United States District Court, S.D. New York
OPINION & ORDER
HONORABLE PAUL A. CROTTY, United States District Judge:
ROBERT FEREBEE ("Plaintiff or "Ferebee") moves
for reconsideration of that part of the Court's July 6,
2017 Opinion & Order which granted Defendants' motion
for summary judgment on Ferebee's denial of fair trial
claim. Plaintiff filed this 42 U.S.C. § 1983 action on
March 12, 2015; the Court granted Defendants' motion for
summary judgment on all eight of Plaintiff s claims.
motion for reconsideration is without merit and is DENIED.
September 8, 2014, Plaintiff was arrested for multiple
violations of an order of protection ("OOP"). Def.
56.1 ¶¶ 16, 18-19; PL Ex. C. at 38; PI. Ex. D. at
45-46. During the search incident to arrest, the arresting
officers found loose Tramadol pills in his pocket. Def. 56.1
to September 8, 2014, Plaintiff had a prescription for
Tramadol that provides, as written on the pill bottle label:
"[t]ake one tablet by mouth every 12 hours as needed for
pain." Def. Ex. J.; Def. 56.1 ¶¶ 13, 43.
Officer Cruz ("P.O. Cruz") found three foil pills
and one partial pill loose in Plaintiffs pants pocket. Def.
56.1 ¶ 33. P.O. Cruz contemporaneously vouchered the
pills. Def. Exs. N, O. Lab testing required destructive
testing of one pill, leaving 2.5 pills intact. Def. Ex. O;
Def. 56.1 ¶¶ 34-35. These remaining pills were
photographed, inventoried, and vouchered into evidence
storage. Def. Ex, P.
the arrest, P.O. Cruz spoke to the Bronx assistant district
attorney about Plaintiffs OOP violations; and provided him
the relevant paperwork and information. Def. 56.1 ¶ 45.
The Bronx District Attorney ("DA") declined to
prosecute Plaintiff for the OOP violations, Id.
¶ 46, but charged him with criminal possession of a
controlled substance ("CPCS") in the seventh
degree, in violation of N.Y.P.L. 220.03. Id., ¶ 48. On
November 14, 2014, the criminal charges were dismissed. Li
¶ 51. On March 12, 2015 Plaintiff filed the complaint in
this action. Id. ¶ 53.
motion for reconsideration is an extraordinary remedy to be
employed sparingly in the interests of finality and
conservation of scarce judicial resources." Benjamin
v. Goord, No. 02 Civ. 1703 (NRB), 2010 U.S. Dist. LEXIS
139110, at *1 2 (S.D.N.Y. Aug. 18, 2010) (internal quotations
and citations omitted). It is appropriate only when a court
overlooks controlling decisions or facts put forward in the
underlying motion, which might have led to a different
result. Eisemann v. Greene, 204 F.3d 393, 395 n.2
(2d Cir. 2000).
denial of fair trial claim based on an officer's omission
of, or failure to disclose information to a prosecutor
requires that the information be material, i.e. "likely
to influence a jury's decision." See Garnett v.
Undercover Officer C0Q39, 838 F.3d 265, 280 (2d Cir.
2016). Plaintiffs fair trial claim was based on his
contention that P.O. Cruz withheld information from the
prosecutor, namely, that Plaintiff had a valid Tramadol
prescription. See ECF 47 at 14. The Court held that
this claim failed because possession of a valid prescription
is irrelevant under Public Health Law § 3345.
Id. In seeking reconsideration, Plaintiffs arguments
are largely repetitive, focusing on Plaintiffs prescription,
and arguing that "whether [P]laintiff violated PHL
Section 3345 is irrelevant... because [Plaintiff] was not
charged with that offense." ECF 50 at 2. Plaintiff
misses the point again: CPCS charges are necessarily based on
underlying Public Health Law violations. N.Y. Penal Law
§ 220.00(2) (McKinney 2013).
Law 220.03 makes it illegal to "knowingly and
unlawfully" possess a controlled substance, and requires
an underlying Public Health Law offense. See Bravo v.
State, 129 A.D.3d 488, 489 (N.Y.App.Div. 2015); ECF 47
at 11. "Unlawfully" means in violation of article
thirty-three of the Public Health Law. Penal Law §
220.00(2). Public Health Law § 3345 precludes possession
of a controlled substance outside its original container,
except for "current use." N.Y. Public Health Law
§ 3345 (McKinney 2017).
Plaintiff possessed Tramadol outside of its original
container. ECF 47 at 5; Def. 56.1 ¶ 33. Plaintiff,
therefore, violated Public Health Law § 3345, and the DA
correctly charged him with CPCS because his actions were
"unlawful" under Penal Law § 220.03,
regardless of any prescription. Penal Law §§
220.00(2), 220.03; Public Health Law § 3345. Having a
prescription is immaterial, and would not be "likely to
influence a jury's decision." Garnett, ...