Delgado v. City of New York

144 A.D.3d 46, 38 N.Y.S.3d 129
CourtAppellate Division of the Supreme Court of the State of New York
DecidedSeptember 27, 2016
Docket14684/95 1284
StatusPublished
Cited by13 cases

This text of 144 A.D.3d 46 (Delgado v. City of New York) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Delgado v. City of New York, 144 A.D.3d 46, 38 N.Y.S.3d 129 (N.Y. Ct. App. 2016).

Opinions

OPINION OF THE COURT

Acosta, J.

This case gives us the opportunity to emphasize that when an issue is specifically decided on a motion for summary judgment, that determination is the law of the case. As such, the trial court, as well as the parties, is bound by it “absent a showing of subsequent evidence or change of law” (Carmona v Mathisson, 92 AD3d 492, 492-493 [1st Dept 2012]). Applying this rule to the case at hand, we specifically found in Delgado v City of New York (86 AD3d 502, 508 [1st Dept 2011] [Delgado I]), that the no-knock search warrant at issue was not valid. [48]*48Thus, the trial court was bound by that determination absent the introduction of subsequent evidence to show otherwise. The evidence that was introduced at trial on the validity of the warrant, however, was not significantly different from what was previously before the court on the motion for summary judgment. Accordingly, the trial court erred in deeming the warrant valid and granting defendants’ motion for a directed verdict in their favor.

This action arises from the execution of a “no knock” search warrant at the Delgado plaintiffs’ New York City Housing Authority (NYCHA) apartment in the Bronx sometime after midnight. Plaintiff mother and her six children were sleeping in their two-bedroom apartment when a team of about 12 officers knocked down the door and entered the apartment. The warrant was issued on May 19, 1994, based on an affidavit prepared by police officer Robert Masiello. Masiello based his assertions upon information provided by a confidential informant, alleged to be known to him, who stated that he or she had been inside the apartment for purposes of obtaining vials of crack to sell on the street. The informant gave Masiello instructions on how to get to the apartment. He or she told Masiello that he or she last visited the apartment the night before and that while in the apartment, “Green Eyes,” a light skinned Hispanic man about five feet, eight inches tall, took a brown bag from the bedroom, went to the kitchen and removed a “row of vials.” The informant also saw additional vials of crack and saw Green Eyes remove a “9 millimeter automatic tech” and a “9 semi-automatic machine pistol” from the bedroom and place them on the kitchen table.

The same date the warrant was issued, defendant police officer Brian Washington completed a follow-up report on his debriefing of the informant, and noted that the informant stated that a Hispanic woman, known as “Shorty,” and a small female infant also resided in the apartment, which had two bedrooms facing the back of the building. When the search warrant was executed, neither Green Eyes nor Shorty was found in the apartment. This action for personal injury and property damage ensued.

This is the second time this case has come up for our review. In Delgado I, this Court was “disquieted by the manner in which the search was executed. Upon entering the apartment, the police encountered not ‘Green Eyes’ and ‘Shorty’ with an infant, as described by the informant, but plaintiff mother and [49]*49her six sleeping children. At that point, a reasonable police officer should have realized that an error had been made” (id. at 510). Instead, the officers pushed some of the plaintiffs down to the ground and placed guns to their heads, handcuffed all of the occupants except for the two youngest, and held them “in the hallway . . . for three hours while the officers searched the apartment, overturning furniture, slashing sofas and mattresses, and destroying property in the bedrooms including the children’s posters and baseball cards” (id. at 505-506).

The Court also modified the order (Patricia Williams, J.), entered June 13, 2008, which, among other things, had granted so much of defendants’ summary judgment motions as sought dismissal of the complaint against the individual officers who merely executed the warrant, on the ground of qualified immunity, but held that such protection did not apply to defendants Nicholas Witkowich and Brian Washington, the officers who initiated the issuance of the search warrant (id. at 510). This Court modified the order to the extent of dismissing the action against defendant “James” Masiello, who had been improperly named, since “Robert” Masiello was the officer involved in obtaining the search warrant, and dismissing the 42 USC § 1983 claim against NYCHA (id. at 511).

In affirming so much of the order as denied the defendants’ motions to dismiss the complaint, this Court found that the police had not satisfied either of the two prongs of the Aguilar-Spinelli test (Aguilar v Texas, 378 US 108 [1964]; Spinelli v United States, 393 US 410 [1969]), for evaluating hearsay information provided by an undisclosed informant (Delgado I, 86 AD3d at 507-509). “The police had no basis to believe that the . . . informant was reliable . . . [H]e or she had never before provided information leading to an arrest” (id. at 508).

The Court found that “[o]n this record, . . . we cannot state that the informant’s statements were sufficiently contrary to his or her penal interest so as to establish reliability under the first prong of Aguilar-Spinelli" (id. [citation omitted]). This Court further found that “no corroborative verification whatsoever was performed by the police prior to issuance of the warrant” (id. at 509). This Court also noted that the record did not indicate whether “the officers conducted an investigation to corroborate the information . . . prior to seeking a search warrant” (id. at 504).

This Court also found that the second prong of Aguilar-Spinelli, “the informant’s basis of knowledge, was never [50]*50established by corroborative details of such quantity and quality as to be indicative of criminality” (id. at 509 [citation omitted]).

In finding that Witkowich and Washington, who initiated the issuance of the search warrant, were not entitled to qualified immunity, this Court found that they “did little, if anything, to establish the reliability of the . . . informant or the information supplied by him or her” (id. at 510).

Prior to trial, plaintiffs moved, in limine, to preclude defendants from arguing or presenting evidence indicating that they had a sufficient basis for obtaining or executing the search warrant, on the ground that this Court had already found that the warrant was not properly issued, which determination was the “law of the case.” That motion was denied.

The case proceeded to trial, where evidence regarding the issuance of the warrant was introduced. Specifically, the trial evidence included testimony that an assistant district attorney (ADA) had interviewed the confidential informant and prepared Officer Masiello’s affidavit, which was used to obtain the warrant, testimony that the informant appeared before, and was likely questioned by, the court prior to the issuance of the warrant, testimony that surveillance and a controlled buy were not feasible and testimony that the informant’s statement as to purchasing drugs with intent to sell them implicated him or her in a more serious crime than that for which he or she had been arrested.

At the close of evidence, the court granted the City, NYCHA, Witkowich and Washington’s motions for a directed verdict, stating that it could not “apply a law [or decision] that [it thought was] incorrect” (referring to Delgado I), and that Delgado 1

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Singh v. Ray
2024 NY Slip Op 34339(U) (New York Supreme Court, New York County, 2024)
Sang Seok Na v. Pulvers, Pulvers & Thompson, LLP
2024 NY Slip Op 00978 (Appellate Division of the Supreme Court of New York, 2024)
Stephens v. City of New York
2023 NY Slip Op 34561 (New York Supreme Court, Bronx County, 2023)
New Hampshire Ins. Co. v. MF Global Fin. USA Inc.
2022 NY Slip Op 01880 (Appellate Division of the Supreme Court of New York, 2022)
Aspen Specialty Ins. Co. v. RLI Ins. Co., Inc.
2021 NY Slip Op 02092 (Appellate Division of the Supreme Court of New York, 2021)
Commissioner of the Dept. of Social Servs. of the City of N.Y. v. New York-Presbyt. Hosp.
2020 NY Slip Op 07452 (Appellate Division of the Supreme Court of New York, 2020)
737 Park Ave. Acquisition LLC v. Goldblatt
2019 NY Slip Op 9099 (Appellate Division of the Supreme Court of New York, 2019)
IGS Realty Co., L.P. v. Brady
2018 NY Slip Op 4086 (Appellate Division of the Supreme Court of New York, 2018)
Tribeca Lending Corp. v. Bartlett
2017 NY Slip Op 8735 (Appellate Division of the Supreme Court of New York, 2017)
Matter of Citigroup Global Mkts., Inc. v. Fiorilla
2017 NY Slip Op 5328 (Appellate Division of the Supreme Court of New York, 2017)
People v. Minor
2017 NY Slip Op 1786 (Appellate Division of the Supreme Court of New York, 2017)

Cite This Page — Counsel Stack

Bluebook (online)
144 A.D.3d 46, 38 N.Y.S.3d 129, Counsel Stack Legal Research, https://law.counselstack.com/opinion/delgado-v-city-of-new-york-nyappdiv-2016.