Appling v. City of N.Y.
| Decision Date | 23 February 2021 |
| Docket Number | 18-CV-5486 (MKB) |
| Parties | KASSIN APPLING, Plaintiff, v. CITY OF NEW YORK, DETECTIVE WILSON VERDESOTO, and POLICE OFFICER KEVIN FORRESTER, Defendants. |
| Court | U.S. District Court — Eastern District of New York |
Plaintiff Kassin Appling commenced the above-captioned action against Defendants the City of New York, Detective Wilson Verdesoto, and Police Officer Kevin Forrester on October 1, 2018, bringing claims of false arrest, malicious prosecution, denial of the right to a fair trial, and deprivation of liberty without due process pursuant to 42 U.S.C. § 1983 against Detective Verdesoto and Officer Forrester and a Monell claim against the City of New York arising out of Plaintiff's arrest on January 27, 2017, for criminal possession of a weapon. (Compl. ¶¶ 22-34, Docket Entry No. 1.) Defendants move for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, and Plaintiff opposes the motion as to his claims against Detective Verdesoto for malicious prosecution and denial of the right to a fair trial.1
For the reasons set forth below, the Court denies Defendants' motion.
The following facts are undisputed unless otherwise noted.
On December 21, 2016, Plaintiff was in his apartment in the Breevort Houses housing complex in Brooklyn, New York, with David Cheeks, Donny Jones, "Shermel," and Shermel's cousin Larry Mackie. (Defs.' Stmt. of Undisputed Facts pursuant to Local Rule 56.1 ( ) ¶¶ 1-4, Docket Entry No. 40.) Around 8:30 PM, the group left the building via a ramp attached to the building. (Id. ¶ 5.) At the same time, Detective Verdesoto, Officer Forrester, and Sergeant DiMartino of the New York Police Department ("NYPD") were approaching the building in an unmarked police car so that they could conduct a routine security check in the building. (Id. ¶¶ 6, 8.) As Plaintiff's group walked down the ramp to leave the building, Defendants got out of their car and walked toward Plaintiff and his friends. (Id. ¶¶ 9-11.) The area in which Plaintiff and his friends were walking was well lit, and Detective Verdesoto recognized Plaintiff because he and Plaintiff had seen each other in person before and he had also seen Plaintiff's photograph six or seven months prior during briefings related to aninvestigation of the Breevort Houses. (Id. ¶¶ 13-16.) Detective Verdesoto was also aware of an active bench warrant for Plaintiff's arrest for failure to appear in court. (Id. ¶ 17.)
As Detective Verdesoto approached Plaintiff's group, he observed one of the individuals reach into his jacket pocket, remove a firearm, and throw it over a nearby fence into a common area of the housing complex.2 (Id. ¶¶ 18-19.) At the time, the five individuals were clustered together, standing within several feet of one other, and Detective Verdesoto was less than ten feet away from the individual he observed throw the gun. (Id. ¶¶ 20-21.) The individual Detective Verdesoto observed throw the gun was wearing a jacket that appeared to be black, a black hoodie, dark pants, and a skull cap, (id. ¶ 22), and he appeared to be a 5'7" tall, 175-pound black male with a beard,3 (id. ¶ 23). Plaintiff, who is a 5'8" tall, 180-pound black male, had a beard at the time of the incident. (Id. ¶ 24.)
Detective Verdesoto attempted to grab the individual he had observed throw the firearm but was unable to do so because the individual ran away from him.4 (Id. ¶ 25.) Officer Forrester and Sergeant DiMartino chased the individual into another building in the Breevort Houses but were unable to apprehend him. (Id. ¶¶ 26-27.) Meanwhile, Detective Verdesoto retrieved thegun from the common area and delivered it to members of the NYPD Evidence Collection Team, who determined that it had been loaded and collected DNA evidence. (Id. ¶¶ 28-29.)
The following day, Detective Verdesoto issued an investigation card ("I-Card")5 alerting all NYPD officers that there was probable cause to arrest Plaintiff for criminal possession of a weapon. (Id. ¶ 30.) The same day, a Detective assigned to the case searched Plaintiff's Facebook account and found a photograph of Plaintiff wearing a dark olive-green bomber jacket. (Id. ¶ 31; see also Facebook Pictures 7-8, annexed to Decl. of Angharad K. Wilson ("Wilson Decl.") as Ex. H, Docket Entry No. 39-8.)6 The individual who threw the gun was wearing a dark olive-green bomber jacket,7 (Defs.' 56.1 ¶ 32), and security camera footage from inside the Breevort Houses depicts this person fleeing while wearing the jacket, which is so dark as to appear black, (id. ¶¶ 33-34).
On January 27, 2017, NYPD officers apprehended Plaintiff pursuant to the I-Card and brought him to Detective Verdesoto, who placed him under arrest. (Id. ¶¶ 35-36.) At the police station, Detective Verdesoto recovered Plaintiff's cellular telephone, deeming it arrest evidence,and he and other NYPD detectives questioned Plaintiff about the December 21, 2016 incident. (Id. ¶¶ 37-38.) During the questioning, Detective Verdesoto accused Plaintiff of being the individual who threw the gun, showed Plaintiff video of the incident, and stated that, based on the video, he believed that Plaintiff threw the gun. (Id. ¶¶ 38-40.) Plaintiff maintained that he was not the individual who threw the gun but did not identify who threw it. (Id. ¶ 41.) On January 28, 2017, Plaintiff was charged with criminal possession of a firearm and criminal possession of a weapon in the second, third, and fourth degrees via a criminal court complaint signed by Detective Verdesoto, (id. ¶¶ 43-44; see Criminal Compl., annexed to Wilson Decl. as Ex. J, Docket Entry No. 39-10), and on February 3, 2017, a grand jury indicted him on these charges, (Defs.' 56.1 ¶ 45).
Prior to Plaintiff's trial, the Office of the Chief Medical Examiner issued a report concluding that Plaintiff's DNA was found on the gun Detective Verdesoto recovered.8 (Id. ¶ 46.) Plaintiff testified at his deposition that he "does not know" how his DNA ended up on the gun. (Id. ¶ 47.) In addition, the District Attorney's Office searched Plaintiff's cellular telephone and recovered text messages from the night of the incident in which Cheeks instructed Plaintiff to stay where he was all night and Plaintiff referred to a gun having been recovered. (Id. ¶¶ 48-50.) In text messages from the day after the incident, Plaintiff's friend inquired as to whether hewas incarcerated because the friend had seen Plaintiff running.9 (Id. ¶ 51.) These messages were later admitted into evidence at Plaintiff's criminal trial. (Id. ¶ 52.)
Plaintiff was tried before a jury on the charge of criminal possession of a weapon in the second degree and was acquitted on May 11, 2018. (Id. ¶ 58.) Plaintiff did not testify at trial. (Id. ¶ 59.) Plaintiff filed this action on October 1, 2018. (Id. ¶ 60.) During Plaintiff's deposition in this lawsuit, he testified that Larry Mackie was the individual who had thrown the gun. (Id. ¶ 61.) Mackie is a black male who is 5'7" and has a solid build like Plaintiff. (Id. ¶ 62.)
Summary judgment is proper only when "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); Wandering Dago, Inc. v. Destito, 879 F.3d 20, 30 (2d Cir. 2018); see also Cortes v. MTA N.Y.C. Transit, 802 F.3d 226, 230 (2d Cir. 2015). The court must "constru[e] the evidence in the light most favorable to the non-moving party" and "resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought." Lenzi v. Systemax, Inc., 944 F.3d 97, 107 (2d Cir. 2019) (). The role of the court "is not to resolve disputed questions of fact but only to determine whether, as to any material issue, a genuine factual dispute exists." Rogoz v. City of Hartford, 796 F.3d 236, 245 (2d Cir. 2015) (quoting Kaytor v. Elec. Boat Corp., 609 F.3d 537, 545 (2d Cir. 2010)) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986)). A genuine issueof fact exists when there is sufficient "evidence on which the jury could reasonably find for the plaintiff." Anderson, 477 U.S. at 252. The "mere existence of a scintilla of evidence" is not sufficient to defeat summary judgment. Id. The court's function is to decide "whether, after resolving all ambiguities and drawing all inferences in favor of the nonmoving party, a rational juror could find in favor of that party." Pinto v. Allstate Ins. Co., 221 F.3d 394, 398 (2d Cir. 2000).
Defendants argue that they are entitled to summary judgment on Plaintiff's malicious prosecution claim because (1) Plaintiff cannot rebut the presumption of probable cause created by his grand jury indictment, (2) there was probable cause to prosecute Plaintiff, (3) Plaintiff cannot establish the malice element of his claim, and (4) Defendants are entitled to qualified immunity. (Defs.' Mem. 10-18.)
Plaintiff argues that Defendants are not entitled to summary judgment on this claim because (1) the grand jury indictment was procured through fraud, perjury, suppression of evidence, or other bad faith, (2) there was no probable cause for his arrest, (3) malice can be inferred from the lack of probable cause, and (4) Defendants are not entitled to qualified immunity. (Pl.'s Opp'n 8-15.)
The Second Circuit has clarified that "federal law defines the elements of a [section] 1983 malicious prosecution claim, and that a State's tort law serves only as a source of persuasive authority rather than binding precedent in defining these elements." Lanning v. City of Glens Falls, 908 F.3d 19, 25 (2d Cir. 2018). To prevail on...
To continue reading
Request your trial