Cannistraci v. Kirsopp

SEBASTIANO CANNISTRACI, Plaintiff,

v. RODGER KIRSOPP, Individually and as an agent, servant, and/or employee of the State of New York;JOHN DOE, whose name is presently unknown, Individually and as an agent,servant and/or employee of the State of New York; and RICHARD ROE,whose name is presently unknown, Individually and as an agent,servant and/or employee of the State of New York, Defendants.

1:10-cv-980

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

Dated: May 16, 2012

(MAD/DRH)

APPEARANCES:

KINDLON & SHANKS, P.C.

Attorneys for Plaintiff

OF COUNSEL:

GENNARO D. CALABRESE, ESQ.

TERENCE L. KINDLON, ESQ.

OFFICE OF THE NEW YORK

STATE ATTORNEY GENERAL

The Capitol

Albany, New York 12224

Attorneys for Defendants

AARON M. BALDWIN, AAG

ADAM SILVERMAN, AAG

C. HARRIS DAGUE, AAG

Mae A. D'Agostino, U.S. District Judge:

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

On August 13, 2010, Plaintiff brought this action pursuant to 42 U.S.C. § 1983 alleging that Defendant violated his Fourth, Fifth, Sixth, Eighth and Fourteenth Amendment rights. Seegenerally Dkt. No. 1. Currently before the Court is Defendant's motion for summary judgment. See Dkt. No. 21.

II. BACKGROUND

Defendant is an Investigator with the New York State Police Bureau of Criminal Investigations. See Dkt. No. 21-1 at ¶ 1.¹ Defendant's employment is based out of the Clifton Park Barracks (the "Barracks"). See id. at ¶ 5. Defendant's primary investigative responsibilities include the investigation of alleged felonies occurring within his Barrack's geographic region (Clifton Park, Halfmoon, Waterford, and the Mechanicville area). See id. at ¶ 7.

On March 11, 2009, the alleged victim's mother, M.N.,² and the alleged victim's twenty-year-old sister, K.N., came to the Barracks and reported a series of sexual offenses involving Plaintiff and the alleged victim. See id. at ¶ 8. M.N. and K.N. reported a sexual relationship between Plaintiff, who was fifty-nine years old at that time, and the alleged victim, a fourteen-year-old girl. See id. at ¶ 9. Defendant interviewed M.N., who informed him that her daughter had recently attempted to commit suicide and had been admitted to Ellis Hospital for treatment and counseling. See id. at ¶ 10. M.N. further informed Defendant that, while receiving treatment, the alleged victim disclosed to counselors that Plaintiff sexually abused her. See id. at ¶ 11.³ When questioned regarding Plaintiff's relationship to the family, M.N. informed Defendant that Plaintiff is the ex-boyfriend of the alleged victim's aunt , Ms. G. See id. at ¶ 12. Plaintiff and Ms. G. had lived together for a period of two years, but had since ended their relationship and lived separate from one another. See id. M.N. went on to inform Defendant regarding the nature of her families' relationship with Plaintiff, as well as some details regarding some alleged incidents between Plaintiff and the alleged victim. See id. at ¶ 13.

Following his interview with M.N., Defendant spoke with K.N., who verified the information provided by M.N. See id. at ¶ 14. K.N. further informed Defendant of the following: (1) she had located $500.00 in the alleged victim's purse; (2) Plaintiff is a flirtatious person who had made passes at her but she had dismissed them; (3) three months earlier, Plaintiff took the alleged victim and a friend to the mall and, when they returned, the alleged victim was upset and stated that Plaintiff was "weird;" and (4) she had listened to at least one recorded telephone conversation where Plaintiff stated that he "wanted to come up and have sex with" the alleged victim. See id.

That same day, Defendant conducted a "Spectrum Justice System" ("SJS") search on Plaintiff, which revealed two prior criminal infractions not related to the alleged crime. See id. at¶ 16. Later that day, M.N. returned to the Clifton Park Barracks with the alleged victim and A.R., the alleged victim's friend. See id. at ¶ 17. Defendant then proceeded to interview the alleged victim, while Investigator Britten interviewed A.R. See id. at ¶ 18.

While Investigator Britten interviewed A.R. in another room, the alleged victim relayed the following information to Defendant:

(a) She had been having sexual relations with the plaintiff since she was twelve (12) when her aunt first met and started dating him;

(b) Her family was close with the plaintiff and he would invite them to his home for gatherings and to use his pool;

(c) The plaintiff would make comments to the alleged victim stating that she was beautiful and make comments regarding her clothing selection and would call her a "sex pot;"

(d) She thought that the plaintiff was very flirtatious and thought that it was "weird" when he would make comments. She wouldn't get uncomfortable because of the comments but knew that her aunt would get upset by them;

(e) In late June 2007, she and her family were at the plaintiff's residence to use his pool and the plaintiff came up behind her and grabbed her buttocks. At the time she was wearing a bathing suit and was located at the side of the plaintiff's home tending to his garden. She did not do anything about the incident and did not inform her parents as to the inappropriate touching.

(f) At the plaintiff's birthday party, she was passing out pizzas and dropped them to the floor. While picking them [up], the plaintiff knelt down and placed his hand up her shorts to touch her buttocks. Again, she did not tell anyone about the inappropriate touching.

(g) She had been meeting the plaintiff on her own without the knowledge of her parents. This had taken place by either she or the plaintiff calling the other to arrange a meeting, usually once per week. She would sneak out of the house by climbing out of her bedroom window, on to the roof and deck and then walk down her street towards the intersecting road. There, she would get into his car and they would drive around Clifton Park.

(h) From time to time when she would meet him he would give her money, usually around $300 and sometimes more.

(i) The plaintiff would drive her around Clifton Park, take her to Dunkin Donuts and Hannaford where she would purchase food and drinks or buy a magazine.

(j) The meetings would usually coincide with the plaintiff's soccer league that meets on Wednesdays at the Sports Plex, Clifton Park.

(k) The weekend after her school let out in 2008 the plaintiff supplied alcohol for her and her acquaintances.

(l) In the summer of 2008, just prior to leaving for a trip to New York City, the plaintiff persuaded her to meet with him so he could provide her some money for the trip. She agreed to meet with him and once her parents went to sleep, she snuck out of the house to meet with him. The plaintiff picked her up in his car and drove her to the Barney Road Clubhouse. There, he parked in the parking lot on the right side, in the first space directly across from the golf course entrance. She indicated that she did not believe it smart to park there because three cars drove by while they were sitting there. He began to speak to her by asking where her parents were, where her sister was and whether or not anyone would be looking for her. When she indicated that everyone was sleeping, he turned the conversation, stating that he couldn't wait for her to turn eighteen (18) years old. She responded by [saying] that she too could not wait until she turned eighteen (18) because she wanted to go to parties and to go dancing. The plaintiff then told her that she was beautiful and a "sex pot." The plaintiff then stated that he wanted to have sex with her at that time. He then reached over, pulled on the seat lever and pushed on her shoulder, pushing her back in a laying position. The plaintiff then began to kiss her neck, unbutton her blouse, grab her inner thigh and pull her shorts down to mid-thigh. The plaintiff then climbed over and sat on top of her. While panting and grunting, he managed to insert his penis into her vagina. After pushing approximately two times into her vagina, she told him to stop and pushed him back causing him to strike the car visor. The plaintiff immediately got off of her and sat in the driver's seat. The plaintiff sat silent for approximately one minute, then apologized repeatedly. She told him that it was ok and to drop her off at her house. The plaintiff promised to make it up to her and then dropped her off where he had picked her up. The plaintiff then told her to keep it a secret and that he would make it up to her. She stated that she was with the plaintiff for about an hour and that his penis was approximately five (5) or six (6) inches long and wasunsure if he was circumcised. The plaintiff was wearing soccer shorts and an "Italia" t-shirt.

(m) A couple of days after the sexual assault described in sub-paragraph (l), the plaintiff called her and advised that he had some money and asked how much she wanted whereby she responded that she wanted $500.00. Approximately three to four days later, the plaintiff contacted her and requested to meet her. She then met with the plaintiff on Seneca Drive where she gave him a hug and he gave her $500.00. She advised that she spent the money on clothes and various other items.

See id. at ¶ 19.

Investigator Britten's interview with A.R. yielded information that corroborated several of the alleged victim's allegations. Specifically, A.R. (1) verified the existence of the shopping trip that the alleged victim described to Defendant; (2) verified that Plaintiff drove her and the alleged victim to the shopping trip in his white SUV; (3) stated that Plaintiff inappropriately touched the alleged victim; (4) informed Investigator Britten that the alleged victim told her that Plaintiff had previously raped her and was bribing her with money; and (5) informed Investigator Britten that she and the alleged victim conducted a three-way phone call with Plaintiff that they recorded in which Plaintiff allegedly stated that he had "'both hands on [his] dick'" and requested that the...