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Greene v. City of New York

United States District Court, E.D. New York

March 15, 2017

CY GREENE, Plaintiff,
v.
CITY OF NEW YORK, NEW YORK CITY TRANSIT AUTHORITY, MICHAEL NORRITO, JOSEPH TUMBARELLO, ROBERT SULLIVAN, and CHARLES J. HYNES, Defendants.

          MEMORANDUM & ORDER

          Ann M. Donnelly United States District Judge

         The plaintiff brought this action on January 16, 2008 against the City of New York, the New York City Transit Authority, the Kings County District Attorney, former New York City Police Department Detective Michael Norrito, former New York City Transit Authority Detective Joseph Tumbarello, and former Assistant District Attorney Robert Sullivan, alleging violations of his constitutional rights in connection with his arrest and prosecution for a 1983 homicide.[1] On April 5, 2016, the defendants moved for summary judgment on all of the plaintiff’s claims. For the reasons set forth below, the defendants’ motion for summary judgment is granted in its entirety, and the plaintiff’s complaint is dismissed.

         OVERVIEW

         John Choi was murdered in Brooklyn, New York on June 14, 1983. The plaintiff and his co-defendant, Larry Williams, were arrested seven days after the murder. That same day, two witnesses to the crime, Jae Hark Kim and Mark Best, identified the plaintiff and Williams in separate lineups. Both the plaintiff and Williams made videotaped statements to a prosecutor, and denied any involvement in the murder. The case was presented to a grand jury, which indicted the plaintiff and Williams for murder and robbery.

         One of the critical issues at the plaintiff’s trial, at which only one of the eyewitnesses testified, was the reliability of that witness’s identification of the plaintiff. The defense also attacked the police investigation that led up to the arrest, and presented an alibi. The jury found the plaintiff guilty of one count of second degree murder and one count of first degree robbery.[2]

         The plaintiff’s conviction was affirmed by the Appellate Division, Second Department, and his petition for habeas corpus was denied. The trial judge, Michael Pesce, denied the plaintiff’s first three 440.10 motions. In his fourth 440.10 motion, the petitioner alleged Brady and Rosario violations, and that his trial attorney was ineffective. Judge Pesce rejected the Brady and Rosario claims, but found that the plaintiff’s trial attorney was ineffective because he did not listen to an audiotaped interview of the eyewitness in a case where identification was a critical issue, and failed to call another witness.

         Accordingly, Judge Pesce vacated the plaintiff’s conviction. That decision was affirmed by the Second Department on February 13, 2007, and the Kings County District Attorney’s Office dismissed all charges against the plaintiff on June 11, 2008.

         FACTUAL BACKGROUND

         At about 4:45 p.m. on June 14, 1983, John Choi was murdered on the stairs of a subway station at Church and Nostrand Avenues in Brooklyn, New York. (Defendants’ Local Civil Rule 56.1 Statement of Material Facts as to which there is no Genuine Dispute (“56.1 Stmt.”), ECF 251, ¶ 2; Plaintiff’s Local Civil Rule 56.1 Counter-Statement of Material Facts (“56.1 Counterstmt.”), ECF 275, ¶ 2.)[3] As Mr. Choi and his friend, Jae Hark Kim, headed down the steps of the subway station, four black men chased Mr. Choi. (56.1 Stmt. ¶ 4; 56.1 Counterstmt. ¶ 4.) Mr. Choi ran to the steps on the opposite side of the station, but fell, and one of the men stabbed him in the chest and thigh. (56.1 Stmt. ¶ 4; 56.1 Counterstmt. ¶ 4.) Two of the other assailants hit Mr. Choi and went through his pockets before running up the stairs to the street. (56.1 Stmt. ¶ 4; 56.1 Counterstmt. ¶ 4.) Mr. Choi was bleeding from the chest; Mr. Kim carried him to the street, and ran into a restaurant, asking that the police be called. (56.1 Stmt. ¶ 4; 56.1 Counterstmt. ¶ 4.) Mr. Choi died at the Kings County Hospital Emergency Trauma Unit. (Declaration of Karen M. Chau (“Def. Ex.”), Ex. 1.)

         The Investigation

         Detective Michael Norrito of the 67th Precinct and Detective Joseph Tumbarello of the New York City Transit Authority were assigned to investigate Mr. Choi’s murder. (56.1 Stmt. ¶ 5; 56.1 Counterstmt. ¶ 5.) The detectives arrived on the scene shortly after Mr. Choi’s stabbing, and canvassed the area to identify any eyewitnesses to the crime. (56.1 Stmt. ¶ 6; 56.1 Counterstmt. ¶ 6.) During the course of their investigation, the detectives took notes, and they and other officers prepared DD5 forms. (56.1 Stmt. ¶ 7; 56.1 Counterstmt. ¶ 7.) ADA Robert Sullivan also took audio or video recorded statements from certain witnesses after they were interviewed by the detectives; these recordings were then transcribed by an employee of the Kings County District Attorney’s (“KCDA’s”) Office. (56.1 Stmt. ¶ 7; 56.1 Counterstmt. ¶ 7.)

         Mr. Kim’s Statements

         Mr. Kim was interviewed by the police several times on June 14, 1983. At about 4:45 p.m., he spoke to Police Officer Castriccone, one of the first officers to arrive on the scene. (Def. Ex. 1.) Mr. Kim reported that he was ahead of Mr. Choi as they were walking towards the token booth. (Id.) He heard yelling and turned to see Mr. Choi surrounded by four black men. (Id.) Mr. Choi attempted to run away, but the perpetrators knocked him down and stabbed him. (Id.) Mr. Kim described the first perpetrator as a 16 to 18 year old black male who was 6'0" tall, and the second perpetrator as a 16 to 18 year old black male who was 5'8" tall. (Id.)

         Mr. Kim also spoke to Police Officer Williams, and reported that the stabber was a 130 pound, black male, between 18 and 20 years old, 5'8" to 5'9" tall, with a medium build, a chocolate colored shirt, and dark pants. (Declaration of John F. Schutty Filed in Support of Plaintiff’s Opposition to the Defendants’ Motion for Summary Judgment, (“Pl. Ex.”), Ex. 3, at ¶ 000433.) Mr. Kim then spoke to Detective Norrito at around 5:00 p.m. at the 67th Precinct. (Def. Ex. 5.) He described the stabber as a black male, 5'9' tall, of medium build and with short hair, a chocolate colored shirt and dark pants. (Id.) He reported that there were two other black men who were standing around the victim. (Id.)[4]

         At about 9:11 p.m. on June 14, 1983, ADA Robert Sullivan conducted a taped interview of Mr. Kim, with both Detectives Norrito and Tumbarello present.[5] (56.1 Stmt. ¶ 12; 56.1 Counterstmt. ¶ 12; Def. Ex. 2, at ¶ 000133.) A non-ADA employee of the KCDA’s office transcribed the tape. (56.1 Stmt. ¶¶ 13-14; 56.1 Counterstmt. ¶¶ 13-14.) The transcript of the interview does not include the world “tall guy.” (56.1 Stmt. ¶ 15; Def. Ex. 2.) In the audio recording of the interview, however, Mr. Kim can be heard describing the perpetrator as a “black guy, tall guy” who “got the knife and I saw he tried to stab my friend.” (Def. Ex. 18.)

         Other Witness Interviews

         Investigators interviewed various witnesses both on the day of the stabbing, and afterward.

         Abdul Rahman

         At about 6:30 p.m. on the day of the stabbing, Detectives Norrito and Tumbarello interviewed Abdul Rahman, a vendor who was setting up his stand in the subway station at the time of the incident. (Def. Ex. 14, at ¶ 004022; Def. Ex. 25.) Rahman told the detectives that he saw the victim running toward the staircase on the southwest side of the station, with three black men running after him. (Def. Ex. 25.) The three men began fighting with the victim, and when a train pulled into the station, the perpetrators ran up the stairs, dropping a knife and money on the floor. (Id.) Rahman described each of the perpetrators as about 5'8" tall and 120 pounds.[6] (Id.) One was 15 to 19 years old and wore a red shirt and tan shorts; the second was between 15 to 20 years old, and wore a brown shirt with dark pants; the third was 17 years old, and wore a white shirt with stripes. (Id.)

         ADA Sullivan interviewed Rahman later that same night. (56.1 Stmt. ¶ 18; Def. Ex. 26.) During that interview, Rahman said that he saw three black men chasing the victim, but did not see who was holding the knife. (56.1 Stmt. ¶ 18; Def. Ex. 26.) On one occasion, Rahman looked through photographs of suspects, but did not identify anyone. He refused to look at any additional photographs. (Pl. Ex. 5, at 247-49.)

         James Robinson

         At about 6:30 p.m. on the night of the stabbing, Detective Vance Herlihy interviewed James Robinson, who said that he was in the area of Church and Nostrand Avenues when a man told him to stop another man running on Nostrand Avenue. (56.1 Counterstmt. ¶ 19; Def. Ex. 27.) Robinson chased the man, who was black, about six feet tall, and wore a brown shirt and pants; the man got into a taxi that was stopped by a fire hydrant. There were other people in the taxi. (Def. Ex. 27.)

         Reynold Guerrier

         Detective Tumbarello interviewed Reynold Guerrier, a taxi driver, at around 6:35 p.m. (56.1 Stmt. ¶ 20; 56.1 Counterstmt. ¶ 20; Def. Ex. 15, at ¶ 002383-84.) Guerrier said that at around 4:45 p.m., he was stopped at an open fire hydrant on Erasmus Street between Veronica and Lloyd Street when three black men got into his cab and asked to be driven to Flatbush Avenue.[7] (Def. Ex. 15, at ¶ 002383-84.) Mr. Guerrier told them that he was off-duty, but the men said that they had “a problem” and needed to get to Flatbush Avenue. (Id.) He took them to Flatbush and Clarendon, where they got out. (Id.) He told the detective that he could not identify them because they were behind him, but said that they were between 18 to 20 years old, 5'8" to 5'10" tall, and were speaking Spanish. (Id.) One of the men was wearing a brown shirt, shorts, and sneakers; Guerrier described him as being 5'10" tall. (Id.)

         Detective Herlihy also spoke to Guerrier that same day and prepared a DD5 of their interview. (56.1 Stmt. ¶ 22; Def. Ex. 28.) The DD5 reflects that Guerrier told him that three black men, about 20 years in age, got into his cab, that they were out of breath, and that they said they had a problem and needed to get to Flatbush Avenue. (Def. Ex. 28.)

         Eric Head

         At about 7:00 p.m., Norrito interviewed Eric Head, who was working at a carpet store across the street from the subway where Mr. Choi was stabbed. (56.1 Stmt. ¶ 28; Def. Ex. 16.) Head reported that at around 4:35 p.m., he saw two black men run out of the subway station; a few seconds later, another black man ran out of the subway station’s southwest entrance. (Def. Ex. 16.) Head said that he recognized all three of the men as local pickpockets. (Id.) When he approached the man who left from the southwest entrance, the man fled. (Id.)

         Later that same night, Head spoke to ADA Sullivan, with Detectives Norrito and Tumbarello present. (56.1 Stmt. ¶ 32; Def. Ex. 33.) He stated that he saw three men leave the subway station, and that while he did not know them personally, he knew that they robbed people in the neighborhood. (56.1 Stmt. ¶ 32; Def. Ex. 33.) Head said that one of the three men, whom he described as a “little kid,” walked out of the subway station, but then began to run when Head approached him. (56.1 Stmt. ¶ 32; Def. Ex. 33.)

         Head then viewed photographs at the Catch Unit. (56.1 Stmt. ¶ 29.) The DD5 form prepared by Detective Norrito indicates that Head identified Joseph Ross as the person who fled from the southwest entrance, and Ronald Blanding and Eric Tidwell as the men he saw standing at the entrance to the subway about five minutes before the stabbing. (Id. ¶ 28; Def. Ex. 16.) According to Head, all three were pickpockets. (Def. Ex. 16.) Detective Tumbarello’s notebook indicates that Head identified Leonard Best, Joseph Ross, and Ronald Blanding as having been at the scene of the crime. (56.1 Stmt. ¶ 30; Def. Ex. 15, at ¶ 002385.) Detective Norrito’s notebook contains an undated entry with the names Leonard Best, Joseph Ross, and Marcus; there is no additional information in the entry. (56.1 Counterstmt. ¶ 240, Def. Ex. 14, at ¶ 004028.)

         Joseph Ross

         The day after the stabbing, at around 5:00 p.m., Detectives Norrito and Tumbarello interviewed Joseph Ross, whom Head said was near the subway station about five minutes before the stabbing. (56.1 Stmt. ¶ 33.) Ross said that he was at Church and Nostrand Avenues at around 4:00 p.m. with his friend Mark Best, but left the scene before the incident. (56.1 Stmt. ¶ 34; Def. Ex. 34.) He said that Mark Best saw what happened, and recommended that the detectives question him.[8] (56.1 Stmt. ¶ 34; Def. Ex. 34.)

         Lenny Best

         At an April 17, 2010 deposition, Lenny Best testified that uniformed officers picked him up in the early evening of June 15, 1983; they told him that they were taking him in to the 67th Precinct to speak with Detective Norrito. (Pl. Ex. 8, at 31-32.) Best thought that the police wanted to talk to him about a burglary that he committed the day before, but the officers asked him about the homicide in the subway station. (Id., at 32-34.) They also asked questions about his brother, Mark Best, and the plaintiff, Cy Greene. (Id., at 35.) Lenny Best told the officers that he did not know anything about it. (Id., at 33.) As the officers were taking him out of the car in front of the precinct, he ran away to Snyder and Rogers Avenue. (Id., at 32-35.) The police never questioned him again about the events of June 14, 1983. (Id., at 35.)

         Detective Norrito testified at his deposition that he had never heard that Lenny Best ran away from officers who picked him up. (Pl. Ex. 10, at 118.) Detective Tumbarello said that he had heard rumors at the precinct that Lenny Best had run from a police car. (Pl. Ex. 9, at 132-33.)[9]

         Mark Best

         Detective Norrito first interviewed Mark Best[10] on the day of the murder, because he knew him to frequent the area of the homicide, but “received no information” from him at the time. (56.1 Counterstmt. ¶ 206; Pl. Ex. 2, at 61-62.) After receiving Joseph Ross’s tip, however, Detective Norrito questioned Mark Best again on June 16, 1983. (56.1 Stmt. ¶ 35; Def. Ex. 35; Pl. Ex. 2, at 61-62.)

         At this point, Detective Norrito suspected that Mark Best was involved in Mr. Choi’s murder, and interviewed him at the precinct. (56.1 Stmt. ¶ 269; Pl. Ex. 5, at 140.) Best said that on June 14, 1983 at around 4:20 p.m., he was at the top of the subway station stairs on Church and Nostrand Avenues. (Def. Ex. 35.) The plaintiff, whom Best knew as “Tony Rome,” was urinating in the stairwell, when two “oriental” men came into the station. (Id.) The plaintiff tried to grab one of the men’s wallets, and then chased him. (Id.) Two other black men also chased the victim. (Id.) The plaintiff took out a knife and stabbed the victim. (Id.) The plaintiff and one of the other men picked up money that had fallen to the floor and ran up the southwest stairwell to Church Avenue. (Id.)

         Detective Norrito showed Best a photographic array that included the plaintiff’s photograph; Best identified the plaintiff, and provided the plaintiff’s home address. (Id.)

         ADA Sullivan interviewed Best on tape, with Detectives Norrito and Tumbarello present, at around 3:43 p.m. on June 16, 1983. (56.1 Stmt. ¶ 40; Def. Ex. 21.) Best stated that on the day of the murder, he went into a Chinese restaurant near the train station to buy a soda, and saw two “Chinese” men who were also buying something. (Def. Ex. 21, at 2.) The men walked down into the train station, where the plaintiff, whom Best knew from the area, was urinating. (Id., at 2-3.) Best, who at this point was standing at the bottom of the stairwell, saw the plaintiff reach into one of the men’s pockets; two other men came down the stairs to help the plaintiff.[11] (Id., at 3-5.) The other “oriental” man tried to help his friend, but another man stopped him. (Id.) The victim fell on the steps, and scratched the plaintiff’s hand as he fell. (Id., at 6.) The plaintiff stabbed him in the back and picked up the victim’s money, which had fallen to the floor. (Id., at 6-7.) The perpetrators then ran past Best, knocking him down, and left the subway station. (Id., at 7-8.)

         The Plaintiff’s Arrest

         Detective Norrito went to the plaintiff’s home several times in an effort to locate him; the plaintiff’s mother told the detective that he had not been home in a while. (Def. Ex. 7, at 249-50.) For the next week, a precinct employee called the plaintiff’s home looking for him. On June 21, 1983, the plaintiff answered. (Id., at 250.) Then, Detectives Norrito and Collins went to the apartment, where they picked up the plaintiff and his co-defendant, Larry Williams. (56.1 Stmt. ¶ 46; 56.1 Counterstmt. ¶ 46.) Norrito took both men into custody and drove them to the 67th Precinct, where they were questioned. (56.1 Counterstmt. ¶ 326.)

         Detective Tumbarello met the plaintiff at the precinct, and noticed that he did not meet Mr. Kim’s description of the stabber as a “tall guy;” this made him question whether they had the right person. (Pl. Ex. 9, at Tr. 204-06.) Nevertheless, he placed the plaintiff under arrest later that same day. (56.1 Stmt. ¶ 46; 56.1 Counterstmt. ¶ 46; Def. Ex. 17.)

         At the precinct, the plaintiff and Williams were in a holding cell in the middle of the detective unit. (56.1 Stmt. ¶ 48; 56.1 Counterstmt. ¶ 328.) The witnesses, Best and Mr. Kim, were taken to separate parts of the building; Best was put in the Catch Unit, while Mr. Kim was taken to the computer room, behind a partition. (Def. Ex. 22, at 23.) Mr. Kim and Best did not speak to each other before the lineup was conducted. (Id.)

         The Lineups

         Starting at about 9:05 p.m., detectives ran two separate lineups, one with the plaintiff and one with Larry Williams. (56.1 ¶ 52; 56.1 Counterstmt. ¶ 52.) Mr. Kim and Mark Best then viewed each line-up separately. (56.1 ¶¶ 53-54.) The participants in the plaintiff’s lineup were seated.[12] (56.1 Stmt. ¶ 345; Def. Ex. 3, at 137-38.) Mr. Kim identified the plaintiff as the perpetrator “from the robbery;” he noted that the plaintiff had “big eyes” and was the one who was “holding [the] knife.” (Def. Ex. 37, at ¶ 003983.) Mark Best also identified the plaintiff as “the one that stabbed the man.” (Id.) Mr. Kim identified Williams as the one who “push[ed] [him] around,” and Best identified him as having been in the subway “with the other guy.” (Id., at ¶ 003992.)

         Anonymous Tip Memos

         On August 29, 1983, Sylvia Lerner from the Citizen Action Center sent a memo to the KCDA’s Office reporting a call from an anonymous caller, “who sounds rational.” (Pl. Ex. 35.) According to the memo, the caller said that while she knew that two young men were in jail for the June 14, 1983 homicide, “everyone knows” that they were not the perpetrators. (Id.) The caller said that the following people were involved: Roberto, also known as “Shabazz,” an 18 to 19 year old Puerto Rican man who was “dark-skinned and chubby and short;” Lenny Bess or Best, a 21 or 22 year old “brown-skinned black man of medium height and average build;” a man named William; and a tall, thin dark skinned black man named Ronnie. (Id.)

         According to a second memo, dated over a month later on October 6, 1983, the same anonymous caller called back to provide additional information. (Id., at NYC HHR 023369.) This time, the caller said that Lenny Best’s mother wanted him to admit to the murder, but was unable to convince him to do so. (Id.) The caller “fe[lt] that if we sent someone to interview her, we could get her to give information about his wheareabouts.” (Id.) The caller also stated that a detective shot Best while Best was committing a crime. (Id.) She specified that “Ronnie,” whom she had identified in the first call, was “Ronald Blanding.” (Id.) She also provided his address. (Id.) The author of the memo stated that the caller “seems to know what she is talking about.” (Id.) The plaintiff contends, without citation, that these memos were never turned over to his trial counsel. (Pl. 56.1 ¶ 354.)

         Pre-Trial Proceedings

         A grand jury indicted the plaintiff on June 24, 1983 for two counts of murder and one count of robbery for robbing and killing Mr. Choi. (56.1 Stmt. ¶ 57; 56.1 Countersmt. ¶ 57.) Mr. Kim and Detective Norrito testified before the grand jury. (56.1 Stmt. ¶ 57; 56.1 Countersmt. ¶ 57.) Mr. Kim described the robbery and stabbing; at two different points, he described the stabber as “taller than me,” and said that another “small guy” tried to pull something out from Mr. Choi’s pocket. (56.1 Stmt. ¶ 58; 56.1 Counterstmt. ¶ 58; Def. Ex. 41, at 5-6.)

         The plaintiff was arraigned on July 6, 1983, and pled not guilty. (56.1 Stmt. ¶ 59; 56.1 Countersmt. ¶ 59.) Prior to trial, the plaintiff moved to suppress the lineup identifications. On December 14, 1984, the Honorable Joseph Lombardo presided over a Wade hearing. (56.1 Stmt. ¶ 60; 56.1 Counterstmt. ¶ 60.) Detectives Norrito and Tumbarello testified for the prosecution, and the plaintiff and Mr. Williams testified for the defense. (56.1 Stmt. ¶ 61; 56.1 Counterstmt. ¶ 61.)

         At that hearing, Detective Norrito testified about some of the circumstances of the investigation, the arrest of the plaintiff and Larry Williams, and the identification procedures. Detective Norrito also testified about Mr. Kim’s various descriptions of the stabbers. Mr. Kim described the stabber to Officer John Casteroni, one of the first officers on the scene; Mr. Kim said that the stabber was a six foot tall black man, from 16 to 18 years old, with short hair and a medium build. (Gragg Decl. Ex. 27, at 9-10, 64-65.) Later, at the precinct, Mr. Kim told Detective Norrito that the stabber was a 5'9" black man, 18 to 20 years old with a medium build and short hair, wearing dark pants and a chocolate brown shirt. (Id., at 8-9.)

         Detective Norrito also testified that he interviewed Mark Best, who identified the stabber as “Tony Rome;” the detective looked through a list of known nicknames and determined that the plaintiff was “Tony Rome.”[13] (Id., at 11-15, 33.) Detective Norrito took the plaintiff and Larry Williams into custody on June 21, 1983, and took them to the 67th Precinct. (Id., at 15-17.) Both the plaintiff and Williams were placed in a holding cell in the precinct’s detective unit; the cell was not visible from the doorway. (Id., at 15, 48-50.) Meanwhile, Detective Tumbarello picked up Mr. Kim and Detective Norrito got Mark Best. (Id., at 69.) The witnesses were separated; Best was in a computer room, and Mr. Kim was with two detectives, behind a screen. (Id., at 23, 55-56.) Detective Norrito instructed Mr. Kim not to leave the room. (Id., at 55, 68-69.)

         Both Best and Mr. Kim separately viewed two lineups-one containing the plaintiff and one with Williams-and both identified the plaintiff and Williams. (Id., at 90-92.) Mr. Kim called the petitioner “big eyes,” and said that he was “holding the knife.” (Id., at 92-93.) At various points during the hearing, Detectives Norrito and Tumbarello referred to their notes. (Id., at 8, 9, 63, 76-78, 97, 103.) During cross-examination, the plaintiff’s attorney asked if the detective had “any notes or memorandums that you made in this case.” (Id., at 76.) Detective Norrito answered that he had “a book, a steno pad.” (Id.) When the plaintiff’s counsel asked to see the detective’s notebook, the prosecutor objected to “counsel just perusing through the notebook.” (Id., at 76-77.) Judge Lombardo looked through the notebook, and the plaintiff’s attorney did not ask any follow-up questions about it, or protest that he did not have it.[14] (Id., at 78.)

         At the hearing, the plaintiff and Williams both testified, and claimed that they saw an “Oriental” or “Chinese” man looking at them while they were in the precinct cell. (56.1 Stmt. ¶ 62; 56.1 Counterstmt. ¶ 62.) Williams said that the man was between 38 and 40 years old, was 5'8" tall, and “heavy set,” weighing between 180 and 200 pounds; he did not know if this man viewed the lineup. (Gragg Decl. Ex. 27, at 130-32.) According to Williams, the man walked by the cell several times, for a total of ten seconds. (Id., at 132-33.) “Hours later,” Williams was placed in a lineup. (Id., at 128.)

         The plaintiff also testified that about an hour and a half before the lineup, an “Oriental” or “Chinese” man “just kept walking back and forth playing with his hair, just looking at us, looking, walking back and forth.” (Id., at 136, 147-48, 151-53.) The man looked “mad, upset, like.” (Id., at 152.) He also saw the man talking to a detective; the man was about 5'5" or 5'6", and weighed between 120 and 130 pounds. (Id., at 137.) A janitor told the plaintiff that the man was “supposed to be a witness,” and that “there’s an Oriental man, somebody here, supposed to say somebody killed, something like that, killed his brother-in-law, something, his friend, or something.” (Id., at 147-50.)

         Both defense counsel asked that Mr. Kim and Mark Best be called to testify at the hearing. Judge Lombardo denied the request because they had not established that the identification procedures were unduly suggestive.[15] (Id., at 82-84.)

         After both sides rested, the prosecutor, Douglas Kallen, told the court that he wanted to start the trial the following Monday, because he had a “witness . . . whose name has been mentioned during the course of this hearing who is available to me now, but may not be available to me in January.” (Id., at 157.) Mr. Cohen, the plaintiff’s lawyer, commented that if the witness was “the kind of witness who’s in jail now and is going to get out of jail in the next little while, Mr. Kallen is worried about him running away, doing this, doing that; he can’t be a heck of a good witness.” (Id., at 158.) Mr. Cohen went on to say, “We know what this case is about. We know what Mr. Best’s record is.” (Id., at 158.)

         On January 2, 1985, Judge Lombardo issued an oral decision with findings of fact and conclusions of law.[16] The portion of the transcript that the parties provided establishes that Judge Lombardo found that the identification procedures were proper, that the fillers were similar in height, appearance and weight, and thus, that the lineup was not unduly suggestive. (Def. Ex. 42, at 33.) He rejected both the plaintiff’s and William’s testimony as “inherently incredible, untrustworthy.”[17] (Id., at 32.)

         The Trial

         The plaintiff went to trial in April of 1985 before the Honorable Michael Pesce and a jury. The central issue at the trial was identification. Six witnesses testified for the prosecution: Jae Hark Kim, Detectives Tumbarello and Norrito, Police Officer Pilato, who was one of the first officers on the murder scene, a doctor from the Office of Chief Medical Examiner, and Mr. Choi’s brother-in-law. Mark Best did not testify. Mr. Kim, the victim’s friend, was the only witness to identify the plaintiff as the killer. The jury heard evidence that Mr. Kim had given different descriptions of the stabber: that he was 5'9" tall, that he was 6 feet tall, and that he was taller than Mr. Kim, who estimated his own height as 5'4". (Gragg Decl. Ex. 30, at 133; Gragg Decl., Ex. 32, at 346, 350-51.) Mr. Kim also testified that he was standing below the stairway where Mr. Choi was stabbed, and that he was more comfortable measuring height in meters than in feet and inches. Nevertheless, the evidence established that the plaintiff, who was 5'2" tall, was not as tall as the estimates Mr. Kim had given; the jury also had the opportunity to see the plaintiff when counsel asked him to stand up.[18] (Gragg Decl. Ex. 32, at 315-16, 332, 347-51, 374; Gragg Decl. Ex. 33, at 567; Gragg Decl. Ex 34, at 684-85.)

         In addition to the evidence about the height discrepancies, the jury heard that the events transpired very quickly, that Mr. Kim did not pay attention to the faces of the men on the stairs as he passed them, and that his opportunity to see the stabber’s face was limited to the time that the stabber was on the top step of the subway stairs, when Mr. Choi was being stabbed. (Gragg Decl. Ex. 32, at 311-18, 335-36, 341-44, 371-73.) Counsel established through one of the first officers on the scene, Officer Pilato, that Mr. Kim was asked questions at the scene in order to prepare the UF61 report, and that the section in that report entitled “can identify” was blank.[19](Gragg Decl. Ex. 30, at 273.)

         Mr. Kim also testified about the lineups. He said that a detective told him to wait in a room, which he did. (Gragg Decl. Ex 32, at 383.) While he waited, he looked at about 60 photographs, but did not recognize anyone. (Id.) During the lineups, he asked to have the participants stand and turn so that he could see their profiles.[20] (Gragg Decl., Ex. 32, at 362-64, 383-85).

         In addition to the evidence of identification, the jury learned through defense counsel’s cross-examination that in the days after the murder, Detective Norrito interviewed witnesses who did not identify the plaintiff or Williams, but did identify other people. Eric Head, one of the people that Norrito interviewed, identified Eric Tidwell as a participant; Norrito learned that Tidwell was in prison at the time of the murder. (Gragg Decl., Ex. 30, at 143-44, 191.) The detective had information that minutes after the murder, four men fled in a taxi; he said that he did not believe that they were involved because of information he received from a “confidential informant.”[21] (Id., at 242-43.) Defense counsel also questioned Norrito about an interview of the taxi driver, done by Detective Herlihy; counsel used Detective Herlihy’s DD5 to ask questions. (Id., at 164-65.) Counsel also cross examined Norrito about Mark Best.[22] Joseph Ross told Detective Norrito that Mark Best, whom the detective described as a neighborhood pickpocket, was at the scene and that Norrito should talk to him. Norrito brought Best in, advised him of his rights, and informed him that he was a suspect in a homicide.[23] (Id., at 142-44, 159.)

         Counsel also cross examined Detective Norrito about Mark Best’s brother, Lenny Best, a burglar with a “bad” background. (Id., at 140-41.) At the time of the murder, Lenny Best had two outstanding warrants.[24] (Id., at 192.) Although the detective received information about other potential participants in the murder, he did not conduct lineups with any of those people.

         Both the plaintiff and Larry Williams testified for the defense, and both denied participating in the crime. Williams testified that on June 14th, he was at his mother’s house in Bushwick, seven miles from the scene of the murder. (Gragg Decl., Ex. 33, at 477-78.) His mother, Dorothy Williams, also testified that he was at home on the day of the murder, except for a trip to a nearby dry cleaner.[25] (Id, at 435-38.) Williams said that he first heard about the murder from the plaintiff’s cousin, Ronald Blanding, who told him that detectives arrested Reginald Greene, the plaintiff’s brother, for the murder. (Id., at 518-20.) Williams also said that Norrito threatened to charge him with the homicide if he did not name the plaintiff as a participant. (Id., at 523-29.) Norrito did not give him any additional information about the murder, and told him that he could make a statement to an assistant district attorney if he chose. (Id., at 524.) Williams made a videotaped statement to a prosecutor, in Norrito’s presence, in which he denied any role in the murder. (Id., at 523-25, 528.) That videotape was played for the jury.

         The plaintiff’s cousin, Ronald Blanding, also testified. He said that Norrito brought him to the precinct on the day of the murder and threatened to blame him for the murder if he did not “come up with the name” within two days. (Id., at 535-39.) Norrito also showed him photographs of people that Blanding knew from the neighborhood, including Lenny Best and the plaintiff’s brother, Reginald Greene. (Id., at 537.) Blanding denied committing the crime, and Norrito said that either Blanding was “a good actor” or telling the truth; Norrito said he was going to “take [Blanding’s] word for it,” and then allowed him to leave. (Id., at 536-39.)

         The plaintiff and his brother’s girlfriend, Barbara Nichols, testified that the plaintiff was at Ms. Nichol’s apartment at the time Mr. Choi was killed. (Id., at 547-51, 570-72, 576-77.) The plaintiff heard about the murder from Blanding, who told him that detectives threatened to charge Blanding with the crime. (Id., at 576.) When he was arrested, the plaintiff denied committing the crime to Norrito and to an assistant district attorney; the videotape of the latter statement was played for the jury. (Id., at 581-84.)

         Throughout the trial, both defense attorneys referred to and attempted to introduce various reports that summarized detectives’ interviews with potential witnesses, including James Robinson, Joseph Ross, Fred Thomas, Abdul Rahman, and the taxi driver, Reynold Guerrier. At one point, when the plaintiff’s attorney tried to introduce a DD5 containing Eric Head’s identification of Joseph Ross, Ronald Blanding and Eric Tidwell as participants in the crime, the prosecutor objected on hearsay grounds, and explained that he had given the lawyers the names of the witnesses named in the reports: “[T]hey have their names. I told them the names. They have the people. If they wanted to get them they could have reached out and got them as witnesses. They can call them if they want to as witnesses.” (Gragg Decl., Ex 30, at 145-51.) In another exchange, when Mr. Cohen was attempting to put police reports into evidence, the prosecutor said that “all reports are turned over” and “every information he requested was given to him as soon as he requested the names of witnesses, the recording officer, and so forth.” (Id., at 203.) Mr. Cohen answered, “No question about it.” (Id.)

         Prior to summations, the lawyers for both the plaintiff and Williams asked Judge Pesce to give an adverse missing witness charge to the jury based on the prosecutor’s failure to call Mark Best. After a hearing at which two paralegals testified about efforts to locate Mark Best, the court found that he was not under the prosecutor’s control, and therefore denied the defense application. (Gragg Decl., Ex 34, at 616-652.)

         In summation, Mr. Cohen argued that Mr. Kim’s varying descriptions of the killer’s height, all of which were inconsistent with the plaintiff’s height, made Mr. Kim’s identification unreliable. (Id., at 681-82, 684-85, 689, 699-700.) Counsel also attacked the investigation as sloppy and incomplete. He commented on Detective Norrito’s failure to put other suspects in lineups, particularly Mark Best, whom counsel described as “the suspected murderer” who “precipitated” the plaintiff’s arrest. (Id., at 691.) Counsel also commented on the prosecution’s failure to call Best as a witness. (Id., at 681-82, 684-85, 689-700.) The prosecutor conceded that Mark Best “might very well” have been one of the others involved in the murder. (Id., at 705.) On May 10, 1985, after two and a half days of deliberation, the jury found the plaintiff guilty of second degree murder and first degree robbery. (56.1 Stmt. ¶ 78.) They acquitted Williams of the murder, but convicted him of robbery. (Def. Ex. 20, at 3.) The plaintiff was sentenced to concurrent, indeterminate prison terms of fifteen years to life for the murder and two to six years for the robbery. (Def. Ex. 56, at 1.)

         Post-Trial Proceedings Appeal

         The plaintiff, through new counsel, appealed his conviction to the Appellate Division, Second Department, arguing that his trial lawyer was ineffective because he “elicited hearsay testimony from a homicide detective which indicated that a second witness who did not testify at trial saw the defendant stab the victim.” People v. Greene, 160 A.D.2d 726, 726 (2d Dep’t 1990). On April 2, 1990, the Second Department affirmed the plaintiff’s conviction, finding that Mr. Cohen’s actions:

were consistent with a strategy to supplement the mistaken identification defense by suggesting that the police had seized upon an unreliable tip made by an individual who was himself a suspect in order to quickly close the case. Under these circumstances, defense counsel’s decision to elicit testimony regarding this individual ‘was at most a mistaken judgment as to trial strategy and cannot be characterized as ineffective assistance of counsel.’ Id. The Court of Appeals denied the plaintiff leave to appeal this decision on June 19, 1990. 76 N.Y.2d 789 (N.Y. 1990).

         The plaintiff also sought habeas corpus relief on the basis of ineffective assistance of counsel, which was denied. Greene v. Walker, 205 F.3d 1322 (2d Cir. 1999).

         First 440 Motion

         On April 16, 1991, the plaintiff, through counsel, filed the first of four 440.10 motions to vacate his conviction, claiming that he had newly discovered evidence requiring that his conviction be vacated. (56.1 Stmt. ¶ 80; 56.1 Counterstmt. ¶ 80.) In support of his application, the plaintiff submitted a February 26, 1991 affidavit from Mark Best.[26] (Def. Ex. 50.) In his affidavit, Best swore that while he observed the attack at the subway station, he was not involved in it and was not associated with any of the attackers. (Id., ¶¶ 1-2.) Nevertheless, he claimed, the police picked him up and threatened to charge him with murder. (Id., ¶ 3.) He also asserted that he was placed in a lineup, but was not identified. (Id., ¶ 4.) The police again threatened to charge him with the murder if he did not identify a participant. (Id., ¶ 5.) Because he feared that the police would charge him, and because Detective Norrito promised to get him a job in a laundromat, Best then falsely identified the plaintiff as a participant. (Id., ¶¶ 6-7.) Best claimed that he later told police that he could not say the plaintiff was present at the murder, but that the police told him to “stay with this same story.” (Id., ¶ 8.) According to Best, someone named Panama was the real killer. (Id., ¶ 9.)

         Judge Pesce held an evidentiary hearing on the motion, at which Mark Best testified. (56.1 Stmt. ¶ 81.) Best, who was incarcerated at the time of the hearing, testified that Detective Norrito and another officer showed him a photograph of the plaintiff, and then punched and kicked him repeatedly until he identified the plaintiff. (Gragg Decl. Ex. 38, at 3, 12-13.) He claimed that the officers threatened to charge him with murder if he did not identify the plaintiff, and that they also offered him money and a job at a laundromat.[27] (Id., at 13-16.) When Best insisted that he did not know who murdered Mr. Choi, they beat him again and forced him to identify the plaintiff at a lineup. (Id., at 15-16.) Best first claimed that he told the assistant district attorney about the detectives’ threats and beatings, but that the A.D.A. “didn’t want to hear it;” he then claimed that he did not advise the prosecutor, but told other police officers about what had happened.[28] (Id., at 62, 64, 88.)

         Detective Tumbarello also testified. He interviewed Mark Best on June 16, 1983. Best told him that he was at the entrance to the Nostrand Avenue subway station, and saw the plaintiff, whom he knew as Tony Rome, urinating on the landing of the subway stairs. (Gragg Decl., Ex 40, at 4-5.) As two “Orientals” went down the steps, the plaintiff tried to take one of the men’s wallets. (Id., at 4.) When the second man ran to the other side of the staircase, the plaintiff and two other men chased him, and the plaintiff stabbed the victim. (Id., at 4-5.) The plaintiff and his accomplices picked up the victim’s money and ran. (Id., at 5.) At the precinct, Best identified the ...


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