Terab had identified Spruell as the source of the gun; and (3) a copy of the surveillance footage obtained from the DVR maintained at the Mini Mart.[12] (Def R. 56.1 Stmt. (Dkt. No. 167) at ¶¶ 46, 48; Pltf. Resp. to Def. R. 56.1 Stmt. (Dkt. No. 189) at ¶¶ 46, 48; June 27, 2016 Thadani Decl, Ex. X (Dkt. No. 166-24) (Plaintiff Dep.) at 48:18-49:15) Plaintiffs criminal defense lawyer made no motions or applications to the court after receiving these materials. (Def. R. 56.1 Stmt. (Dkt. No. 167) at ¶ 47; Pltf. Resp. to Def. R. 56.1 Stmt. (Dkt. No. 189) at ¶ 47; Gross Decl., Ex. Q (Dkt. No. 214-19) (Raskin Dep, ) at 54:16-22) On December 22, 2010, however, Plaintiff filed a petition for a writ of habeas corpus in New York County Supreme Court.[13] (Thadani Decl, Ex. W (Dkt. No. 166-23) (Habeas Corpus Petition)) Attached as exhibits to Plaintiffs habeas corpus petition are, inter alia, Terab's statement and the photo array. (Id.) In his petition, Plaintiff states that he has reviewed "a video tape that was given to my attorney that clearly shows that I am not the person who they are looking for, " (IcL at 5)

         On January 3, 2012, Dior Creighton pleaded guilty to Attempted Murder in the Second Degree. (Def. R. 56.1 Stmt. (Dkt. No. 167) at ¶ 49; Pltf. Resp. to Def. R. 56.1 Stmt. (Dkt. No. 189) at ¶ 49) He was sentenced to fourteen years' imprisonment. (Id.)

         On January 18, 2012, ADA Gottlieb filed in Bronx County Supreme Court a Recommendation for Dismissal of the charges against Plaintiff. (Id. at ¶ 50) In the Recommendation for Dismissal, ADA Gottlieb states the following:

FACTS AND PROCEDURAL HISTORY:
On December 26, 2006 at 5:48 P.M., defendant along with his brother Dior Creighton were inside a bodega at 800 East 168th Street. Defendant and Dior Creighton had a brief conversation. Defendant then handed Dior Creighton a handgun. Both men then left the bodega. Once outside, Dior Creighton fired several shots, hitting Lisette Ayala in the leg and John [Caldwell] in the head, killing him. Kenneth Creighton was arrested on January 10, 2007 and bail was set at $10, 000. Defendant has been unable to post bail and has remained incarcerated since his arrest.
Dior Creighton was arrested and charged (indictment 626/2007) with Murder in the Second Degree and Attempted Murder in the Second Degree. On January 3, 2012, Dior Creighton plead guilty to Attempted Murder in the Second Degree, He was sentenced on January 19, 2012, to 14 years in prison with 5 years postrelease supervision.
REASON FOR RECOMMENDATION:
Kenneth Creighton was arrested and charged based upon the statements of a single eyewitness. This eyewitness knows Kenneth Creighton and saw him hand Dior Creighton a handgun inside the bodega. This witness has now become unavailable to the Bronx District Attorney's Office. The witness could not be located by the case Detective at any of the telephone numbers or addresses provided. Further efforts to locate this witness by the Detective Investigator have been unsuccessful.
CONCLUSION
Therefore, the People would be unable to proceed to trial, . . .
[T]he indictment against Kenneth Creighton should be dismissed.. . .

(June 27, 2016 Thadani Decl,, Ex. Y (Dkt. No. 166-25) (.Tan. 18, 2012 Recommendation for Dismissal) at 1-2)[14] The charges against Plaintiff were dismissed on January 19, 2012, on the grounds that "the People do not have the cooperation of a necessary eyewitness to this matter, " and the prosecution "would not be able to go forward."[15] (Def. R. 56.1 Stmt. (Dkt, No. 167) at ¶ 53; Pltf. Resp. to Def. R. 56.1 Stmt. (Dkt. No. 189) at ¶ 53; June 27, 2016 Thadani Decl., Ex. Z (Dkt. 166-26) (Jan. 19, 2012 Criminal Court Proceedings) at 2:18-25)

         C. Plaintiffs Probation Violation

         On November 21, 2005, Plaintiff was convicted of Attempted Robbery in the Second Degree and sentenced to five years' probation. (Def. R. 56.1 Stmt. (Dkt. No, 167) at ¶ 35; Pltf. Resp. to Def. R. 56.1 Stmt. (Dkt. No. 189) at ¶ 35) Plaintiff sustained multiple arrests and convictions in 2006 while on probation, and on February 1, 2007, a violation of probation petition was filed against him. (Def. R. 56.1 Stmt. (Diet. No. 167) at ¶¶ 34, 36; Pltf. Resp. to Def. R. 56.1 Stmt. (Dkt. No. 189) at ¶¶ 34, 36; June 27, 2016 Thadani Decl., Ex. P (Dkt. No. 166-16) (Probation Records) at NYC000230) Plaintiff was arrested on the violation of probation and was remanded by a Supreme Court justice, (Def. R. 56.1 Stmt. (Dkt, No. 167) at¶ 38; Pltf. Resp. to Def. R. 56.1 Stmt. (Dkt. No. 189) at ¶ 38) At his deposition, Michael Raskin - Plaintiffs criminal defense lawyer - testified that even if Plaintiff had posted bail in the criminal facilitation/weapons case, he would have remained in detention on the probation violation.[16](See Gross Decl, Ex, Q (Dkt, No. 214-19) (Raskin Dep.) at 73:25-74:18)

         The probation violation petition against Plaintiff remained unresolved until January 19, 2012. On that date, and during the same proceeding in which the criminal facilitation/weapons charges against Plaintiff were dismissed, Plaintiff pleaded guilty to violating the terms of his probation by committing the crime of Harassment in the Second Degree in June 2006. (Def. R. 56.1 Stmt. (Dkt. No, 167) at ¶¶ 54-55; Pltf. Resp. to Def. R. 56, 1 Stmt. (Dkt. No. 189) at ¶¶ 54-55; Thadani Decl., Ex. Z (Dkt. No. 166-26) (Jan. 19, 2012 Supreme Court Proceedings) at 3:2-6:25; Gross Decl., Ex. Q (Dkt. No. 214-19) (Raskin Dep.) at 76:18-77:11) The Supreme Court justice who accepted Plaintiffs guilty plea to the probation violation imposed no additional term of incarceration, noting that Plaintiff had "spent five years in jail" on the criminal facilitation/weapons charges. (June 27, 2016 Thadani Deck, Ex, Z (Dkt. No. 166-26) (Jan. 19, 2012 Supreme Court Proceedings) at 6:21-7:3)

         D. Alleged Spoliation

         1.Mini Mart Surveillance Footage

         As noted above, during the NYPD's investigation of the December 26, 2006 shootings, Fawaz Terab - the owner of the Mini Mart - arranged for detectives to obtain a VHS copy of surveillance footage captured on the hard drive of a DVR maintained in the Mini Mart basement. The DVR was connected to a surveillance camera inside the Mini Mail. (Pltf, R. 56.1 Stmt. (Dkt. No. 178) at ¶ 18; Def Resp. to Pltf. R. 56.1 Stmt. (Dkt. No. 176) at ¶ 18; Gross Deck, Ex. O (Dkt. No. 214-17) (Terab Dep.) at 13:20-18:12) Plaintiff contends, however, that Defendants were obligated to seize and preserve the hard drive of the DVR containing the surveillance footage, (Pltf. Sanctions Br. (Dkt. No. 182) at 5-7, 11) Plaintiff further complains that Defendants lost the original VHS copy made from the footage stored on the DVR, and that

the repeated copying of the original VHS tape and the subsequent transfer to a DVD that was produced during discovery[] has irreparably altered the original images[, ] thereby precluding [P]laintiff from conclusively establishing that he was not the person shown in the video to be passing an object to Dior Creighton,, ..

(Id. at 5; see also Pltf, Reply Sanctions Br. (Dkt. No, 219) at 7-11) Plaintiff also claims that Defendants have edited the surveillance footage. (Id. at 8, 14; Pltf, Reply Sanctions Br. (Dkt. No. 219) at 4, 7-9)

         In arguing that (1) the DVD tape produced during discovery is an edited and altered version of the surveillance footage originally recorded on the hard drive of the DVR; and (2) Defendants lost the first generation VHS copy of the surveillance footage, Plaintiff relies on Detective Godino's deposition testimony. Detective Godino testified that the surveillance footage he obtained from the Mini Mart had no "slow motion or . .. reverse on it"; it was "just a tape running." (Gross Decl, Ex. K-2 (Dkt. No. 214-12) (Godino Dep.) at 334:12-335:3) The tape produced by Defendants in this action, however, contains "fast forward, slow motion, rewind and multiple views all on one tape." (Id. at 341:5-l 1)

         At deposition, Godino testified that the tape produced by Defendants during discovery "is not the same version of the tape that [Godino] reviewed when [he] first looked at it." (Id. at 334:21-24) Godino also testified that - within a month of Plaintiff s arrest - he delivered the NYPD's folders concerning the December 26, 2006 shootings - which contained the VHS tape obtained from the Mini Mart's DVR - to the Bronx County District Attorney's Office. (Id. at 335:10-336:8; see also Grass Decl., Ex. K-l (Dkt, No. 214-11) (Godino Dep, ) at 46:12-21) According to Godino, the original VHS tape was lost after it was sent to the District Attorney's Office:

A: .... I gave [the original VHS tape] to [ADA Bruce Birns] so it could be reviewed and apparently it's nowhere to be found.
Q: What's nowhere to be found?
A: The tape.
Q: The original tape is gone?
A: I don't know where it is.
Q: You said that in a way that I took to mean that you believe that the original tape is amongst those things that are missing from this file, is that a fair statement?
A: Yes, I was shown a tape that was edited like this.
Q: When you were shown that tape, were you led to believe that the original, unaltered tape was not to be found anymore?
A: Yes.

(Gross Decl, Ex. K-2 (Dkt. No. 214-12) (Godino Dep.) at 338:6-23)

         Defense counsel - Kavin Thadani - confirmed at Detective Godino's deposition that the only version of the Mini Mart surveillance footage produced in this litigation is "an edited copy which has fast forward, slow motion, rewind and multiple views all on one tape." (Id. at 341;5-24) Thadani also stated at Godino's deposition that "[t]he original tape that would have come out from Mr. Terab's player and video surveillance recorder . .. has never been produced in this case and ... is not in the possession of [the] [C]orporation [C]ounsel." (Id. at 341:11-24)

         In opposing Plaintiffs motions, however, Defendants now state that both Thadani and Detective Godino "mistakenly believed [at the time of Godino's deposition] that the original videotape was lost or missing because [the videotape played at Godino's deposition] did not play in real time." (Def. Opp, Sanctions Br. (Dkt. No. 208) at 8 n.4) Relying on the testimony of Plaintiffs video expert - John Afrides - Defendants assert that the playback functions and multiple views originated from the original DVR recording, and thus the presence of these playback functions does not indicate editing or alteration. (Id. at 7-8, 8 n.4 (citing Afrides Decl. (Dkt. No. 214-5) at ¶ 15))

         Accordingly, Defendants now contend that a VHS copy made from the Mini Mart DVR was produced by the Bronx District Attorney's Office to Plaintiff during the criminal case, [17] and re-produced to Plaintiff during discovery in the instant case. Defendants further contend that the surveillance footage produced to Plaintiff during both proceedings contains the original surveillance footage from the Mini Mart DVR, and that that footage has not been edited or altered in any way. (Def. Resp. to Pltf R. 56.1 Stmt. (Diet. No. 176) at ¶ 62; July 19, 2016 Thadani Decl. (Dkt. No. 175) ¶ 3, Ex. B)

         In support of his summary judgment and sanctions motions, Plaintiff has submitted a Declaration from John Afrides, a photographer and videographer. (Gross Decl., Ex. E (Dkt. No. 214-5) (Afrides Decl.)) Afrides states that Plaintiffs counsel asked him to review a DVD containing surveillance footage from the Mini Mart.[18] (Id. at ¶ 3) Based on his review, Afrides determined that "[a] VHS tape was used to download the DVR images from the DVR, " and that the DVD provided to him by Plaintiffs counsel had been "digitized from a second generation VHS tape." (Id. at ¶¶ 7, 17) Afrides notes that the DVD he reviewed contains portions "in real time, slow motion, played forward and reverse and frame-by-frame." (IcL at ¶ 15) According to Afrides - based on "data embedded in the video" - "[t]hese playback functions originated at the original DVR recordings." (Id.)

         Afrides further opines that "if the original DVR had been retained in its native format (Hard Drive)., . the images would have been significantly clearer and more details in the video could be discerned." (Id. at ¶ 5) The transfer of material from a DVR to a VHS tape can "only resolve, at best, 50% of the original DVR information." (Id. at ¶ 7) Afrides believes that the DVD copy he reviewed - which "was of very poor quality" - "was digitized from a second generation VHS tape, " because the DVD contains "'dropouts' and tape distortions that are usually seen from a tape to tape copy." (Id. at ¶¶ 10, 17, 20) Afrides explains that "[m]ultiple viewings of the same VHS tape including fast forward, rewind, frame-by-frame, and pausing for still images can and will degrade a tape." (Id. at ¶ 14) Moreover, some pixilation results when a VHS tape is converted to a DVD format. (Id. at 18)

         2.NYPD Reports

         NYPD officers prepare complaint information reports - known as "DD5s" - that "outlin[e] the various investigative steps taken [, ]" such as "interviews of witnesses, computer checks, identification procedures, arrests, [and] requests for subpoenas and other documentation. .. ." (Gross Deck, Ex. K-l (Dkt. No. 214-11) (Godino Dep.) at 38:18-39:7) These reports are generally maintained in a case folder bearing a crime victim's name. (Id. at 39:8-21) Detective Godino testified that he provided case folders for Caldwell and Ayala - the victims of the December 26, 2006 shootings - to ADA Birns within a month of Plaintiff s arrest. (Id. at 44:2-24, 46:7-21, 96:10-17)

         Godino further testified that - after ADA Birns retired from the Bronx District Attorney's Office and ADA Dan McCarthy was assigned to the case[19] - Godino went to the District Attorney's Office to "go over the case folder[s], " in order to prepare for trial. Godino noticed at that time that "a lot of the DD5s were missing." (Id. at 45:5-11, 95:25-96:9) Godino believes that the missing DD5 reports were in the case folders when he delivered them to the District Attorney's Office in early 2007.[20] (Id. at 96:10-17) After the charges against Plaintiff were dismissed, Godino picked up the case folders from ADA Gottlieb and brought them to the Coiporation Counsel's Office. (Id. at 42:3-25, 43:15-25, 45:12-21) There is no index for the case folders and the DD5 reports are not numbered; accordingly, the number of missing DD5 reports is unknown. (See Pltf, R. 56.1 Stmt. (Dkt. No. 178) at ¶¶ 110-111, 114-115; Def Resp. toPltf.R. 56.1 Stmt. (Dkt. No. 176) at ¶¶ 110-111, 114-115)

         II. PROCEDURAL HISTORY

         Plaintiff filed this action in Supreme Court of the State of New York, Bronx County, on August 22, 2012. (Cmplt. (Dkt. No. 1-1)) Defendants removed the action on October 4, 2012. (Dkt. No. 1) On August 21, 2013, Plaintiff filed an Amended Complaint setting forth seventeen causes of action. (Dkt. No. 10)

         In a May 28, 2015 letter, Defendants sought permission to file a motion to dismiss. (Dkt. No. 64) At a subsequent conference, this Court expressed concern about whether a number of Plaintiff s claims could survive a motion to dismiss. (Dec. 10, 2015 Conf. Tr. (Dkt. No. 83) at 3) The parties agreed to meet and confer about whether certain of Plaintiff s claims should be dismissed on consent. (Id. at 8, 11)

         In a December 23, 2015 joint letter, the parties stated that Plaintiff had agreed to withdraw his claims for Monell liability, negligence, "unreasonable continued prosecution, " and false arrest/false imprisonment under Section 1983. (Dkt. No. 82) Plaintiff also agreed to withdraw his intentional infliction of emotional distress claim against the City of New York and District Attorney Robert Johnson in his official capacity. (Id.) In the December 23, 2015 letter, Defendants explained that - although they believed that Plaintiffs remaining claims were subject to dismissal - they would move for summary judgment at the close of discovery rather than file a motion to dismiss. (Id.)

         At a May 19, 2016 conference, the parties stated that discovery would be complete by May 25, 2016. (May 19, 2016 Conf, Tr, (Dkt. No. 143) at 14-15) The Court directed Plaintiff to submit a letter setting forth the legal and factual bases for the claims on which he intended to proceed. (Id. at 45; see also Dkt. No. 138) At this conference, Plaintiff raised for the first time the issue of potential spoliation relating to the Mini Mart surveillance footage and the DD5 reports. (May 19, 2016 Conf. Tr. (Dkt. No. 143) at 18-21)

         On May 20, 2016, this Court issued an order setting deadlines for the filing of summary judgment motions, motions in limine, and other pretrial submissions. (Dkt. No. 138)

         In a May 25, 2016 letter, Plaintiff stated that he would proceed on the following claims: (1) false arrest under New York law; (2) malicious prosecution under New York law; (3) malicious prosecution under Section 1983; (4) violation of Due Process rights under Section 1983; (5) unreasonably prolonged detention under Section 1983; (6) abuse of process under Section 1983; (7) conspiracy under Section 1983; and (8) failure to intervene under Section 1983.[21] (Pltf. May 25, 2016 Ltr. (Dkt. No. 141)) In the May 25, 2016 letter, Plaintiff also withdrew all claims against Bronx County District Attorney Robert Johnson. (Id. at 1-2)

         Defendants have now moved for summary judgment on all of Plaintiff s remaining claims. (Dkt. No. 164) Plaintiff has moved for summary judgment on his claims for (1) false arrest under New York law against all defendants other than Michael Cooper; (2) malicious prosecution under New York law against the City and Defendants Glenn Godino and Dean Roberts; (3) malicious prosecution under Section 1983 as against Defendants Godino and Roberts; and (4) deprivation of his Due Process rights under Section 1983 as against Defendant Godino, (Dkt. No. 172) Plaintiff has also moved for sanctions pursuant to Federal Rule of Civil Procedure 37, based on Defendants' alleged spoliation of evidence, (Dkt. No. 173)

         On September 9, 2016, the City of New York and Defendants Birns, Godino, Johnson, and Roberts filed a Suggestion of Death as to Defendant Ed Talty. (Dkt. No. 220) In a September 20, 2016 order, this Court adjourned the trial date to January 9, 2017, to permit the parties to consider whether another party should be substituted for Talty. (See Dkt. Nos. 222, 223) On December 30, 2016, Plaintiff requested an adjournment of the January 9, 2017 trial date until after the resolution of criminal proceedings currently pending against Plaintiff in Bronx County Supreme Court.[22] (Dkt. No. 232) Fawaz Terab - who is a critical witness in the instant case - is the complaining witness in the state court criminal proceedings currently pending against Plaintiff, [23] (Id.) This Court adjourned the trial date but did not set a new date, given uncertainty about when the state court criminal proceedings against Plaintiff would be completed.[24] (Dkt. No. 233)

         DISCUSSION

         I. SANCTIONS MOTION

         Plaintiff seeks sanctions against Defendants based on their alleged spoliation of evidence, including the Mini Mart surveillance footage and DD5 reports discussed above. Plaintiff contends that he is entitled to judgment against Defendants based on the alleged spoliation, or to an order "directing that the DVD provided by [D]efendants during discovery conclusively establishes that the person shown in the video passing an object to Dior [Creighton] is not [P]laintiff, Kenneth Creighton, " (Pltf. Sanctions Br. (Dkt. No. 182) at 5-6) Plaintiff also requests "binding instructions to the jury that it can infer that the original videotape and missing DD5s would be both relevant and favorable to [P]laintiff s case." (Id.)

         A. Timing of Resolving Spoliation Issue

         The parties disagree as to when Plaintiffs sanctions motion should be addressed. Plaintiff contends that the spoliation issue must be resolved now, because this Court may grant Plaintiff relief that could affect resolution of the cross-motions for summary judgment. (See Dkt. No. 155) Defendants argue that Plaintiffs sanctions motion and spoliation claim should be treated as a motion in limine, and considered only after the cross-motions for summary judgment have been resolved. (June 30, 2016 Ltr. (Dkt. No. 153) at 1-2; Def. Opp. Sanctions Br. (Dkt. No. 208) at 3)

         Given that Plaintiff seeks judgment against Defendants based on the alleged spoliation - and not merely a jury instruction - it would not be appropriate to treat Plaintiffs sanctions motion as a motion m limine. Moreover, the Second Circuit has made clear that where a party has intentionally destroyed relevant evidence, such conduct may - under certain circumstances - affect the outcome of a summary judgment motion. See Byrnie v. Town of Cromwell Bd. of Educ, 243 F.3d 93, 110-11 (2d Cir. 2001) ("[W]hile the .. . evidence might not have been sufficient in itself to defeat summary judgment, it does when coupled with the allowable inference of spoliation."); Kronisch v. United States, 150 F, 3d 112, 126-30 (2d Cir. 1998) ("[A]t the margin, where the innocent party has produced some (not insubstantial) evidence in support of his claim, the intentional destruction of relevant evidence by the opposing party may push a claim that might not uthenvise survive summary judgment over the line.").

         Accordingly, this Court will address Plaintiffs sanctions motion and spoliation claim before considering the parties' cross-motions for summary judgment.

         B. Applicable Law

         "It is a well-established and long-standing principle of law that a party's intentional destruction of evidence relevant to proof of an issue at trial can support an inference that the evidence would have been unfavorable to the party responsible for its destruction." Kronisch, 150 F.3d at 126. Although Plaintiff seeks sanctions pursuant to Federal Rule of Civil Procedure 37(b) - which provides for sanctions "when a party spoliates evidence in violation of a court order" - Rule 37(b) is not applicable here, because no discovery order was in place when (1) the Mini Mart surveillance footage was allegedly not preserved, or (2) the DD5 reports were allegedly destroyed. "Even without a discovery order, [however, ] a district court may impose sanctions for spoliation, exercising its inherent power to control litigation." West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2d Cir. 1999).

         "Where a party seeks sanctions based on the spoliation of evidence, it must establish 'that the sought-after evidence actually existed and was destroyed.'" Skyline Steel, LLC v. Pile Pro, LLC, 101 F.Supp.3d 394, 408 (S.D.N.Y.2015) (quoting Farella v. City of New York, No. 05 Civ. 5711 (NRB), 2007 WL 193867, at *2 (S.D.N.Y. Jan. 25, 2007)). Moreover, "'[a] party seeking an adverse inference instruction [or some other sanction] based on the destruction of evidence must establish (1) that the party having control over the evidence had an obligation to preserve it at the time it was destroyed; (2) that the records were destroyed with a culpable state of mind; and (3) that the destroyed evidence was relevant to the party's claim or defense such that a reasonable trier of fact could find that it would support that claim or defense.'" Chin v. Port Auth. of N.Y. & N.J., 685 F.3d 135, 162 (2d Cir. 2012) (quoting Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 107 (2d Cir. 2002)). Where these three elements are established, a court must then decide what, if any, sanction is appropriate, That determination "is confined to the sound discretion of the trial judge, and is assessed on a case-by-case basis, " Fujitsu Ltd. v. Fed, Express Corp., 247 F.3d 423, 436 (2d Cir. 2001) (internal citations omitted).

         C. Discussion

         1. Surveillance Footage

         With regard to the Mini Mart surveillance footage, Defendants contend that (1) the surveillance footage captured on the hard drive of the Mini Mail DVR was properly preserved; (2) in any event, there was no obligation to preserve the surveillance footage, because civil litigation was not foreseeable; and (3) even if the copy of surveillance footage produced in discovery is inferior to the footage originally captured on the hard drive of the Mini Mart DVR, Plaintiff has not demonstrated that the version captured on the DVR would have supported his claim. (Def, Opp. Sanctions Br. (Dkt. No. 208) at 3-8)

         a. Whether Evidence Was Destroyed or Materially Altered

         "Spoliation is the destruction or significant alteration of evidence, or the failure to preserve property for another's use as evidence in pending or reasonably foreseeable litigation." West, 167 F.3d at 779. A spoliation claim is thus "predicated on 'evidence actually,, . [having been] destroyed [or materially altered].'" Khaldei v. Kaspiev, 961 F.Supp.2d 564, 569 (S.D.N.Y. 2013) (quoting Orbit One Commc'ns v. Numerex Corp., 271 F.R.D, 429, 441 (S.D.N.Y. 2010)).

         Plaintiff contends that Defendants were obligated to preserve the hard drive of the Mini Mart DVR, because images stored on a DVR are clearer than images that are copied onto a VHS tape from a DVR. (Pltf. Reply Sanctions Br. (Dkt. No. 219) at 7-11) Moreover, images stored on the hard drive of a DVR may be enhanced, whereas a VHS tape cannot be enhanced. Plaintiff also contends that Defendants lost the original VHS copy, leading to the inferior copy of surveillance footage that was produced to Plaintiff in discovery. (Pltf. Sanctions Br. (Dkt. No. 182) at 11)

         In Crawford v. City of New London. No. 11 Civ. 1371 (JBA), 2014 WL 2168430 (D. Conn. May 23, 2014), the court addressed a spoliation argument similar to that raised here. In that case, plaintiff sought sanctions against defendants, because the original hard drive containing relevant security camera footage from the New London High School gym lobby had been recorded over, leaving only a DVD copy of the surveillance footage. Id. at *2, Plaintiff contended that the DVD format was "very difficult to enhance" and that the loss of the original recording on the hard drive deprived plaintiff of an opportunity to enhance the footage and present a clearer recording "that could have corroborated his version of events." Id. The court rejected this argument:

Plaintiff cites no authority for the proposition that a defendant has a duty to anticipate the format that would be most convenient for the plaintiff and to preserve evidence in that format, especially where the standard practice for preservation is to record a copy of the footage and re-use the original hard drive. Thus, it is doubtful that any evidence was "destroyed or materially altered" as those terms are typically understood in the context of a motion for spoliation sanctions.

Id.

         In reaching this conclusion, however, the Crawford court relied on evidence not present here. First, the New London Public Schools Chief Information Officer had submitted an affidavit stating that "the standard procedure for preserving security footage is to make a copy of that footage on a DVD and to record over the original hard drive after the sixteen-day retention period has passed, and that this procedure was followed in this case." Id. Here, Defendants have offered no evidence of what die NYPD's standard procedure is in such circumstances, [25] and Plaintiff has submitted a Declaration from an expert witness - a former high-ranking NYPD officer - stating that standard police procedure is to preserve the hard drive.[26] (Gross Decl, Ex. D (Dkt. No. 214-4) (Signorelli Decl.) at ¶ 22)

         Second, the New London Public Schools Chief Information Officer's affidavit also states that '"there is no difference between the content and quality of the footage captured on the security camera hard drives and the same footage as extracted and burned onto a DVD.'" Crawford, 2014 WL 2168430, at *2. Here, of course, there is evidence to the contrary. Plaintiff has offered expert testimony that the footage captured on the DVR's hard drive would have been much clearer than the VHS copy made from the Mini Mart DVR. (Gross Decl, Ex. E (Dkt. No. 214-5) (A frides Decl.) at ¶¶ 5, 7, 14, 17-18, 20) According to Plaintiffs expert, as much as 50% of the data might have been lost in the transfer. (Id. at ¶ 7) Plaintiffs expert has also opined that the DVD version of the surveillance footage produced by Defendants in discovery was made from a second generation VHS tape and not the original VHS copy. (Id. at ¶¶ 7, 17) By contrast, Defendants have offered no evidence that the DVD produced in discovery - or the VHS copy used at depositions - is substantially the same as the footage that had been stored on the DVR's hard drive.

         Accordingly, as a threshold matter, there is sufficient evidence that the transfer of surveillance footage from the hard drive of the Mini Mart DVR to a VHS tape resulted in the loss or material alteration of the surveillance footage.[27]

         However, to the extent that Plaintiffs spoliation claim is premised on the contention that the Defendants lost the original VHS copy made from the Mini Mart DVR - and then utilized second or later generation VHS copies of the surveillance footage - that claim fails. As an initial matter, the Declaration from Plaintiffs video expert - John Afrides - states that most of the degradation to the surveillance footage would have occurred when the footage was transferred from the Mini Mart DVR to the original VHS tape. Afrides estimates that, "at best, 50% of the original DVR information" would have been successfully transferred from the DVR to the original VHS tape, (Id. at ¶¶ 7, 16)

         While Afrides also states that (1) the DVD copy he reviewed - which was made from a VHS copy of the surveillance footage - is "of very poor quality"; (2) repeated viewing of VHS tapes will degrade their quality; and (3) the reproduction of "[a] VHS copy to another VHS copy would further degrade the image[, ] as the VHS format is an analog signal and every generation in the analog world degrades" (i(f at ¶¶ 10, 14, 16, 20), none of these statements is sufficient to demonstrate spoliation, Afrides reviewed only the DVD version of the surveillance footage produced by Defendants during discovery, (See Id. at ¶¶ 3, 8-10, 15, 17-18, 21) He is thus in no position to opine as to the VHS copy that would be introduced at trial. Accordingly, Plaintiffs sanctions motion is denied to the extent it is based on Defendants' failure to preserve the original VHS copy of the surveillance footage.

         b. Obligation to Preserve

         "In order for an adverse inference to arise from the destruction of evidence, the party having control over the evidence must have had an obligation to preserve it at the time it was destroyed, " Kronisch, 150 F.3d at 126. "Th[e] obligation to preserve evidence arises when the party has notice that the evidence is relevant to litigation .. . [or] when a party should have known that the evidence may be relevant to future litigation." Id. "Courts have held[, however, ] that [a spoliation sanction] is not appropriate where the [movant has not shown that the alleged spoliators had] 'any control over the [relevant] recordings, any duty to maintain them, or were in any way involved in the failure to preserve them.'" Deanda v. Hicks, 137 F.Supp.3d 543, 556 (S.D.N.Y. 2015) (quoting Grant v. Salius, No. 09 Civ. 21, 2011 WL 5826041, at *2 (D, Conn. Nov. 18, 2011)).

         Here, Defendants contend that they had no obligation to preserve the surveillance footage because civil litigation was not foreseeable during the pendency of Plaintiff s criminal case. (Def. Opp. Sanctions Br. (Dkt. No. 208) at 6) In Manganiello v. City of New York, 612 F.3d 149 (2d Cir. 2010), however, the Second Circuit rejected as "frivolous" defendant's argument that a police detective "had no obligation to preserve the case file" during a criminal case and before civil litigation commenced.[28] Id. at 166. Accordingly, this Court assumes - for puiposes of Plaintiff s spoliation claim - that the NYPD and the Bronx County District Attorney's Office had an obligation to preserve evidence relevant to Plaintiffs underlying criminal case.

         "Spoliation sanctions are applicable only when a party loses or destroys evidence, [however, ] not when he or she fails to collect it." Sachs v. Cantwell, No. 10 Civ. 1663 (JPO), 2012 WL 3822220, at *9 (S.D.N.Y. Sept. 4, 2012) (denying spoliation sanctions in a Section 1983 action against the City of New York and NYPD officers, where officers were allegedly negligent in failing to secure surveillance video from a restaurant where an altercation took place); see also Stern v. Shammas, No. 12 Civ. 5210 (NGG) (RER), 2015 WL 4530473, at *13- 14 (E.D.N.Y. July 27, 2015) (denying adverse inference instruction where portion of a video recording had been lost because, inter alia, "Plaintiff has failed to show that the original recording was in the custody or control of the individual Defendants, . .."), Poux v. County of Suffolk, No. 09 Civ. 3081 (SJF) (WDW), 2012 WL 1020302 (E.D.N.Y. Mar. 23, 2012), is instructive on this point.

         In Poux, Citibank employees investigating a fraudulent check cashing scheme provided police officers with still photographs and tapes of surveillance video from Citibank branches. Poux, 2012 WL 1020302, at * 15-16. Plaintiff contended, however, that other surveillance video was lost when Citibank recycled the tapes pursuant to its standard policy of putting surveillance tapes back in service after 60 to 90 days. Id. In denying plaintiffs motion for sanctions against police and prosecutor defendants, the court determined, inter alia, that there was "no evidence in the record .. . that [those defendants] ever had control over the allegedly lost or destroyed videotapes or played any part in the destruction of the videotapes." Id. at * 19.

         The Second Circuit has likewise distinguished between the destruction of evidence and a failure to collect it. In United States v. Greenberg, 835 F.3d 295 (2d Cir. 2016), the court addressed a similar claim of spoliation, albeit in the context of a due process claim in a criminal case. The legal standard applicable to such claims contains an analogous threshold requirement that '"the record must. .. show that evidence has been lost and that this loss is "chargeable to the State, "'" Id. at 303 (quoting United States v. Rahman, 189 F.3d 88, 139 (2d Cir. 1999)).

         In Greenberg, defendant sought dismissal of the indictment on grounds of spoliation where the FTC's civil investigators had copied computer hard drives in a "deficient and incomplete" fashion. Id. The Second Circuit found it "doubtful" that defendant had succeeded in "even rais[ing] a due process issue regarding the failure to preserve evidence" because, inter alia, he had "not provide[d] substantive support for his argument that the failure to collect evidence could ground a due process claim...." IcL (emphasis in original).

         Here, Plaintiffs spoliation claim is - as to the surveillance footage - premised on the notion that the NYPD was legally obligated to seize the Mini Mail DVR. Spoliation sanctions address the destruction, alteration, or loss of evidence in a party's control, however, and the Mini Mart DVR was owned and maintained by Terab, a private third-party. There is no evidence that the DVR was ever in Defendants' custody or control, or that Defendants played a role in the loss or destruction of the surveillance footage stored on the DVR's hard drive. Because spoliation sanctions are not available where, as here, "a party [merely] .. . fails to collect" ...


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