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FILED: BRONX COUNTY CLERK 12/03/2019 11:29 AM INDEX NO. 21820/2018E
NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 12/03/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF BRONX
JONATHAN MCRAE
Plaintiff, AFFIRMATION IN
OPPOSITION TO
- against - DEFENDANTS$ MOTION FOR
SUMMARY JUDGMENT
CITY OF NEW YORK, NEW YORK CITY POLICE
DEPARTMENT, POLICE OFFICER JASON BAKER,
POLICE OFFICER JOHN DOE and POLICE
INDEX NO.: 21820/2018E
OFFICER JOHN ROE
Defendant(s).
NEIL WOLLERSTEIN, ESQ., an attorney duly authorized to practice law before the
Courts of the State of New York affirms the to be true under the penMties of
hereby following
perjury:
1. I am the attorney of record for Plaintiff Jonathan McRae ("Plaintiff") and as such I
am fullyfamiliar with the facts and circumstances underlying this matter.
Defendants'
2. This Affirmation is submitted in opposition to motion for suñññary
judgment, which this Honorable Court should not only summarily deny but seriously consider
imposing sanctions against Defendants for the frivolous and grotesquely misleading nature of their
motion. This motion, once again, demonstrates that Defêñdañts will do and say almost anything
in an attempt to have a Plaintiff's complaint dismissed.
3. By way of example, in claiming that Defendants had probable cause to arrest
"identified"
Plaintiff because he was by the complaining witness as the perpetrator of the shooting,
Defendants advance a blatant falsehood by asserting that "[t]he complelñlng victim was
assailant." Defendants'
interviewed by police and he provided a description of his (See
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Affirmation in Support at ¶ 12). Contrary to that representation, and in the most incredible fashion,
the complainsñ‡ was :::::;bleto provide a description of the real gunman to Defendant Baker.
4. Indeed, the police complaint report prepared shortly after the shooting reflects that:
i)the complaiñañt did not know whether the real gunman was male or female; ii) the complainant
did not know the race of the real gunman; iii)the complainant did not know the age of the real
gunman; iv) the complainant did not know the height of the real gunman; v) the complaiñant did
not know the weight of the real gunman; the complainant did not provide a description of the
vi)
hair length or style of the real gunman's hair; and vii) the complainant could not describe whether
the real gunman had facial hair or not. A copy of the trañscript of Defendant Baker is attached
"A" "A"
hereto as Exhibit (See Exhibit at pp. 122-126). A copy of the police complaint report is
attached hereto as Exhibit "B".
"fact"
5. The second falsehood and grotesquely misleading advanced by Defendants
is that after the complainant supposedly identified Plaintiff, "[t]he details of that identification
arrest." Defendants'
were relayed to Detective Jason Baker, who made the (See Affirmation in
"fact" - -
Support at ¶ 39). Notably, Defendants offer no record support for that nor could they
since it is false. In reality, Defendant Baker had no i;;velvenwntin that ss;p=cf procedure,
out"
he was unaware of the circumstances in which the "point was suppsed'y made, and he
out."
never even bothered to interview the complainant following the suppesed "point (See
"A"
Exhibit at pp. 221-223).
6. The third blatant falsehood advanced by Defendants is that "[t]he victim notified
police and identified the Plaintiff to responding police officers as the person who shot him.
(DEFENDANTS' 143-DEF144)." Defendants'
EXHIBIT "E", DEF (See Affirmation in Support
Defendants'
at ¶ 13). Contrary to claim that support for the aforesaid assertion could be found in
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the referenced exhibit, the exhibit being the arrest report that Defendant Baker completed, said
assertion is blatantly false.
7. In point of fact, nowhere in the arrest report even mentions that the complainant
notified police and identified Plaintiff to responding police officers as the person who shot him.
out"
In addition, nowhere in the arrest report is a "point or other identification procedure even
mentioned. Nor does the arrest report reflect anywhere that Defendant Baker was the recipient of
out"
any communication from any officer about a "point or any other type of identification
procedure. A copy of the arrest report is attached hereto as Exhibit "C".
Defendants'
8. transgressions do not end there. Defendants also conveniently omit
fundamental facts that wholly undermine their claim that they had probable cause to arrest
Plaintiff.
9. First, when the complainant eventually provided a description of the real gunman
to the police, (after initially being unable to do so), it was w holly inconsistent with Plaintiff's
physical characteristics. A breakdown of the evidence before this Honorable Court, as will be
discussed infra, confirms this:
The Complainant's Description Plaintiff's Characteristics
• unable to provide description
Initially
of real gunman at time of robbery
• Did not know sex of real gunman Male
• Did not know race of real gunman African-American
• 5'7" 6'1"
Real gunman was Plaintiff is
• Real gunman was 40 years old Plaintiff was 25 years old
• Real gunman weighed 200 lbs. Plaintiff weighed 225 lbs.
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10. Second, Defendants have wholly failed to even mention the existence of a video
"Wanted"
fi·om which the police placed posters in the area where the crime occurred that depicted
the real gunman who bore no resemblance to Plaintiff - except for the fact the person depicted in
the poster is an African-American male:
The Video Depiction Plaintiff's Characteristics
• Real gunman had a Plaintiff has a round and flat
protruding, full,
bony jaw face
• Real gunman has a neck Plaintiff has a short neck
long
• Real gunman has a thin neck Plaintiff has a thick neck
• Real gunman is thin (170 Plaintiff is (225
pounds) heavy pounds)
11. A copy of the video depiction of the real gunman is attached hereto as Exhibit "E".
12. Lastly, and, perhaps most significantly, Defendants fail to mention that the lack of
probable cause to arrest Plaintiff was actually acknowledged by Defendant Baker himself when he
admitted during his deposition that an arrest (such as that which occurred here) could not be
supported where the description of the perpetrator was wholly inconsistent with the person
arrested:
Q. Based on your training and experience, detective, as a seasoned detective
investigator, if physical attributes of a person arrested don't match the original
description, is itfair to say that it'smore likely than not it'sthe wrong person?
A. Yes.
Q. [Those circumstances are] present here based on what your testimony is today,
correct?
"A"
A. Yes. (See Exhibit at p. 191).
13. For those and other reasons stated herein, this Honorable Court should not only
Defendants'
deny summary judgment motion but should also consider imposing sanctions agaiñst
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Defendants for the frivolous and grotesquely mI~>eacIing nature of their motion. Simply stated
there is no legitimate reason or explanation that Defendants can proffer for their intentional and
misleading conduct herein.
Plaintiff's Counter Statement of Facts
Defendants'
14. For purposes of determining summary judgment motion "the facts
must be viewed in the light most favorable to the plaintiff, and every available inference must be
favor."
drawn in the plaintiff's Torres v. Jones, 26 N.Y.3d 742, 763 (2016). Viewing the evidence
st-
consistent with those idards, the evidence before this Honorable Court shows the following:
15. On January 12, 2017, Plaintiff, who was outside walking his dog on Teller Avenue,
was arrested for Intentional Murder in the Second Degree in connection with a shooting that had
"C"
occurizd nine (9) months beforehand. (See Exhibit which is the arrest report prepared by
Defendant Baker and lists the exact anest charges). A copy of the transviipt of Plaintiff's
"E"
ex~mI»tIon before trialbearing these facts is attached hereto as Exhibit "K". (See Exliibit at
pp. 13; 26; 27).
16. Plaintiff was 26 years old at the time of his arrest, weighed about 225 pounds and
his height was 6 feet and 1 inch. The profile of Plaintiff s face is relatively flat; i.e.,neither his
nose nor his jaw significantly protrude outward, his face is round and full, not angular and bony,
and his neck is short and thick. A copy of Plaintiff's arrest photograph and pedigree information
bearing these facts is attached hereto as Exhibit "F". Plaintiff also had distinguishing marks
throughout his body: he has a tattoo on his left hand, a significant scar on his right hand, and a
"E"
tattoo on the back of his neck. (See Exhibit at pp. 15; 56-57).
17. The shooting for which Plaintiff was arrested occurred on April 2, 2016 at about
1:00 a.m. within the vicinity of 1000 Teller Avenue, Bronx, New York. At the aforesaid time and
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place, the complainant was approached in his car by two men, one of whom brandished a handgun.
During the course of the incident, the complainant was shot, but, fortunately not fatally. (See
"B"
Exhibit which is a copy of the police complaint report).
18. Shortly after the incident, the New York City Police Department responded. The
complainant, however, was unable to provide a description of the real gunman to Defendant Baker.
(See Exhibit "B"). Indeed, the police complaint report prepared by Defendant Baker in connection
with the shooting shortly afterward reflects that the complainant did not know: i) whether the real
gunman was male or female; ii) he did not know the race of the real gunman; iii)he did not know
the age of the real gunman; iv) he did not know the height of the real gumñañ; v) he did not know
the weight of the real gunman; vi) he did not provide a description of the hair length or style of the
real gunman's hair; and vii) the complainant did not describe whether the real gunman had facial
"A"
hair or not. (See Exhibit at pp. 122-126 and Exhibit "B").
19. Most notably, and in the most incredible fashion, the complaint report prepared by
Defendãñts specifically indicated that the complainant could not ident(y the shooter. (See Exhibit
"A"
at p. 128; Exhibit "B"). In other words, the compkinant could not provide a sufficient
description of the real gunman after the incident to investigators.
20. During his interview with Defendant Baker, the complainant acknowledged he did
not get a good look at the real gunman because he was staring at a semi-automatic handgun during
"A"
the incident. (See Exhibit at p. 149). In other words, the complaiñãñt admitted that he never
looked at the assailants during the incident. Strangely, Defendant Baker never spoke with the
complaiñant again and had no other interaction with him until after the Plaintiff was arrested for
shooting- "A"
the some nine (9) months later.(See Exhibit at p. 145).
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21. Later that day, a Detective Lauterbach interviewed the complainant at the hospital
"A"
at about 2:30 a.m. (See Exhibit at p. 134). For reasons with which Defendants have not
provided this Honorable Court, the complaiñañt was now able to provide a description of the real
gunman as being a 5 foot 7 inch African-American male who weighed 200 pounds and was about
"A"
40 years old. (See Exhibit at pp. 138; 184). However, the complainant still could not provide
Detective Lauterbach with a description of the real gunman's hair color or length, facial hair,
"A"
marks, scars, tattoos, eye color, body type, and skin complexion. (See Exhibit at pp. 139-142.)
A copy of the report prepared by Detective Lauterbach is attached hereto as Exhibit "G".
22. Although the complainant was unable to provide the police with a specific
description of the real gunman, a video was uncovered early on in the investigation that depicted
"A"
the real gunman inside a nearby bodega. (See Exhibit at p. 162). Based on the video,
"Wanted"
Defendant Baker constructed a poster by using a photographic still from the video. The
"Wanted" "A"
poster was distributed in the area where the crime was committed. (See Exhibit at
"Wanted"
p. 117). A copy the poster is annexed hereto as Exhibit "H").
"Wanted"
23. As can be seen in the poster, the person depicted has a more pronounced
and bonier jaw bone than Plaintiff, whose profile is flatter and more full than the real gunman.
Moreover, Plaintiff has a shorter and thicker neck than the real gunman (i.e.,the person depicted
in the video) as reflected in the arrest photograph that was taken of Plaintiff following the subject
"Wanted"
arrest. (See Exhibit "F"). And, as can be seen in the video from which the poster was
created, the real gunman is thin and probably weighs about 170 pounds. (See Exhibit "D").
24. Following the incident, the complainant was never shown any photographs of the
"A"
real gunman or a line-up to identify the real gunman was never conducted. (See Exhibit at pp.
160-161). Incredulously, and in the most bizarre and telling fashion, Defendant Baker never even
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showed the video or the photos of the real gunman extracted from the video to the complainant.
"A"
(See Exhibit at p. 163).
25. Two weeks after the incident, Plaintiff was arrested on an unrelated charge. At that
time, Defendant Baker already knew that fingerprints/DNA had been lifted from a shell casing at
the crime scene and that said fingerprints/DNA did not match Plaintiff's fingerpriñts/DNA. (See
"A"
Exhibit at pp. 202-203).
26. Even though Defendant Baker knew Plaintiff for several years prior to the incident
"A"
(See Exhibit at pp. 77; 210), and even though Defendant Baker had a video depicting the real
gunma.n (which was not even though Defendant for some unknown
obviously Plaintiff), Baker,
reason, maintained that the person depicted in the video was Plaintiff, and even though Defendant
Baker had a photo of Plaintiff taken two weeks after the shooting, during the nine months following
the incident Defendant Baker never sought Plaintiff to interview him in connection with the
incident. Indeed, not only was Plaintiff not a suspect in the shooting, his name never even came
"A"
up during the investigation prior to his arrest. (See Exhibit at pp. 85; 213).
27. About two months after the shooting, Defendant Baker gave up in finding the real
"A"
gunman and closed the case as being unsolvable. (See Exhibit at p. 86).
28. Seven months after the case was closed (and nine months after the shooting),
Plaintiff was arrested while walking his dog near his home. According to Defendant Baker, who
out"
was the arresting officer, Plaintiff was arrested pursuant to a supposed "point by the
out" out"
complainant. A "point is a procedure in which a complainant or witness "points a person
"A"
as a perpetrator of a crime. (See Exhibit at p. 220). Defendant Baker, however, had no
"A"
involvemêñt and no knowledge of what transpired in that supposed procedure. (See Exhibit at
pp. 221; 222). Thus, Defendant Baker was unaware of the circumstances in which the supposed
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out"
"point was made, and he was unsure whether the complainant indicated any uncertainty as to
"A"
whether Plaintiff was the real gunman or not. (See Exhibit at pp. 221-222). And, to be sure,
Defendant Baker, for unknown reasons, never interviewed the complainant following the supposed
out." "A"
"point (See Exhibit at p. 223).
29. Even though Defendant Baker acknowledged that the identification of a suspect is
"paramount"
in the investigation of a crime of this nature and even though Defendant Baker has
been involved in more than 1,000 arrests since this incident, in the most incredible fashion, none
of Defendant Baker's reports or memo book entries indicated that the complainant actually
out" "A"
"pointed Plaintiff as being the real gunman. (See Exhibit at pp. 73; 223-226). In fact, no
out"
report whatsoever even indicates why Plaintiff was arrested or that a "point actually took
"A"
place. (See Exhibit at p. 224).
30. Prior to arresting Plaintiff, Defendant went back and reviewed his case notes from
his investigation and realized that Plaintiff's height (6 feet 1 inch) was very different from the
height of the real gunman as described the complainant and that the age of Plaintiff (25 years
by
old at the time of the incident) was also very different from the description of the real gunman that
"A"
the complainant provided (40 years old). (See Exhibit at pp. 189-190). Indeed, Defendant
Baker ack;:owledged that the only thing in common between the description of the real
-
gunman provided by the ce Pet and Plaintiff was that both were African-American
"A"
males. (See Exhibit at p. 187).
31. Most significantly, based upon his training and experience, Defendant Baker
acknowledged that if the physical attributes of a person arrested do not match the description of
the perpetrator, itwould be more likely than not that the person arrested is the wrong person, the
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"A"
principle of which applied to Plaintiff's arrest. (See Exhibit at p. 191). Still, despite all the
foregoing, Defendant Baker shamelessly arrested Plaintiff.
32. The pedigree information contained on the arrest photograph of Plaintiff that was
taken in connection with the subject arrest indicates that Plaintiff was 25 years old. The
information further listed Plaintiff as being 6 feet 1 inch tall and listed Plaintiff as weighing 225
"A"
pounds. (See Exhibit at p. 186. See Exhibit "F"),
33. Shockingly, and most disturbing, at no time after Plaintiff was arrested did
Defendant Baker ever reach out to the complaiñãñt and have a conversation with him about the
arrest and the sigmficant discrepañcies between his multiple descriptions of the real gunman and
Plaintiff. Even more shocking is the fact that Defendant Baker also never showed the complainant
the surveillance video and never discussed with him the discrepancy between the person depicted
on the video (the real gunman), the complainant's description of the real gunman, and Plaintiff's
"A"
actual physical characteristics. (See Exhibit at pp. 214; 216).
34. The criminal charges against Plaintiff in connection with the subject arrest,
including Intentional Murder in the Second Degree and Attempted Murder, were never presented
to a grand and were disreissed on August 2017 - some eight months after Plaintiff had
jury 15,
been arrested - and after Plaintiff had been incarcerated for two weeks in connection
approximately
"E"
with the arrest. (See Exhibit at p 33). A copy of the certificate of disposition is attached hereto
as Exhibit "I".
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MEMORANDUM OF LAW IN OPPOSITION TO
DEFENDANTS'
MOTION FOR SUMMARY JUDGMENT
Point I
Defendants Lacked Prensh!c Cause to Arrest Plaintiff Based on His Supposed
Identification as the Real Gunman by the Come!rh=t.
35. Defendants claim that they are entitled to summary judgment on Plaintiff's causes
of action for false arrest and false imprisoñmêñt because, as Defendants argue, Defendant Baker
had probable cause to believe that Plaintiff was the real gunman who shot the complaiñant.
Toward that end, Defendants assert that because Plaintiff was supposedly identified as the real
gunman the complainant Defendants had probable cause to arrest him - and that such ends the
by
inquiry on that issue.
36. Wrong.
Defeñdañts'
37. As Defendants actually recognize (See Affirmation in Support at¶27),
but wholly ignore, there is a major qualification to that rule: "[T]he fact that an identified citizen
accused an individual who was known to her of a specific crime, while generally sufficient to
establish probable cause, does not necessarily establish it. The rule is actually somewhat less
absolute: 'Probable cause is established absent materially impeaching circumstances, where, as
here, the victim of an offense communicates to the arresting officer information affording a
credible ground for believing the offense was committed and identifies the accused as the
perpetrator'
The question is whether the police are aware of 'materially impeaching
circumstances' credibility."
or grounds for questioning the complainant's Medina v. City of New
(1"
York, 102 A.D.3d 101, 104 Dep't. 2012) quoting People v. Gonzalez, 138 A.D.2d 622, 623
(2nd
Dep't. 1988) (italics added).
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(3d
38. Hernandez v. State, 228 A.D.2d 902 Dep't. 1996) illustrates the point that
police conduct, or the lack thereof, like that of Defendant Baker herein, that deviates so egregiously
from proper police activity as to indicate intentional or reckless action where there is strong reason
to doubt whether an arrestee is the person who committed a crime defeats probable cause.
39. In Hernandez, as part of a widespread drug investigation in Schenectady, a state
trooper (Mercado), acting in an undercover capacity, purchased cocaine from Francisco Guzman
at a store located in an area of Schenectady known as the Hamilton Hill section. A young Hispanic
male on a bicycle, whose identity was unknown to Mercado, facilitated the transaction by
delivering the cocaine to Guzman's store. In recording this purchase for the police investigation,
Mercado described this individual as a 5 feet 4 inches Hispanic male with short dark hair, weighing
approximately 135 pounds, whose name was unknown and who was later described by Mercado
as 18 to 20 years old. A few days later Mercado again encountered the same individual. This
"Enrique"
person was once again riding a bicycle, identified himself as and told Mercado that he
lived right down the street.
40. Shortly thereafter another officer showed Mercado an old photograph of an
"Enrique,"
individual appareñtly known as who appeared to Mercado to resemble the individual
on the bicycle. Relying mainly on this photograph, which apparently was a photograph of the
plaintiff taken a number of years earlier, Mercado amended his investigation report to reflect the
fact that the person who sold him the drugs was the plaintiff. As a result of Mercado's testimony,
"Enrique,"
an indictment was returned charging the plaintiff, also known as with the crimes of
criminal sale of a controlled substance in the third degree and criminal possession of a controlled
substance in the third degree and the plaintiff was arrested.
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41. At the time of his arrest, the plaintiff was a 27-year-old married man with a wife
and two children, was approximately 5 feet 8 inches tall,weighed 180 pounds with longish dark
hair, and was working at two jobs. (By contrast, the real drug seller was 5 feet 4 inches tall,with
short dark hair, weighed approximately 135 pounds, and was 18 to 20 years old).
42. The plaintiff ultimately was released on bailafter being held in custody for 31 days.
Sometime after the plaintiff's arrest, and upon reviewing arrest records and booking photographs,
Mercado realized that the plaintiff was not the individual from whom he purchased the cocaine
and he notified his superiors of this fact. However, nothing further was done in this matter until
months later, when, just prior to an in court identification hearing, County Court was advised by
the District Attorney's office that the plaintiff had been misidentified and the court immediately
dismissed all charges against plaintiff.
43. The appellate court noted that although the police were engaged in a commendable
attempt to suppress unlawful drug activity in Scheñêctady, the court also opined that "the police
failed to carry out the most rudimêñtary investigation before charging claimant with a serious
felony . .. The failure to substantiate in any way the residence, age or occupation of [the plaintiffj
was sufficient to permit the trierof fact to infer grossly negligent conduct sufficient to overcome
indictinent."
the presumption of probable cause arising from the Grand Jury's Id. at 905.
44. Another example of analogous police conduct, or the lack thereof, like that of
Defendant Baker herein, that deviates so egregiously from proper police activity as to indicate
intentional or reckless action where there is strong reason to doubt whether an arrestee is the person
(2nd
who committed a crime defeats probable cause is Haynes v. City of New York, 29 A.D.3d 521
Dep't. 2006). In Haynes, two undercover police officers purchased cocaine from an individual
"O."
referred to as During the drug buy, the officers wrote down the license plate number of the
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FILED: BRONX COUNTY CLERK 12/03/2019 11:29 AM INDEX NO. 21820/2018E NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 12/03/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX JONATHAN MCRAE Plaintiff, AFFIRMATION IN OPPOSITION TO - against - DEFENDANTS$ MOTION FOR SUMMARY JUDGMENT CITY OF NEW YORK, NEW YORK CITY POLICE DEPARTMENT, POLICE OFFICER JASON BAKER, POLICE OFFICER JOHN DOE and POLICE INDEX NO.: 21820/2018E OFFICER JOHN ROE Defendant(s). NEIL WOLLERSTEIN, ESQ., an attorney duly authorized to practice law before the Courts of the State of New York affirms the to be true under the penMties of hereby following perjury: 1. I am the attorney of record for Plaintiff Jonathan McRae ("Plaintiff") and as such I am fullyfamiliar with the facts and circumstances underlying this matter. Defendants' 2. This Affirmation is submitted in opposition to motion for suñññary judgment, which this Honorable Court should not only summarily deny but seriously consider imposing sanctions against Defendants for the frivolous and grotesquely misleading nature of their motion. This motion, once again, demonstrates that Defêñdañts will do and say almost anything in an attempt to have a Plaintiff's complaint dismissed. 3. By way of example, in claiming that Defendants had probable cause to arrest "identified" Plaintiff because he was by the complaining witness as the perpetrator of the shooting, Defendants advance a blatant falsehood by asserting that "[t]he complelñlng victim was assailant." Defendants' interviewed by police and he provided a description of his (See 1 1 of 29 FILED: BRONX COUNTY CLERK 12/03/2019 11:29 AM INDEX NO. 21820/2018E NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 12/03/2019 Affirmation in Support at ¶ 12). Contrary to that representation, and in the most incredible fashion, the complainsñ‡ was :::::;bleto provide a description of the real gunman to Defendant Baker. 4. Indeed, the police complaint report prepared shortly after the shooting reflects that: i)the complaiñañt did not know whether the real gunman was male or female; ii) the complainant did not know the race of the real gunman; iii)the complainant did not know the age of the real gunman; iv) the complainant did not know the height of the real gunman; v) the complaiñant did not know the weight of the real gunman; the complainant did not provide a description of the vi) hair length or style of the real gunman's hair; and vii) the complainant could not describe whether the real gunman had facial hair or not. A copy of the trañscript of Defendant Baker is attached "A" "A" hereto as Exhibit (See Exhibit at pp. 122-126). A copy of the police complaint report is attached hereto as Exhibit "B". "fact" 5. The second falsehood and grotesquely misleading advanced by Defendants is that after the complainant supposedly identified Plaintiff, "[t]he details of that identification arrest." Defendants' were relayed to Detective Jason Baker, who made the (See Affirmation in "fact" - - Support at ¶ 39). Notably, Defendants offer no record support for that nor could they since it is false. In reality, Defendant Baker had no i;;velvenwntin that ss;p=cf procedure, out" he was unaware of the circumstances in which the "point was suppsed'y made, and he out." never even bothered to interview the complainant following the suppesed "point (See "A" Exhibit at pp. 221-223). 6. The third blatant falsehood advanced by Defendants is that "[t]he victim notified police and identified the Plaintiff to responding police officers as the person who shot him. (DEFENDANTS' 143-DEF144)." Defendants' EXHIBIT "E", DEF (See Affirmation in Support Defendants' at ¶ 13). Contrary to claim that support for the aforesaid assertion could be found in 2 2 of 29 FILED: BRONX COUNTY CLERK 12/03/2019 11:29 AM INDEX NO. 21820/2018E NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 12/03/2019 the referenced exhibit, the exhibit being the arrest report that Defendant Baker completed, said assertion is blatantly false. 7. In point of fact, nowhere in the arrest report even mentions that the complainant notified police and identified Plaintiff to responding police officers as the person who shot him. out" In addition, nowhere in the arrest report is a "point or other identification procedure even mentioned. Nor does the arrest report reflect anywhere that Defendant Baker was the recipient of out" any communication from any officer about a "point or any other type of identification procedure. A copy of the arrest report is attached hereto as Exhibit "C". Defendants' 8. transgressions do not end there. Defendants also conveniently omit fundamental facts that wholly undermine their claim that they had probable cause to arrest Plaintiff. 9. First, when the complainant eventually provided a description of the real gunman to the police, (after initially being unable to do so), it was w holly inconsistent with Plaintiff's physical characteristics. A breakdown of the evidence before this Honorable Court, as will be discussed infra, confirms this: The Complainant's Description Plaintiff's Characteristics • unable to provide description Initially of real gunman at time of robbery • Did not know sex of real gunman Male • Did not know race of real gunman African-American • 5'7" 6'1" Real gunman was Plaintiff is • Real gunman was 40 years old Plaintiff was 25 years old • Real gunman weighed 200 lbs. Plaintiff weighed 225 lbs. 3 3 of 29 FILED: BRONX COUNTY CLERK 12/03/2019 11:29 AM INDEX NO. 21820/2018E NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 12/03/2019 10. Second, Defendants have wholly failed to even mention the existence of a video "Wanted" fi·om which the police placed posters in the area where the crime occurred that depicted the real gunman who bore no resemblance to Plaintiff - except for the fact the person depicted in the poster is an African-American male: The Video Depiction Plaintiff's Characteristics • Real gunman had a Plaintiff has a round and flat protruding, full, bony jaw face • Real gunman has a neck Plaintiff has a short neck long • Real gunman has a thin neck Plaintiff has a thick neck • Real gunman is thin (170 Plaintiff is (225 pounds) heavy pounds) 11. A copy of the video depiction of the real gunman is attached hereto as Exhibit "E". 12. Lastly, and, perhaps most significantly, Defendants fail to mention that the lack of probable cause to arrest Plaintiff was actually acknowledged by Defendant Baker himself when he admitted during his deposition that an arrest (such as that which occurred here) could not be supported where the description of the perpetrator was wholly inconsistent with the person arrested: Q. Based on your training and experience, detective, as a seasoned detective investigator, if physical attributes of a person arrested don't match the original description, is itfair to say that it'smore likely than not it'sthe wrong person? A. Yes. Q. [Those circumstances are] present here based on what your testimony is today, correct? "A" A. Yes. (See Exhibit at p. 191). 13. For those and other reasons stated herein, this Honorable Court should not only Defendants' deny summary judgment motion but should also consider imposing sanctions agaiñst 4 4 of 29 FILED: BRONX COUNTY CLERK 12/03/2019 11:29 AM INDEX NO. 21820/2018E NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 12/03/2019 Defendants for the frivolous and grotesquely mI~>eacIing nature of their motion. Simply stated there is no legitimate reason or explanation that Defendants can proffer for their intentional and misleading conduct herein. Plaintiff's Counter Statement of Facts Defendants' 14. For purposes of determining summary judgment motion "the facts must be viewed in the light most favorable to the plaintiff, and every available inference must be favor." drawn in the plaintiff's Torres v. Jones, 26 N.Y.3d 742, 763 (2016). Viewing the evidence st- consistent with those idards, the evidence before this Honorable Court shows the following: 15. On January 12, 2017, Plaintiff, who was outside walking his dog on Teller Avenue, was arrested for Intentional Murder in the Second Degree in connection with a shooting that had "C" occurizd nine (9) months beforehand. (See Exhibit which is the arrest report prepared by Defendant Baker and lists the exact anest charges). A copy of the transviipt of Plaintiff's "E" ex~mI»tIon before trialbearing these facts is attached hereto as Exhibit "K". (See Exliibit at pp. 13; 26; 27). 16. Plaintiff was 26 years old at the time of his arrest, weighed about 225 pounds and his height was 6 feet and 1 inch. The profile of Plaintiff s face is relatively flat; i.e.,neither his nose nor his jaw significantly protrude outward, his face is round and full, not angular and bony, and his neck is short and thick. A copy of Plaintiff's arrest photograph and pedigree information bearing these facts is attached hereto as Exhibit "F". Plaintiff also had distinguishing marks throughout his body: he has a tattoo on his left hand, a significant scar on his right hand, and a "E" tattoo on the back of his neck. (See Exhibit at pp. 15; 56-57). 17. The shooting for which Plaintiff was arrested occurred on April 2, 2016 at about 1:00 a.m. within the vicinity of 1000 Teller Avenue, Bronx, New York. At the aforesaid time and 5 5 of 29 FILED: BRONX COUNTY CLERK 12/03/2019 11:29 AM INDEX NO. 21820/2018E NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 12/03/2019 place, the complainant was approached in his car by two men, one of whom brandished a handgun. During the course of the incident, the complainant was shot, but, fortunately not fatally. (See "B" Exhibit which is a copy of the police complaint report). 18. Shortly after the incident, the New York City Police Department responded. The complainant, however, was unable to provide a description of the real gunman to Defendant Baker. (See Exhibit "B"). Indeed, the police complaint report prepared by Defendant Baker in connection with the shooting shortly afterward reflects that the complainant did not know: i) whether the real gunman was male or female; ii) he did not know the race of the real gunman; iii)he did not know the age of the real gunman; iv) he did not know the height of the real gumñañ; v) he did not know the weight of the real gunman; vi) he did not provide a description of the hair length or style of the real gunman's hair; and vii) the complainant did not describe whether the real gunman had facial "A" hair or not. (See Exhibit at pp. 122-126 and Exhibit "B"). 19. Most notably, and in the most incredible fashion, the complaint report prepared by Defendãñts specifically indicated that the complainant could not ident(y the shooter. (See Exhibit "A" at p. 128; Exhibit "B"). In other words, the compkinant could not provide a sufficient description of the real gunman after the incident to investigators. 20. During his interview with Defendant Baker, the complainant acknowledged he did not get a good look at the real gunman because he was staring at a semi-automatic handgun during "A" the incident. (See Exhibit at p. 149). In other words, the complaiñãñt admitted that he never looked at the assailants during the incident. Strangely, Defendant Baker never spoke with the complaiñant again and had no other interaction with him until after the Plaintiff was arrested for shooting- "A" the some nine (9) months later.(See Exhibit at p. 145). 6 6 of 29 FILED: BRONX COUNTY CLERK 12/03/2019 11:29 AM INDEX NO. 21820/2018E NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 12/03/2019 21. Later that day, a Detective Lauterbach interviewed the complainant at the hospital "A" at about 2:30 a.m. (See Exhibit at p. 134). For reasons with which Defendants have not provided this Honorable Court, the complaiñañt was now able to provide a description of the real gunman as being a 5 foot 7 inch African-American male who weighed 200 pounds and was about "A" 40 years old. (See Exhibit at pp. 138; 184). However, the complainant still could not provide Detective Lauterbach with a description of the real gunman's hair color or length, facial hair, "A" marks, scars, tattoos, eye color, body type, and skin complexion. (See Exhibit at pp. 139-142.) A copy of the report prepared by Detective Lauterbach is attached hereto as Exhibit "G". 22. Although the complainant was unable to provide the police with a specific description of the real gunman, a video was uncovered early on in the investigation that depicted "A" the real gunman inside a nearby bodega. (See Exhibit at p. 162). Based on the video, "Wanted" Defendant Baker constructed a poster by using a photographic still from the video. The "Wanted" "A" poster was distributed in the area where the crime was committed. (See Exhibit at "Wanted" p. 117). A copy the poster is annexed hereto as Exhibit "H"). "Wanted" 23. As can be seen in the poster, the person depicted has a more pronounced and bonier jaw bone than Plaintiff, whose profile is flatter and more full than the real gunman. Moreover, Plaintiff has a shorter and thicker neck than the real gunman (i.e.,the person depicted in the video) as reflected in the arrest photograph that was taken of Plaintiff following the subject "Wanted" arrest. (See Exhibit "F"). And, as can be seen in the video from which the poster was created, the real gunman is thin and probably weighs about 170 pounds. (See Exhibit "D"). 24. Following the incident, the complainant was never shown any photographs of the "A" real gunman or a line-up to identify the real gunman was never conducted. (See Exhibit at pp. 160-161). Incredulously, and in the most bizarre and telling fashion, Defendant Baker never even 7 7 of 29 FILED: BRONX COUNTY CLERK 12/03/2019 11:29 AM INDEX NO. 21820/2018E NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 12/03/2019 showed the video or the photos of the real gunman extracted from the video to the complainant. "A" (See Exhibit at p. 163). 25. Two weeks after the incident, Plaintiff was arrested on an unrelated charge. At that time, Defendant Baker already knew that fingerprints/DNA had been lifted from a shell casing at the crime scene and that said fingerprints/DNA did not match Plaintiff's fingerpriñts/DNA. (See "A" Exhibit at pp. 202-203). 26. Even though Defendant Baker knew Plaintiff for several years prior to the incident "A" (See Exhibit at pp. 77; 210), and even though Defendant Baker had a video depicting the real gunma.n (which was not even though Defendant for some unknown obviously Plaintiff), Baker, reason, maintained that the person depicted in the video was Plaintiff, and even though Defendant Baker had a photo of Plaintiff taken two weeks after the shooting, during the nine months following the incident Defendant Baker never sought Plaintiff to interview him in connection with the incident. Indeed, not only was Plaintiff not a suspect in the shooting, his name never even came "A" up during the investigation prior to his arrest. (See Exhibit at pp. 85; 213). 27. About two months after the shooting, Defendant Baker gave up in finding the real "A" gunman and closed the case as being unsolvable. (See Exhibit at p. 86). 28. Seven months after the case was closed (and nine months after the shooting), Plaintiff was arrested while walking his dog near his home. According to Defendant Baker, who out" was the arresting officer, Plaintiff was arrested pursuant to a supposed "point by the out" out" complainant. A "point is a procedure in which a complainant or witness "points a person "A" as a perpetrator of a crime. (See Exhibit at p. 220). Defendant Baker, however, had no "A" involvemêñt and no knowledge of what transpired in that supposed procedure. (See Exhibit at pp. 221; 222). Thus, Defendant Baker was unaware of the circumstances in which the supposed 8 8 of 29 FILED: BRONX COUNTY CLERK 12/03/2019 11:29 AM INDEX NO. 21820/2018E NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 12/03/2019 out" "point was made, and he was unsure whether the complainant indicated any uncertainty as to "A" whether Plaintiff was the real gunman or not. (See Exhibit at pp. 221-222). And, to be sure, Defendant Baker, for unknown reasons, never interviewed the complainant following the supposed out." "A" "point (See Exhibit at p. 223). 29. Even though Defendant Baker acknowledged that the identification of a suspect is "paramount" in the investigation of a crime of this nature and even though Defendant Baker has been involved in more than 1,000 arrests since this incident, in the most incredible fashion, none of Defendant Baker's reports or memo book entries indicated that the complainant actually out" "A" "pointed Plaintiff as being the real gunman. (See Exhibit at pp. 73; 223-226). In fact, no out" report whatsoever even indicates why Plaintiff was arrested or that a "point actually took "A" place. (See Exhibit at p. 224). 30. Prior to arresting Plaintiff, Defendant went back and reviewed his case notes from his investigation and realized that Plaintiff's height (6 feet 1 inch) was very different from the height of the real gunman as described the complainant and that the age of Plaintiff (25 years by old at the time of the incident) was also very different from the description of the real gunman that "A" the complainant provided (40 years old). (See Exhibit at pp. 189-190). Indeed, Defendant Baker ack;:owledged that the only thing in common between the description of the real - gunman provided by the ce Pet and Plaintiff was that both were African-American "A" males. (See Exhibit at p. 187). 31. Most significantly, based upon his training and experience, Defendant Baker acknowledged that if the physical attributes of a person arrested do not match the description of the perpetrator, itwould be more likely than not that the person arrested is the wrong person, the 9 9 of 29 FILED: BRONX COUNTY CLERK 12/03/2019 11:29 AM INDEX NO. 21820/2018E NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 12/03/2019 "A" principle of which applied to Plaintiff's arrest. (See Exhibit at p. 191). Still, despite all the foregoing, Defendant Baker shamelessly arrested Plaintiff. 32. The pedigree information contained on the arrest photograph of Plaintiff that was taken in connection with the subject arrest indicates that Plaintiff was 25 years old. The information further listed Plaintiff as being 6 feet 1 inch tall and listed Plaintiff as weighing 225 "A" pounds. (See Exhibit at p. 186. See Exhibit "F"), 33. Shockingly, and most disturbing, at no time after Plaintiff was arrested did Defendant Baker ever reach out to the complaiñãñt and have a conversation with him about the arrest and the sigmficant discrepañcies between his multiple descriptions of the real gunman and Plaintiff. Even more shocking is the fact that Defendant Baker also never showed the complainant the surveillance video and never discussed with him the discrepancy between the person depicted on the video (the real gunman), the complainant's description of the real gunman, and Plaintiff's "A" actual physical characteristics. (See Exhibit at pp. 214; 216). 34. The criminal charges against Plaintiff in connection with the subject arrest, including Intentional Murder in the Second Degree and Attempted Murder, were never presented to a grand and were disreissed on August 2017 - some eight months after Plaintiff had jury 15, been arrested - and after Plaintiff had been incarcerated for two weeks in connection approximately "E" with the arrest. (See Exhibit at p 33). A copy of the certificate of disposition is attached hereto as Exhibit "I". 10 10 of 29 FILED: BRONX COUNTY CLERK 12/03/2019 11:29 AM INDEX NO. 21820/2018E NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 12/03/2019 MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT Point I Defendants Lacked Prensh!c Cause to Arrest Plaintiff Based on His Supposed Identification as the Real Gunman by the Come!rh=t. 35. Defendants claim that they are entitled to summary judgment on Plaintiff's causes of action for false arrest and false imprisoñmêñt because, as Defendants argue, Defendant Baker had probable cause to believe that Plaintiff was the real gunman who shot the complaiñant. Toward that end, Defendants assert that because Plaintiff was supposedly identified as the real gunman the complainant Defendants had probable cause to arrest him - and that such ends the by inquiry on that issue. 36. Wrong. Defeñdañts' 37. As Defendants actually recognize (See Affirmation in Support at¶27), but wholly ignore, there is a major qualification to that rule: "[T]he fact that an identified citizen accused an individual who was known to her of a specific crime, while generally sufficient to establish probable cause, does not necessarily establish it. The rule is actually somewhat less absolute: 'Probable cause is established absent materially impeaching circumstances, where, as here, the victim of an offense communicates to the arresting officer information affording a credible ground for believing the offense was committed and identifies the accused as the perpetrator' The question is whether the police are aware of 'materially impeaching circumstances' credibility." or grounds for questioning the complainant's Medina v. City of New (1" York, 102 A.D.3d 101, 104 Dep't. 2012) quoting People v. Gonzalez, 138 A.D.2d 622, 623 (2nd Dep't. 1988) (italics added). 11 11 of 29 FILED: BRONX COUNTY CLERK 12/03/2019 11:29 AM INDEX NO. 21820/2018E NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 12/03/2019 (3d 38. Hernandez v. State, 228 A.D.2d 902 Dep't. 1996) illustrates the point that police conduct, or the lack thereof, like that of Defendant Baker herein, that deviates so egregiously from proper police activity as to indicate intentional or reckless action where there is strong reason to doubt whether an arrestee is the person who committed a crime defeats probable cause. 39. In Hernandez, as part of a widespread drug investigation in Schenectady, a state trooper (Mercado), acting in an undercover capacity, purchased cocaine from Francisco Guzman at a store located in an area of Schenectady known as the Hamilton Hill section. A young Hispanic male on a bicycle, whose identity was unknown to Mercado, facilitated the transaction by delivering the cocaine to Guzman's store. In recording this purchase for the police investigation, Mercado described this individual as a 5 feet 4 inches Hispanic male with short dark hair, weighing approximately 135 pounds, whose name was unknown and who was later described by Mercado as 18 to 20 years old. A few days later Mercado again encountered the same individual. This "Enrique" person was once again riding a bicycle, identified himself as and told Mercado that he lived right down the street. 40. Shortly thereafter another officer showed Mercado an old photograph of an "Enrique," individual appareñtly known as who appeared to Mercado to resemble the individual on the bicycle. Relying mainly on this photograph, which apparently was a photograph of the plaintiff taken a number of years earlier, Mercado amended his investigation report to reflect the fact that the person who sold him the drugs was the plaintiff. As a result of Mercado's testimony, "Enrique," an indictment was returned charging the plaintiff, also known as with the crimes of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree and the plaintiff was arrested. 12 12 of 29 FILED: BRONX COUNTY CLERK 12/03/2019 11:29 AM INDEX NO. 21820/2018E NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 12/03/2019 41. At the time of his arrest, the plaintiff was a 27-year-old married man with a wife and two children, was approximately 5 feet 8 inches tall,weighed 180 pounds with longish dark hair, and was working at two jobs. (By contrast, the real drug seller was 5 feet 4 inches tall,with short dark hair, weighed approximately 135 pounds, and was 18 to 20 years old). 42. The plaintiff ultimately was released on bailafter being held in custody for 31 days. Sometime after the plaintiff's arrest, and upon reviewing arrest records and booking photographs, Mercado realized that the plaintiff was not the individual from whom he purchased the cocaine and he notified his superiors of this fact. However, nothing further was done in this matter until months later, when, just prior to an in court identification hearing, County Court was advised by the District Attorney's office that the plaintiff had been misidentified and the court immediately dismissed all charges against plaintiff. 43. The appellate court noted that although the police were engaged in a commendable attempt to suppress unlawful drug activity in Scheñêctady, the court also opined that "the police failed to carry out the most rudimêñtary investigation before charging claimant with a serious felony . .. The failure to substantiate in any way the residence, age or occupation of [the plaintiffj was sufficient to permit the trierof fact to infer grossly negligent conduct sufficient to overcome indictinent." the presumption of probable cause arising from the Grand Jury's Id. at 905. 44. Another example of analogous police conduct, or the lack thereof, like that of Defendant Baker herein, that deviates so egregiously from proper police activity as to indicate intentional or reckless action where there is strong reason to doubt whether an arrestee is the person (2nd who committed a crime defeats probable cause is Haynes v. City of New York, 29 A.D.3d 521 Dep't. 2006). In Haynes, two undercover police officers purchased cocaine from an individual "O." referred to as During the drug buy, the officers wrote down the license plate number of the 13 13 of 29 FILED: BRONX