Creighton v. City of N.Y.
| Decision Date | 14 February 2017 |
| Docket Number | 12 Civ. 7454 (PGG) |
| Parties | KENNETH CREIGHTON, Plaintiff, v. THE CITY OF NEW YORK, DETECTIVE DEAN ROBERTS (Shield No. 05861), DETECTIVE GLENN GODINO (Shield No. 2756), ASSISTANT DISTRICT ATTORNEY BRUCE BIRNS, ASSISTANT DISTRICT ATTORNEY ED TALTY a/k/a ED TULTY, and ASSISTANT DISTRICT ATTORNEY MICHAEL COOPER, Defendants. |
| Court | U.S. District Court — Southern District of New York |
On January 10, 2007, Plaintiff Kenneth Creighton was arrested by New York City Police Department ("NYPD") officers and charged with criminal facilitation and criminal possession of a weapon in connection with December 26, 2006 shootings in the Bronx. Bail was set in the amount of $10,000, Creighton was not able to post bail, however, and he remained in pre-trial detention for the next five years. On January 19, 2012 - at the recommendation of the Bronx County District Attorney's Office - all charges against Creighton were dismissed.
In this action against the City of New York (the "City"), two of the NYPD detectives who investigated the shootings, and three Bronx County Assistant District Attorneys involved in the prosecution,1 Creighton alleges claims for, inter alia, false arrest, malicious prosecution, and unreasonably prolonged detention under 42 U.S.C. § 1983 and New York law.
Defendants have moved for summary judgment on all of Plaintiff's remaining claims. (Dkt. No. 164) Plaintiff has moved for summary judgment on his claims for (1) false arrest under New York law as against all Defendants other than Michael Cooper; (2) malicious prosecution under New York law as against the City and Defendants Glenn Godino and Dean Roberts; (3) malicious prosecution under Section 1983 as against Defendants Godino and Roberts; and (4) deprivation of his Due Process rights under Section 1983 as against Defendant Godino. (Dkt. No. 172) Plaintiff has also moved for sanctions pursuant to Federal Rule of Civil Procedure 37 based on Defendants' alleged spoliation of evidence. (Dkt. No. 173)
On December 26, 2006, at approximately 5:50 p.m., two people were shot in the vicinity of 810 East 168th Street in the Bronx. (Def. R. 56.1 Stmt. (Dkt. No. 167) at ¶ 1; Pltf.Resp. to Def. R. 56.1 Stmt. (Dkt. No. 189) at ¶ 1) John Caldwell was shot in the head and later died, while Lisette Ayala suffered a gunshot wound to her left leg.
Fawaz Terab owns a bodega - the Prospect Mini Mart (the "Mini Mart") - located at 820 East 168th Street, near the site of the shootings. (Pltf. R. 56.1 Stmt. (Dkt. No. 178) at ¶ 12; Def. Resp. to Pltf. R. 56.1 Stmt. (Dkt. No. 176) at ¶ 12) Terab was working as the cashier at his bodega when the shootings took place. (Gross Decl., Ex. O (Dkt. No. 214-17) (Terab Dep.) at 9:3-163) Terab knows Plaintiff Kenneth Creighton and his brother, Dior Creighton. (Pltf. R. 56.1 Stmt. (Dkt. No. 178) at ¶¶ 14-15; Def. Resp. to Pltf. R. 56.1 Stmt. (Dkt. No. 176) at ¶¶ 14-15)
When police canvassed the area on the night of the shootings, Terab did not volunteer any information and stated that he "didn't see anything." (Gross Decl., Ex. O (Dkt. No. 214-17) (Terab Dep.) at 32:19-33:23, 64:18-65:2; Def. Resp. to Pltf. R. 56.1 Stmt. (Dkt. No. 176) at ¶ 20) During a meeting with NYPD Detective Glenn Godino on December 31, 2006, however - five days after the shootings - Terab stated that Kijafa Spruell, a regular customer at the Mini Mart, had passed a gun to Dior Creighton shortly before the shootings. (Gross Decl., Ex. K-1 (Dkt. No. 214-11) (Godino Dep.) at 137:20-152:7; Gross Decl., Ex. O (Dkt. No. 214-17) (Terab Dep.) at 10:6-18, 34:3-37:3; Gross Decl., Ex. II (Dkt. No. 214-38) (Dec. 31, 2006 Terab Stmt.); Pltf. R. 56.1 Stmt. (Dkt. No. 178) at ¶¶ 16, 20, 31-32; Def. Resp. to Pltf. R. 56.1 Stmt. (Dkt. No. 176) at ¶¶ 16, 20, 31-32) Terab told Detective Godino that the gun he had seen wassilver and black. Terab had not observed Dior Creighton shooting the gun outside the Mini Mart, however. (Gross Decl., Ex. K-1 (Dkt. No. 214-11) (Godino Dep.) at 154:11-23; Gross Decl., Ex. O (Dkt. No. 214-17) (Terab Dep.) at 30:6-12)
On January 2, 2007, police conducted a computer search concerning Spruell. The search disclosed an address and other pedigree information for Spruell. (See Gross Decl., Ex. BB (Dkt. No. 214-31) (Spruell Records)) Godino also obtained Spruell's photograph. (Gross Decl., Ex. K-3 (Dkt. No. 214-13) (Godino Dep.) at 393:20-394:2) The NYPD made no further effort to locate Spruell, however, and did not question him at that time.4
After Terab's December 31, 2006 identification of Spruell as the source of the gun, Detective Godino interviewed a second eyewitness to the passing of the gun. This witness (the "CI") had previously served as an NYPD confidential informant and had given Detective Godino information about an earlier shooting in front of the same building where Caldwell had been shot The CI's information had led to an arrest and a guilty plea in that case. (Id.)
The CI called his NYPD handler - Detective John Elliott - shortly after the December 26, 2006 shootings, told Elliott that he had been "right there," and reported that he had seen Plaintiff pass the gun to his brother, Dior Creighton.5 (Gross Decl., Ex. U (Dkt. No. 214-24) (Informant Dep.) at 22:4-9, 56:15-57:15, 197:10-16) Detective Elliott told the CI he would call him back, which he did later that same evening. (Id. at 57:6-22) Detective Elliott also reported to Detective Godino that the CI had information about the shootings outside the Mini Mart. (Gross Decl., Ex. K-3 (Dkt. No. 214-13) (Godino Dep.) at 479:21-480:15)
The CI later met with Detective Godino (id. at 482:16-25), who took the following handwritten notes during the interview:
Dior . . . comes back with a black hoody. Kenny had a white and burgundy shirt. Dior and Ken went into the store. The CI was by the plastic door that goes behind the counter getting his scratch off tickets. Kenny passed the gun to Dior inside the store. . . . Dior was shooting from behind a car just inside the street.
6
At the time of the shootings, the Mini Mart contained a surveillance camera that recorded onto a digital video recorder ("DVR") maintained in the store's basement.7 After the shootings, Terab - the owner of the Mini Mart - arranged for the NYPD to obtain a VHS copy of what had been recorded on the DVR's hard drive.
The surveillance footage shows the following: a man in a burgundy-and-white striped shirt enters the Mini Mart with Dior Creighton, who is wearing a black jacket. The two men are shown standing in the front area of the store, by the front corner of the checkout counter and near the store's entrance. The man in the striped shirt appears to pass an object to Dior while standing face-to-face with him. Dior then turns around, towards the surveillance camera. He appears to be holding an object that briefly reflects a glint from the store's lighting. The man in the striped shirt then walks out of the store. Dior Creighton walks toward the back of the store, and is off-camera briefly. He then re-appears, pulls up the hood of his jacket, and walks out the store's front door. (See Gross Decl., Ex. CC (Dkt. No. 214) (Mini Mart Surveillance Footage)) According to the surveillance system's time stamp, the encounter and events described above consume about twenty-one seconds. (Id.) Other customers are present in the store at the time of the exchange. The hands and arms of someone working behind the checkout counter are briefly visible from time to time, but no more of this person can be seen, because of shelving and the angle of the surveillance camera. (Id.)
Detective Godino testified that - based on the surveillance footage - he could not identify the man who had passed the gun to Dior Creighton. Detective Dean Roberts testified that, "as the investigation ensued," he watched the Mini Mart surveillance footage, and "based . . . on [his] experience of Kenneth Creighton and the general makeup of him, the physical appearance," he "believed" that Plaintiff was the individual who passed the gun to Dior...
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