Carwell v. City Of New York ( 2022 )

, |MEMO ENDORSE BEB ype rine SM fla ale ee USDC SDNY veo DOCUMENT WS 1625: Cy ore” ELECTRONICALLY FILED DOC #: THE CiTy oF NEW YORK DATE FILED:_ 1/21/2022 GEORGIA M. PESTANA LAW DEPARTMENT MORGAN C. □□□□□□□□□ Corporation Counsel 100 CHURCH STREET Senior Counse NEW YORK, NEW YORK 10007 E-mail: mmckinne@law.nyc.gor Phone: (212) 356-201: January 20, 2022 BY ECF Judge Valerie E. Caproni United States District Judge Southern District of New York 40 Foley Square New York, New York 10007 Re: Glen Carwell _v. City of New York, et al., 21-CV-00480 (VEC) Your Honor: I am the Senior Counsel in the Office of Georgia M. Pestana, Corporation Counsel of the City of New York, representing defendants the City of New York and Detective Carlos Lozada in the above-referenced matter (hereinafter “defendants.”) For the reasons set forth herein, defendants respectfully request that the Court endorse defendants’ proposed briefing schedule for defendants’ anticipated motion for summary judgment pursuant to Federal Rule of Civil Procedure 56 and issue a stay of the limited discovery remaining in this matter, pending the resolution of the motion. A. Procedural Posture of the Case Plaintiff failed to appear for his noticed deposition in this matter on January 18, 2022! and fact discovery is currently scheduled to close today, January 20, 2022. (See Case Management Plan, at ¥5(a), Civil Dkt. No. 22, filed October 18, 2021, attached as Exhibit “A”). On January 18, 2022, despite several follow up emails, neither plaintiff nor his counsel appeared virtually for plaintiffs noticed deposition. Defendants eventually spoke with one of plaintiff's counsels, Sameer Nath, Esq., who informed defendants, for the first time, that plaintiff was unable to appear at his deposition because Mr. Samuel DePaola, plaintiff's other attorney, ' Defendants served plaintiff with a deposition notice on January 11, 2022 for his deposition to be conducted virtually on January 18, 2022. Defendants requested by email that counsel advise defendants immediately if the date and time of the deposition needed to be changed, which plaintiff did not do. was on trial and unavailable to attend plaintiff’s deposition. Mr. Nath did not explain why he was not available to attend the deposition, or why neither attorney had contacted defendants to reschedule the deposition. Mr. Nath also informed defendants, for the first time, that plaintiff was incarcerated in New Jersey, and therefore was also unavailable for his noticed deposition. Plaintiff has not noticed any depositions in this matter, nor has he requested an extension of time to complete fact discovery. Because fact discovery is set to close today, rather than requesting an extension of discovery for the limited purpose of deposing plaintiff, given the various issues with rescheduling plaintiff’s deposition, at this time, defendants propose that they file a fully dispositive motion for summary judgment based on the existing record in this matter. For the reasons discussed below, plaintiff has not, and cannot, adduce any evidence precluding a fully dispositive motion for summary judgment in favor of defendants. Defendants further request that the Court stay the remaining discovery in this matter, which should be limited to the deposition of plaintiff and expert discovery, if any. B. Factual Background and Plaintiff’s Claims Plaintiff was arrested on July 26, 2018, after a complaining victim, R.R.,2 identified plaintiff out of a double-blind photo array as one of the two men who robbed him at gun-point on November 30, 2016. (See Photo Array, attached as Exhibit “B”). Plaintiff has previously given sworn testimony that he does not know who the aforementioned complaining victim is or any information about him, the robbery, his co-defendant in the robbery, or how it came to be that plaintiff was identified as the perpetrator. (See Plaintiff’s 50-h Transcript, at 23:15-22; 25:23-25– 26:1-2; and 27:6-9, attached as Exhibit “C.”) According to plaintiff, on July 26, 2018 police knocked on his apartment door, his wife opened the door, plaintiff then walked to the door, the police asked if he was Glen Carwell, plaintiff responded in the affirmative, and plaintiff was then immediately handcuffed. (See Exhibit “C” at 15:14-25 and 17:16-25 – 18:1-3). Plaintiff also testified that he did not sustain any physical injures beyond his handcuffs allegedly being too tight, which only resulted in his wrists bothering him for a few hours, and for which he never sought medical attention. (See Exhibit “C” at 22:12-25 – 23:1-4). Plaintiff brings claims pursuant to 42 U.S.C. §1983 and New York State Law for: 1) Unlawful Search and Seizure; 2) False Arrest and False Imprisonment; 3) Excessive Force; 4) Malicious Prosecution; 5) Malicious Abuse of Process; 6) Denial of Right to a Fair Trial; 7) Deprivation of Rights and Denial of Equal Protection of the Laws; 8) Failure to Intervene; 9) Conspiracy to Interfere with Civil Rights and Failure to Prevent Conspiracy; and 10) Municipal Liability. All of these claims fail for the reasons set forth below. 2 For privacy and safety reasons, defendants refer to the complaining victim by his initials. I. Plaintiff’s False Arrest And Malicious Prosecution Claims Fail Because There Was Probable Cause To Arrest And Prosecute Plaintiff Because He Was Identified By The Victim Out Of A Photo Array. There was probable cause to arrest and prosecute plaintiff based on complaining victim R.R.’s identification of plaintiff from the double-blind photo array. “A claim for false arrest or false imprisonment fails when the arresting officer had probable cause to make the arrest.” Sforza v. City of New York, 2009 U.S. Dist. LEXIS 27358, at *40 (S.D.N.Y. Mar. 31, 2009). Under New York law, the existence of probable cause is also a complete defense to a claim of malicious prosecution. Savino v. City of New York, 331 F.3d 63, 72 (2d Cir. 2003). “It is well- established that a law enforcement official has probable cause to arrest if he received his information from some person, normally the putative victim or eyewitness, unless the circumstances raise doubt as to the person’s veracity.” Panetta v. Crowley, 460 F.3d 388, 395 (2d Cir. 2006)(citations and internal quotations omitted). The veracity of those individuals “who are the victims of the very crime they report to the police is assumed.” Miloslavsky v. AES Engineering Soc., Inc., 808 F. Supp. 351, 355 (S.D.N.Y. 1992) aff’d 993 F.2d 1534 (2d Cir. 1993.) “A positive photo identification by an eyewitness is normally sufficient to establish probable cause.” Celestin v. City of New York, 581 F. Supp. 2d 420, 431 (E.D.N.Y. 2008); McGrier v. City of New York, et al., 16-CV-5667, Civil Dkt. No. 116, at p. 13 -14, (VEC)(S.D.N.Y. March 2019)(“It is well established that ‘[a] positive photo identification by an eyewitness is normally sufficient to establish probable cause to arrest.’” (citing Celestin, 581 F. Supp. 2d 420, 431(E.D.N.Y 2008)(collecting cases)); see also Panetta, 460 F.3d at 395. At a minimum, under these circumstances, the officer would be entitled to qualified immunity. See McGrier, at p. 14, fn. 10; Cerrone v. Brown, 246 F. 3d 194, 202-03 (2d Cir. 2001). Here, just like in Cerrone and McGrier, the photo array establishes probable cause for plaintiff’s arrest and prosecution. The record evidence shows that on June 27, 2018, a complaining victim clearly identified plaintiff out of a photo array as one of the two men who robbed him at gun-point, and the report notes that R.R. signed his name to the photo array and was “absolutely sure” that plaintiff was indeed his robber. (See Exhibit “B.”) Furthermore, because plaintiff testified under oath previously that he does not know who the aforementioned complaining victim is or any information about him or the circumstances surrounding his identification, plaintiff cannot refute the veracity of R.R. or argue that the photo array was in any way suggestive or improper (which plaintiff does not even allege.) (See Exhibit “C” at 23:15-22; 25:23-25 – 26:1-2; and 27:6-9.) At the very least, Detective Lozada should be entitled to qualified immunity. Therefore, summary judgment is warranted on plaintiff’s false arrest and malicious prosecution claims based on the available record. II. Detective Lozada Was Not Present for Plaintiff’s Arrest. It is well-settled in this Circuit that the personal involvement of defendants in a constitutional violation is a prerequisite to an award of damages under § 1983. Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009); Colon v. Coughlin, 58 F.3d 865,873 (2d Cir.l995). Here, Detective Lozada, the only individually named defendant in this case, was not physically present at plaintiff’s apartment on July 26, 2018 when plaintiff was arrested and placed in handcuffs. Therefore, plaintiff’s excessive force and unlawful search and seizure claims fail against Detective Lozada due to lack of personal involvement.3 III. Plaintiff’s Unlawful Search And Seizure Claim Further Fails On The Merits. Where a suspect of a crime is standing directly in the doorway of their residence - such that “one step forward would have put her outside, one step backward would have put her in the vestibule of her residence,” they are considered to be “in public” and, thus, a warrant is not required to effectuate a constitutional arrest. See United States v. Santana, 427 U.S. 38, 40 n.1, 42 (1976); see also United States v. 90-23 201st St., 775 F. Supp. 2d 545, 557-61 (E.D.N.Y. 2011). Indeed, police seeking to arrest a suspect without a warrant upon probable cause, while the suspect is standing in the doorway threshold of her residence, do not violate the Fourth Amendment, since such an area is a “public” place in which there is no expectation of privacy; in such case, the suspect is as exposed to the public view, speech, hearing, and touch as if she had been standing completely outside her house, and is therefore not subject to the protection of the Fourth Amendment. See Id. at 427 U.S. 38, 42. Here, the record shows that the police knocked on plaintiff’s apartment door, his wife opened the door, plaintiff then walked to the door, and once he identified himself, plaintiff was immediately arrested in his doorway. (See Exhibit “C” at 15:14-25 and 17:16-25 – 18:1-3). Based on plaintiff’s own testimony, the officers did not violate plaintiff’s constitutional rights by placing him under arrest without a warrant. IV. Plaintiff’s Excessive Force Claim Further Fails Because Plaintiff Suffered Only De Minimus Injuries. In making an assessment as to the reasonableness of an officer’s use of force, the specific facts and circumstances surrounding the alleged incident must be examined. See Graham v. Connor, 490 U. S. 386, 396(1989). “‘Frequently, a reasonable arrest involves handcuffing the suspect, and to be effective[,] handcuffs must be tight enough to prevent the arrestee’s hands from slipping out.’” Grant v. City of N.Y., 500 F. Supp. 2d 211, 217 (S.D.N.Y. 2007) (quoting Esmont v. City of N.Y., 371 F. Supp. 2d 202, 214 (E.D.N.Y.2005) (citations omitted)). As a matter of law, an “allegation of sore, yet uninjured, wrists [as a result of handcuffing] simply does not rise to the level of objective excess that reasonable police officers would consider to be unlawful conduct in an arrest situation.” Wilder v. City of Amityville, 288 F. Supp. 2d 341, 344 (E.D.N.Y. 2003). Further, Courts have found de minimis injury to be probative of de minimis force. See Washpon v. Parr, 561 F. Supp. 2d 394, 407 (S.D.N.Y. 2008); Cunninham v. New York City, 04 Civ. 10232 (LBS), 2007 U.S. Dist. LEXIS 69801, at *17 (S.D.N.Y. Sept. 18, 3 Moreover, these claims would fail in their entirety because plaintiff has failed to bring these claims against any individual defendant. Although he has not sought leave of Court to do so, plaintiff’s arrest occurred on July 26, 2018, thus plaintiff is time-barred from adding any additional defendants. Ormiston v. Nelson, 117 F.3d 69, 71 (2d Cir. 1997.) Additionally, the deadline to amend the pleadings in this civil matter was November 17, 2021, and as such, has also long passed. (See Exhibit “A.”) 2007) (“numerous courts have held that where plaintiff’s injuries are de minimus, the claim of excessive force cannot rise to the level of a constitutional violation as a matter of law.”). Here, plaintiff has previously testified that as a result of his arrest he did not sustain any physical injures beyond his handcuffs allegedly being too tight, which only resulted in his wrists bothering him for a few hours, and for which plaintiff never sought medical attention. (See Exhibit “C” at 22:12-25 – 23:1-4). Plaintiff’s lack of injury is further indication of the de minimus force utilized by the officers involved in his physical apprehension related to arrest. See Washpon v. Parr, 561 F. Supp. 2d 394, 407 (S.D.N.Y. 2008). Therefore, plaintiff’s excessive force claim fails as a matter of law. 4 For the foregoing reasons, the Court should decide defendants’ motion for summary judgment at this time and stay the remaining discovery yet to be completed in this case, which is limited to 1) plaintiff’s deposition; and 2) expert discovery, if any. Defendants respectfully request that the Court endorse the following proposed briefing schedule in anticipation of defendants’ motion for summary judgment: March 1, 2022 to file defendants’ motion; March 31, 2021 for plaintiff to file his Opposition; and April 14, 2022 for defendants to file their Reply, if any. Thank you for your consideration of the matters herein. Respectfully submitted, Morgan C. McKinney, Esq. Morgan C. McKinney, Esq. Senior Counsel Special Federal Litigation Division cc: VIA ECF Samuel C. DePaola Attorney for Plaintiff 4 Similarly, plaintiff has not, and will not, be able to adduce any evidence to support his Failure to Intervene, Conspiracy, Equal Protection, Malicious Abuse of Process, Denial of a Right to a Fair Trial, or Monell claims. Additionally, all of plaintiff’s state law claims will fail due to plaintiff’s untimely notice of claim in this matter. Defendants are prepared to brief each of these issues should the Court grant the instant request. The pretrial conference will take place as scheduled on January 28, 2022 at 10:00 a.m. The parties should appear for the conference by dialing 888-363-4749, using the access code 3121171 and the security code 0480. Plaintiff must, by January 26, 2022, file his response, if any, to Defendants’ proposed actions, including: (1) the stay of remaining discovery pending Defendants’ proposed motion for summary judgment; and (2) the proposed briefing schedule for Defendants’ motion. SO ORDERED. 1/21/2022 HON. VALERIE CAPRONI UNITED STATES DISTRICT JUDGE Exhibit A USDC SDNY UNITED STATES DISTRICT COURT ee aN asks oad 7a EL □ □□ SOUTHERN DISTRICT OF NEW YORK i □□ EA iar areca nr □□ DATE FILED:_10/18/2021 GLEN CARWELL |g, Guero : CIVIL CASE Phaintifi(s), ; MANAGEMENT PLAN ; AND SCHEDULING ORDER CITY OF NEW YORK, ETAL. Defendant(s). : □□□ □□ This Civil Case Management Plan is submitted by the parties in accordance with Fed. R. Civ. P. 26(H(3). Al] pasties [cogsent_ __ / do not consent * ‘Vto conducting all further = proceedings before a United States Magistrate Judge, mcluding motions and trial. 28 U.S.C. § 636{c). The parties are free to withhold consent without adverse substantive consequences. parties consent, the remaining paragraphs need not be completed. In addition, they shall submit to the Court a fully executed Notice, Consent, and Reference of a Civil Action to a Magistrate Judge, available at iengss ried néecnts ov sites defendtfiles/2018-06/40-3. pal within three days of submitting this Proposed Case Management Plan and Scheduling Order. | ® Except for amendments permitted by Fed. R. Civ. P. 15(a)(1) and this Court's Individual Practices in Civil Cases (“Individual Practices”), amended pleadings may not be filed and additional parties may not be joined except with leave of the Court. Any motion to amend or to join additional parties shall be filed within 20___ days from the date of this Order. [Absent exceptional circumstances, a date not more than 30 days following the initial pretrial conference. | 3 Initial disclosures pursuant to Fed. R. Civ. P. 26{a)(1) shall be completed no later than 14_ days from the date of this Order. [Absent exceptional circumstances, a date not more than 14 days following the initial pretrial conference. ] 4. [if applicable] The plaintifi(s) shall provide WIPAA-compliant medical records release authorizations to the defendant(s) no later than November 5, 2021 ; 5. Discovery a. All fact discovery shall be completed no later than January 20, 2022 [A date not more than 90 days following the initial pretrial conference, unless the Court finds that the case presents unique complexities or other exceptional circumstances. | b. All expert discovery, including reports, production of underlying documents, and depositions, shall be completed no later than March 7, 2022 . [Absent exceptional circumstances, a date not more than 45 days from the date in paragraph 5a} (i.e., the completion of all fact discovery).} c. Within two weeks of the date of entry of this Scheduling Order, the parties sha:] meet and confer in person to agree upon a joint plan for meeting the discovery deadlines. d. In the case of discovery disputes, the parties should follow Local Civil Rule 37.2 with the rollowing modifications: Any party wishing to raise a discovery dispute with the Court must first meet and confer in good faith with the opposing party, in person, or by telephone, in an effort to resolve the dispute. If this process fails and the Court’s intervention is required, the parties must jointly call Chambers to schedule a join: teleconference with the Court for prompt resolution of the dispute. The Court will determine during the teleconference whether additional submissions will be required. 6. Counsel] for the parties believe the following alternative dispute resolution mechanisms may be helpful in resolving this case (check all that apply): Immediate referral to the District’s Mediation Program Immediate referral to a Magistrate Judge Referral to the District’s Mediation Program after the close of fact discovery x Referral to a Magistrate Judge after the close of fact discovery Other This case [is * /is not to be tried to a jury. 8. Other issues to be addressed at the Initial Pretrial Conference, including those set forth in Fed. R. Civ. P. 26({)(3), are set forth below. Defendants intend on filing a Summary Judgment Motion Pursuant to Federal Rule of Civil Procedure 56 9. This Crder may not be modified or the dates herein extended except by further Order of the Court for good cause shown. Unless the Court orders otherwise, parties engaged in settlement negotiations must pursue settlement and conduct discovery simultaneously. Parties should net asseme that they will receive an extension of an existing deadline if settlement negotiations fail. Any application to modify or extend the dates herein shall be made by written application no later than two business days before the date songht to be extended m accordance with the Court’s Individual Practices January 28, 2022 10. The next pretrial conference is scheduled for ##Rvan 42024 at 10:00a.m. Courtroom 443 of the Thurgood Marshall Courthouse, 40 Foley Square, New York, New York 10007. (Unless otherwise ordered, 10-00 a.m. on the first Friday after the deadiine for completion of all fact discovery as set forth in paragraph 5(a).] By Thursday of the week prior to that conference, the parties shall submit a joint letter regarding the status of the case. The letter should include the following information in separate paragraphs: a. a statement of ali existing deadiines, due dates, and/or cut-off dates; b. a brief description of any outstanding motions; c. abnef descnption of the status of discovery and of any additional discovery that needs to be completed; d. Statentent describing the status of any setementdiscussions and whether the:parties would like a settlement conference; e. a Statement of the anticipated length of trial and whether the case is to be tried to a jury; f. astatement of whether any party anticipates filing a motion for summary judgment or a motion to exclude expert testimony; 9. any other issue that the parties would like to address at the pretnal conference; and h. any other infonnation that the parties believe may assist the @ourt in advapeing the case [a settlement or tral. Counsel for the Pacties: f ACC Morgan McKinney for Defendants a ( ae Sameer Nath for Plaintiff ee icfBim & DePana, LLP SO ORDERED. Date: 10/18/2021 ess (e ——— New York. New York VALERIE CAPRONI United States District Judge Exhibit B em PHOTO ARRAY VIEWING REPORT Pete | Sees PD 373-154 (REV. 09-17) SS es Fess Lak) 8 LIN CCAM gt =a.cds © KEN a5) sd ee Witness Name nisrator | = S a as [Ger Butler J ebe7 Interpreter Oo Ys ame of interpreter Command Tar Ne fa No R/A N/A N/A Interprateris Nota Member of the Sarace, List Name, Address and Telephone No N/A List any Additional Members of the Service Present: ag ee ee Instructions to the Administrator Showing the Photo Array: + Remain nevtral. Do not comment on the identification before, during or after the identification procedure. * Place the photo array in a closed letter-size manila folder when handing it to the witness. + Stand out oF the witness’ line of sight, where praciical, but still observe the witness as ihe witness views the photo airay. : FA see belt Sal ie ona cts al Coon a AN] ston oe ein ro) nn mes) mk Le ecg SS Did you recognize anyone in the photo array? Va5 _ * If tho answer is positive, proceed to the next queSticn. * if the answer to the preceding question is negative, STOP and ie the signature line. If so, what is the sumber of the person that you recognize? From where do you recognize that person? fF Aeimmy robe Record words and gestures of the witness: if the Witness Gives a Vague _ T (for example: “| think il is..." or "might Be...°) Then say the following: Yousa é (insert wilness' words, e.g., “! think itis..") What do you mean by 7 {record the witness‘ answer) Rae en LT isl Lee en The following must be read exactly as it appears. You have just indicated thal you have recognized the person in position number . | am going to ask you a queston. fi is not intended le suggest anything. You should aol infer anything from it. | ask this question of every witness al this point In your Own wi hel using any numbers or percentages, please tell me how sure you are? Tisch eae =~ pate G/27 time, «| TOD Witness Signature FINAL INSTRUCTION TO WITNESS: Do not discuss with any other witness what you observed or Said during this identification procedure. redby = aor Ba. Nama Printed) os IS. Dale Te L, Suber, far. 22oy KH>| /27 □□ D87 ES PHOTO ARRAY PRE-VIEWING INSTRUCTIONS TO WITNESS REPORT ES) po 373-112 (Rev. 03-17) Se GO calcu ih pan Iscoe a Calslias Oh Caen Complaint Report No. Crime Committed Date of Crime 2016-429-347 |RCBBERY li 1/30/2016 Location of Crime 1285 WASHINGTON AVENUE BRONX N.Y. Poe Dete [Tme ‘Location 6/27/18 §705 |\30 wasHINGTON AVENUE BRONX NY Witness’ Name \Was Wibtess Transported — Ye no *. ‘Transporting Officer's Rank/Name Commend Tax No. es 2 N/A Zenk/Hame Command | Tax Ley. ure, SEAV/ Pe20/"z} -1-Vovags Gay san Ceaace mela (acsof <2 Co] eg (O}t) (cones lata O10 -V:1:4-0 ae saas (reel a ol Pasrast rin meaty Caetiael tai aster are es tas a ae ere eg eee re eee eyes Moll soya Us(ae oli cogs) eagle dare ad, [ioe lia e-1t Rea toe ] « You are about to view a photo identification procedure. If you consent, NYPD_gui¢elines require that this procedure be audic recorded. Da you consent to the/audlo recordina is ete Cj Yes No Taitial - * As part of the ongoing investigation into a crime that occurred at 1285 WASHINGTON AVENUE BRONX N.Y, (Location) on 12/30/2016 (Date), you are about to view a photo array. Te Goiisists oF sk photographs of individuals. Eath photograph has a number undemeath the photograph. =~ 4 « Jake whatever ime you want to view the photo array. * The perpetrator may or May not be among the pictures. » Do not assume that I know who the perpetrator may be. Do not ask me or anyone else in the room for guidance during the procedure. * Individuals presented in the photo array may not appear exactly as they did on the date of the inadent beceuse features such as head and facial hair ere subject to change. » Photographs may mot always depict the true complexion of a person; it may be lighter or darker than shown in the photo. « Pay no attention te any markings that may appear on the photos, or any other difference in the type or style of the photographs. + If you recognize sameone, I will ask you to describe how sure you are using your own words, without the use of numbers or percentages. This question is not intended to suggest anything. I ask this question of every witness. * After you have had an opportunity to view the photo array I will ask you the following three questions: 1. Do you recognize anyone? 2. If so, what is the number of the person you recognize? 3. From where do you recognize the person? 4. Only if you recognize someone, I'm going to ask you to say in your own words how sure you are without using numbers or percentages. + T may ask you follow-up questions. * The investigation will continue regardless of whether or not you make an identification. * Do not discuss with other witnesses what you see, say or do during this procedure. . RG TES ea at RD TAS Ls Sarees ia Cee = i ie The above instructions have been read to me: X ff SS Gwe [Procate by Adminigzcsce (Rank, Name Pristed!) Fax Ho. cme. pe paced □ ded. wires, cin Fo2a¥3 | BxHSs | 4/271 § 7 i é D8s ey isc: ieee NEW YORK CITY POLICE DEPARTMENT Sure Pe er Aa an i is Fs a] TEs ‘os we i Petal Seed Ee eee 3 bsveme Be bf Eee noe ee i 25 eae eee □ ae ae 4 □□□ □□ agape: aera □□□ Py Se. Sees le Fssih i, a pens ; oe sli See □□□ ae eer nentee See □ Af ee em ee es | lees ek Identification Made: A ve | No Photo Selected: #_« Bay oe Date of Identiicaticn Procedure: b [le Exhibit C oe = GLEN CARWELL 2020P101261C □ 015-220 In the Matter of the Claim of GLEN CARWELL, Claimant, ~against-— THE CITY OF NEW YORK, Respondent. S253 2 = SSS SZteeea245er August 20, 2020 3:23 p.m. 50{h) HEARING OF GLEN CARWELL, the Claimant herein, taken by the attorneys for the Respondent, taken pursuant te Section 50(h) of the General Municipal Law, held via web conference at the above date and time, before Elana Oved, a Stenotype Reporter and Notary Public within and for the State of New York. 516-485-2222 BEE REPORTING AGENCY, INC. 212-327-3500 D7 REE | 1 APPEARANCES: 3 SIM & DEPAOLA Attorneys for Claimant . 4 42-40 Bell Boulevard, Suite 201 Bayside, New York 11361 BY: DAN YAO, ESO. 6 t | 8 PARK & NGUYEN Attorneys for Respondent 9 1809 Paulding Avenue Bronx, New York 10462 10 BY: DARIN BILLIG, ESQ. 11 12 13 □ 14 15 16 i? 18 □ | 19 20 21 22 23 24 25 516-485-2222 BEE REPORTING AGENCY, INC. 212-327-3500 D8 il THE REPORTER: Before I swear in the witness, I will ask counsel to 3 stipulate on the record that due to the 4 current national emergency regarding the 5 coronavirus, the court reporter may swear 6 in the witness even though she is not 7 physically in the presence of the witness 8 and that there is no objection to that at 9 this time, nor will there be an objection 10 to it at a future date. 11 MR. BILLIG: No objection. 12 MR. YAO: No objection. □□ 13. `` THE“REPORTER: © Mr. Yao, can you =. 14 represent that to the best of your 15 knowledge and belief, the witness 16 appearing today via web conference is, in 17 fact, Glen Carwell? 18 MR. YAO: ‘Yes. 19 GLEN CARWELUL, after having | 20 first been duly sworn by a Notary Public of 21 the State of New York, was examined and 22 testified as follows: 23 EXAMINATION BY DARIN BILLIG, ESQ.: 24 Q. Please state your name for the 25 record. 516-485-2222 BEE REPORTING AGENCY, INC. 212-327-3500 D9 1 GLEN CARWELL □ 2 A. Glen Carwell. □ 3 Q. What is your present home address? 4 A. 1435 Ogden Avenue, Apartment 4D, 5 Bronx, New York 10452. 6 ©. Good afternocn, Mr. Carwell. 7 A. Good afternoon, sir. 8 Q. My name is Darin Billig. I am the 9 attorney for The City of New York. I am going 10 to cake your hearing testimony today. 11 Have you ever testified before in 12 your life? : 13 AL “At: a hedring like this, no. -~ = 14 Q. Okay. How about at a trial? 15 A. Not to my knowledge. I can't 16 recall. 17 Q. So I am going to ask you a series 18 af questions today about an arrest, the P19 criminal proceedings, and a little bit about 20 your background. You give answers to these 21 questions to the best of your ability. | 22 We have a court reporter on the line 23 with us. She is recording everything that we | 24 say so you have to give a verbal response. If 25 you nod your head you have to say yes or no at 516-485-2222 BEE REPORTING AGENCY, INC. 212-327-3500 D10 1 GLEN CARWELL 2 the same time. Okay? 3 A. Okay. 4 QO. Also be patient; let me finish the □ 5 cuestion first. And the most important 6 instruction is if you do not understand the 7 cuestion, you are confused in any way, please 8 let me know. Ts that fair? 10 A. Absolutely. 11 Q. Are you taking any medication : 12 today for any reason? 13 7: Be No. _ = a= 4 = 14 Q. Do you take any medication on a 15 regular basis that you simply did not take 16 today? 17 A. No. 18 QO. What is your date of birth? 20 Q. And what is your Social Security 21 number? 22 MR. YAO: I'm sorry. Just the 23 last four digits. | 24 MR. BILLIG: Just the birth year 25 on the record. 516-485-2222 BEE REPORTING AGENCY, INC. 212-327-3500 D11 1 GLEN CARWELL 2 QO. Give me your whole Social Security 3 numer. 4 MR. YAO: Mr. Carweil, you can 5 tell him your whole Social Security and 6 the date of birth on the record. We are 7 going to put the last four digits and the 8 year. 9 A. Not a problem. 11 Q. Are you married? 12 A. Yes, J] am. 13 Q. © . What is your spouse's name? 14 A. Alicia Delgado. 15 Q. How long have you been married? 16 A. Four years. 17 Q. Does your wife work? 18 A. Yes, 19 OQ. Do you know what type of work she 20 does? 21 A. Security. 22 OQ: Do you have any children? 23 A. Yes. 24 Q. How many children do you have? , 25 A. I have three. 516-485-2222 BEE REPORTING AGENCY, INC. 212-327-3500 D1i2 | 7 | | il GLEN CARWELL 2 QO. How old are they? 3 A. Three, one, and nine months. 4 Q. Who lives with you at your current 5 address? 6 A. My aunt. □ 7 Q. Your three children live with 8 their respective mother or mothers? 9 A. No. Yes, they live with their 10 mothers. They live with their mothers. il Q. Are you required to pay 12 Court-Ordered child support for any of your 13 -shildren? ~ Ce oh eten 14 A. No. 15 Q. How long have you lived at the 16 Ogden Avenue address? 17? A. I want to say two years. 18 Q. Where did you live before that? i9 A. 48 Lincoln Terrace, Yonkers, New | 20 York. 21 Q. That was an apartment building? 22 A. Yes, Apartment 3. 23 Q. How long did you live there? 24 A. About two years. 25 Q. Do you remember where you lived 516-485-2222 BEE REPORTING AGENCY, INC. 212-327-3500 D13 | | 1 GLEN CARWELL 2 rignt before that? 3 A. Yes. 4 QO. Where was that? 5 A. 4417 Third Avenue, in the -- 6 QO. In the Bronx? 7 A. Yes. Bronx, New York. 8 Q. How long were you living at that zddress? 10 A. I can't recall how many years. 11 Q. More than five years? 12 A. I want to say, I am going to say. ~ | feet “Sr When you lived at Limcain Terrace, 14 did you live alone or with anyone? 15 A. I lived with my wife and my kids. 16 Q. So at the time it was just now the 17 oldest, the three year old, correct? 18 A. No. Actually, no. I think even 19 my little one -- no, it was -- yeah, it was 20 just her at the time, just my three year old 21 at the time. She was pregnant, I think she 22 was pregnant though, I think. 23 QO. How tall are you? 24 A. About five-eleven. 25 0. How much do you weigh? 516-485-2202 BEE aSoRTRCEey, INC. 212-327-3500 D114 1 GLEN CARWELL 2 A. 150. 3 Q. Was that your approximate weight 4 at the time of your arrest? : 5 A. No. I weighed a little more, 6 yeah. I was probably around 165. 7 QO. Are you employed? 8 A. No, not at the moment. 9 Ok At the time of this arrest, did 10 you have a job? 11 A. Yes, I did. 12 Q. What type of work were you doing 13 at the time of this~arrest?_ “= : 14 A. Construction. 15 QO. Do you remember who you were □ 16 working for? i? A, Yes, J&P Construction. 18 Q. As a result of this arrest, did 19 you miss any time from work? 20 A. Yes. 21 0; How much time did you miss from 22 work? 23 A. I was laid off. 24 Qo. What was the reason that you were 25. laid off? 516-485-2222 BEE REPORTING AGENCY, INC. 212-327-3500 D15 18 1 GLEN CARWELL 2 A, Because I was incarcerated. 3 Q. Have you had a job since that job? ! 4 A. No, I haven't. 5 Q. How much were you earning from 6 J&P Construction? 7 A. Actually they was paying me weekly 8 and they would give me 800 a week. 9 Q. Were you being paid in cash off 10 the books? 11 A. Yes. 12 QO. What is your highest ieveli of 13 education? - _ a) Toe ~ | □□□□ 14 A. Tenth grade. 15 QO. De you have health insurance? 16 A. No, I don't. Ll? OF Do you receive either Medicare or 18 Medicaid benefits? 19 A. Yes. 20 QO. Do you get Medicaid? 21 A. Yes, Medicaid. I receive 22 Medicaid. I apologize. □ 23 QO. That is okay. Have you ever been 24 convicted of a crime? 25 A. Excuse me? 516-485-2222 BEE Senonane AGENCY, INC. 212-327-3500 D16 11 1 GLEN CARWELL 2 oC. Have you ever been -- 3 MR. YAO: I'm sorry, objection. 4 It's not relevant to this conversation. 5 MR. BILLIG: You are not letting 6 him answer about a criminal conviction on 7 a false arrest claim? 8 MR. YAO: Not criminal history. 9 Not criminal history. 10 MR. BILLIG: I didn't ask 11 arrests, just convictions. 12 MR. YAO: Prior convictions, eee, | ee prior. convictions: ie en 14 MR. BILLIG: I asked him about 15 prior convictions. Are you letting him 16 answer that question? 17 MR. YAO: I object to that 18 because it's irrelevant to this 19 proceeding. 20 MR. BILLIG: Okay. So this a 21 false arrest claim. You are not 22 permitting him to answer about prior □ 23 convictions? 24 Ts that what you are telling me? 25 MR. YAO: Right, right. 516-485-220? BEE REPORTING AGENCY, INC. 212-327-3500 D17 12 1 GLEN CARWELL 2 MR. BILLIG: Okay. 3 MR. YAQ: The reason being the 4 City can, of course, have that. I □ 5 believe the City already has that 6 information, so. 7 MR. BILLIG: Actually the 8 Comptroller's office, who manages the : 9 claims, doesn't have that information 10 and, no, they wouldn't have that 11 necessarily untii he releases that 12 information. So at this point they 13 - wouldn't have that. Tye 14 MR. YAO: Understand. Right. 15 Like I said, it's cur position that it's ! 16 irrelevant to the case being disputed. I 17 am talking about his prior conviction. 18 MR. BILLIG: I don't have a 19 judge here so I am not going —— - 20 As you are well aware convictions 21 are pursuant to the CPLR, are admissible 22 in any civil proceeding. So they are 23 admissible by State law. =f don't even 24 have to show they are relevant. The 25 statute permits it, but regardless -~- 516-485-2202 BEE REPORTING AGENCY, INC. 212-327-3500 D138 13 | 1 GLEN CARWELL | 2 Q. Have you ever filed another claim 3 against the City of New York? 4 A. No. 5 Q. Have you ever filed a claim | 6 against the State of New York? 7 A. No. 8 Q. The arrest that we are here to 9 discuss today, what date did it occur? 10 - A. If I’m not mistaken it was July, 1i around July 26, 2018. Q. On that day were you either on 13 probation ot parole? ~ 14 A. No. 15 Q. What time of day did you get 16 arrested? 17 A. I want to say anywhere from 18 between ten and twelve o'clock. 19 QO. Morning or evening? 20 A. Morning. 21 QO. Where did the arrest occur? | 22 A. At 48 Lincoln Terrace, Yonkers, 23 New York, Apartment 3. 24 Q. That is where you were residing at 25 the time, correct? ; 516-485-2722 BEE REPORTING AGENCY, INC. 212-327-3500 D19 ———_- iT Ta 1 GLEN CARWELL 2 A. Yes, correct. 3 QO. Prior to the time of the arrest, 4 were you aware that NYPD was trying to contact 5 you? | 6 A. I would like -- can I ask my | 7 lawyer a question? 8 MR. YAO: You can answer that, 3 yes. Can you rephrase? MR. BILLIG: Can you repeat the 11 question again. 12 (Whereupon, the requested portion i3 .-saf the record was read :back.) : | □□ 14 Q. On July 26th did the police show ; i5 up at your home? 16 A. Yes, they did, sir. 1? QO. Before they showed up that day, 18 did they try to reach out to you in any cther 19 way? 20 A. I mean, not to my knowledge. No. Zi Qo. Did you know the police were 22 trying to reach out to you before they showed 23 up at your apartment? 24 A. Did I know the police was looking | 25 for me? 516-485-2222 BEE REPORT! NG AGENCY, INC. 212-327-3500 D20 15 L GLEN CARWELL 2 QO. Yes. Did you know the police were 3 looking for you at that point? 4 A. No, I actually didn't. 5 Q. So who was home when the police 6 arzived? ; 7? A. My wife, her son, and my daughter. | 8 Q. So the daughter was an infant at 9 the time, correct? □ 10 A. Correct. 11 QO. And Alicia's son, how old was he | 12 at the time? 3234 ca P13 “*