Blake v. Race, 01-CV-6954 (JFB)(CLP).

Citation487 F.Supp.2d 187
Decision Date29 March 2007
Docket NumberNo. 01-CV-6954 (JFB)(CLP).,01-CV-6954 (JFB)(CLP).
PartiesJeffrey BLAKE, Plaintiff, v. Michael S. RACE, Richard Brew, David Carbone, and Philip J. Saurman Individually, and John Does 1-10, Police Officers and Supervisory Officers of the New York City Police Department, Individually, the Identity and Number of Whom is Presently Uknown, Defendants.
CourtU.S. District Court — Eastern District of New York

Peter J. Neufeld, Ramzi Kaseem, and Nick J. Brustin, of Cochran, Neufeld & Scheck, LLP, New York City, for Plaintiff.

Michael A. Cardozo, Corporation Counsel of the City of New York by Caryn A. Rosencrantz, Jay Kranis, and Basil Sitaris, New York City, for Defendants.

MEMORANDUM AND ORDER

BIANCO, District Judge.

Plaintiff Jeffrey Blake ("Blake") filed the complaint in this action on October 19, 2001, against Sergeant Michael S. Race and Detectives Richard Brew, David Carbone, and Philip Saurman, and ten John Does1 alleging violations of his rights under 42 U.S.C. § 1983, as well as pendent state law claims.

The events underlying this lawsuit relate to Blake's arrest and conviction for a double homicide that occurred in Brooklyn, New York on June 18, 1990, during which approximately 50 rounds were fired from an automatic weapon into a moving car killing Everton Denny and Kenneth Felix. A police informant, Dana Garner, claimed to have seen the shooting and was the sole witness implicating Blake in the homicides. Garner testified at Blake's 1991 trial, at which Blake was convicted and sentenced to consecutive terms of imprisonment of 18 years to life. In 1998, after Blake had been incarcerated for over eight years, the Kings County District Attorney's Office joined in Blake's motion to vacate the conviction and dismiss the indictment because it had been determined that, contrary to his trial testimony, Garner had not witnessed the crime. Although the prosecutor did not take a position on Blake's actual innocence in consenting to the motion, he acknowledged that Garner's discredited testimony was the only identification evidence linking Blake to the crime. The State Supreme Court granted the joint motion on October 29, 1998, and the conviction was vacated and the indictment dismissed. Garner now claims that, prior to Blake's arrest, he was fed details regarding the homicides by the police and pressured by the police to falsely implicate Blake in the homicides. Defendants, who were police officers involved in the investigation and prosecution of Blake, categorically deny coaching or pressuring Garner in any way, or having any knowledge at the time of Blake's arrest or trial that Garner's information and testimony were false.

Defendants now move for summary judgment on all claims. In support of their motion, defendants argue, among other things, that no reasonable juror could believe the "conclusory allegations of a self-proclaimed perjurer" like Garner about police misconduct in Blake's arrest and prosecution. (Defs.' Mem. at 38.) Specifically, defendants outline the substantial impeachment material undermining Garner's credibility, including a conclusion by a district court judge in another proceeding in 2001 that Garner is "a witness who no longer cares about the truth or falsity of his testimony." Ortega v. Duncan, No. 00-CV-4726, 2001 WL 1152805, at *12 (E.D.N.Y. Sept. 20, 2001), reed, 333 F.3d 102 (2d Cir.2003). Blake counters that the Court cannot resolve the issues regarding Garner's credibility on summary judgment and, in any event, asserts that there is evidence in the record to corroborate Garner's serious allegations of police misconduct in Blake's arrest and prosecution.

For the reasons discussed below, having carefully reviewed the record, the Court finds that this case cannot be resolved by way of summary judgment; rather, a jury will need to hear Garner's testimony and the other evidence in the record to resolve the issues of fact surrounding the drastically different version of events offered by the parties in this case as it relates to Blake's arrest and prosecution. Accordingly, with the exception of the abuse of process and negligent infliction of emotional distress claims, defendants' motion for summary judgment is denied.

I. BACKGROUND
A. Facts

The facts described below are taken from the parties' depositions, declarations, affidavits, exhibits and respective Local Rule 56.1 statements of facts. Upon consideration of a motion for summary judgment, the Court shall construe the facts in the light most favorable to the non-moving party. See Capobianco v. City of New York, 422 F.3d 47, 50 (2d Cir.2005).

In June 1990, David Carbone ("Carbone"), Richard Brew ("Brew") and Philip Saurman ("Saurman") were Detectives assigned to the New York City Police Department's 75th Precinct Detective Squad ("75th PDS") located in the East New York section of Brooklyn, New York. (Defs.' 56.1 Stmt. ¶¶ 1, 3-4; Pl.'s 56.1 Stmt. ¶¶ 1, 2-4)2 In June 1990, Michael Race ("Race") was a Sergeant assigned to the 75th PDS. (Defs.' 56.1 ¶ 2; Pl.'s 56.1 Stmt. ¶ 2.) Race had been on the police force since 1973, was promoted to Sergeant in 1984, and joined the 75th PDS in 1985. (Race Dep. at 80-81.)

1. The Denny/Felix Homicides

On June 18, 1990, at approximately 1:45 p.m., Police Officer Werner Ay ("Ay") responded to an emergency radio call at the corner of Ashford Street and Dumont Avenue in Brooklyn, New York ("Crime Scene"), located within the confines of the 75th Precinct. (Defs.' 56.1 Stmt. ¶ 5.) Ay was the first officer to respond to the scene. (Id. ¶ 6.) Ay observed two males, who had been shot, inside a car. (Id. ¶ 7.) The driver's side window of the car was almost completely open and the passenger's side window was shot out. (Id.) Ay also observed shell casings from bullets that had been ejected from an automatic pistol around the area of the car. (Id. ¶ 8.) Ay called for Emergency Medical Services ("EMS"). (Id. ¶ 9.) The male in the driver's seat, later identified as Everton Denny, was still alive at the time and was taken to Brookdale Hospital, where he was later pronounced dead. (Id. ¶ 10; Pl.'s Exs. E, N.) EMS determined that the male in the passenger's seat, later identified as Kenneth Felix, a/k/a James Grant, was dead. (Id. ¶ 11.)

On that same day, at approximately 1:47 p.m., Carbone, who was assigned to what came to be known as the "Denny/Felix homicides," went to the Crime Scene in response to a radio call concerning two males who had been shot. (Id. ¶ 12.) Carbone observed a black male, Felix, in the passenger seat, suffering from multiple gun shot wounds. (Id. ¶ 13.) At approximately 2 p.m., accompanied by Detective Smith, Carbone followed Denny to Brookdale Hospital. (Id. ¶ 14, Pl.'s 56.1 Stmt. ¶ 12-14.)

Detectives Redmond and Hall canvassed the crime scene for witnesses. (Defs.' 56.1 Stmt. ¶ 15.) At approximately 2:45 p.m., Redmond interviewed Chris Celenti ("Celenti"), a foreman for Northern Electronics who was doing work, on buildings near the area. (Pl.'s Ex. E.) According to the D5 prepared by Redmond, Celenti stated that he heard what sounded like a tire blowing out and, when he looked out the window, he saw a car driving backward with a black male running next to the driver, shooting into the car. (Id.) Celenti described the perpetrator as a slim black male with short hair, wearing a green tshirt and tan pants. (Id.) Carbone and Race reviewed Redmond's DD-5. (Carbone Dep. at 178; Race Dep. at 222-223.)

NYPD's Crime Scene Unit ("CSU"), which had been called to the scene at approximately 2:00 p.m., arrived at the scene at approximately 3:30 p.m. (Defs.' 56.1 Stmt. ¶ 16.) CSU did not discover a weapon at the crime scene, but CSU did recover fourteen shell casings and six deformed lead bullets, all of which were vouchered by Ay. (Id. ¶ 17.) According to CSU, the shells were all fired from the same gun, "NCCII, manufacturing designation, .9 millimeter Lugar W," and the shooter, following the car, had fired at the passenger side of the car as it was backing up.3 (Id. ¶ 18; Blake Trial Tr. at 291-292.)

2. The Diaz Homicide4

On June 25, 1990, at approximately 3:50 a.m., on Livonia Avenue and Hendrix Street in the confines of the 75th Precinct in Brooklyn, Lionel Diaz, Angel Narvaez, and Ricardo Betances were approached by three armed men and Diaz, Narvaez, and Betances were shot with a shotgun by one of the men. Diaz died, but Narvaez and Betances survived. (Pl.'s Ex. KK.)

3. Dana Garner Speaks with Police

On June 25, 1990, at approximately 2:00 p.m., Dana Garner ("Garner") went to the 75th PDS and met with Saurman for approximately thirty minutes while Saurman interviewed Garner and took a written statement. (Defs.' 56.1 Stmt. ¶ 19.) This interview occurred in the interview room, which adjoins the main detective squad room. (Id. ¶ 20.)

The events surrounding Garner's statements during this interview are one of the main points of contention in this case. According to Garner, on June 25, 1990, Garner went to the 75th PDS to inquire about James Crosby's ("Crosby") sentence in a case that Detective Race and Brew had worked on, where Garner was a kidnap victim. (Garner Dep. at 9.) Garner testified at his deposition that, while he was there, Race asked Garner whether he heard about what had happened on the corner of Ashford and Dumont, to which Garner responded that he "heard that two guys had got killed." (Garner Dep. at 9.) Garner testified that he told Race that he did not know who did it. (Id.) Garner also testified that Race first mentioned Blake. (Id. at 10.) Race allegedly proceeded to describe the details of the crime, or, according to Garner, "paint a picture" for Garner. (Id. at 11.) According to Garner, another officer stepped into the room at some point and Race stepped out. (Id. at 12.) Blake asserts, based upon police documents, that this second officer was Saurman.5 Garner...

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