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Media Alerts - Poventud v. City of New York, et al. - Second Circuit
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January 16, 2014
  Poventud v. City of New York, et al. - Second Circuit
Headline: Second Circuit Vacates Dismissal of §1983 Claims against New York City and Police, Holding Plaintiff May Assert Claim Based upon Police's Failure to Disclose Brady Evidence Prior to His Criminal Trial, Despite Having Plead to a Lesser Charge After the Conviction was Vacated and Prior to a New Trial.

Areas of Law: Constitutional; Criminal

Issue(s) Presented: Whether §1983 action alleging constitutional claims based upon the police's failure to disclose information prior to criminal trial was barred because, after his conviction was overturned and a new trial was ordered, plaintiff plead to a lesser charge?

Brief Summary:

This appeal arises out of the prosecution of plaintiff Marcos Poventud (Poventud) for the robbery and shooting of a livery cab driver in 1997. Two men robbed the cab driver and shot the driver in the back of the head or neck. A search of the cab turned up a wallet containing ID cards of Francisco, plaintiff Poventud's brother. Initially, police used a photo array containing the photo of Francisco from the ID, and the cab driver identified him "unequivocally" as the shooter. Learning that Francisco was already incarcerated at the time of the shooting, the police then focused on Poventud. The police subsequently showed the cab driver a photo array that included Poventud's photo, but the driver could not identify him as the shooter on three occasions. On a fourth showing, however, the driver did identify Poventud as the shooter. The police did not disclose the initial photos showings to the Assistant District Attorney and, as a result, it was never turned over to Poventud.

Marcos and a co-defendant, Robert Maldonado, were tried and convicted of attempted murder in the second degree and related crimes in June 1998. When Maldonado's conviction overturned, the non-disclosure was discovered. Poventud brought a collateral state appeal and his conviction was overturned and a new trial was ordered. Prior to a new trial, Poventud accepted a plea agreement in which he pled guilty to the lesser crime of attempted robbery and was given a one-year sentence with time served. Poventud subsequently filed a § 1983 action against New York City and police officers for constitutional violations arising out of their failure to disclose the information. That action was dismissed by the United States District Court for the Southern District of New York on a motion for summary judgment as barred. In 2012, he appealed the District Court's dismissal and the appeal was heard by a panel of the Second Circuit. The majority of the divided panel concluded that the appeal was not barred, as the District Court had concluded, because, having been released, Poventud no longer had access to habeas corpus remedies. A rehearing en banc was then ordered.

On this rehearing en banc, the Second Circuit held that Poventud's claims were not barred by the Supreme Court's decision in Heck v. Humphrey, because the overturning of his conviction was a sufficient favorable result to serve as a basis for his § 1983 action. The court reasoned that his complaint was based off of Brady violations that occurred during the investigation of his case and, therefore, it was sufficient that Poventud demonstrated that the violation may have affected the result of the trial. Judges Lynch and Lohier each separately concurred, Judge Chin concurred in part and dissented in part, and Judges Jacobs and Livingston each wrote lengthy dissents to the en banc ruling. The dissenting opinions in this case argue strongly that the majority's decision has weakened the effect of Brady and Heck and that, ultimately, Poventud is being allowed to bring a suit based on a violation of the opportunity to perform a perjurious impeachment.

To read the full opinion, please visit: http://www.ca2.uscourts.gov/de...0a651ee04dc/1/hilite/

Extended Summary:

Plaintiff Marcos Poventud was previously tried and convicted of attempted murder in the second degree and several other related crimes in June 1998, arising out of the robbery and shooting of a livery cab driver in 1997. The two men robbed and shot the driver in the back of the head or neck. A search of the cab turned up a wallet containing ID cards of Francisco, the plaintiff's brother. Initially, police used a photo array containing the photo of Francisco from the ID, and the cab driver identified him "unequivocally" as the shooter. Upon discovering Francisco was incarcerated when the crime was committed, the police focused on the plaintiff as the most likely suspect. The police showed the cab driver a photo array including the plaintiff's photo but the driver did not identify him on three occasions. On a fourth showing of a photo of the plaintiff, the driver identified him as the shooter. Police then brought Poventud in and the cab driver identified him in a line up. The Assistant District Attorney chose to prosecute the plaintiff and a co-defendant, Robert Maldonado, but was never told about the mistaken identification of Francisco in the previous photo array. At trial, the plaintiff presented an alibi that he was playing video games during the crime, but was unable to cross-examine detectives about the mistaken identification because of the failure to disclose. Maldonado appealed his conviction, which was overturned, and the new Assistant District Attorney learned of the erroneous identification, which then served as the basis of the Poventud's appeal.

In 2003, the New York Supreme Court, First Department Appellate Division upheld Poventud's conviction. However, in 2004 Poventud successfully brought a state collateral challenge of his conviction for violations during the investigation of his case based on Brady v. Maryland, 373 U.S. 83 (1963), and People v. Rosario, 9 N.Y.2d 286 (1961). His original conviction was vacated and a new trial was ordered but, before there was a new trial, and while the State weighed appealing the decision based on Brady, Poventud chose to accept a plea to the lesser charge of attempted robbery in the third degree, receiving a one year sentence with time served. Upon his release, Poventud brought a § 1983 claim in the United States District Court for the Southern District of New York against New York City and police asserting that evidence was withheld against him that would have had a reasonable probability of affecting the result of his trial. The district court dismissed the claims on a motion for summary judgment by the defendants, stating that the § 1983 was precluded by the Supreme Court's decision in Heck v. Humphrey, 512 U.S. 477 (1994). In 2012 Poventud appealed to a panel on the Second Circuit who in 2013 held that Heck did not apply because, having been released from incarceration, Poventud no longer had access to a habeas corpus remedy. The Second Circuit ordered a rehearing en banc and, today, vacated judgment and remanded to the district court, holding that Heck did not bar the §1983 suit because Poventud's claim does not imply that his outstanding conviction was invalid.

The Supreme Court in Heck requires that "in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the [challenged] conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus, 28 U.S.C. § 2254." 512 U.S. at 486-87.

While the Second Circuit en banc majority remarks that, if this case were based off malicious prosecution it would require a favorable outcome such as acquittal of the previous case, it concludes the district court's error was in treating this case as one involving a malicious prosecution. The Second Circuit finds that plaintiff's case was based off a Brady violation, which does not require that the plaintiff demonstrate factual innocence, but ultimately involves the effect that suppression may have had on the outcome of the trial. The court held that in this case the plaintiff should have been able to argue that, based on the impeachment of the State's main witness, the lead detective, regarding the mistaken identification, he may have been acquitted or convicted on a lesser charge. Ultimately, the court also held that the plaintiff's §1983 claim was limited to the 1998 conviction and could not be brought for his 2006 plea and the one year of time served. The court left the issue of what the damages were worth as a question more properly addressed by the district court. Because the plaintiff's case is based on the improper actions of the police officers before and during his trial in 1998, the court found that he had properly asserted the § 1983 based on the Brady violation.

In a concurring opinion, Judge Lynch writes that the court's decision is consistent with the law, and "with the basic assumptions of our jurisprudence," discussing the common sense implications of the plaintiff's subsequent plea agreement. Judge Lohier essentially disputes any assertion in the dissenting opinion that the complaint infers an action in malicious prosecution. Judge Chin, concurring in part and dissenting in part, agrees with the district court's finding that the plaintiff's claims are factually inconsistent with the 2006 conviction, but argues the case should be remanded to the extent that certain of the claims do not imply that the 2006 conviction is invalid.

In a lengthy dissent, Judge Jacobs writes that the majority impairs the future application of Heck and Brady by removing the finality that results from a guilty plea and negating the effect of Heck once a criminal defendant is released. Judge Livingston likewise dissents, writing that the majority ultimately distorts Brady into the granting of a right of an opportunity to commit perjury based on the plaintiff's subsequent guilty plea, which demonstrates factual guilt, essentially rendering the impeachment evidence perjurious.

To read the full opinion, please visit: http://www.ca2.uscourts.gov/de...0a651ee04dc/1/hilite/

Panel: En banc, Chief Circuit Judge Katzmann, Judges Jacobs, Calabresi, Cabranes, Pooler, Sack, Raggi, Wesley, Livingston, Lynch, Chin, Lohier, Carney, and Droney.

Argument: 9/25/2013

Date of Issued Opinion: 1/16/2014

Docket Number: 12-1011-cv

Decided:
Vacating a previous decision of a panel of the Second Circuit and Remanding.

Case Alert Author: David Restrepo

Counsel: Joel B. Rudin, Law Offices of Joel B. Rudin, New York, NY (Julia P. Kuan, Romano & Kuan, New York, NY, on the brief), for Plaintiff-Appellant Marcos Poventud; Michael B. Kimberly, Mayer Brown LLP, Washington, D.C. (Richard D. Willstatter, National Association Of Criminal Defense Lawyers, White Plains, NY; Marc Fernich, New York State Association of Criminal Defense Lawyers, New York, NY; Charles A. Rothfeld, Paul W. Hughes, Mayer Brown LLP, Washington, D.C.; on the brief), for Amicus Curiae National And New York State Associations of Criminal Defense Lawyers; Mordecai Newman (Leonard Koerner; Larry A. Sonnenshein; Linda Donahue; Rachel Seligman Weiss; on the brief), for Zachary W. Carter, Corporation Counsel of the City Of New York, New York, NY, for Defendants-Appellees City Of New York, et al.; Caitlin Halligan (Hilary Hassler, Assistant District Attorney, New York County; Steven A. Bender, Assistant District Attorney, Westchester County; Morrie I. Kleinbart, Assistant District
Attorney, Richmond County; Itamar J. Yeger, Assistant District Attorney, Rockland County; on the brief), For Kathleen M. Rice, President, District Attorneys Association of the State of New York, New York, NY, for Amicus Curiae District Attorneys Association of the State of New York; Barbara Underwood, Solicitor General (Richard Dearing, Deputy Solicitor General; Won S. Shin, Assistant Solicitor General; on the brief), For Eric T. Schneiderman, Attorney General of the State of New York, New York, NY, for Amici Curiae States Of New York, Connecticut, And Vermont.

Author of Opinion: Judge Wesley filed the majority opinion in which Judges Katzmann, Calabresi, Pooler, Sack, Hall, Lynch, Lohier, and Carney joined. Judge Lynch filed a concurring opinion. Judge Lohier filed a concurring opinion in which Judges Calabresi, Pooler, Wesley, Hall and Lynch joined. Judge Chin filed an opinion dissenting in part and concurring in part. Judge Jacobs filed a dissenting opinion in which Judges Cabranes, Raggi, Livingston. and Droney joined. Judge Livingston filed a dissenting opinion in which Judges Jacobs, Cabranes, Raggi, and Droney joined.

Case Alert Supervisor: Elyse Diamond Moskowitz

    Posted By: Elyse Diamond @ 01/16/2014 08:41 PM     2nd Circuit  

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