Delgado v. the City of N.Y.

• Decision Date: 28 July 2011
• Citation: 928 N.Y.S.2d 487,2011 N.Y. Slip Op. 06081,86 A.D.3d 502
• Parties: Sandra DELGADO, etc., et al., Plaintiffs–Respondents,v.The CITY OF NEW YORK, et al., Defendants–Appellants,New York City Police Department, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

86 A.D.3d 502
928 N.Y.S.2d 487
2011 N.Y. Slip Op. 06081

Sandra DELGADO, etc., et al., Plaintiffs–Respondents,
v.
The CITY OF NEW YORK, et al., Defendants–Appellants,New York City Police Department, et al., Defendants.

Supreme Court, Appellate Division, First Department, New York.

July 28, 2011.

[928 N.Y.S.2d 489]

Michael A. Cardozo, Corporation Counsel, New York (Victoria Scalzo of counsel),

[928 N.Y.S.2d 490]

for The City of New York and James Masiello, appellants.Wilson Elser Moskowitz Edelman & Dicker LLP, New York (Patrick J. Lawless of counsel), for New York City Housing Authority and Nicholas Witkowich, appellants.Ronald P. Berman, New York, for Brian Washington, appellant.Arnold E. DiJoseph, P.C., New York (Arnold E. DiJoseph III of counsel), for respondents.MAZZARELLI, J.P., FRIEDMAN, CATTERSON, MANZANET–DANIELS, JJ.

[86 A.D.3d 502] Order, Supreme Court, Bronx County (Patricia Anne Williams[86 A.D.3d 503] , J.), entered June 13, 2008, which, to the extent appealed from, as limited by the briefs, denied defendants-appellants' motions for summary judgment dismissing the complaint as against them, unanimously modified, on the law, to grant so much of the City defendants' motion as sought to dismiss the complaint against defendant James Masiello, to grant so much of the motion of defendant New York City Housing Authority (NYCHA) and Nicholas Witkowich as sought to dismiss the claims alleging violation of 42 USC § 1983 as against NYCHA, and otherwise affirmed, without costs.

This is an action to recover compensatory and punitive damages for personal injuries and property damage arising from the execution of a “no knock” search warrant at plaintiffs' apartment, 5E, at 1065 Manor Avenue in Bronx County on May 25, 1994, at or around 12:30 a.m. Because we conclude that the information furnished by the confidential informant in this case did not meet the two-prong test of reliability set forth in Aguilar–Spinelli, we modify as described below.

On the evening of May 18, 1994, an individual was arrested for possession of crack cocaine. The arresting officer was defendant Brian Washington. Washington's partner that day was Officer Robert Masiello.¹ On the following day, May 19, 1994, prior to the individual's arraignment in Criminal Court, this individual, identified only as “John/Jane Doe,” agreed to furnish the officers with information concerning narcotics sale trafficking in the area of his arrest. At his EBT, Washington could not recall whether Doe was registered as a confidential informant, or whether any attempt was made to investigate his or her reliability. As the court below noted, the record is unclear as to whether this individual offered information as part of some cooperation agreement, whether he or she was ultimately convicted of anything, what his or her past criminal history may have been or anything else of substance concerning him or her. Nonetheless, defendant Nicholas Witkowich, then captain, approved the application for the warrant.

The sum and substance of the information provided by Doe was that he or she had received the drugs in question from a skinny 5–foot 8–inch male Hispanic, approximately 20 years of age, referred to only as “Green Eyes,” in an apartment at 1065 Manor Avenue in the Bronx. Doe did not furnish the apartment number of the building at 1065 Manor Avenue where [86 A.D.3d 504] “Green Eyes” could be found. Rather, he or she told Masiello and Washington that Green Eyes' apartment was the first one on the left after exiting the elevator on the fifth floor and turning left. He or she further stated that the door to the apartment

[928 N.Y.S.2d 491]

was brown, and that the windows of the apartment faced the rear of the building. Doe did not indicate that there were stickers on the door of the apartment. Doe described the other occupants of the apartment as a female Hispanic called “Shorty” and a small female infant. Doe specified that no dogs were present and that “Green Eyes” possessed two guns, a nine millimeter handgun and a Tech 9 semiautomatic. Doe told the police that “Green Eyes” sold drugs from the apartment from midnight to 8:00 a.m..

The record does not indicate that the officers conducted an investigation to corroborate the information provided by Doe prior to seeking a search warrant. The officers did not conduct surveillance of the subject apartment, did not attempt to supervise the informant or to make controlled buys from the apartment, or even try to confirm the identity of the apartment's occupants by speaking to the superintendent or other residents of the building. Washington testified that he did not know of any evidence that would corroborate what the informant had told him concerning drug dealing from the subject premises.

Based on the information provided by Doe, Officer Robert Masiello sought a warrant from Criminal Court to search the specific apartment premises at 1065 Manor Avenue described by Doe. The officer's affidavit stated:

“I am informed by a confidential informant, who is known to me, but whose name is omitted to preserve his/her confidentiality, that on other occasions he/she has been inside the apartment on the fifth floor of 1065 Manor Avenue, Bronx, New York for the purpose of obtaining red top vials of crack/cocaine to sell on the street. I am further informed by the CI that to get to the apartment you enter 1065 Manor Avenue and take the elevator to the fifth floor exit elevator to the left and the apartment is the first apartment on left, a brown door. CI further informs me that he/she was last inside the apartment on May 18^th, at approximately midnight for the purpose of receiving 1 row of vials to sell on the street where each row consists of 25 vials of red top crack/cocaine and each vial sells for $5.00. CI further informs me that while inside the apartment “Green Eyes” a male hispanic light skinned approximately 5'8? tall, skinny took out a brown bag from the bedroom and went to the kitchen and removed a row of vials and CI observed approximately an additional 6–7 rows of vials. CI further informs me that while he/she was inside the [86 A.D.3d 505] apartment “Green Eyes” went in the bedroom in the apartment and came out and on the kitchen table placed a 9 millimeter automatic tech 9 semi-automatic machine pistol [ sic ]. Deponent further states that said informant's reliability is supported by this statement against penal interest as well as the strict detail and description with which said informant articulates his/her observations.”

On May 19, 1994, at 4:50 p.m., a justice of the Supreme Court, Bronx County, granted the application for the no-knock warrant. The warrant was valid for a period of 10 days and gave the police authority to enter the apartment without first announcing their presence based upon the allegations in the moving affidavit that the drugs were easily disposable and the alleged presence of two guns in the apartment. The warrant authorized a search for narcotics and firearms, to be exercised “at all hours” within the next 10 days, at the premises described as “the apartment [ ] on the fifth floor, to get to the apartment take the elevator to the 5th floor, exist

[928 N.Y.S.2d 492]

[ sic ] elevator, make left and the apartment is the first apartment on the left, brown door.” The issuing court expressly found that adequate grounds existed for authorizing any executing officer to enter the subject premises without giving notice of his authority or purpose.

On March 19, 1994, Washington conducted a check to ensure that no other law enforcement agency had an active investigation on the 5^th floor of the premises. The results were negative, neither confirming nor calling into question the reliability of Doe's information.

On May 20, 1994, Sergeant Tennant went to 1065 Manor Avenue and confirmed that the “[apartment] on the 5^th floor is marked 5E it's a brown door,” and also remarked upon the presence of “old stickers on the door.” These stickers, it should be noted, were not described by Doe, despite their prominence on the door as evident in the photographs in the record. On May 24, 1994, a check was made to see if there was a telephone listing for apartment 5E, with no records found.

The warrant was executed by a team of about 12 armed officers of the Housing Police (then a branch of the Housing Authority) at about 12:50 a.m. on May 25, 1994 at apartment 5E. Plaintiff...