Warren v. Fischl
| Decision Date | 05 November 2015 |
| Docket Number | 15-CV-2829(JS)(AKT) |
| Parties | GREGORY WARREN, Plaintiff, v. ROBERT FISCHL; CAROLYN M. GENOVESI; A.D.A. JOHN J. MCKENNA; A.D.A. JAMES R. WATSON; A.D.A. ANDREA M. DIGREGORIO; MARY BIUNNO; NASSAU COUNTY DISTRICT ATTORNEY'S OFFICE; NASSAU COUNTY COURT JUDGE MERYLE BERKOWITZ; ZELDA JONAS; PAUL KOWTNA; NASSAU COUNTY COURT JUDGE DAVID P. SULLIVAN; NASSAU COUNTY COURT JUDGE ALLEN L. WINICK; NASSAU COUNTY COURT JUDGE KAREN V. MURPHY; NASSAU COUNTY COURT; DARIN POOLE, C.I. NO. 71-91; DET. LAURETTE KEMP, Sh. No. 737; DET. ANTHONY SORRENTINO, Sh. No. 728; DET. GEORGE LUDWIG, Sh. No. 701; DET. SGT. HINCHMAN, Sh. No. Unknown; NASSAU COUNTY POLICE DEPARTMENT; MATHEW MURASKIN, NASSAU COUNTY LEGAL AID SOCIETY; and NASSAU COUNTY, in their individual and official capacities, Defendants. |
| Court | U.S. District Court — Eastern District of New York |
APPEARANCES
For Plaintiff:
Gregory Warren, prose
1160 Teller Avenue
Bronx, NY 10456
For Defendants:
No appearances.
On May 12, 2015, pro se plaintiff Gregory Warren ("Plaintiff") filed an in forma pauperis Complaint in this Court pursuant to 42 U.S.C. § 1983 ("Section 1983") and 18 U.S.C. § 1961 et seq. ("RICO") against A.D.A. Robert Fischl ("A.D.A. Fischl"); Carolyn M. Genovesi ("A.D.A. Genovesi"); A.D.A. John J. McKenna ("A.D.A. McKenna"); A.D.A. James R. Watson ("A.D.A. Watson); A.D.A. Andrea M. DiGregorio ("A.D.A. DiGregorio"); A.D.A. Mary Biunno ("A.D.A. Biunno"); Nassau County District Attorney's Office ("NCDA Office"); Nassau County Court Judge Meryle Berkowitz ("Judge Berkowitz"); Hon. Zelda Jonas ("Judge Jonas"); Hon. Paul Kowtna ("Judge Kowtna"); Nassau County Court Judge David P. Sullivan ("Judge Sullivan"); Nassau County Court Judge Allen L. Winnick ("Judge Winnick"); Nassau County Court Judge Karen V. Murphy ("Judge Murphy"); Nassau County Court ("County Court"); Darin Poole, C.I. No. 71-91 ("Poole"); Det. Laurette Kemp, Sh. No. 737 ("Det. Kemp"); Det. Anthony Sorrentino, Sh. No. 728 ("Det. Sorrentino"); Det. George Ludwig, Sh. No. 701 ("Det. Ludwig"); Det. Sgt. Hinchman, Sh. No. Unknown ("Det. Ludwig"); Nassau County Police Department ("NCPD"); Mathew Muraskin ("Muraskin"); Nassau County Legal Aid Society ("Legal Aid"); Nassau County ("the County" and collectively, "Defendants"), accompanied by an application to proceed in forma pauperis. Plaintiff seeks to sue all of the Defendants in their individual and official capacities.
Upon review of the declaration in support of the application to proceed in forma pauperis, the Court finds that Plaintiff is qualified to commence this action without prepayment of the filing fee. See 28 U.S.C. § 1915(a)(1). Therefore, Plaintiff's request to proceed in forma pauperis is GRANTED. However, for the reasons that follow, the Complaint is sua sponteDISMISSED WITH PREJUDICE pursuant to 28 U.S.C. § 1915(e)(2)(B) (ii)-(iii).
Plaintiff's Complaint seeks to challenge Plaintiff's September 23, 1992 arrest, and the manner in which Defendants secured his grand jury indictment, conviction, and sentence. The gravamen of the Complaint is that Defendants knew or should have known that perjured testimony was used to prosecute Plaintiff. Thus, Plaintiff claims that his Fourth, Fifth, Sixth, and Fourteenth Amendment rights were violated and further claims that Defendants conspired to violate his rights under the Racketeer Influenced and Corrupt Organizations Statute, 18 U.S.C. § 1961 et seq. ("RICO"). For relief, Plaintiff seeks to recover a monetary damages award in excess of $1 billion.
Plaintiff is no stranger to this Court. This is Plaintiff's second attempt to litigate these claims in this Court against many of the same Defendants. See Warren v. A.D.A. Fischl, et al., 96-CV-3387 ("Warren I").2 In addition, Plaintiff filed anunsuccessful Petition for a Writ of Habeas Corpus challenging the same conviction that is the subject of the present Complaint. See Warren v. Kelly, 99-CV-4226(ADS) ("Warren II"). By Memorandum of Decision and Order dated June 16, 2002, Judge Spatt denied the Petition because it was time-barred. See Warren v. Kelly, 207 F. Supp. 2d 6 (E.D.N.Y. 2002). Warren appealed and, by Order dated March 25, 2003, the appeal was dismissed because it was untimely filed. (See Warren II at Docket Entry No. 20.) On February 6, 2007, Warren filed another Petition for a Writ of Habeas Corpus challenging this conviction. See Warren v. Payant, 07-CV-0540(JS) ("Warren III"). By Order dated March 7, 2008, this Petition was transferred to the Second Circuit Court of Appeals as a Successive Petition and, by Mandate dated April 22, 2009, it was denied. (SeeWarren III at Docket Entries 15 and 16.)
Warren also filed an unsuccessful application for a Writ of Error Corum Nobis seeking to vacate, on the ground of ineffective assistance of counsel, the Appellate Division's October 12, 1996 decision (People v. Warren, 232 A.D.3d 589, 648 N.Y.S.2d 670 (2d Dep't 1996)) modifying Warren's judgment of conviction rendered on June 20, 1994 in the County Court, Nassau County. People v. Warren, 23 A.D.3d 589, 804 N.Y.S.2d 263 (2d Dep't 2005).
As noted above, Plaintiff again seeks to challenge his 1992 arrest and the manner in which the District Attorney's Office, the individual assistant district attorneys, police officers, and the Nassau County Police Department secured his grand jury indictment, conviction, and sentence. Plaintiff further seeks to challenge the conduct of the state court judges who presided over his underlying criminal proceedings, the Nassau County Court and Court Clerk, as well as his criminal defense attorney and the Nassau County Legal Aid Society.
More specifically, Plaintiff alleges that he was unlawfully arrested on September 23, 1992 and that his premises were unlawfully searched at the time of his arrest. (Compl. ¶¶ 27-28.)3 Plaintiff claims, in conclusory fashion, that on October 28,1992 "Poole, Kemp, Ludwig, Fischl, Watson and McKenna, did knowingly and willfully explicitly/tacitly agree amongst themselves to fabricate Poole, Kemp, and Ludwig's testimony . . . and evidence and presented it to the Grand Jury ("GJ") to unlawfully secure an indictment to prosecute Plt on a false predicate . . . ." (Compl. ¶ 29.) Plaintiff claims that Fischl called Poole, Kemp, and Ludwig to testify falsely at the grand jury proceeding and that they falsely claimed to have purchased cocaine from Plaintiff on several occasions. (Compl. ¶¶ 30-31.) According to Plaintiff, Ludwig also falsely claimed to have observed Plaintiff in possession of, inter alia, a "9 millimeter semi-automatic Taurus pistol" as well as "packets of white powdery substance . . . cocaine." (Compl. ¶ 31.)
Plaintiff alleges that the grand jury indicted him, but asserts that the indictment was not signed by the foreman and was thus invalid. (Compl. ¶ 32.) Plaintiff claims that, in March 1994, Jonas, Kowtna, Winick, Genovesi, Sullivan, Berkowitz, and Ludwig agreed to "fabricate a search warrant for Plt's premises to conceal the fact that NCPD did not have said warrant when they entered and searched Plt's premises . . ." and "falsely indicating same was issued on 09/22/92." (Compl. ¶¶ 35-36.) Plaintiff next claims that, in March 1994, Poole, Kemp, Sorrentino, Ludwig, Genovesi, Sullivan, and Berkowitz "agree[d] amonst themselves to doctor audio tapes adding Kemp's voice to said tapes . . . for the purpose of presenting them to, and misleading, the Trial Jury."(Compl. ¶ 37.) Plaintiff also alleges that Poole, Kemp, Sorrentino, Ludwig, Sullivan, Kowtna, and Berkowitz agreed amongst themselves to introduce false witness testimony against Plaintiff at trial. (Compl. ¶ 38.) Plaintiff further claims that tape recordings of Plaintiff's telephone calls were "doctored" and used against him at trial. (Compl. ¶¶ 38-40.)
On April 21, 1994, a jury convicted Warren of Criminal Possession of a Controlled Substance in the First Degree, three counts of Criminal Sale of a Controlled Substance in the Third Degree, six counts of Criminal Possession of a Controlled Substance in the Third Degree, three counts of Criminal Possession of a Controlled Substance in the Fourth Degree, and three counts of Criminal Possession of a Weapon in the Third Degree. See Warren, 207 F. Supp. 2d at 8. Plaintiff appealed the judgment of conviction claiming that the "trial court erred in refusing to charge that the defendant must know the weight of the controlled substance as an element of the crime of criminal possession of a controlled substance in the first and fourth degrees." People v. Warren, 232 A.D.2d 589, 648 N.Y.S.2d 670 (2d Dep't 1996). The Appellate Division agreed, and ruled that "the People were required to prove beyond a reasonable doubt that the defendant had knowledge of both the possession of the substance and the weight." Id. at 590. Accordingly, the Court reversed Warren's convictions of Criminal Possession of a Controlled Substance in the fourth degreeunder counts three, six and nine of the indictment, Criminal Possession of a Controlled Substance in the third degree under count eleven on the indictment, and Criminal Possession of a Controlled Substance in the first degree under count twelve of the indictment, vacated the sentences imposed thereon, and remitted the case for a new trial as to those counts. Id. at 589-90; see also Compl. ¶ 41. The judgment of conviction on the remaining counts was affirmed. Warren, 232 A.D.2d at 589.
According to the Complaint, on February 4, 1997, Plaintiff's court assigned defense attorneys agreed with the District Attorney, the Nassau County Police Department, Nassau County, and the Nassau County Court that the remitted charges against Plaintiff would be dismissed in an effort to prevent Plaintiff from presenting his "newly discovered, suppressed evidence proving the Defs founded and rested their case on fabricated evidence . . . ." (Compl. ¶ 43.) Plaintiff alleges that in August 2000, several Defendants agreed that they...
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