Poventud v. City of N.Y.

Decision Date16 January 2014
Docket NumberNo. 12–1011–cv.,12–1011–cv.
Citation750 F.3d 121
PartiesMarcos POVENTUD, Plaintiff–Appellant, v. CITY OF NEW YORK; Frankie Rosado, Kenneth Umlauft, Christopher Dolan, and Daniel Toohey, individually and as members of the New York City Police Department, Defendants–Appellees.
CourtU.S. Court of Appeals — Second Circuit


Joel B. Rudin, Law Offices of Joel B. Rudin, New York, NY (Julia P. Kuan, Romano & Kuan, New York, NY, on the brief), for PlaintiffAppellant Marcos Poventud.

Michael B. Kimberly, Mayer Brown LLP, Washington, D.C. (Richard D. Willstatter, National Association of Criminal Defense Lawyers, White Plains, NY; Marc Fernich, New York State Association of Criminal Defense Lawyers, New York, NY; Charles A. Rothfeld, Paul W. Hughes, Mayer Brown LLP, Washington, D.C; on the brief), for Amicus Curiae National and New York State Associations of Criminal Defense Lawyers.

Mordecai Newman (Leonard Koerner; Larry A. Sonnenshein; Linda Donahue; Rachel Seligman Weiss; on the brief), for Jeffrey D. Friedlander, Acting Corporation Counsel of the City of New York, New York, NY, for DefendantsAppellees City of New York, et al.

Caitlin Halligan (Hilary Hassler, Assistant District Attorney, New York County; Steven A. Bender, Assistant District Attorney, Westchester County; Morrie I. Kleinbart, Assistant District Attorney, Richmond County; Itamar J. Yeger, Assistant District Attorney, Rockland County; on the brief), for Kathleen M. Rice, President, District Attorneys Association of the State of New York, New York, NY, for Amicus Curiae District Attorneys Association of the State of New York.

Barbara Underwood, Solicitor General (Richard Dearing, Deputy Solicitor General; Won S. Shin, Assistant Solicitor General; on the brief), for Eric T. Schneiderman, Attorney General of the State of New York, New York, NY, for Amici Curiae States of New York, Connecticut, and Vermont.


WESLEY, J. filed the majority opinion in which KATZMANN, C.J., CALABRESI, POOLER, SACK, HALL, LYNCH, LOHIER, and CARNEY, JJ., joined.

LYNCH, J. filed a concurring opinion.

LOHIER, J. filed a concurring opinion in which KATZMANN, C.J., CALABRESI, POOLER, SACK, WESLEY, HALL, LYNCH, and CARNEY, JJ., joined.

CHIN, J. filed an opinion dissenting in part and concurring in part.

JACOBS, J. filed a dissenting opinion in which CABRANES, RAGGI, LIVINGSTON, and DRONEY, JJ., joined.

LIVINGSTON, J. filed a dissenting opinion in which JACOBS, CABRANES, RAGGI, and DRONEY, JJ., joined.

RICHARD C. WESLEY, Circuit Judge:

In June 1998, Marcos Poventud was convicted of attempted murder in the second degree and several other related crimes. New York courts upheld Poventud's conviction on appeal. People v. Poventud, 300 A.D.2d 223, 752 N.Y.S.2d 654 (1st Dep't 2002), leave denied,1 N.Y.3d 578, 775 N.Y.S.2d 794, 807 N.E.2d 907 (2003). In 2004, Poventud successfully brought a state collateral challenge to his conviction based on Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881 (1961). His conviction was vacated and a new trial ordered. People v. Poventud, 10 Misc.3d 337, 802 N.Y.S.2d 605, 608 (Sup.Ct.Bronx Cnty.2005). While the State weighed appealing the Brady decision, Poventud pled guilty to the lesser charge of attempted robbery in the third degree, pursuant to a plea agreement that dismissed all other charges and stipulated to a one-year sentence (time already served). Upon entry of the plea, Poventud was immediately released. Thereafter, Poventud sued the City of New York and various police officers alleging a violation of his constitutional rights in his 1998 trial.

Poventud's § 1983 claim is centered on the state court determination that he was denied access to evidence in the government's possession that had a reasonable probability of affecting the result of his trial. The district court was of the view that this claim was at odds with Poventud's later plea because, although the withheld evidence supported the alibi Poventud employed at his 1998 trial, his plea colloquy contradicted that defense. As a result, the district court determined that Poventud's § 1983 claims called into question the validity of his 2006 plea and granted summary judgment for the defendants. It based its decision on a long-standing Supreme Court decision, Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), that precludes the use of § 1983 suits for damages that necessarily have the effect of challenging existing state or federal criminal convictions. Heck requires that “in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the [challenged] conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus, 28 U.S.C. § 2254.” 512 U.S. at 486–87, 114 S.Ct. 2364.

Poventud did exactly what Heck required of him. He sought a state court determination that his due process rights were violated in his jury trial, he secured a state court judgment vacating his 1998 conviction, and the State chose not to appeal. Heck, therefore, does not bar Poventud's claims. Accordingly, the district court's summary judgment for defendants is vacated and the case is remanded for further proceedings consistent with this opinion.1


In March 1997, two men robbed livery cab driver Younis Duopo and shot him in the head or neck.2 An initial search of the cab by Crime Scene Unit (“CSU”) detectives uncovered only a spent shell casing, five one dollar bills, and a black hat from the back seat. The day after the shooting, and after CSU searched the vehicle, New York City Police Department (NYPD) Detective Frankie Rosado reported to the garage and conducted his own search of the cab; this search revealed a wallet on the floor of the cab containing two ID cards that belonged to Poventud's brother, Francisco Poventud. Sergeant Kenneth Umlauft prepared a photo array using the ID cards recovered from the cab; he showed Duopo the array and Duopo unequivocally identified Francisco as his shooter. The NYPD soon discovered that Francisco had been incarcerated at the time of the crime and turned to Poventud, who did not resemble the photograph of Francisco shown to Duopo, as the most likely carrier of Francisco's wallet. 3

On consecutive days one week after the crime, Rosado and NYPD officer Daniel Toohey showed Duopo photo arrays containing Poventud's picture; Duopo did not identify Poventud as the perpetrator on either occasion. The day after the second failed identification, NYPD officers showed Duopo Poventud's picture for a third time. Later that day, Duopo viewed Poventud's picture for a fourth time and he identified him as the shooter. The officers brought Poventud in to take his statement, at which point Duopo identified him in a lineup. Despite NYPD policies forbidding such behavior, the officers neither preserved nor disclosed to the Bronx District Attorney's Office the photo array in which Duopo mistakenly identified Francisco.

Assistant District Attorney (“ADA”) Gregg Turkin prosecuted Poventud and codefendant Robert Maldonado, whom Duopo also identified in a lineup. Before trial, Turkin asked Umlauft about some stray photographs in the file; Umlauft explained them away without disclosing that he had completed a separate photo array from which Duopo had identified Francisco as the shooter. Turkin, ignorant of this information, did not disclose it to the defense.

At trial in 1998, Duopo was the only witness to identify Poventud as the shooter. Defense counsel tried to impeach the credibility of Duopo's identification by focusing on the multiple attempts that it took to identify Poventud; these efforts were bolstered by Duopo's two additional mistaken identifications of Maldonado's brother as Poventud's partner in crime. Poventud's defense was that he was not present in the cab; he testified that he was at a neighbor's apartment playing video games instead. He further posited that Duopo was shot by three men who were arrested for another shooting of a livery cab driver, seventeen days after the Duopo shooting, using the same gun used to shoot Duopo. Although Umlauft testified, the defense, still unaware of the victim's misidentifications of Francisco, was unable to question Umlauft or Duopo about them.

The jury submitted requests for more information about Duopo's failures to identify Poventud and a note indicating that it was “hopelessly deadlocked” after four days of deliberations. It convicted both Poventud and Maldonado on the fifth day; Poventud was convicted of attempted murder in the second degree, attempted robbery in the first degree, assault in the first degree, and criminal possession of a weapon in the second degree. The judge sentenced him to an indeterminate sentence of 10 to 20 years' imprisonment.

In 2002, Maldonado's conviction was overturned by the New York Court of Appeals, People v. Maldonado, 97 N.Y.2d 522, 743 N.Y.S.2d 389, 769 N.E.2d 1281 (2002), while Poventud's conviction was affirmed by the Appellate Division and leave to appeal to the Court of Appeals was denied. People v. Poventud, 300 A.D.2d 223, 752 N.Y.S.2d 654 (1st Dep't 2002), leave denied,1 N.Y.3d 578, 775 N.Y.S.2d 794, 807 N.E.2d 907 (2003).4 During Maldonado's retrial, new ADA Jeremy Shockett learned about Duopo's erroneous identification of Francisco. Shockett disclosed this information to defense counsel. Maldonado was acquitted.

Based on the newly revealed information,...

To continue reading

Request your trial
253 cases
  • Moroughan v. Cnty. of Suffolk
    • United States
    • U.S. District Court — Eastern District of New York
    • 20 Enero 2021
    ... ... R. Civ. P. 56(a) ; see also Gonzalez v. City of Schenectady , 728 F.3d 149, 154 (2d Cir. 2013). The moving party bears the burden of showing ... Maryland ... "); Poventud v. City of New York , 750 F.3d 121, 132 n.12 (2d Cir. 2014) (en banc) ("We reject out of hand ... New York State Department of Motor Vehicles, Chapter 9: Alcohol and Other Drugs , https://dmv.ny.gov/about-dmv/chapter-9-alcohol-and-other-drugs (last visited Dec. 8, 2020). 6 The record also ... ...
  • Purnell v. State
    • United States
    • Supreme Court of Delaware
    • 17 Junio 2021
    ... ... See also Poventud v. City of New York , 750 F.3d 121, 14445 (2d Cir. 2014) (Lynch, J., concurring) ("The choice of ... ...
  • McCray v. Capra
    • United States
    • U.S. Court of Appeals — Second Circuit
    • 17 Agosto 2022
    ... ... Edelstein, Edelstein & Grossman, New York, NY, for Petitioner-Appellant. Priscilla Steward, Assistant Attorney General (Barbara D. Underwood, ... Poventud v. City of New York , 750 F.3d 121, 140 (2d Cir. 2014) ( in banc ) (Lynch, J. , concurring). IV ... ...
  • Tempest v. State, 2015–257–M.P.
    • United States
    • Rhode Island Supreme Court
    • 14 Julio 2016
    ... ... (quoting Poventud v. City of New York, 750 F.3d 121, 133 (2d Cir.2014) (en banc))). Because I would vacate the ... ...
  • Request a trial to view additional results
2 books & journal articles
  • Prisoners' Rights
    • United States
    • Georgetown Law Journal No. 110-Annual Review, August 2022
    • 1 Agosto 2022
    ...or called into question by a federal court’s issuance of a writ of habeas corpus.” 3207 If a § 1983 action would necessarily of New York, 750 F.3d 121, 125, 134-37 (2d Cir. 2014) (cognizable § 1983 claim for Brady violation when prior conviction vacated, though state later obtained lesser c......
  • Uzuegbunam v. Preczewski, Nominal Damages, and the Roberts Stratagem
    • United States
    • University of Georgia School of Law Georgia Law Review (FC Access) No. 56-3, 2022
    • Invalid date
    ...City of Milwaukee, 821 F.3d 795, 805 (7th Cir. 2016); Rentas v. Ruffin, 816 F.3d 214, 224 (2nd Cir. 2016); Poventud v. City of New York, 750 F.3d 121, 135 (2d Cir. 2014); Gray ex rel. Alexander v. Bostic, 720 F.3d 887, 891 (11th Cir. 2013); Guy v. City of San Diego, 608 F.3d 582, 584, 587 (......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT