McAllister v. the City of New York

Full title: CHARLES McALLISTER, Plaintiff, against THE CITY OF NEW YORK, et al.…

Court: United States District Court, S.D. New York

Date published: May 9, 2002

97 Civ. 7420(CBM) (S.D.N.Y. May. 9, 2002)

Opinion

97 Civ. 7420(CBM).

May 9, 2002

MEMORANDUM OPINION AND ORDER

Constance Baker Motley, United States District Judge.

BACKGROUND

Plaintiff Charles McAllister was arrested by officers of the New York City Police Department in June 1994 and charged with two counts of criminal possession of a firearm. Convicted at trial in state court and sentenced to a prison term of ten years to life, Mr. McAllister is currently incarcerated at the Franklin Correctional Facility in upstate New York. He is in the process of appealing his state court convictions.

In 1997 Mr. McAllister brought this civil suit pro se against defendants the City of New York, the police commissioner and several members of the police department. Mr. McAllister alleged that the police officers who arrested him utilized excessive force in effectuating his arrest. As the case proceeded to discovery, Magistrate Judge Peck, at the request of defendants, entered a Stipulation and Protective Order in November 1998. Under the terms of the protective order, (i) certain specified materials produced by defendants were to be deemed confidential, (ii) the confidential materials were not to be disclosed to anyone other than plaintiff, his counsel (if any) and his counsel's agents and necessary witnesses, and (iii) the confidential materials were to be destroyed or returned to defense counsel at the close of the case. Mr. McAllister objected to the scope of the protective order but Magistrate Judge Peck overruled those objections.

In March 2000 attorney Glenn Wolther, a member of this court's pro bono panel, took on [BAD TEXT] McAllister's case. In May 2001 Mr. Wolther, with the authorization of Mr. McAllister, [BAD TEXT] a settlement with defendants, and a Stipulation and Order dismissing the action was [BAD TEXT] by the court on May 21, 2001.

In a letter to the court dated August 1, 2001, Mr. McAllister informed the court that Mr. Wolther had not returned to him documents obtained from defendants during discovery. Mr. McAllister wishes to use these documents to perfect the appeal of his state court convictions. Mr. Wolther responded to the court by letter dated August 15, 2001, stating that he would send the documents to Mr. McAllister as soon as possible. By letter of August 21, 2001, defendants informed the court that many of the documents in Mr. Wolther's possession were covered by the protective order entered by Magistrate Judge Peck. Defendants requested that Mr. Wolther be ordered to return the documents to defendants rather than to Mr. McAllister. In an order dated August 28, 2001, the court granted defendants' request, and ordered Mr. Wolther to "return to defendants' attorneys any documents defined as confidential materials by the protective order entered on November 22, 1998."

In a letter to the court dated October 5, 2001, Mr. McAllister stated that Mr. Wolther had yet to turn over to him the documents he had requested (Mr. McAllister was apparently unaware of the court's August 28 order). In a letter to the court dated December 1, 2001, Mr. Wolther responded that the attack of September 11, 2001, had prevented him from meeting with defendants' counsel to determine which documents were subject to the protective order. Mr. Wolther stated that he would be meeting with defendants' counsel on December 13, 2001, and that he would then "send Mr. McAllister any items that the City stipulates are not covered by the protective order." Wolther 12/01/01 Letter at 2.

On February 19, 2002, the court received in chambers from Mr. McAllister an "Ex Parte Motion to Compel Release of Documents" (attached hereto as Exhibit 1). In his "motion" Mr. McAllister seeks

an order pursuant to rule 37 of Federal Rules of Civil Procedures granting an order compelling Glenn A. Wolther, pro bono counsel to return the records, files, documents, recording, photographes pertaining to plaintiffs civil and criminal procedures of discovery and testimony of civilian and police witnesses concerning the event and circumstance of the City of New York Police Department and Housing Authority Police Officers, forthwith to Charles McAllister, as this court directs. [sic]

Motion at 1. Mr. McAllister states in his affidavit in support of the motion that he has yet to receive any of the documents that he previously requested. He asks the court to compel Mr. Wolther to produce the documents.

The court declined to act on Mr. McAllister's motion without giving Mr. Wolther an opportunity to respond, and the court invited him to do so. In a letter to the court dated April 7, 2002, Mr. Wolther prefaces his response by stating that he "do[es] not claim to speak as Mr. McAllister's attorney," apparently believing that his obligations to his client were discharged upon the execution of the settlement in May 2001. Wolther 04/07/02 Letter at 1. Mr. Wolther then goes on to relate that he has "had numerous conversations with defense counsel," and that he has "met [with defense counsel] to review the documents in attempt to reach an agreement as to what I can and cannot forward to Mr. McAllister." Id. at 3. Mr. Wolther does not indicate, however, if any documents have been forwarded to Mr. McAllister. As for Mr. McAllister's motion, Mr. Wolther goes on to opine that "I do not believe I am [Mr. McAllister's] attorney."¹ Id. at 4. Therefore, according to Mr. Wolther, "I cannot negotiate an agreement with defense counsel . . . . nor can I advocate for a particular ruling from the Court." Id. at 5.

1 While the court need not address Mr. Wolther's contention that he is no longer Mr. McAllister's attorney, the court refers Mr. Wolther to Local Civil Rule 1.4 which provides that "[a]n attorney who has appeared as attorney of record for a party may be relieved or displaced only by order of the court and may not withdraw from a case without leave of the court granted by order."

DISCUSSION

The scope of the relief requested in Mr. McAllister' s motion makes it clear that he seeks to have this court vacate the Stipulation and Protective Order entered by Magistrate Judge Peck in this matter. In certain limited circumstances, a court can vacate a previously entered protective order. See In re: "Agent Orange" Prod. Liab. Litig., 821 F.2d 139, 147 (2d Cir. 1987). The instant situation is not one of those limited circumstances.

In a letter to the court dated May 31, 2001, Mr. McAllister made clear that he was accepting the defendants' offer of settlement despite his dissatisfaction with the protective order. In a letter dated August 20, 2001, from Mr. Wolther to Mr. McAllister (a copy of which was attached to Mr. McAllister's Motion), Mr. Wolther states, "[Mr. McAllister] expressly rejected a settlement offer by the City because the City took the position that the document issue was nonnegotiable. [Mr. McAllister] subsequently decided to settle, with the clear and express understanding that [he] would have to abide by the terms of the protective order." Wolther 08/20/01 Letter to McAllister at 2.

"Where there has been reasonable reliance by a party or deponent, a District Court should not modify a protective order granted under Rule 26(c) 'absent a showing of improvidence in the grant of [the] order or some extraordinary circumstance or compelling need.'" S.E.C. v. TheStreet.com, 273 F.3d 222, 229 (2d Cir. 2001) (quoting Martindell v. Int'l Tel. Tel. Corp., 594 F.2d 291, 296 (2d Cir. 1979)). It appears that defendants relied on the protective order (that they requested) both in producing the discovery materials and in reaching a settlement. In addition, Mr. McAllister's original objections to the protective order were heard and rejected by Magistrate Judge Peck. The court therefore sees no "extraordinary circumstance" or "compelling need" to overcome the strong presumption that the protective order should remain in full force and effect. Mr. McAllister's Motion, insofar as it seeks to vacate the protective order, is therefore DENIED.

Nevertheless, Mr. McAllister is entitled to the documents in Mr. Wolther's possession which are not covered by the protective order. Mr. Wolther has indicated that he has "no opposition to releasing to Mr. McAllister those documents (1) that are plainly not covered by the protective order, as well as those (2) which defendant's [sic] counsel expressly authorizes me to release." Wolther 04/07/02 Letter at 5. Mr. Wolther and counsel for the defendants are therefore ORDERED to confer on or before May 31, 2002, to discuss which documents are covered by the protective order. Defense counsel is ORDERED to provide by June 4, 2002, a list to Mr. Wolther and Mr. McAllister describing the documents which defendants claim are covered by the protective order. Mr. Wolther is ORDERED to forward to Mr. McAllister by June 5, 2002, any documents which, in defendants' estimation, are not covered by the protective order. If Mr. McAllister has objections to defendants' recovery of the remaining documents, he must make them known to the court on or before June 28, 2002. Finally, absent further order from this court, Mr. Wolther is ORDERED to return to defendants' counsel on July 8, 2002, the remaining documents in his possession, i.e., the documents purportedly covered by the protective order.

EXHIBIT 1

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK -----------------------------x CHARLES MCALLISTER, Plaintiff, EX PARTE MOTION TO COMPEL RELEASE OF DOCUMENTS 97 Civ 7420 (CBM) NEW YORK CITY, et al., Defendants. -----------------------------x SIR/MADAM:

PLEASE TAKE NOTICE that upon the annexed affidavit of Charles McAllister, sworn to on February 12, 2002 and upon the supporting documents attached hereinwith, plaintiff will move this court before Honorable Judge Constantine B. Motley, at United States District Courthouse, 500 Foley Square, New York, New York 10007, ex parte for an order pursuant to rule 37 of Federal Rules of Civil Procedures granting an order compelling Glenn A. Wolther, pro bono counsel to return the records, files, documents, recording, photographes pertaining to plaintiff's civil and criminal procedures of discovery and testimony of civilian and police witnesses concerning the event and circumstance of the City of New York Police Department and Housing Authority Police Officers, forthwith to Charles McAllister, as this court directs.

Dated: February 12, 2002

CHARLES MCALLISTER Pro Se Plaintiff Franklin Corr. Fac. 62 Dare Hill Road/POB 10 Malone, New York 12953 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK -------------------------------x CHARLES MCALLISTER, Plaintiff, AFFIDAVIT IN SUPPORT OF MOTION TO COMPEL RELEASE OF DOCUMENTS 97 Civ 7420 (CBM) NEW YORK CITY, et al., Defendants. -------------------------------x STATE OF NEW YORK COUNTY OF FRANKLIN SS.: Charles McAllister, being first duly sworn deposes and says:

Charles McAllister is the plaintiff in the above caption and the sole complainant in this civil action under this court docket No. 97 Civ 7420.

As a pro se plaintiff, this action commenced by Charles McAllister, filing a civil rights complaint pursuant to title 42 section 1983 USCA.

Plaintiff, throughout 1998-2000, seeked discovery materials from defendant's City of New York: Housing Authority and Police Departments. Therein, having obtained some discoverable materials and non-disclosure of other discoverable materials, discoverable under FRCP 26, 34 and 37. Plaintiff during October 1998 conference via telephone, before Honorable Andrew J. Peck, Magistrate Judge, related defendant's failure to disclose discoverable material specifically requested and that which was automatic discoverable material pursuant to this court local rules 33.2. (Attached for this courts review).

Defendant's moved for summary judgment in January 1999 and by order of this court granted with the exception to Mickey Fontanez, in June 8, 1999.

Plaintiff proceeded to prosecute this civil rights action pro se, throughout 1999 to March of 2000. When Glenn A. Wolther, Esq. pursuant to this Court's Pro Bono panel inquired from Plaintiff his files of discoverable materials obtained from defendants in February of 2000. (See attached)

In March of 2000, Mr. Wolther by Notice of Appearance accepted the plaintiff case under a Pro Bono status. (See attached)

As noted above, discovery was not completed and upon counsels acceptance of said case, he continued plaintiff's request for said discoverable documents previously requested. (See attachment).

As noted by Mr. Wolther, in his request for attorney fee's in his Attachment A, he list the items retained through discovery during 2000 arid 2001. (sic)

Upon discussion with Mr. Wolther in May of 2001, a settlement was offered in the amount of $50,000.00 and was accepted by plaintiff with the understanding that counsel would return to plaintiff the remaining files received from plaintiff arid those acquired during further discovery.

A matter was addressed before this court concerning attorney fee(s) for Mr. Wolther, in August of 2001. (See attached Order).

Another matter was addressed before this court concerning the in September and July of 2001, for Mr. Wolther to turn over to plaintiff his criminal and civil legal documents. (See attached Order letters)

Plaintiff have not receive the documents from Mr. Wolther and seek this court's judicial intervention.

Plaintiff presently is preparing to submit an appellate brief in the First Judicial Department of New York State Supreme Court Appellate Division in regard to the documents presently held by Mr. Wolther. (See attached Order of NYS A.D. 1st Dept.)

Plaintiff's states, that the circumstances and nature of his arrest and conviction warrant the review by NYS Supreme Court Justices where the seeked documents have been withheld by the New York City Police Department and the County of New York District Attorneys Office throughout plaintiff's criminal procedures and are pertinent to his innocences of any criminal liability.

Plaintiff has requested several times via correspondents and telephone for Mr. Wolther to return his documents and those retained documents which are not personal records of the Police employees who have testified throughout plaintiff's criminal proceedings. Therefore, their testimony, deposition and any documents relating to their conduct on June 2, 1994, is not privileged. Thus, whereas some documents may have been privileged are no-longer privileged due to their disclosure pursuant to federal and state law.

Plaintiff seek for a ex parte order that Mr. Wolther return the listed documents and compell Mr. Wolther to sanctions for his deliberate and intentional failure to return plaintiff's documents pursuant to this courts order dated

Sworn to before me this 12th day of February, 2002.McAllister v. New York City Police Department et al

CHARLES MCALLISTER, Plaintiff Franklin Correctional Facility POB 10, Malone, N Y 12953 CAROLYN GUSHMAN Notary Public, State of New York Franklin County 01CU6049154 Commission Expires 10/10/2002 Hon. Andrew J. Peck November 6, 1998 THE CITY OF NEW YORK Tel.: (212) 788-0898. LAW DEPARTMENT 100 CHURCH STREET NEW YORK, N.Y. 10007-2601 November 6, 1998 BY FAX Honorable Andrew 1. Peck United States Magistrate Judge United States District Court 500 Pearl Street New York, New York 10007 Re: . 97 Civ. 7420 (KMW)(AJP) Dear Judge Peck:

I write on behalf of defendants City of New York, William Bratton, John Freisen, Mickey Fontanez, Agustin Rabassa, Kevin Barry and Edwin Latorres ("City defendants"), in response to plaintiffs letter to the Court dated October 23, 1998, and in compliance with the Courts Order dated October 29, 1998, in which defendants are directed to respond to plaintiff's letter by November 6, 1998, and specifically directed to respond to each of the 16 items of allegedly outstanding discovery set forth by plaintiff.

During the October 21, 1998 conference, when plaintiff was directed no advise defendants and the Court of all discovery items which he believes to be outstanding, he was directed so identify such outstanding discovery with specificity and by reference to the page numbers of the documents already produced by defendants in which the outstanding items are referenced. Plaintiff has not complied with the Court's instructions. Although certain of the 16 items net forth by plaintiff are self-explanatory, others are not.

On behalf of City defendants, I respectfully respond as follows to the 16 items identified by plaintiff:

Hon. Andrew I. Peck November 6, 1998 Page — 2 —

1. Manhattan North Inspection Unit and 34th precinct reports and statements of Police Officers involved with incident, witnesses: names addresses and telephone numbers;

Any documents responsive to the first part of this request were produced as exhibits to City Defendants' Response to Plaintiffs First Set of Interrogatories and Requests for Production of Documents Pursuant to Local Civil Rule 33.2, served on plaintiff by mail On September 4, 1998. In addition, the command log for the 34th Precinct For June 2, 1994 (the date of plaintiffs arrest) was produced as Exhibit B to City Defendants' Response to Plaintiff's Second Set of Interrogatories and Requests for Production of Documents Pursuant to Local Civil Rule 33.2, served on plaintiff by mail on October 16, 1998.

As for plaintiffs demand for "witnesses: names, addresses and telephone numbers," I construe this as referring to the civilian witnesses whose statements were provided to plaintiff as part of the CCRB report which was attached as Exhibit 2 to City Defendants' Response to Plaintiff's First Set of Interrogatories and Requests for Production of Documents Pursuant to Local Civil Rule 33.2. Identifying information about these witnesses was redacted from these documents. I have serious concerns about disclosing identifying information about civilian witnesses to plaintiff, a three-time violent felon, and respectfully request the Court's guidance in this regard.

2. Detectives Unusual Occurrance Reports;

Plaintiff has not followed the Court's direction that he identify allegedly outstanding discovery by reference to the page numbers of the documents already produced by defendants in which the outstanding items are referenced. On October 15, 1991, I mailed plaintiff a copy of the Crime Scene Report prepared by Detective Latorres of the Crime Scene Unit. I am unaware that any "detectives unusual occurrence report" was prepared concerning plaintiff's arrest.

3. Statements recorded on file by PBMN inspection office;

I believe that plaintiff in referring to the tape-recorded police officer statements which he requested as the October 21, 1998 conference. I mailed plaintiff a copy of the tape in question on October 31, 1998.

4. Statements on file under PDS case 1117;

I interpret this as a request for the civilian witness statements which were taken by a 34th Precinct detective. These statements were included in the CCRS Report which was attached as Exhibit 2 to City Defendants' Response to Plaintiffs fires Set of Interrogatories and Requests for Production of Documents Pursuant to Local Civil Rule 33.2.

Hon. Andrew I. Peck November 6, 1998 Page — 3 —

5. Reports and notes, memorandums, and summaries made by defendant(s) Kevin Barry, John Freisen and all supervisory staff employees;

Any documents responsive to this request were produced as exhibits to City Defendants' Response to Plaintiff u First Set of Interrogatories and Requests for Production of Documents Pursuant to Local Civil Rule 33.2.

6. All documents pretaining to the joist cooperation between Housing Authority Police and New York City Police department;

This request is so vague as to be incapable of response.

7. Crime Scene Unit report filed by Detective McNerny with listing of additional bullets found and (24) color photographs, listing of damages to property;

Plaintiff has not followed the Court's direction that he identify allegedly outstanding discovery by reference to the page numbers of the documents already produced by defendants in which the outstanding items are referenced. Plaintiff has been provided with a copy of the Crime Scene Report prepared by Detective Latorres of the Crime Scene Unit, along with 38 photographs taken by Detective Latorres. I am attempting to ascertain whether any additional Crime Scene Unit reports were prepared, and will forward any additional documents and/or photographs to plaintiff as soon as I receive them.

8. 34 Precinct Polariod Photographs of plaintiff and person(s) arrested from the incident.

A copy of a photograph which was taken of plaintiff at Central Booking was produced with City Defendants' Response to Plaintiffs First Set of Interrogatories and Requests for Production of Documents Pursuant to Local Civil Rule 33.2. After receiving plaintiff October 23, 1998 letter, I telephoned Police Officer Kimio Rivera, who processed plaintiff's arrest, and asked whether she had taken any photograph's of plaintiff at the 34th Precinct. Officer Rivera told me that she could not remember whether she had photographed plaintiff. She advised me that any such photographs would not be retained by the Police Department in any official file, but that the might still have them in her personal possession. Officer Rivera told me that she will undertake a search for such photographs, and will forward them to me if she is able to locate them.

Hon. Andrew I. Peck November 6, 1998 Page — 4 —

9. All medical reports of defendants and witnesses of Police and civilian medical reports, notes and summaries of medical staff and Police supervisor reports:

City defendants object to the request for production of medical reports of defendants on the grounds that any such reports are privileged. Further, none of the City defendants suffered any physical injuries as a result of the incident. City defendants ate not in possession of the medical records of any civilian witnesses.

10. Police department Policy and Procedures detailing the use of deadly force, public pursuit, reports filed by Police and Internal Affairs under unusual incidents/occurrence.

As for the first part of this request, City defendants have produced, as Exhibit B to their Response to Plaintiff's Second Set of Interrogatories and Second Request for Documents, a section of the Patrol Guide of the New York City Police Department entitled "Firearms Discharge and Assaults Involving Uniformed Members of the Service." City defendants have also produced Patrol Guide sections entitled "Law of Arrest," "Arrests, General." and "Arrests: Contraband Weapons," as part of Exhibit A to their response in Plaintiff's Request for Production of Documents. City defendants produce herewith a section of the Patrol Guide entitled "Vehicle Pursuits," which was not produced before because it was not requested.

As for the second part of this request, which demands "reports filed by Police and Internal Affairs under unusual incidents/occurrences," it is so vague as to be incapable of response. Reports concerning plaintiffs arrest were provided as part of City Defendants' Response so Plaintiffs First Set of Interrogatories and Requests for Production of Documents Pursuant so Local Civil Rule 33.2.

11. General Information regarding the internal affairs division policies and procedures manual, forms used by the interntal affairs division for recording and processing compliants against police employee's, staff supervisors and department commands;

Upon information and belief, the Police Department's Internal Affairs Division conducted no investigation of plaintiff's arrest. Therefore, City defendants object to this request on the grounds that it seeks information which is not relevant to this action and not reasonably calculated to lead to the discovery of relevant evidence.

12. Radio Recording of incident 911;

Upon information and belief, 911 tapes are stored for a period of 90 days and then reused. Transcriptions of the 911 tape pertaining to plaintiff's arrest were included in the CCRB file produced as Exhibit 2 to City Defendants' Response to Plaintiff s First Set of Interrogatories and Requests for Production of Documents Pursuant to Local Civil Rule 33.2.

Hon. Andrew J. Peck November 6, 1998 Page — 5 —

13. Results of Police examination, analyses and testing of physical evidence F524421, F524479, F524454.

Plaintiff has not followed he Court's direction that he identify allegedly outstanding discovery by reference to the page numbers of the documents already produced by defendants in which the outstanding items are referenced. Two of the numbers given do not match the numbers on the property vouchers which were provided to plaintiff. Number F524454 refers to a Property Clerk's Invoice for crime scene envelopes containing ballistics evidence (a copy of the invoice is attached for the Court's reference).

City defendants object to this request on the grounds that it seeks information which is not relevant to this action and not reasonably calculated to lead to the discovery of relevant evidence. Plaintiff was convicted of criminal possession of a weapon, and is barred by collateral estoppel from relitigating this issue.

14. All Criminal Proceedings Reports, statements, listing of evidence, witnesses, witnesses, and transcripts of all criminal proceedings including CRiminal Court Arraignment, Indictment arraignment, Grand Jury Proceeding, Pre-trial Proceeding, and Trial Proceedings, including and limited to the criminal file of the prosecuting attorney.

All the criminal court records in City defendants' possession have been provided to plaintiff by Ronald Berman, attorney for defendant Gordon Pekusic. City defendants are not in possession of the District Attorney's file for plaintiffs prosecution, nor of any transcripts from plaintiffs criminal trial, nor any grand jury records, nor any records pertaining to plaintiffs arraignment or indictment.

15. Policy and Procedure Manual for Patrol;

This request is so vague as to be incapable of response. City defendants have produced numerous sections of the Police Department Patrol Guide.

Hon. Andrew J. Peek November 6, 1998 Page — 6 —

16. Plaintiff have not recieved appropriate disclosure materials pursuant to Local Civil Rules 33.2 nor of the seperate and supplemental request made pursuant to Rule 33 and 34 of the Federal Rule of Civil Procedures.

City defendants have responded to both sets of discovery demands served by plaintiff, as well as to both sets of discovery demands pursuant to Rule 33.2. Copies of all of City defendants' responses have been provided to the Court.

Respectfully submitted, Elisa Baldwin Assistant Corporation Counsel C: Charles McAllister (by mail) Ronald Berman (by fax)

GLENN A. Wolther Attorney at Law 305 Broadway, Suite 1102 New York, New York 10007 (212)964-2120

August 20, 2001

Mr. Charles McAllister Inmate # 96 A 1243 Franklin Correctional Facility PO Box 10 Malone, N Y 12953

Re McAllister v. NYCPD, et al., 97 Civ. 7420(CBM)

Dear Mr. McAllister:

I am in receipt of your letter dated August 2, 2001. The Court has also forwarded me a copy of the letter that you wrote to it dated August 1, 2001. Enclosed please find a copy of my August 15, 2001 letter to the Honorable Constance B. Motley in response to your letter. Also enclosed is a copy of the fee affimation, that you requested in your August 1, 2001 letter to the Court. Although you have not requested it, I have also enclosed the May 17, 2001 letter related to the fee application.

My August 15, 2001 letter to the Court is self explanatory, so I will not revisit the issues addressed in it other than to make the following points. First, the City has 90 days from the receipt of your signed release to issue the check. As such, the ninety days have not yet expired. Accordingly, it is premature to seek process to enforce the settlement. It is only after the 90 days that I can reasonably move for enforcement of the settlement.

Secondly, regarding documents and other items. I will this week be sending to you the items referenced in the attached letter so the Court as well as a copy of the protective order. I will not be retaining copies of the items. Be advised that all documents must be returned to the defendants or destroyed if they do not request them to be returned, Failure on your part to comply with the order can potentially subject you to both monetary sanction and/or criminal penalty such as contempt.

August 20, 2001

Mr. Charles McAllister Re McAllister v. NYCPD, et al., 97 Civ. 7420(CBM) Page 2 of 2.

Your October 29, 1998 addendum to the protective order was rejected by Magistrate Judge Peck. It appears to only allow you to use the items in another action in which the NYC Corporation Counsel represents the defendant. Moreover, you expressly rejected a settlement offer by the City because the City took the position that the document issue was non-negotiable You subsequently decided to settle, with the clear and express understanding that you would have to abide by the terms of the protective order. As such although I am sending you the items at this point you should in no way misinterpret what appears clear from the protective order, namely that your stated intent to utilize the items in your state court 440 motion could in most instances violate the protective order. Only parts of the deposition that are not covered by the order may be retained and used as well as documents obtained by a source other than defendants or otherwise publicly available. You should consult with your criminal attorney about the possibility of obtaining items you seek via other proper means.

Finally, please be advised that should you continue to press the issue over the protective order, by disobeying it, I will not be able to assist you as it is beyond the scope of my representation. Moreover, even if it were within the scope, I would be compelled under the role to withdraw as your counsel in the above referenced matter.

Yours, Glenn A. Wolther, Esq enc: 8/15/01 letter to Hon. C.B. Motley Fee Affirmation G.A. Wolther, Esq. 5/17/01 letter so Hon. C.B. Motley

GLENN A. WOLTHER ATTORNEY AT LAW 305 BROADWAY · SUITE 1102 New York, New York 10007 (212) 964-2120

February 10, 2000

Mr. Charles McAllister Inmate # 96 A 1243 Auburn Correctional Facility PO Box 618 Auburn, N Y 13024

Re McAllister v. NYCPD. et al., 97 Civ. 7420(KMW)(AJP)

Dear Mr. McAllister:

I am an attorney in private practice and member of the United States District Court's Pro Bono panel. I am actively considering taking on your case and representing you in your Civil Rights trial. However, before I can commit to representing you in this matter, I need more information in order to evaluate the case. Unfortunately, the file maintained by the Pro Se office is missing most motions, court orders and has absolutely no discovery material. As such, if you are interested in having me consider taking your case. please do the following:

Could you briefly write out what we would attempt to prove about P.O. Mickey Fontanez's use of excessive force. i.e. What did he do? beat you? shoot at you? and how can it be proved? Did you see him? Reports? Witnesses?

I need you to send me copies if possible of all the discovery documents that you do have. (Answers, documents and responses to interrogatories) Have there been any deposition besides yours? I realized that you may be unable to make a large number of copies. If that is the case, limit the copies to documents relating to your injuries and the remaining defendant, PO Mickey Fontanez. Also the city's 56.1 statement. Perhaps you can write a summary of the other documents.

Some other questions I have: Has the City filed a motion to dismiss for PO Mickey Fontanez?

Did the City, prior to Judge Wood's 1/14/2000 order file any objection to your demand for a Jury trial?

Was the settlement conference held on 1/18/00? What occurred?

Are there any transcripts of the State Court suppression hearing and trial? Do you have them? If not, do you know who does?

I realize that this is a lot to do, but I need you to act as quickly as possible. As such, please do your best to write me back with as much as you can within a few days of the receipt of this letter. Unfortunately, you will not be able to make collect calls to my number at this time and we will have to communicate by mail.

Again, I cannot make any promises at this time as to whether I will ultimately decide to take the case. Upon receipt of the material, if it does appear that I could be of assistance at trial, I will arrange for visitation. I look forward to hearing from you soon.

I do have the following document and therefore do not need copies:

1. Your original handwritten complaint-undated

2. Your Amended Complaint 2/25/98

3. Answer to Amended complaint 8/21/98

4. Fontanez's proposed pre-trial order 5/7/98

5. Your proposed Pre-trial order

6. Mag. Peck Report Rec. 3/22/99

7. Hon. Wood's Order 6/8/99

8. Hon. Wood's Order 9/15/99

9. Hon. Wood's Order 12/21/99

Sincerely,

/s/ Glenn A. Wolther, Esq.

NOTICE OF APPEARANCE

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK _______________________________x CHARLES McALLISTER, Plaintiff, — against — 97 Civ. 7420 (KMW)(AJP) THE CITY OF NEW YORK, NEW YORK CITY POLICE DEPARTMENT CHIEF, WILLIAM BRATTON; AUGUSTIN RABASS; GORDON PEKUSIC; FRANSICO VARGAS; CARLOS MARTINEZ; ANTHONY VENCE; KIMIO DAVID-RIVERA; JOSEPH RIVERA; PETER MALTALBANO; KEVIN BARRY; JOHN FREISEN; MICKEY FONTANEZ; MICHAEL PISANO; EDWARD LATORRES; SALLT HERNANDEZ-PINERO, NEW YORK CITY HOUSING AUTHORITY CHAIRWOMAN, Defendants. _____________________________________x PLEASE TAKE NOTICE that Glenn A. Wolther, Esq., hereby appears as counsel on behalf of the plaintiff, Charles McAllister, in the above entitled action. Please direct all mail and telephone inquiries to the address and telephone number below.

Dated: New York, New York March 27, 2000

/s/ Glenn A. Wolther [GW-5740] Law Office of Glenn A. Wolther 305 Broadway, Suite 1102 New York, New York 10007 (212) 964-2120 cc: Frank M. Esposito Assistant Corporation Counsel

Pro Se Office, SDNY

GLENN A. WOLTHER ATTORNEY AT LAW 305 BROADWAY SUITE 1102 NEW YORK, NEW YORK 10007 (212) 964-2120

December 18, 2000

Mr. Charles McAllister Inmate # 96 A 1243 Franklin Correctional Facility PO Box 10 Malone, N Y 12953

Re McAllister v. NYCPD, et al., 97 Civ. 7420(KMW)(AJP)

Dear Mr. McAlister:

I hope this letter finds you well. I want to update you on significant recent events in your civil rights action. As you may already know, your case was reassigned to United States District Court Judge Motley. Last week I appeared, on your behalf, before Judge Motley at a pre trial conference. At the conference the Judge ruled upon motions that I and the defense had filed relating to what evidence will or will not be admissible at your trial. The Judge's rulings were favorable to your case, in other words, we in essence 'won' the motions. You should call me the first week of January so I can better explain the details of this positive development in your case. The case has been set down for trial on May 21, 2001 at 10:00 A.M. before Judge Motley.

Enclosed you will find a release for your medical records. Please sign and return it to me in the enclosed pre-posted envelop immediately. Happy Holidays!

Best wishes,

/s/ Glenn A. Wolther, Esq.ORDER

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ------------------------------------------------x CHARLES MCALLISTER, : Plaintiff, : — against — : 97 Civ. 7420 (CBM) : CITY OF NEW YORK, WILLIAM BRATTON, POLICE CHIEF;: AUGUSTIN RABASS; GORDON PEKUSIC; FRANSICO : VARGAS; CARLOS MARTINEZ; ANTHONY VENCE; KIMIO : DAVID-RIVERA; JOSEPH RIVERA; PETER MONTALBANO; : KEVIN BARRY; JOHN FREISEN; MICKEY FONTANEZ; : MICHAEL PISANO; EDWARD LATORRES; and SALLY : HERNANDEZ-PINERO, : Defendants. : ------------------------------------------------x In accordance with the affirmation of plaintiffs attorney, Glenn A. Wolther, in support of his application for attorney's fees, the court hereby approves the the fee agreement between plaintiff and Mr. Wolther. Mr. Wolther will be compensated $10,000 as an attorney fee and $1,636.16 to be repaid to the pro bono fund. Both sums shall be deducted from the settlement paid to plaintiff in this case. SO ORDERED . Dated: June 26, 2001 New York, New York /s/ Constance Baker Motley United States District Judge Charles McAllsiter POB 10 Malone, N Y 12953

May 28, 2001

Honorable Constance B. Motley United States District Judge Southern District of New York 500 Pearl Street New York, N Y 10007

Re: McAllister v. New York City Police Department, et al. 97 Civ 7420 (CBM)

Honorable Judge Motley:

On May 8, 2001, I was informed to called counsel Glenn Wolther, Esq., a pro bono attorney. I was directed to file with his office a statement of settlement, accepting $50,000.00 (Fifty-Thousand Dollars). Attached is the affidavit forwarded, as directed.

A previous offer was made in the amount $15,000.00 and rejected, as noted in a June 8, 2000 letter attached.

I am in a precarious situation for a number of reasons:

i) the NYCPD knowingly and falsely accused and caused for me to be convicted for a crime I did not commit;

ii) Presently pending is my direct appeal which over past (7) years have not been perfected;

iii) my mother has financially supported attorney fee's and cost for my criminal defense in excess of $10,000.00 over the 4 years of the arrest and conviction;

iv) I have been injured by the conduct of the police.

Presently, with my freedom on the line within the disclosed documents held by the City and now Mr. Wolther, I am in need of all the documents relevant to the police testimony involved with the discharge of their weapons, the arrest and any relevant testimony concerning the arrest and prosecution of this plaintiff. I have serious concerns for retaining the documents disclosed for pending criminal proceedings. As you may acknowledged New York City 'Civilian Complaint Review Board' investigated the police officers nvolved, NYCPD commanding officers interviewed the police and civilians witnessing the alleged incident. During the criminal prosecution the district attorney did not release nor turn over Rosario and Brady materials which I was entitled. However, during civil disclosure documents were disclosed which exonerates me from the alleged criminal allegations purported by the police on 6/3/94.

During May of 1997, I filed the civil rights complaint after the Commission on Police Corruption and NYCPD Internal Affairs, failed to investigate the referred complaint. (Attached documents).

I alone, litigated the this action through plundering reading, typing, filing motions, summary judgment reply, depositions, denial of many standardize pleadings from defendant, and survived their summary judgment from 1997-2/2000. A review of the court files will reveal vigorous work and objections to reserve for appellate review the advantage imposed by the City and Housing Authority. After providing a pre-trial order with (45 days) before trial date-scheduling. Mr. Wolther accepted the case pro bono. I sent him all my records and to this day none of my records have been returned nor any copies of the discoverable materials he received that I vehemently seek to compell thereof.

I forwarded Mr. Wolther, a bottom-line settlement amount at $137,000.00 as indicated in his 5/9/01 letter. I would not settle for $20 or $30,000.00 dollars.

However, now with the terms of an agreement I will be accepting the rejected amount, do to attorney fee's.

The expense for Pro Bono 'collect calls and depositions', I have not received a copy of the deposition(s) or other disclosed materials since Mr. Wolther's acceptance as a pro bono attorney.

I have been confronted with cost which this settlement amount will consume and be exhausted immediately. (Attach 6/4/98 lts).

Lastly, as of 3/12/01, where Franklin County DOCS or Postal Services lost a Post-Conviction motion filed on 1/18/01 with original exhibits newly discovered from this civil matter. (Attached documents).

I close here for your review of concerns surround this settlement stipulations.

Very truly Yours,

CHARLES MCALLISTER

United States District Court Southern District of New York

C H A M B E R S OF Constance Baker Motley Senior United States District Judge New York, N Y 10007

July 27, 2001

Re: McAllister v. NYCPD, et al., 97 Civ 7420 (CBM)

Honorable Judge Motley:

I am in receipt of your most recent order approving attorney fee's from the settlement and cost for the pro bono fund.

In the letter forwarded to your chambers, a request was made that I receive the documents and papers previously forwarded to counsel and the legal documents retain from the discover to be used in the present pending criminal case.

As was noted, a Post-conviction is filed and presently pending review and final determination in the Supreme Court for the County of New York, before Hon. Ira F. Beal, SCJ. I am in need of the disclosed documents, specifically: Civilian Complaint Review Board file, Firearm Discharge Hearing Minutes, recordings and documents; Deposition of Police officers; Photographs of vehicle, plaintiff, Mr. Spruil and Mr. Cousin and all Internal Affairs Records pertaining to the firearm discharge procedures; all police department process documents and ballistic reports, etc.

Plaintiff did not receive a copy of counsel's Wolther's affirmation as noted in honor's order and request a copy of same.

Plaintiff further note, that since receiving your honor's order no communication via phone has been accepted by counsel's Wolther office after several days attempting to ascertain the above information and documentations.

As noted, a copy of letter to this court previously was also forwarded to Mr. Wolther's office.

Plaintiff, seek this court's intervention in this regard. No funds or settlement have been disbursed to plaintiff.

I declare under the penalty of perjury that the foregoing is true and correct.

Executed July 27, 2001

___________________ CHARLES McALLISTER Plaintiff POB 10 Franklin Corr. Fac BEFORE: Honorable Alfred D. Lerner Justice of the Appellate Division -----------------------------------------x The People of the state of New York, M-5288 Respondent, Ind. No. 5301/94 — against — CERTIFICATE GRANTING LEAVE Charles McAllister Defendant-Appellant. -----------------------------------------x I, Alfred D. Lerner a Justice of the Appellate Division, First Judicial Department, do hereby certify that in the proceedings herein questions of law or fact are involved which ought to be reviewed by the Appellate Division, First Judicial Department, and, pursuant to Section 460.15 of the Criminal Procedure Law, permission is hereby granted to the above-named defendant to appeal to the Appellate Division, First Judicial Department, from the order of the Supreme Court, New York County, entered on or about June 25, 2001.¹

Dated: New York, New York December 5, 2001

ENTERED: December 11, 2001

/s/____________________________ Honorable Alfred D. Lerner Associate Justice NOTICE: Within 15 days from the date hereon, an appeal must be taken, and this certificate must be filed with the notice of appeal. An appeal is taken by filing, in the Clerk's office of the criminal court in which the order sought to be appealed was rendered, a written notice in duplication that appellant appeals to the Appellate Division, First Judicial Department (Section 460.10, subd. 4, CPL), together with proof that another copy of the notice of appeal has been served upon opposing counsel. The appeal (or consolidated appeals; see footnote) must be argued within 120 days from the date of the notice of appeal, unless the time to perfect the appeal(s) is enlarged by the court or a justice thereof.

SUPREME COURT OF NEW YORK STATE APPELLATE DIVISION FIRST JUDICIAL DEPARTMENT -----------------------------------x THE PEOPLE OF NEW YORK STATE RESPONDENT NOTICE OF APPLICATION -against- FOR LEAVE TO APPEAL Indictment No. 5301/94 CHARLES McALLISTER, Defendant-Appellant. -----------------------------------x PLEASE TAKE NOTICE, That upon the annexed affidavit of Charles McAllister and support documents, the above captioned defendant-appellant make this application to Honorable Ernst H. Rosenberger, Associate Justice of the First Judicial Department, pursuant to CPL § 460.15, certifying that this case involves a question of law and facts which ought to be reviewed by the Appellate Division from the August 9, 2001 order by the Supreme Court for the County of New York, criminal Term Fart 63 which denied defendant's motion to vacate judgment pursuant to § 440.10 of the Criminal Procedure Law. Defendant-Appellant, appeal of said judgment has not been heard and/or decided upon the grounds herein presented for judicial review. Defendant-Appellant is presently serving a sentence of 10 to life for a conviction of possession of a weapon in the Second and Third degree a class C and D felony of the Penal Law code. Defendant is presently confined and detained at Franklin Correctional Facility under the custody of New York State Department of Correction Services.

Dated: August 16, 2001 Malone, New York

/s/_________________________ CHARLES McALLISTER Defendant-Appellant Post-Office Box 10 Malone, N Y 12953 TO: Clerk of Appellate Division Hon. Robert Morgenthau, Esq. New York County/One Hogan Pl. New York, N Y 10013 SUPREME COURT OF NEW YORK STATE APPELLATE DIVISION FIRST JUDICIAL DEPARTMENT -------------------------------x THE PEOPLE OF NEW YORK STATE, Respondent, — against — AFFIDAVIT IN SUPPORT FOR LEAVE TO APPEAL Indictment No. 5301/94 CHARLES McALLISTER, Defendant-Appellant. -------------------------------x STATE OF NEW YORK ) ) SS.: COUNTY OF FRANKLIN ) CHARLES MCALLISTER, being first duly sworn deposes and nays:

1. I am the defendant-appellant in the above captioned seeking leave to appeal to the First Department Appellate Division from an order entered on or about August 9, 2001 by Justice Ira F. Beal, of the Supreme Court, Part 63, of 111 Centre Street, pursuant to Post-conviction motion under CPL 440.10. (See attached as Exhibit A)

2. The notion was filed based upon Newly Discovered evidence, non-disclosure prior to commencement of trial Rosario Brady materials, prosecutorial misconduct and ineffective assistance of counsel. (See attached CPL 440.10 as exhibit 6)

3. Defendant-appellant direct appeal has been filed by the law Office of Bruce A. Barket, Esq. in March or April of 2001. (See attached brief Exhibit C).

4. Defendant receipt of said appellate brief was prepared by counselor David Teeter, Esq., an associate of the Law Office of Mr. Barket. (id)

5. A request was made to this Court in March of 2001 for permission to file a supplement brief, and pending the decision from the trial court on a pending CPL 440.10 filed during January 18, 2001. (See attached as Exhibit D).

6. As stated in request for permission to file a supplemental brief, NYS Supreme Court did not acknowledge receipt of said CPL 440.10 motion during January of 2001. A further letter was written ascertaining acknowledgment of re ceipt of motion in March of 2001, to the Clerk of the Court. At this time defendant-appellant was Informed that the court did not receive said motion filed on or about January 18, 2001 from Franklin correctional Facility for the State of New York. (See Postage fee receipt, letter to court dated, Court reply, complaint to DOCS and facility answer, as Exhibit E).

7. Defendant after approximately 3 months awaiting the postmaster trace determination, refilled said CPL 440.10 motion without 5 original documents and statements in May of 2001. (supra)

8. The District Attorney Office responded to the reguest seeking permission to file supplemental brief with this Court's appellate term. (See attached Exhibit F)

9. The District Attorney tiffice did not respond or answer defendant's Post-conviction CPL 440.10 motion calendar for June 25, 2001.

10. Defendant-appellant, states under oath that he is innocent and did not possess a weapon on June 2, 1994.

11. Defendant further alleges that the Police officers involved with the arrest and conviction were interest witnesses and their testimony was tailored to cover-up police misconduct. Particularly, the discharge of numerous shots from their weapons into defendant's moving car while inside a congested vehicular and pedestrian intersection. (See trial transcript p. and statements)

12. The basis of this application for appeal is that, during trial the District Attorney on September 18, 1995 stated on the record, ". . . I have learned that there was a CCRB complaint filed against some of the officers in the case . . . I learned this many, many, many months ago . . .". (See trial Tr. pages 185-188 attached as Exhibit G)

13. Defendant, ascertained appellate counsel 10 review and adapt his notion for sufficient filing. (See D. Teeter, Esq. reply letter dated March 19, 2001, as Exhibit H). He did not adapt the CPL 440.10 motion.

14. Defendant-appellant in 1997, filed a Civil Rights complaint against the City of New York, the Police Department and Police officers involved with the arrest and assault against defendant-appellant. (See, filing Order, Exhibit I)

15. Defendant-appellant, during civil disclosure received for the first time many documents of some of which in Rosario and Brady materials. (See, e.g. attached Firearm Discharge Assault/Injury Report by testifying PO Augusta Rabassa, as Exhibit J). The reports prepared on June 2, 1994 by PO Rabassa states that: " AT T/P/O PERP POINTED WEAPON AT ANOTHER P.O. ON SCENE ANO ABOVE P.O. FIRED AT PERP. PERP #3: 6 Feet 0 inches, 280 lbs. male black 51 yrs. old arrest on scene.*.

16. Defendant during arrest and presently Is 41 years of age and stand approximately 5, 7 in height. (See NYS-DOCS Identification xerox card and arrest photograph marked as Exhibit K)

17. PO Rabassa was alleged that he is one of the Police who discharge his weapon. (Id)

18. Police officer Kimio David, is the arresting officer and Joseph Rivera. PO David alleged that she did not discharged her weapon (See trial Tr. p., cf DD'5 reports marked as Exhibit L). PO David in her DD'5 reports alleges that she did fire her weapon to prevent escape. During trial defendant was unable to cross-examine Police Officer Rivera or David concerning this newly discovered evidence.

19. Police Officer Joseph Rivera, also testified at trial that he seen three puffs of smoke cone from the back passenger seat where defendant sat, tome out the car window (see trial tr. p, grand jury testimony marked as exhibit M)

20. PO Joseph Rivera, assaulted the driver of the car, Harvey Cousins on 6/2/94. He fabricated a story denying his excessive use of force, but the charges was sustained by the Civilian Complaint Review Board in October of 1995. After conviction based on Rivera testimony. (See, Exhibit N)

21. Defendant's counsel, did not cross-examine 90 Rivera concerning his credibility nor could counsel impeach PO Rabassa, Rivera or David during trial without the enclosed evidence herein submitted in support of defendants application for permission to appeal the denial of the CPL 440.10 motion rendered August 9, 2001.

22. Defendant during trial was unable to prepare a meaningful defense to cross examine the Police officers who testified at trial and grand jury proceedings defendant possessed a weapon on June 2, 1994. And, that he allegedly discarded the weapon outside the window of the moving car, shot-at and damaged by numerous bullets from the Police officers testifying at trial. Out of 7 police involved with the arrest and pursuit of defendant, only two police alleged that they discharged their weapons. (id)

23. The detective bureau unusual occurrence reports did not state by the commanding officers, that defendant possessed a weapon and/or discarded a weapon from the moving car. (See exhibits O).

24. The crime scene detective Edward Latorres alleged that he was unable to determine PO Rabassa .9 millimeter was discharged at the scene on 6/2/94. Det. Lattores, further documented PO Rabassa .9 millimeter semi-automatic weapon with serial numbers ARW2O5, 9 mm Glock, model 19, made in Australia with 15 shot magazine. (See Exhibit P)

25. New York Police Department Ballstic Examiner logged PO Rabassa .9 mm serial number as .9 mm Lugar cal. Glock semi-auto pistol w ammo magazine serial #ARU205US. (See Exhibit Q cf ex. P)

26. Defendant during trial made an issue concerning the discarded shell casing from the police weapons, attempting to point out that the police was running after the car and shooting (see trial tr p.). Based upon the testifying police officers testimony, they did not run after the car shooting nor was the car moving when they were shooting at defendant, allegedly. The police alleged that defendant-appellant pointed a gun at them from the left and the right while seated in the back of a 1985 Chrysler Fifth Avenue. f:efendamt have received a microscopic ballistic examination report of slugs and shell casings which was not uvailatle during trial from NYC disclosure during civil proceedings. (see exhibit 5) The report alleges two separate .9 mm weapons. When only one police discharged a .9 mm and the other a .39 caliber Smith and Wesson (see Exhibits F).

27. Defendant have statements from witnesses who rild not testify at trial proceedings but gave oral, recorded and written statements to investigating detectives. These statements was not disclosed to the defendant during trial proceedings. (See list of witness names and statements, as Exhibit T).

28. The people during trial presented testimony and alleged evidence that defendant wore a short-sleeve green t-shirt during the events alleging criminal conduct. (See trial tr. p). Defendants photographs during arrest at precinct and central booking detail the clothing worn by him and do not show him in a green-t-shirt as identified and introduced into evidence at trial, against the defendant. (See exhibit U)

29. Defendant present before this court a question of law and fact. Whether the People forfilled their Rosario obligations pursuant to CPL 240 and there responsibility under Brady v. Maryland, the disclosure of exculpatory materials exonerating the defendant from criminal liability. As enumerated above as exhibits ___ — ___.

30. Prior to trial, the CCRB requested a stay of trial proceedings against defendant due to the investigation against the police for excessive use of force (See exibit V).

31. The People deny the request and proceeded to trial, with knowledge that the police was under investigation for excessive use of force against Harvey Cousins and defendant. (See CCRB complaint, Exhibit W).

32. The People, by the Assistant District Attorney Steven Ringer, during trial subpoena the entire records into CCRB investigation for any discoverable materials on or about September 12, 1995. (See, exhibit F). When the ADA received said documents he did not disclose them to the defendants (supra trial tr. 9/18/95)

33. Defendant was prejudice by the non-disclosure of the statements and police documents by the People prior to the commencement of testifying police officers, scientific reports and tape recordings.

34. The People for the first time called Gordon Pekusic to testify at the trial of defendant, PO Pekusic alleged that he discharge his weapon at defendant because he pointed a weapon at him (see tr.tr p). The People did not disclose any Rosario materials on PO Pekusic at NYCHAP Firearm discharge hearing records (See, exhibit Y).

35. The People did not disclose the Firearm discharge tape recording of all testifying Police for the City of New York regarding the discharge of their weapons in the congested vehicular and pedestrian intersection on 6/2/94. Prior to their testimony at trial and/or at any time during trial proceedings.

WHEREFORE, defendant prays for an order for leave to appeal the denial of the (CPL 440.10 motion on the grounds as a question of law and fact for this courts review and for such other and further as this court may deem just and Proper.

CHARLES McALLISTER Defendant-Appellant Franklin Corr. Fac. PO Box 10 Malone, New York 12953 Sworn to before me this _____ day of ____, 200_

________________________ NOTARY PUBLIC

STATEMENT OF FACTS

Charles McAllister, was arrested on June 2, 1994, with Harvey Cousins and Michael Spruil. Mr. Cousin's was release without a true bill of indictment. Mr. Spruil entered a plea bargain to a sentence of 2 and a half to 5 years. Appellant proceeded to trial throughout September 9-22 of 1995. He was sentenced in February of 1996. A appeal was filed i March, 1995 and presently pending. Defendant initially filed a CPL 440.10 in January of 2001. According to the United States Postal Master in the County of Franklin, New York, the motion papers was lost. New York County Supreme Courthouse at 111 Centre street and New York County District Attorney Office, did no receive the CPL 440.10 motion with exhibits. Defendant was notified to re-submit the CPL 440 motion. In May of 2001, defendant re-file said CPL 440.10 motion with attached exhibits. The basis of the motion was Rosario, Brady, Prosecutorial Misconduct, Police Misconduct, Newly Discovered Evidence and ineffective assistance of trial counsel. Upon re-filing the motion was calendar for June 25, 2001. The defendant did not receive from the District Attorney's office a written reply to the CPL 440.10. On August 13, 2001, defendant received a order and decision denying said CPL 440.10 motion without an opinion. Defendant present in support of the application for permission to appeal this memorandum of law.

SUPREME COURT OF NEW YORK STATE APPELLATE DIVISION FIRST JUDICIAL DEPARTMENT -------------------------------------x THE PEOPLE OF NEW YORK STATE, Respondent, Indictment No. 5301/94 — against — CHARLES MCALLISTER, Defendant-Appellant. -------------------------------------x MEMORANDUM OF LAW IN SUPPORT OF APPLICATION FOR LEAVE TO APPEAL ARGUMENT I DID THE PEOPLE FAILURE TO DISCLOSE ROSARIO MATERIAL PRIOR TO TRIAL TESTIMONY VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHTS UNDER THE FIFTH and FOURTEENTH AMENDMENT Defendant conviction was procured by police officers testimony' PO Joseph Rivera; Kimio David-Rivera; Augusta Rabassa; Francisco Vargas; Gordon Pekusic; and a civilian witness Johnny Aguila.

The People introduced photographs of a 1985 Chysler Fifth Avenue, .32 cal. weapon, discharged shells, a shortsleeve green-t-shirt and control substance.

The basis for the arrest alleged that defendant pointed a weapon at police officer Gordon Pekusic, gun shoots was heard by PO August Rabassa. At this time PO Joseph Rivera, arriving on the scene, alleging he witnessed three puffs of smoke come out of the back window the vehicle accompanied by gun shoots, at some point before entering HRD. The people further introduced testimony by PO Rivera partner Kimio David-Rivera that she saw defendant protrude his torso from the back window of the Chrsyler Fifth-Avenue and discard a .32 caliber weapon onto the curb of Harlem River Dirive (HRD). The People further alleged that the weapon was loaded. Upon testimony by Police Officers Joseph Rivera, Kimio David-Rivera, Francisco Vargas. PO's Rivera, Vargas and David deny discharging their weapons at defendants during the incident. All testifying Police officers denied using or witnessing excessive force during arrest of the defendants.

The basis of defendant's question of law is whether the People failure to disclose Rosario materials deprived this defendant of a fair trial. In that, defendant was not able to cross-examine several of the Peoples Police Witnesses who testified before the trial jurors alleging that defendant possessed a weapon and pointed a weapon at the Police.

Police employees Gordon Pekusic and Francisco Vargas was assigned to New York City Housing Authority Police Department. Neither one of these police observed PO Rabassa discharge his weapon at defendant's vehicle. Although Rabassa testimony and cause for discharging his weapon at the defendant is because he feared for PO Pekusic life. PO Pekusic discharged his weapon at defendant's based upon his trial testimony, because the defendant allegedly pointed a weapon at him while awaiting at the traffic light between 178-179th street and Amsterdam avenue. PO Rabassa is a member of NYCPD and he testified to observing PO Pekusic discharge his weapon at defendant. PO Rabassa and HAPD employee. Pekusic was interviewed by investigating Police Officials/Internal Affairs concerning the discharge of their weapons and excessive use of force during defendant's arrest on June 2, 1994.

The People's failure to provide the defense with the Police Officers Firearm Discharge Hearing recording by testifying PO Pekusic and Vargas interfered with defendant's ability to prepare his defense appropriately for cross-examination his accusers. See, Brady v. Maryland, 373 U.S. 83, 87 (1963).

The statements consist of NYCPD Field Internal Affairs Unit investigation of the police officers who discharged their weapons in the crowded intersection between 179-175th street on HRD. These Police officers are the same officers who arrested this defendant and others on June 2, 1994.

The internal investigation of the police concerned the same concurrent events surrounding defendant's arrest on 6/2/94. Therefore the recordings, records and documents procured by the Internal Affairs unit should have been made available to the defendant prior to trial. See, People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448.

Police Officer Pekusic alleged that the defendant pointed a weapon at him from the back seat area of a car stopped in traffic and he then discharged allegedly 3 shoots at the car. (sic tr/t p. 436). This police officer did not testify during the grand jury proceedings, upon information and belief where no grand jury testimony was disclosed by the ADA prior to trial. PO Pekusic did not testify at the pre-trialDunaway Mapp and Wade hearings. The prosecutor have failed to disclose any prior statements, recordings and memo book from Police Office Cordon Pekusic. Based upon the above, the defendant was put at a severe disadvantage during trial when the prosecutor called PO Cordon Pekusic before the jury for testimony. (id) The juror during deliberation requested PO Pekusic, Vargas and Rabassa re-back (deliberation Sept. 21, 1995, at p. 3). Based upon the nature and circumstances of defendants case, it was the police justification for use of deadly force against defendants allegations of police brutality and cover-up. As here, the reliability of the Police witnesses may well be determinative of guilt or innocence, important evidence affecting credibility may constitute Brady material. It is settled that, for the purposes of trial and sentence, defendant is entitled to evidence in the possession of thin prosecution which is favorable to defendant and material either to the issue of guilt or punishment. See Brady v. Maryland, 373 U.S. 83, 87 (1963); People v. Ahmed, 20 N.Y.2d 958 (1967). Besides evidence which tends to disprove the prosecution's case, the principle also applies to evidence which lends to impeach prosecution witnesses. See United States v. Ciglio, 405 U.S. 150, 154 (1972). PO Pekusic memo book indicate that reference to the incident refer to captain Lennox's report. There was no recording in PO Pekusic memo book that defendant Charles McAllister pointed a weapon at him or that anyone pointed a weapon at him on June 2. 1994.

PO Pekusic trial testimony also conflicted with PO Vargas and Rabass, alleging that defendant's vehicle was in the left-lane and his car in the right lane (tr/t p 43). He further alleges that the driver of the car Harvey Cousins put his hands up and then down and that the Housing Police car was 2-3 car lengths behind defendant's vehicle (tr/t 55). PO Pekusic further testified that at no time while discharging his weapon did he see the NYCP officer, PO Rabassa (who testified that him and PO Pekusic approached defendant's vehicle together from the right and left (tr/t at p. 45). Although, PO Pekusic alleged that he fired his weapon at defendant's vehicle no ballistic report was provided substantiating his trial testimony The defendant was unable to cross-examine Police Officer Gordon Pekusic during trial, as a First time witness alleging defendant pointed a weapon at him.

Defendant alleges that had Police Officer Gordon Pekusic prior statements and recordings been disclosed prior to trial he would have been able to show the distinctive scientific calculations relative to the police positions and the impossibilities of either police witnessing this defendant with a weapon. Defendant farther alleged that the absence of any prior statements alleged by to PO Pekusic that Charles McAllister pointed a weapon at him should have been revealed and presented before the trial court as an issue of credibility. As noted above, the reports are Rosario material since the police officer was called as a prosecution witness at defendant's trial and the reports contain factual information provided by the police relating to the subject matter of his testimony. The reports are Brady material since material in the reports might have been used to impeach police officer Gordon Pekusic as to whether he discharged his weapon, whether the defendant pointed a weapon at him and whether he was a interest witness into a investigation by Internal Affairs Unit for excessive use of deadly force and excessive use of physical force during the arrest of defendant and Harvey Cousins who was hospitalized.

ARGUMENT II THE PEOPLE'S FAILURE TO DISCLOSE BRADY MATERIAL CONTRIBUTE TO THE VERDICT, DENIED THE JURORS ABILITY TO ACCESS THE FACTS TRUTH and DENIED THE DEFENDANT A FAIR TRIAL

The People withheld from the defendant a document entitled Firearm Discharge Assault/Injury report filed by the testifying Police Officer Augusta Rabassa at the Grand Jury, Pre-trial and trial proceedings. The defendant at no time during trial was provided with a copy of exhibit P.

PO Rabassa stated: I heard a shot, I didn't know where it came from, if it was the guys in the car or my fellow officer and I responded. I let out some rounds . . ." (tr/t p. 163)

PO Rabassa further testified at the Grand jury: "I don't know if it was the back window or the side window but he had it facing where the housing officer . . ." (Grand Jury p. 12).

PO Rabassa recorded in his memo book, ". . . I saw a backseat driver with a gray gun pointed towards the back window in the direction of the housing officer in fear of my life and the housing officer I let out a few rounds — I thought I shot 2-3 rounds I was told later that I shot seven (7) rounds . . .". (Rabassa Memo Book).

PO Rabassa alleged in the exhibit P that a person 6 feet tall at 280 pounds, male black at age 51 pointed a weapon at another police officer. (supra) And, at all criminal proceedings this Police Officer was called for his testimony by the Prosecutor giving testimony against Charles McAllister, that this defendant pointed a weapon at another police officer. PO Rabassa at trial stated: "He had a weapon pointed toward my direction, not at me because I didn't feel --- I had my weapon out, I didn't feel threatened and from me he went to the opposite side.") Tr/t 159). Charles McAllister is approximately 5'7" in height, at 137 pounds, male black and prsently 41. At the time of arrest he was 34 years of age.

During trial, defendant did not know that PO Rabassa made this prior statement and that this statement was recorded in the Police Department Firearm Discharge Reports. The State has a duty to disclose exculpatory evidence in its possession which is material to the guilt of the defendant (Brady v. Maryland, 373 U.S. 83; People v. Vilardi, 76 N.Y.2d 67, 73). A defendant making a post-conviction Brady claim must establish that the material was not known to the defense (see, People v. Fein, 18 N.Y.2d 162, 169-170; People v. Rodriguez, 223 A.D.2d 605, 606; People v. Ausserau, 77 A.D.2d 152, 156). In addition, a movant must show that the material was never disclosed to him/her (People v. Licitra, 236 A.D.2d 559). The defendant received a copy of the firearm discharge Assault/Injury report through civil disclosure sometime during 1999 from the City Department of Law.

The juror during deliberation asked for a read-back of PO Rabassa testimony (Deliberation 9/21/95 at p. 3).

ARGUMENT III NEWLY DISCOVERED EVIDENCE SINCE THE VERDICT HAVE BEEN DISCOVERED AND WAS NOT MADE AVAILABLE PRIOR TO TRIAL

Defendant have discovered several folders and reports from the NYC Police Department and NYC Civilian Complaint Review Board. As provided in defendant's affidavit reports of the NYPD Field Internal Affairs Unit investigation of the police officers conduct during the arrest of defendants and the discharge of their weapons in public (sic).

The CCRB reports and communication with ADA Steven Ringer in March 1995 and again during trial September 12 and 15 of 1995. When ADA Ringer refused to place a 'DA's Hold' on the pending trial of this defendant based upon investigation of testifying Police officers (March 9, 1995).

The ADA subpoena of CCRB complete file for discoverable documents on 9/12/95, during defendant's trial (sic).

The civil disclosure of a microscopic ballistic examination report (id). Which point toward two different .9 mm semi-automatic pistols being discharged when testimony alleges only one. This matter concerned defendant's trial strategy weighing the distance of the police from the defendant's car when discharging their weapons into the car. The Police allege they fired into a stopped car and further testimony demonstrated that the car was moving. The shells recovered were .9 mm. However, the microscopic report distinguish two different weapons. This discoverable information is farther supported that 2 different .9 mm's was used by testifying detective Edward Latorres on-scene examination of PO Rabassa weapon (supra) and detective Richard Sosa ballistic report on June 2, 1994. These factors together with the testifying police officer conduct during arrest is important to the verdict of innocence and guilt when the issue surround the police conduct for discharging their weapons inside a congested intersection with vehicular and pedestrian movement. There was no evidence other than the police testimony, that defendant Possessed a weapon. No finger prints was introduced. There is no evidence that defendant possessed narcotics found in the front seat of the car which did not belong to defendant. The factors as procured by the newly disclosed evidence shows that there is a reasonable possibility that had this evidence been disclosed the verdict would have been different. See People v. Jackson. 78 N.Y.2d 638.

CONCLUSION

WHEREFORE, thin application for leave to appeal should be granted and for such further and other relief as this Court may deem just and proper in a Court of Law.

Dated; September 10, 2001

RESPECTFULLY SUBMITTED,

/s/________________________ CHARLES A McALLISTER DIN- 96 A1 43 Franklin Correctional Fac. POB 10, Malone, NY 12953

GLENN A. WOLTHER ATTORNEY AT LAW 305 BROADWAY SUITE 1102 NEW YORK, NEW YORK 10007 (212) 964-2120

August 15, 2001

BY HAND

Honorable Constance B. Motley United States District Judge United States District Court 500 Pearl Street New York, N Y 10007

Re: McAllister v.Police Officer Mickey Fontanez. 97 Civ. 7420(CBM)

Dear Judge Motley:

I represent the plaintiff in the above referenced action and am writing in regard to the letter my client sent to Your Honor, dated August 1, 2001, which you have requested that I respond to. In Mr. McAllister's letter he indicates that he has neither received settlement proceeds nor items obtained during discovery in this matter from my office.

As for the settlement proceeds, as of the date of this writing I am still awaiting the settlement check from the City. of course once the check is received and cleared by the bank, it will be forthwith dispersed to Mr. McAllister.

In regard to the discovery items issue, Mr. McAllister's documents are quite extensive. However, I will within the next week gather all documents, tapes and photographs provided by the City as well as deposition transcripts of the police officers and parcel post them to him at Franklin Correctional Facility. I will not be retaining copies of these items.

August 15, 2001 Honorable Constance B. Motley Re: 97 Civ. 7420(CBM) Page 2 of 2.

Finally, Mr. McAllister has requested a copy of my fee affidavit which I will be happy to provide him. Thank you for your time and consideration in this matter.

GLENN A. WOLTHER ATTORNEY AT LAW 305 BROADWAY SUITE 1102 NEW YORK, NEW YORK 10007 (212) 964-2120

BY CERTIFIED MAIL RETURN RECEIPT REQUESTED McAllister v. NYCPD, et al Respectfully submitted, ________________________ Glenn A. Wolther, Esq. cc: Michael Tiliakos, Esq. Assistant Corporation Counsel (By fax regular mail) August 22, 2001 Mr. Charles McAllister Inmate # 96 A 1243 Franklin Correctional Facility PO Box 10 Malone, N Y 12953 Re ., 97 Civ. 7420 (CBM) Dear Mr. McAllister:

I yesterday received the settlement proceeds from the City. As per your request, enclosed find my IOLA Fund check #1002 in the amount of eight thousand three hundred sixty three dollars and eighty four cents ($8,363.84) made out to you. Also per your request, I have forwarded check number #1003 in the amount of thirty thousand dollars ($30,000) made out to Dollie McAllister at 281 Siegel Street, Westbury, N.Y. 11590. I also forwarded check # 1004 in the amount of one thousand six hundred thirty six dollars and sixteen cents ($1,636.16) to the Pro Bono fund, S.D.N.Y., Enjoy!

Finally, please be advised that the City has written to Judge Motley seeking to block my sending you items covered under the Protective Order. I will further advise you on this development when more information becomes available.

GLENN A. WOLTHER ATTORNEY AT LAW 305 BROADWAY · SUITE 1102 NEW YORK, NEW YORK 10007 (212) 964-2120

McAllister v. NYCPD, et al Best, /s/______________________ Glenn A. Wolther, Esq. Enc. / Check #1002 $8,363.84 August 20, 2001 Mr. Charles McAllister Inmate # 96 A 1243 Franklin Correctional Facility PO Box 10 Malone, N Y 12953 Re ., 97 Civ. 7420 (CBM) Dear Mr. McAllister:

I am in receipt of your letter dated August 2, 2001. The Court has also forwarded me a copy of the letter that you wrote to it dated August 1, 2001. Enclosed please find a copy of my August 15, 2001 letter to the Honorable Constance B. Motley in response to your letter. Also enclosed is a copy of the fee affimation, that you requested in your August 1, 2001 letter to the Court. Although you have not requested it, I have also enclosed the May 17, 2001 letter related to the fee application.

My August 15, 2001 letter to the Court is self explanatory, so I will not revisit the issues addressed in it other than to make the following points. First, the City has 90 days from the receipt of your signed release to issue the check. As such, the ninety days have not yet expired. Accordingly, it is premature to seek process to enforce the settlement. It is only after the 90 days that I can reasonably move for enforcement of the settlement.

Secondly, regarding documents and other items. I will this week be sending to you the items referenced in the attached letter to the Court as well as a copy of the protective order. I will not be retaining copies of the items. Be advised that all documents must be returned to the defendants or destroyed if they do not request them to be returned. Failure on your part to comply with the order can potentially subject you to both monetary sanction and/or criminal penalty such as contempt.

August 20, 2001 Mr. Charles McAllister Re McAllister v. NYCPD, et al., 97 Civ. 7420 (CBM) Page 2 of 2.

Your October 29, 1998 addendum to the protective order was rejected by Magistrate Judge Peck. It appears to only allows you to use the items in another action in which the NYC Corporation Counsel represents the defendant. Moreover, you expressly rejected a settlement offer by the City because the City took the position that the document issue was non-negotiable. You subsequently decided to settle, with the clear and express understanding that you would have to abide by the terms of the protective order. As such although I am sending you the items at this point you should in no way misinterpret what appears clear from the protective order, namely that your stated intent to utilize the items in your state court 440 motion could in most instances violate the protective order. Only parts of the deposition that are not covered by the order may be retained and used as well as documents obtained by a source other than defendants or otherwise publicly available. You should consult with your criminal attorney about the possibility of obtaining items you seek via other proper means.

Finally, please be advised that should you continue to press the issue over the protective order, by disobeying it, I will not be able to assist you as it is beyond the scope of my representation. Moreover, even if it were within the scope, I would be compelled under the rules to withdraw as your counsel in the above referenced matter.

Yours, ______________________ Glenn A. Wolther, Esq enc: 8/15/01 letter to Hon. C.B. Motley Fee Affirmation G.A. Wolther, Esq. 5/17/01 letter to Hon. C.B. Motley June 13, 2000 Glenn A. Wolthen, Esq. 305 Broadway — Suite 1102 New York, N Y 10007 Re: McAllister v. NYCPD, et al. Mickey Fontanez, 97 Civ 7420 Dear Mr. Wolthen:

I am in receipt of your most recent letter advising me of your decision to proceed to trial.

I think it should be clear, that we did initially agreed to settle for $20,000.00 and that. for every, thing I would settle for $30,000.00., But, when you included that it could not seek monetary damages for time spent "inside the prison after reversal. I declined the $15,000.00.

I asked that you forward me a copy of the tape previously sent to your office.

I also would like to state, that I would appreciate a copy of the court's order for discover and it's extension of time. As you are aware, I need discovery materials which was withheld until after summary judgment (See Summary Judgment Opposition by Plaintiff).

I can not call because the prison have been shut-down due to shooting's in last two days.

There's alot of discovery materials not turned over. Please send me back a copy of the materials.

Sincerely,

CHARLES MCALLISTER

End. Pretrial Minutes bate stamped and other Police Invoices

CIVILIAN COMPLAINT REVIEW BOARD 40 RECTOR STREET, 2ND FLOOR GENE R. LOPE NEW YORK, NEW YORK 10006 TELEPHONE (212) 442-8833 EXECUTIVE DIRECTOR

RUDOLPH W. GIULIANI MADONNA SAMUDA NIANWAN MAYOR AGENCY COUNSEL November 1, 2000 Charles McAllister DIN 96A1243 P.O. Box 10 Malone, New York 12953 RE: CCRB Case Number 9402081 Dear Mr. McAllister:

The letter dated October 12 that you sent to Frank Wohl was forwarded to me for response.

The stated purpose of your letter is to "reveal the lies police officers made" during their interviews with the Civilian Complaint Review Board (CCRB). Unfortunately, the CCRB is unable to act on the allegations you have made. In accordance with state law, "no removal or disciplinary proceeding shall be commenced more than eighteen months after the occurrence of the alleged incompetency or misconduct complained of . . ." The incident about which you complained occurred in 1994. Therefore, the applicable statute of limitations is expired and charges cannot be brought against the subject officer.

I am sorry that the CCRB is unable to be of further assistance to you.

Sincerely,

Madonna Samuda Nianwan Agency Counsel

PUBLIC ADVOCATE FOR THE CITY OF NEW YORK

December 3, 1996

MARK GREEN Public Advocate Charles McAllister P.O. Box 2000 Pine City, NY 14871 Dear Mr. McAllister,

I am responding to your letter requesting an investigation into reported police misconduct, including the discharge of weapons.

The City of New York's Civilian Complaint Review Board (CCRB) is the independent governmental agency that pursues complaints against members of the New York city police Department. CCRB oversees misconduct including the use of excessive or unnecessary force and abuse of authority. You may file your complaint with CCRB at 40 Rector Street, 2nd floor, New York, N Y 10006, telephone number (212) 800-341-CCRB or 442-8833.

I hope this information proves helpful to you.

PRO SE OFFICE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK OFFICE OF THE CLERK U.S. COURTHOUSE 500 PEARL STREET NEW YORK, N Y 10007

Re: Charles McAllister v. NYCPD, et al.,

Sincerely, _________________ Adam Levin Ombudsman cc Research and Investigations, Office of the Public Advocate JAMES M. PARKISON CLERK Dear Litigant:

Please be advised that your papers were received by the Pro Se Office on MAY 19, 1997. If there are any problems with your papers, they will be returned to you.

If your papers are in order, they will be processed and assigned a docket number and a judge. You will be notified by mail when this is done. Unless directed by the Court, please DO NOT submit any other papers until you have been assigned a docket number.

IMPORTANT NOTE:

YOU MUST IMMEDIATELY NOTIFY THE COURT OF ANY CHANGE OF YOUR ADDRESS BY SUBMITTING A LETTER TO THE PRO SE OFFICE OR YOU RISK DISMISSAL OF YOUR CASE

THE CITY OF NEW YORK C.C.R.B. LAW DEPARTMENT '98 AUG 11, P 12:46 100 CHURCH STREET CASE MANAGEMENT NEW YORK, N Y 10007-2601

BY FAX 212/442-8800 Sincerely, _____________ PRO SE CLERK (212) 805-0175 . rev. 06/28/95 MICHAEL D. HESS August 10, 1998 Corporation Counsel Records Room Civilian Complaint Review Board 40 Rector Street New York, New York 10006 Plaintiffs Name: Charles McAllister Date of Incident: 06/02/94 An action has been commenced against the City of New York by the above-named person. In order to help us defend this action, please produce to me on or before August 24, 1998 the entire CCRB case file #9402081 for the following police officer.

THE CITY OF NEW YORK COMMISSION TO COMBAT POLICE CORRUPTION 17 Battery Place New York, N Y 10004 (212) 487-7350 Fax. (212) 487-7361

Name Shield # TaxID# PO Joseph Rivera 10390 899756 If you have any questions, please do not hesitate to call me. Very truly yours, Madeline Abo Paralegal, General Litigation Division 212-788-8689 C.C.R.B. # 9402081 cc: Elisa R. Baldwin, ACC Richard J. Davis Chair Arnold L Burns Charles M. Carberry Rhea Kemble Dignam Hon. Dennis Edwards Joseph E. Gubbay Executive Director October 29, 1996 Mr. Charles McAllister P.O.B. 2000 Pine City, New York 14871 Dear Mr. McAllister: Your complaint of October 17, 1996, addressed to Commissioner Howard Wilson was forwarded by the New York City Department of Investigation to the Commission to Combat Police Corruption.

After reviewing the allegations, we have determined that your complaint would be more appropriately pursued by the Internal Affairs Bureau of the New York City Police Department.

The Internal Affairs Bureau or another unit within the Police Department contacting you shortly to obtain additional information. Thank you for bringing this matter to our attention and please feel free to contact us for additional assistance.

CIVILIAN COMPLAINT REVIEW BOARD 40 Rector Street, 2ND FLOOR New York, New York 10006 + Telephone (212) 442-8833

MEMORANDUM

Very truly yours Joseph E. Gubbay RUDOLPH W. GIULIANI HECTOR W. SOTO MAYOR EXECUTIVE DIRECTOR TO: POLICE COMMISSIONER FROM: EXECUTIVE DIRECTOR, CIVILIAN COMPLAINT REVIEW BOARD DATE: NOVEMBER 17, 1995 SUBJECT: CCRB CASE NUMBER 9402081 SUBSTANTIATED ALLEGATIONS (A) AGAINST POLICE OFFICER JOSEPH RIVERA, TAX REGISTRY NUMBER 899756, 34 PRECINCT 1. On November 8, 1995, a panel of the Civilian Complaint Review Board met and reviewed the above-referenced case. The circumstances of the complaint and the panel's recommendations are summarized below.

2. This complaint arose on June 2, 1994, when the subject officer and his partner, while on duty, responded to a radio run for additional units and encountered the complainant. The officers attempted to pull the complainant's vehicle over when they allegedly heard the sound of gun shots coming from the rear compartment of the vehicle and noticed someone throw what appeared to be a gun from the vehicle. After leading the officers on a car chase, the complainant, Harvey Cousins, was arrested and charged with Assault on a Police Officer, Possession of a Controlled Substance and Possession of a Gun. These charges were later dismissed when a grand jury failed to indict him

3. The complainant alleged that Police Officer Rivera struck or kicked him repeatedly under his right eye and in the head causing lacerations. The panel substantiated the allegation but made no recommendation as to the level of discipline to be imposed. An additional allegation of an ethnic slur was unsubstantiated.

4. The panel substantiated the allegations based on the existence of medical and pictorial documentation of injuries consistent with the force alleged and on its finding the testimony of the complainant and witnesses to be detailed, candid, and consistent and therefore credible. In addition, the panel felt that the subject officers failure to adequately explain how the complainant received his injuries served to diminish his credibility.

5. Submitted for your appropriate attention.

CIVILIAN COMPLAINT REVIEW BOARD SCRATCH PAD CASE NUMBER: V402081

Hector W. Soto Executive Director COMPL. STATES HE WAS IN A CAR WITH FRIENDS DRIVING ON THE HARLEM RIVER DRIVE WHEN COPS STARTED SHOOTING AT THEIR CAR. COMPL. ALSO STATES THEREWAS NO SHOUTING DONE FROM HIS CAR. COMPL. STATES THAT DAVID OF THE 34 PCT GOT OUT Of THE CAR AND PUT HIS FOOT IN HIS MOUTH. COMPL. WAS TAKEN TO PRESBYTERIAN HOSP. FOR STITCHES. DEPT RECORDS SHOW NO RECORD OF A P.O. DAVID ASSIGNED TO THE 34 PCT............. PISANO-VARGAS...............

COML. CALLED ON 8/31/94 TO BE ADDED TO SAID CASE AS A ADDITIONAL VICTIM. VICTIMS' NAME IS CHARLES MCALLISTER, DOB 11/08/49, RESIDING AT 279 SIEGEL STREET, WESTBURY, LI.. SAID VICTIM AT IS AT C73 RIKERS ISLAND, BED 16, I.D. #3494412386. ***********************A.I. PEREZ************************