Greene v. City of N.Y., 08-cv-00243 (AMD) (CLP)

CourtUnited States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
Writing for the CourtANN DONNELLY, District Judge.
PartiesCY GREENE, Plaintiff, v. CITY OF NEW YORK, NEW YORK CITY TRANSIT AUTHORITY, MICHAEL NORRITO, JOSEPH TUMBARELLO, ROBERT SULLIVAN, and CHARLES J. HYNES, Defendants.
Decision Date15 March 2017
Docket Number08-cv-00243 (AMD) (CLP)

CY GREENE, Plaintiff,
v.
CITY OF NEW YORK, NEW YORK CITY TRANSIT AUTHORITY, MICHAEL NORRITO,
JOSEPH TUMBARELLO, ROBERT SULLIVAN, and CHARLES J. HYNES, Defendants.

08-cv-00243 (AMD) (CLP)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

March 15, 2017


MEMORANDUM & ORDER

ANN DONNELLY, District Judge.

The plaintiff brought this action on January 16, 2008 against the City of New York, the New York City Transit Authority, the Kings County District Attorney, former New York City Police Department Detective Michael Norrito, former New York City Transit Authority Detective Joseph Tumbarello, and former Assistant District Attorney Robert Sullivan, alleging violations of his constitutional rights in connection with his arrest and prosecution for a 1983 homicide.1 On April 5, 2016, the defendants moved for summary judgment on all of the plaintiff's claims. For the reasons set forth below, the defendants' motion for summary judgment is granted in its entirety, and the plaintiff's complaint is dismissed.

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OVERVIEW

John Choi was murdered in Brooklyn, New York on June 14, 1983. The plaintiff and his co-defendant, Larry Williams, were arrested seven days after the murder. That same day, two witnesses to the crime, Jae Hark Kim and Mark Best, identified the plaintiff and Williams in separate lineups. Both the plaintiff and Williams made videotaped statements to a prosecutor, and denied any involvement in the murder. The case was presented to a grand jury, which indicted the plaintiff and Williams for murder and robbery.

One of the critical issues at the plaintiff's trial, at which only one of the eyewitnesses testified, was the reliability of that witness's identification of the plaintiff. The defense also attacked the police investigation that led up to the arrest, and presented an alibi. The jury found the plaintiff guilty of one count of second degree murder and one count of first degree robbery.2

The plaintiff's conviction was affirmed by the Appellate Division, Second Department, and his petition for habeas corpus was denied. The trial judge, Michael Pesce, denied the plaintiff's first three 440.10 motions. In his fourth 440.10 motion, the petitioner alleged Brady and Rosario violations, and that his trial attorney was ineffective. Judge Pesce rejected the Brady and Rosario claims, but found that the plaintiff's trial attorney was ineffective because he did not listen to an audiotaped interview of the eyewitness in a case where identification was a critical issue, and failed to call another witness.

Accordingly, Judge Pesce vacated the plaintiff's conviction. That decision was affirmed by the Second Department on February 13, 2007, and the Kings County District Attorney's Office dismissed all charges against the plaintiff on June 11, 2008.

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FACTUAL BACKGROUND

At about 4:45 p.m. on June 14, 1983, John Choi was murdered on the stairs of a subway station at Church and Nostrand Avenues in Brooklyn, New York. (Defendants' Local Civil Rule 56.1 Statement of Material Facts as to which there is no Genuine Dispute ("56.1 Stmt."), ECF 251, ¶ 2; Plaintiff's Local Civil Rule 56.1 Counter-Statement of Material Facts ("56.1 Counterstmt."), ECF 275, ¶ 2.)3 As Mr. Choi and his friend, Jae Hark Kim, headed down the

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steps of the subway station, four black men chased Mr. Choi. (56.1 Stmt. ¶ 4; 56.1 Counterstmt. ¶ 4.) Mr. Choi ran to the steps on the opposite side of the station, but fell, and one of the men stabbed him in the chest and thigh. (56.1 Stmt. ¶ 4; 56.1 Counterstmt. ¶ 4.) Two of the other assailants hit Mr. Choi and went through his pockets before running up the stairs to the street. (56.1 Stmt. ¶ 4; 56.1 Counterstmt. ¶ 4.) Mr. Choi was bleeding from the chest; Mr. Kim carried him to the street, and ran into a restaurant, asking that the police be called. (56.1 Stmt. ¶ 4; 56.1 Counterstmt. ¶ 4.) Mr. Choi died at the Kings County Hospital Emergency Trauma Unit. (Declaration of Karen M. Chau ("Def. Ex."), Ex. 1.)

The Investigation

Detective Michael Norrito of the 67th Precinct and Detective Joseph Tumbarello of the New York City Transit Authority were assigned to investigate Mr. Choi's murder. (56.1 Stmt. ¶ 5; 56.1 Counterstmt. ¶ 5.) The detectives arrived on the scene shortly after Mr. Choi's stabbing, and canvassed the area to identify any eyewitnesses to the crime. (56.1 Stmt. ¶ 6; 56.1 Counterstmt. ¶ 6.) During the course of their investigation, the detectives took notes, and they

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and other officers prepared DD5 forms. (56.1 Stmt. ¶ 7; 56.1 Counterstmt. ¶ 7.) ADA Robert Sullivan also took audio or video recorded statements from certain witnesses after they were interviewed by the detectives; these recordings were then transcribed by an employee of the Kings County District Attorney's ("KCDA's") Office. (56.1 Stmt. ¶ 7; 56.1 Counterstmt. ¶ 7.)

Mr. Kim's Statements

Mr. Kim was interviewed by the police several times on June 14, 1983. At about 4:45 p.m., he spoke to Police Officer Castriccone, one of the first officers to arrive on the scene. (Def. Ex. 1.) Mr. Kim reported that he was ahead of Mr. Choi as they were walking towards the token booth. (Id.) He heard yelling and turned to see Mr. Choi surrounded by four black men. (Id.) Mr. Choi attempted to run away, but the perpetrators knocked him down and stabbed him. (Id.) Mr. Kim described the first perpetrator as a 16 to 18 year old black male who was 6'0" tall, and the second perpetrator as a 16 to 18 year old black male who was 5'8" tall. (Id.)

Mr. Kim also spoke to Police Officer Williams, and reported that the stabber was a 130 pound, black male, between 18 and 20 years old, 5'8" to 5'9" tall, with a medium build, a chocolate colored shirt, and dark pants. (Declaration of John F. Schutty Filed in Support of Plaintiff's Opposition to the Defendants' Motion for Summary Judgment, ("Pl. Ex."), Ex. 3, at CY 000433.) Mr. Kim then spoke to Detective Norrito at around 5:00 p.m. at the 67th Precinct. (Def. Ex. 5.) He described the stabber as a black male, 5'9' tall, of medium build and with short hair, a chocolate colored shirt and dark pants. (Id.) He reported that there were two other black men who were standing around the victim. (Id.)4

At about 9:11 p.m. on June 14, 1983, ADA Robert Sullivan conducted a taped interview

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of Mr. Kim, with both Detectives Norrito and Tumbarello present.5 (56.1 Stmt. ¶ 12; 56.1 Counterstmt. ¶ 12; Def. Ex. 2, at CY 000133.) A non-ADA employee of the KCDA's office transcribed the tape. (56.1 Stmt. ¶¶ 13-14; 56.1 Counterstmt. ¶¶ 13-14.) The transcript of the interview does not include the world "tall guy." (56.1 Stmt. ¶ 15; Def. Ex. 2.) In the audio recording of the interview, however, Mr. Kim can be heard describing the perpetrator as a "black guy, tall guy" who "got the knife and I saw he tried to stab my friend." (Def. Ex. 18.)

Other Witness Interviews

Investigators interviewed various witnesses both on the day of the stabbing, and afterward.

Abdul Rahman

At about 6:30 p.m. on the day of the stabbing, Detectives Norrito and Tumbarello interviewed Abdul Rahman, a vendor who was setting up his stand in the subway station at the time of the incident. (Def. Ex. 14, at CG 004022; Def. Ex. 25.) Rahman told the detectives that he saw the victim running toward the staircase on the southwest side of the station, with three black men running after him. (Def. Ex. 25.) The three men began fighting with the victim, and when a train pulled into the station, the perpetrators ran up the stairs, dropping a knife and money on the floor. (Id.) Rahman described each of the perpetrators as about 5'8" tall and 120 pounds.6 (Id.) One was 15 to 19 years old and wore a red shirt and tan shorts; the second was

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between 15 to 20 years old, and wore a brown shirt with dark pants; the third was 17 years old, and wore a white shirt with stripes. (Id.)

ADA Sullivan interviewed Rahman later that same night. (56.1 Stmt. ¶ 18; Def. Ex. 26.) During that interview, Rahman said that he saw three black men chasing the victim, but did not see who was holding the knife. (56.1 Stmt. ¶ 18; Def. Ex. 26.) On one occasion, Rahman looked through photographs of suspects, but did not identify anyone. He refused to look at any additional photographs. (Pl. Ex. 5, at 247-49.)

James Robinson

At about 6:30 p.m. on the night of the stabbing, Detective Vance Herlihy interviewed James Robinson, who said that he was in the area of Church and Nostrand Avenues when a man told him to stop another man running on Nostrand Avenue. (56.1 Counterstmt. ¶ 19; Def. Ex. 27.) Robinson chased the man, who was black, about six feet tall, and wore a brown shirt and pants; the man got into a taxi that was stopped by a fire hydrant. There were other people in the taxi. (Def. Ex. 27.)

Reynold Guerrier

Detective Tumbarello interviewed Reynold Guerrier, a taxi driver, at around 6:35 p.m. (56.1 Stmt. ¶ 20; 56.1 Counterstmt. ¶ 20; Def. Ex. 15, at CG002383-84.) Guerrier said that at around 4:45 p.m., he was stopped at an open fire hydrant on Erasmus Street between Veronica and Lloyd Street when three black men got into his cab and asked to be driven to Flatbush Avenue.7 (Def. Ex. 15, at CG002383-84.) Mr. Guerrier told them that he was off-duty, but the

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men said that they had "a problem" and needed to get to Flatbush Avenue. (Id.) He took them to Flatbush and Clarendon, where they got out. (Id.) He told the detective that he could not identify them because they were behind him, but said that they were between 18 to 20 years old, 5'8" to 5'10" tall, and were speaking Spanish. (Id.) One of the men was wearing a brown shirt, shorts, and sneakers; Guerrier described him as being 5'10" tall. (Id.)

Detective Herlihy also spoke to Guerrier that same day and prepared a DD5 of their interview. (56.1 Stmt. ¶ 22; Def. Ex. 28.) The DD5 reflects that Guerrier told him that three black men, about 20 years in age, got into his cab, that they were out of breath, and that they said they had a...

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