Opinion
2015-17
03-25-2019
The PEOPLE of the State of New York v. Loftus LETANG, Defendant.
Counsel for the defendant: Elana Silberman and Kelly Ogbuzuo of the Legal Aid Society Assistant District Attorneys Jose Defranks and Heather Aguilar
Counsel for the defendant: Elana Silberman and Kelly Ogbuzuo of the Legal Aid Society
Assistant District Attorneys Jose Defranks and Heather Aguilar
Miriam R. Best, J.
The People have moved in limine to preclude cross-examination of detectives who were among a number of named and unnamed defendants in various state and federal lawsuits alleging, inter alia , false arrest, assault, malicious prosecution and civil rights violations. Defendant argues that impeachment of these witnesses should be permitted under People v. Smith , 27 NY3d 652 (2016), because the allegations in all of these lawsuits are relevant to the detectives' credibility. For the reasons that follow, the People's motion is granted in part and denied in part, as discussed more fully below.
Background: The Instant Case
The People allege that on or about August 9, 2017, at approximately 1:15 am, officers and detectives executed a search warrant at 995 East 173rd Street, Apt. 2F in Bronx County, where they recovered contraband including more than an eighth of an ounce of cocaine and an unlicensed, loaded, operable semi-automatic pistol and ammunition, as well as glassine envelopes and a scale with cocaine residue. The People further allege that defendant was sleeping in the only bedroom of that apartment when the warrant was executed, and that he had 18 twist bags of crack cocaine in his pocket. Detective Luilly Vargas was the deponent for the search warrant. Detective Daniel Rivera allegedly recovered the crack cocaine from defendant's pocket. According to the People, Detectives Paul Zaino and Braulio Aponte were also involved in the search and arrest. The People have told the court that they will call Vargas, Zaino and Rivera at trial. The People also provided to the court and defense counsel documents from of lawsuits filed against each of these officers in Bronx County Supreme Court or the Southern District of New York, or both.
The Legal Standard
People v. Smith , 27 NY3d 652, 659 (2016), holds that "law enforcement witnesses should be treated in the same manner as any other prosecution witness for purposes of cross-examination." "[P]rosecution witnesses ... may be cross-examined on ‘prior specific criminal, vicious or immoral conduct,’ provided that ‘the nature of such conduct or the circumstances in which it occurred bear logically and reasonably on the issue of credibility’ ", id. at 660 (citing People v. Sandoval , 34 NY2d 371, 376 [1974] ). Subject to exercise of the trial court's sound discretion, therefore, law enforcement witnesses may be cross-examined about civil allegations of misconduct in a federal lawsuit against that witness, even if the misconduct alleged in the court filings has not been proven at a trial, id. at 661.
Where a lawsuit has not resulted in an adverse finding against a police officer, ... defendants should not be permitted to ask a witness if he or she has been sued, if the case was settled (unless there was an admission of wrongdoing) or if the criminal charges related to the plaintiffs in those actions were dismissed. However, subject to the trial court's discretion, defendants should be permitted to ask questions based on the specific allegations of the lawsuit if the allegations are relevant to the credibility of the witness .
From the above, the logical framework for analysis of the issue is clear. First, counsel must present a good faith basis for inquiring, namely, the lawsuit relied upon; second, specific allegations that are relevant to the credibility of the law enforcement witness must be identified; and third, the trial judge exercises discretion in assessing whether inquiry into such allegations would confuse or mislead the jury, or create a risk of undue prejudice to the parties (citations omitted). Id. at 662 (emphasis supplied). The court has "broad latitude to preclude or limit [such] cross-examination," id. See also People v. Cepeda , 158 AD3d 468, 469 (1st Dept) (court providently exercised discretion in precluding defense from cross-examining officer about allegations in federal lawsuit where defense failed to identify "specific allegations that are relevant to the credibility of the law enforcement witness"), lv denied , 31 NY3d 1080 (2018) ; People v. Andrew , 54 AD3d 618, 618-19 (1st Dept) (mere existence of federal litigation was not proper subject for cross-examination and defense failed to establish good faith basis for eliciting underlying facts as prior bad acts, where federal complaints and amended complaints did not allege or even support inference that detective personally engaged in any specific misconduct or acted with knowledge of misconduct of other officers or intentionally misled anyone about his involvement in federal case), lv denied , 11 NY3d 895 (2008). Contrast People v. Holmes , ––– AD3d ––––, 2019 NY Slip Op 02033, 2019 WL 1245702, *1 (1st Dept March 19, 2019) (trial court improperly precluded defendant from cross-examining only police officer who allegedly saw pistol falling from Holmes's person about allegations raised in federal lawsuit that this officer and others approached and assaulted that plaintiff and filed baseless criminal charges; trial court also failed to give any valid justification for ruling); People v. Robinson , 154 AD3d 490 (1st Dept 2017) (reversing defendant's conviction for criminal possession of a controlled substance; trial court erroneously precluded cross-examination of detective about factual allegations in federal lawsuit that he arrested that plaintiff for drug possession even though plaintiff did not have drugs), lv denied , 30 NY3d 1108 (2018) ; People v. Enoe , 144 AD3d 1052, 1053 (2d Dept 2016) (reversing defendant's conviction for criminal possession of a weapon; trial court erroneously precluded cross-examination regarding allegations in a federal lawsuit that sergeant had falsely arrested another person on a "made-up" weapon possession charge in order to secure overtime compensation and "credit" for gun arrest).
Analysis
Based on what the parties have told this court, the court understands that none of the lawsuits resulted in an adverse finding against any of these police officers, and that there have been no admissions of wrongdoing in these civil cases. Accordingly, defendant may not ask (1) if the witness has been sued, (2) if the case was settled or (3) if the criminal charges related to the plaintiffs in those actions were dismissed, People v. Smith , 27 NY3d at 652 ; People v. Watson , 163 AD3d 855, 860 (2d Dept), lv denied , 32 NY3d 1009 (2018).
Nor may defense counsel inquire about a particular civil case unless counsel identifies "specific allegations that are relevant to the credibility of the law enforcement witness," People v. Cepeda , 158 AD3d at 469 (where civil lawsuit did not show officer's role in allegedly false arrest other than signing criminal complaint based on information received from fellow officer, court providently exercised discretion precluding defense from cross-examining officer about allegations of misconduct in that lawsuit), lv denied , 31 NY3d 1080 (2018) ; People v. Watson , 163 AD3d at 860-61 (court providently exercised discretion to preclude inquiry into facts underlying two of three federal lawsuits which contained "only ... broad conclusory allegations of unlawful police action by large groups of officers, and did not set forth specific acts of misconduct against [officer] individually."); People v. Andrew , 54 AD3d at 618-19.
Accordingly, in those cases where the parties do not have, and the court has not seen, the civil complaints, no questioning will be allowed. From the list of 44 cases provided by the People, it appears that those cases are:
(1) Jose Gonzalez v. City of New York and NYPD , Index No 260336-2012
(2) Jonathan Gordon, et al, by Rhonda Torrence-Brooks v. City of New York, et al , Index No. 350316-2012
(3) Chan Rodriguez v. Detective Harmon, et al. , Index No 22638-2017
(4) Allen Lorick v. City of New York and Detective Paul Zaino , Index No 29592-2017E
(5) Tyrone Creighton v. City of New York and Detective Daniel Rivera , Index No 31886-2017E
(6) Joseph Green v. City of New York, Police Officer Luilly Vargas et al , Index No 25734-2018E
(7) Edwin Gonzalez v. City of New York, Detective Braulio Aponte, Detective Daniel Rivera et al , Index No 31343-2018E
(8) Merlin Pichardo v. City of New York [no index number provided]
No specific officer is named in the caption of this lawsuit. In addition, Exhibit B, which contains the factual allegations, has not been shown to the court.
POSSIBLE SEARCH WARRANT CASES
I will permit cross-examination about the facts underlying the civil suits in Capellan v. Smyth, Rivera et al , 1:15 CV 09815(AKH) (SDNY), and Damon Dalton v. City of New York, Zaino et al , Index No. 307972-2009. Both of these appear to have been search warrant cases. In Capellan , the plaintiff alleged that she was arrested although the contraband was found in the other occupant's bedroom, not hers. In Dalton , the plaintiff stated in an unsigned "Settlement Conference Information Sheet" that he was on the premises as an ACS employee, that is, apparently in some official capacity, and that the officers provided false and incomplete information to the District Attorney's Office. Notably, the allegations in Dalton's Amended Supplemental Summons do not specify what crime Dalton was charged with, where he was in the apartment when the police entered, or where the unspecified contraband was allegedly recovered.
Although the Dalton complaint also alleges that the police entered the premises without a warrant, the "Settlement Conference Information Sheet" contains a statement that the police entered "with a search warrant."
Although defendant here was found in possession of 18 bags of alleged crack cocaine, which he admitted in the grand jury, he alleges that he told the police who entered the Target Premises to execute the warrant that he lived somewhere else; moreover, defendant alleges that the police used the address of the Target Premises as his address in various items of police paperwork. Therefore, according to defendant, the allegations in Capellan are relevant to credibility in this case. The court agrees. Although the underlying facts in Dalton are not as clear, I find that what is known is sufficient to permit cross-examination that will be relevant to credibility but neither confusing nor unduly prejudicial.
My conclusion with respect to Katarina Samardzic v. The City of New York, P.O. Paul Zaino, et al, Index No 308559-2009, is different. Samardzic alleged in the most conclusory terms that she was wrongfully arrested inside 1669 Randall Avenue, Apartment 3G, on December 28, 2007. The paperwork provided to the court does not state what, if any, relationship Samardzic had to the apartment, where she was in the apartment when the police entered, what, if any, contraband was allegedly recovered, or from where. Nor does it specify what crime Samardzic was charged with. In short, there are simply no factual allegations in paperwork provided to the court upon which defendant could impeach Zaino's credibility. Accordingly, cross-examination will not be permitted.
I will not permit cross-examination about Dale Robertson v. The City of New York, et al , 14 CV 0184 (VSB) (SDNY), even though the plaintiff made specific allegations of illegal conduct by Rivera. That case settled with the City paying no money to the plaintiff, according to the information supplied by the People. Moreover, counsel told the court during oral argument that the law firm representing Robertson currently shows that the case was dropped. Thus, even though the case may later be refiled, what it would allege is entirely speculative at this point. In any event, the original civil complaint alleged that Rivera and his partner illegally searched an apartment in the building where he lived and then illegally arrested him on outstanding SAP warrants as a pretext to allow other officers to question him in custody about a cold case homicide. After he was acquitted of the homicide, Robertson sued New York City, Rivera, other officers and the Bronx ADA who prosecuted him. The present case is entirely different from Robertson ; the police entered the Target Premises with a warrant to look for contraband specified in the warrant. Given the context out of which Robertson's civil suit arose and its utter dissimilarity to the instant case, I hold that cross- examination of Rivera about the original allegations " ‘would confuse the main issue and mislead the jury,’ " People v. Smith , 27 NY3d at 660. Testimony about Robertson's arrest for the 2006 beating death of his paramour, which received some press coverage at the time of his acquittal in 2015, is only tangentially related to Rivera's credibility but would "create a substantial danger of undue prejudice" to the People (id. ). Therefore, no inquiry will be allowed.
See https://www.nydailynews.com/new-york/bronx-jury-nixes-dna-springs-man-jailed-6-yrs-slay-article-1.2170585, last visited 3/18/19.
Defendant may cross-examine about the factual allegations in Shawn Lewis v. The City of New York, et al , 13 CV 6312 (GBD) (SDNY), if and only if defendant can show that the case did not result in either summary judgment or a verdict for the defendants. Lewis made specific allegations of misconduct against three officers, including Rivera. However, although Lewis alleged, among other things, that it was the policy of the NYPD Narcotics Bureau and the named defendants to get search warrants and then arrest everyone in the searched premises if contraband was found, Lewis's own case did not involve a search warrant; rather, he alleged that he was arrested on the street for an unspecified crime. That allegation, therefore, was not based on anything Rivera allegedly did in Lewis's case and no cross-examination about that is warranted.
The information provided by the People is that the case (like Dale Robertson ) settled for $ 0.
THE REMAINING LAWSUITS
Of the remaining lawsuits, five were filed by the same law firm (Papa DePaola and Brounstein), nine were filed by the new law firm of one of the partners in the former firm (DePaola and Associates PLLC), and five lawsuits were filed by a solo practitioner (Neil Wollerstein, Esq.). Unsurprisingly perhaps, the allegations in these lawsuits are all very similar; indeed, they are often identical, including allegations that "the defendants" put false information in a Criminal Court complaint and provided false information to the District Attorney's Office. Some of these civil complaints also contain long paragraphs about the "Stop and Frisk" program, the federal class action lawsuit David Floyd, et al v. City of New York, et al., 08 CV 1034 (SDNY), and numerous examples of other allegedly "illegal and/or improper" stops, frisks, uses of excessive force "and filing of false charges." Moreover, some of these same or similar allegations appear in lawsuits filed by other attorneys.
Grizelda Reyes v. The City of New York, Det Shawn Ricker and Det. Paul A Zaino , Index No. 306267-2011; Richard Sutton v. The City of New York, New York City Detective Amado Batista and New York City Detective Daniel Rivera , Index No: 309297-2011; Raul Lopez v. The City of New York, Det. Daniel Rivera, Det. Amado Batista, Undercover Police Officer , Index No 306010-2011; Julio Eder, Ian Ortiz and Eduardo Rolon v. The City of New York, P.O. Luilly Vargas, et al , Index No. 307085-2013; David Anthony v. The City of New York, Det. Daniel Rivera and Det. Christof Defeteros , Index No. 302144-2013.
Rodney Cook v. The City of New York, Det. Daniel Rivera et al , Index No. 301140-2015; Luis Sanchez v. The City of New York, P.O. Luilly Vargas, et al , Index No. 302711-2016; Christopher Montero v. The City of New York, NYPD Officer Luilly Vargas, et al , Index No. 300391-2017; Jose Rodriguez v. The City of New York, et al, Index No 29601-2017E; Luis Semiday v. The City of New York, Det Daniel Rivera, et al , Index No. 27480-2017E; Tarelle Rowell v. The City of New York, Det. Daniel Rivera, et al , Index No 300183-2017; Damien Francis v. The City of New York, Luilly Vargas, et al , Index No. 25386-2018E; Edwin Gonzales Crespo v. The City of New York, Daniel Rivera Det. et al , Index No. 28983-2018E; John Ingram v. The City of New York, Paul Zaino Det. et al , Index No. 26104-2018E.
Richard Anderson v. City of New York, Detective Paul Zaino, et al , Index No. 22542-2015E Anthony Morante v. City of New York, Police Officer Luilly Vargas, et al , Index No. 22860-2015E; Derrick Owens v. City of New York, Police Officer Luilly Vargas, et al , Index No 27184-2016E; Ronald Pena v. City of New York, Detective Daniel Rivera, et al , Index No. 23414-2016E; Jose Rodriguez v. City of New York, et al, Index No 260336-2012.
Anthony Morante v. City of New York, et al , Index No. 22860-2015E; Richard Anderson v. City of New York, et al , Index No. 22542-2015E; Ronald Pena v. City of New York, et al , Index No. 23414-2016E; Derrick Owens v. City of New York, et al , Index No 27184-2016.
Alvin Williams & Michelle Mathies v. The City of New York, et al, Index No 301130-2014; Devon McFarlane v. City of New York, et al, Index No 31354-2017E.
In some of the lawsuits, plaintiffs allege that named officers (Rivera, Zaino or Vargas) signed a complaint based on false information provided by another officer. Such allegations do not provide a sufficient basis to permit cross-examination, People v. Cepeda , 158 AD3d 468, 469 (1st Dept) (court providently exercised its discretion in precluding cross-examination of officer named in civil lawsuit where "[t]here was no showing of this officer's role in the underlying allegedly false arrest, other than signing a criminal complaint based on information received from a fellow officer"), lv denied , 31 NY3d 1080 (2018).
Luis Sanchez v. City of New York, Police officer Luilly Vargas, et al. , Index No 302711-2016; Montero v. City of New York, NYPD Officer Vargas, et al, Index No., 300391-2017 ; Luis Semiday v. City of New York, et al, Index No 27480-2017E; Jose Rodriguez v. City of New York, et al, Index No 29601-2017E; Damien Francis v. City of New York et al, Index No 25386-2018E; John Ingram v. City of New York, et al, 26104-2018E; Edwin Gonzales Crespo v. City of New York, et al , Index No 28983-2018. Similarly, in a summons naming Detective Daniel Rivera along with five other John/Jane Doe police officers, Detective Rivera is only specifically alleged to have processed the arrest of the plaintiff and/or communicated with the Bronx District Attorney's Office (Tarelle Rowell v. The City of New York, Det. Daniel Rivera, et al , Index No. 300183-2017). I will not permit cross-examination on this case either.
A. LAWSUITS NAMING TWO TO FOUR OFFICERS
The plaintiff in Thornley v. City of New York, et al, Index No. 308863-2011, alleged that Zaino and another officer falsely arrested her for selling narcotics to an undercover police officer after she came out of a pharmacy where she had filled a prescription. In this lawsuit, where only two officers are alleged to have participated in the arrest, and specific facts regarding the nature of the alleged crime and circumstances of arrest are set out, the claims provide a good faith basis to cross- examine Zaino about the underlying facts.
InWilliam Samuel v. The City of New York, et al , Index No. 33178-2018E, three of the four officers named in the lawsuit - - Zaino, Vargas and Rivera - - are expected to testify here. Moreover, Samuel alleged specifically that the officers wrongfully and falsely accused him of Criminal Possession of a Controlled Substance and Possession of Ammunition. Accordingly, even though the allegations are largely conclusory, I will allow cross-examination based on those specific factual allegations.
However, I am precluding cross-examination with respect to Raul Lopez v. City of New York, et al , Index No. 306010, Michael Raso v. The City of New York, et al , Index No. 300600-2010, Grizelda Reyes v. The City of New York, et al , Index No. 306267-2011, Richard Sutton v. The City of New York, et al , Index No: 309297-2011, Richard Anderson v. City of New York, et al , Index No. 22542-2015E and David Anthony v. The City of New York, et al , Index No. 302144-2013. These lawsuits do not contain any factual allegations but only legal conclusions. Put another way, no facts are alleged that would permit a proper question to be put to an officer that would impeach his credibility. These lawsuits do not state what crimes the plaintiffs were alleged to have committed and what if any contraband was allegedly recovered from them. To the extent that many of these lawsuits allege the use of excessive force, they contain no description of what if any force was used. Under these circumstances, the court will not permit cross-examination of the officers based solely on legal conclusions, such as malicious prosecution and excessive force, in the absence of specific factual allegations describing the conduct of the officers.
B. LAWSUITS NAMING FOUR OR MORE OFFICERS
Finally, some of these lawsuits name many officers as defendants while making very few if any allegations of specific actions taken by specific officers. Where civil complaints contain only "broad conclusory allegations of unlawful police action by large groups of officers, and [do] not set forth specific acts of misconduct against [specific officers] individually," the court may properly preclude cross-examination, People v. Watson , 163 AD3d at 860-61.
For example, in Jayvonne Hortzog v. City of New York, et al , 10 CV 3227 (SDNY), the plaintiff sued a long list of defendants including Zaino, but did not include any allegations regarding Zaino's conduct. Moreover, Hortzog alleged that he was arrested based on false allegations made by a different officer and an undercover officer. Accordingly, there is no basis to cross-examine Zaino on this case.
In contrast to Hortzog , in Shamari Doward v. Christopher Deftereos, et al , 15 CV 10082 (PGG) (SDNY), the complaint names Zaino as well as another named officer and 10 John/Jane Doe officers. Doward alleged that Zaino, Undercover Officer No.36 and Deftereos stopped him unlawfully on 169th Street, ordered him to stay put, and after five to 10 minutes unlawfully handcuffed him. Doward also alleged that these officers conveyed false information to the prosecutors and prepared false sworn affidavits to prosecute him for Criminal Sale of Marijuana. On those specific factual allegations of misconduct, cross-examination is permitted.
In the following cases, where many officers are alleged to have acted improperly but there are no specific allegations of misconduct made against the testifying officers in this case, cross- examination is precluded:
1. The three remaining suits that name Police Officer Luilly Vargas include allegations that nine other John/Jane Doe police officers as well as four other named police officers also participated in the alleged misconduct. These lawsuits do not allege specific actions taken by any specific officer, do not state what crime the plaintiffs were charged with or what if any contraband was allegedly recovered. Accordingly, cross-examination is not permitted.
Elder, Oritz & Rolon v. The City of New York, P.O. Luilly Vargas, et al. , Index No 307085-2013; Anthony Morante v. City of New York, PO Luilly Vargas et al., Index No 22860-2015E; Derrick Owens v. City of New York, PO Luilly Vargas et al. , Index No 27184-2016E.
2. The three remaining lawsuits that name Detective Zaino include allegations that 21 and/or 23 John/Jane Doe police officers, three undercover police officers and 12 other named police officers also participated in the alleged misconduct. For example, the plaintiff in Edwards alleged that he was falsely arrested and charged with Criminal Sale of a Controlled Substance. However, the complaint names Zaino, Rivera, four other named officers, two undercover police officers and 10 John/Jane Does. The only specific factual claim made about a specific officer is that P.O. George Goulart "with the acquiescence of the other defendants, misrepresented facts in police reports and other documents that the plaintiff had committed offenses when in fact this was not true." There is simply no indication what if any role Zaino may have played in this arrest. Cross-examination is not permitted.
Devon McFarlane v. City of New York, Det Paul Zaino, et al , Index No. 031354-2017E; Thomas Edwards v. The City of New York, Detective Paul Zaino, et al , 13 CIV 664 (GHW) (SDNY); Antonio Rivera and Sharon Lopez v. City of New York, Paul Zaino, et al , CV 07 8061 (DLC) (SDNY).
Detective Rivera is also named in Thomas Edwards v. The City of New York, Detective Daniel Rivera, Detective Paul Zaino, et al , 13 Civ. 6664 (GHW) (SDNY).
3. The four remaining lawsuits that name Detective Rivera include allegations that 11 John/Jane Doe police officers, seven named police officers and an undercover police officer also participated in the alleged misconduct. However, there are no specific allegations of fact as to Rivera and the complaints do not allege what if any crimes the plaintiffs allegedly committed or what if any contraband was recovered. Accordingly, cross-examination is precluded.
Rodney Cook v. City of New York, Det. Daniel Rivera et al , Index No. 301140-2015, Ronald Pena v. City of New York, Detective Daniel Rivera, et al , Index No. 23414-2016E; Alvin Williams & Michelle Mathies v. City of New York, et al, Index No 301130-2014, Tyrell Douglas v. The City of New York, Det. Daniel Rivera, et al , 14 CIV 8377 (PKC) (SDNY). Notably the Stipulation and Order of Dismissal filed in the Douglas case names The City of New York and "P.O. John Does # 1-5."
A final lawsuit, Charles Rochester v. The City of New York, et al , Index No. 251498-2016, was brought by the plaintiff pro se rather than by counsel. But Rochester also named as defendants "Bronx 44th Pct. and NBBX/NARCBBX Unit," "Undercover Officers, Female/Male a.k.a. John Doe's," and named officers including Rivera. Moreover, Rochester did not state what if any specific actions Rivera took in any of the seven drug arrests that gave rise to his civil suit. Here again the allegations are not specific enough as to Rivera to permit cross-examination.
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CONCLUSION
For the reasons set forth above, defendant may cross-examine the police witnesses about the allegations in Capellan, Dalton, Thornley, Samuel and Doward . Defendant may renew his application to cross-examine about Lewis if he obtains updated information about the status of that case.
The foregoing constitutes the decision and order of the court.