Newton v. City of New York

Decision Date27 January 2010
Docket NumberNo. 07 Civ. 6211(SAS).,07 Civ. 6211(SAS).
Citation681 F. Supp.2d 473
PartiesAlan NEWTON, Plaintiff, v. The CITY OF NEW YORK; District Attorneys Mario Merola and Robert T. Johnson, Individually, and in their Official Capacity; Andrea Freund and Various John/Jane Does, Individually and in their Official Capacities as Employees of the City of New York who are/were Assistant District Attorneys within the Office of the District Attorney, County of Bronx; Detective Joanne Newbert, Detective Phillip Galligan, Detective [John Doe] Hartfield, Detective [John Doe] Ryan, Detective [John Doe] Harris, Police Officer Douglas Leho, Police Officer William Sean O'Toole, Lieutenant Michael Sheehan, Sergeant Patrick J. McGuire, Police Officer [John Doe] Haskins, Police Officer [Jane Doe] Kiely, Inspector Jack J. Trabitz and Various John/Jane Does, Individually and in their Official Capacities as Employees of the City of New York who are/were Members of the Police Department of the City of New York, Defendants.
CourtU.S. District Court — Southern District of New York

John Francis Schutty III, Esq., Law Office of John F. Schutty, New York, NY, for Plaintiff.

Arthur Gabriel Larkin III, Fred Michael Weiler, Assistant Corporation Counsel, The New York City Law Department, New York, NY, for Defendants.


SHIRA A. SCHEINDLIN, District Judge.


Alan Newton was released from prison on July 6, 2006, after more than twenty-two years of incarceration for a rape and assault that DNA testing proved he did not commit. For eleven of those years, Newton repeatedly requested access to the rape kit that contained the ultimately exonerating DNA to no avail—not because Newton was not entitled to the rape kit, but because the government could not find it. As it turned out, the rape kit was in a safe storage location and within the City of New York's (the "City") possession the entire time. What had actually been "lost" was the paper on which the rape kit's storage location had been written— also later found in the City's possession, but misfiled. Misfiling, or "losing," this paper was tantamount to "losing" the rape kit. Without it and its notation of the rape kit's storage location, the rape kit may never have been found. Newton now brings this action against the City, and over a dozen of its officers and employees, on the basis of his erroneous conviction, alleging violations of his civil rights as a result of defendants' investigation, prosecution, and subsequent failure to examine exculpatory evidence. Defendants now move for summary judgment on Newton's five federal and one state-law claims stemming from the City's "loss" and subsequent discovery of the rape kit, which contained, among other things, semen taken from the body of the victim.1 For the reasons that follow, defendants' motion is granted in part and denied in part.

A. The Parties

In the early morning hours of June 23, 1984, a woman whose initials are V.J.3 was raped, robbed, and assaulted in the area of Crotona Park, in the Bronx.4 On May 21, 1985, Newton was convicted by a jury of raping, assaulting, and robbing V.J on the basis of eyewitness testimony and V.J.'s identification of him as her assailant.5 On May 31, 1985, the court sentenced Newton to concurrent prison terms of 8 1/3 to 25 years for the rape and robbery charges, followed by a consecutive prison term of 5 to 15 years for the assault.6 Twenty-two years later, DNA evidence exonerated Newton and his conviction was vacated.7

Defendants Sergeant Patrick J. Maguire, civilian clerk Geraldine Kiely, police officer Stacy Haskins, Inspector Jack J. Trabitz—a senior police officer and supervisor—and other "John/Jane Does" were employed by the Property Clerk Division ("PCD") of the New York City Police Department ("NYPD") (collectively, the "PCD Defendants").8 Defendants Mario Merola and Robert T. Johnson9 were the elected District Attorneys of Bronx County during the relevant time period (together, the "DA Defendants").10 Defendants John F.Carroll, Robert Moore, and Rafael Curbelo were Assistant District Attorneys in the Office of the District Attorney, Bronx County ("DAO") (collectively, the "ADA Defendants," and together with the PCD and DA Defendants, the "Individual Defendants"). The ADA defendants were responsible for conducting the searches for the rape kit.11 The City was the Individual Defendants' employer at all relevant times.12

B. The NYPD's Invoicing and Transfer Procedures

The NYPD's Property Guide contains written procedures pertaining to the intake and invoicing of property in the NYPD's possession, including items collected in connection with criminal investigations.13 According to these procedures, a detective must complete an invoice upon the receipt of evidence and submit it to the PCD for logging and storage.14 The PCD file clerk then distributes a white carbon copy of the invoice to be indexed by borough storage number, another white carbon copy to the Inventory Unit for storage, and a yellow "working copy"—the invoice copy critical to Newton's case—to the PCD to be filed in the "Active Yellows File" by invoice number.15 The yellow invoice thereafter becomes the sole piece of paper that the NYPD and PCD use to track the movement of the evidence.16 The PCD file clerk then makes an entry in a cross reference index book and files the property transfer receipt.17 When a piece of evidence is removed from the PCD— either for testing by the Office of the Chief Medical Examiner for the City ("OCME") or for court proceedings—a notation is to be made on the back of the yellow invoice, which is then moved to the "Out-to-Court" file to await the evidence's return.18 A similar notation of removal is made in the Evidence to Court Book.19 Along with giving the evidence to the removing person, the window clerk gives the removing person a photocopy of the yellow invoice.20 Upon return of the evidence, the window clerk makes a notation of its return on the back of the yellow invoice, notes the return in the Evidence to Court book, returns the yellow invoice to the Active Yellows File, and returns the evidence to its storage location.21

Prior to 2000, the PCD had a practice of destroying white and yellow invoices, even though the evidence "may have been in the PCD's custody at that time."22 According to Trabitz, once a white or yellow invoice was destroyed pursuant to this practice, the PCD "may not be able to render a definitive opinion as to whether the evidence was still in the possession, custody, or control of the PCD."23 The Property Guide also authorizes the "purge" of files containing "rape investigation " evidence, including invoices, after five years.24

Sometime after 1984 (possibly 1986), because of the increasing concern of contact with unknown bodily fluids, the NYPD began to send blood and semen evidence from borough offices to the PCD's Pearson Place Warehouse ("Pearson Place") to be stored in "DOA Barrels"—containers that would safely seal and contain fluid evidence.25 After that date, when evidence was removed from the PCD for testing by the OCME, the OCME would pack the evidence in DOA Barrels and contact the person who removed the evidence from the PCD to retrieve it from the OCME and return it to the PCD.26 If the person who brought the evidence to the OCME never retrieved it, the OCME staff would contact the PCD to transfer the DOA Barrel to Pearson Place.27

Although the Property Guide contains no written procedures for intake at Pearson Place or how evidence received in DOA Barrels was to be processed and recorded by the PCD,28 a systematic practice was in place. Upon receipt of the DOA Barrel from the OCME, the Pearson Place clerk would complete an NYPD "Transfer Sheet/Receipt" acknowledging receipt of the DOA Barrel and the items within it.29 Then, the clerk would deliver the original Transfer Sheet/Receipt to the OCME agent who delivered the DOA Barrel, tape one copy to the outside of the Barrel to show its contents, dispatch a second copy to the local borough office of the PCD where the evidence was originally registered, and retain a third copy at Pearson Place, along with photocopies of all invoices received with the DOA Barrel.30

These invoicing and transfer procedures have inherent problems. For example, in 1991, a consulting company, responding to the NYPD's Request for Proposal, stated in its report that "a system like this is extremely prone to clerical errors...."31 According to an Innocence Project32 preliminary survey, "`while nationally 32 percent of cases were closed because evidence was lost or destroyed, in New York, 50 percent of cases were closed for this reason.'"33 In addition, Trabitz admits that there were other instances where yellow invoices were lost and never found.34

C. Newton Requests Access to the Rape Kit

Shortly after V.J.'s assault on June 23, 1984, a "Vitullo rape kit" was used to collect physical evidence from V.J.'s body.35 The rape kit contained pubic and head hair, three cotton swabs, and four microscope slides collected from V.J.36 The same day the samples were collected in the rape kit, NYPD Detective Joanne Newbert completed invoice number 744483 to register the rape kit.37

Newton first requested testing on the rape kit on or about January 29, 1988.38 At the time, Newton filed a motion in the Supreme Court of the State of New York, Bronx County, requesting only that an independent laboratory test whether semen collected from V.J. and semen stains from her clothing were produced by a "secretor" or a "non-secretor" (and thereafter determine if Newton was a match).39 On April 6, 1988, Justice Burton Roberts granted Newton's request and ordered DA Merola to "secure and deliver" the rape kit to the OCME, where the independent laboratory could conduct the testing.40 Pursuant to the court's order, ADA Stacey Edelbaum took possession of the rape kit on May 11, 1988.41 The rape kit was delivered to the OCME on July 27, 1988.42 Defenda...

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1 books & journal articles
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    • United States
    • Carolina Academic Press Wrongful Conviction: Law, Science, and Policy (CAP) 2019
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    ...$18 million in compensatory damages against the City." The U.S. District Court set aside the verdict, Newton v. City of New York, 681 F.Supp.2d 473 (S.D.N.Y. 2010), concluding that "Newton's constitutional due process claim failed because there was not enough evidence that City officials ha......

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