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Ferebee v. City of New York

United States District Court, S.D. New York

July 27, 2017

ROBERT FEREBEE, Plaintiff,
v.
THE CITY OF NEW YORK, et al., Defendants.

          OPINION & ORDER

          HONORABLE PAUL A. CROTTY, United States District Judge:

         Plaintiff 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.

         Plaintiffs motion for reconsideration is without merit and is DENIED.

         BACKGROUND[1]

         On 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 ¶31.

         Prior 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.

         After 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.

         DISCUSSION

         I. Legal Standard

         "A 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).

         II. Analysis

         A 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).

         Penal 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).

         Here, 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, ...


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