cheryl williams identified donald the bros as the shooter in this case this case began believe in two thousand and nine when there was a shooting in the back of a restaurant it was a crowded restaurant there was adults seated all around the table michelle williams was sixteen year olds years old at the time a young man that all of the adult witnesses identified as as a teenager it was about four identifications taken from from adult witnesses and miss cheryl williams her description of the perpetrator was like a twenty five year old individual police arrived they created a complaint report the complaint report said no witnesses and several of these people were brought back to the precinct to view to view the photos no no identifications were made officers testified that they went to the hospital and at that point they developed a motive where there was according to them a stabbing related to this shooting that implicated my client there was no d d five created for that interview of this emotive witness and they then sought to develop this sixteen year old witness as their only witness in this case  problem is that all of this testimony seems to me to be hearsay and even though it is might be a situation where that evidence were in on the merits then what you're trying to raise would have some support i believe that we can do that with evidence that would not be admissible on the merits and i don't know how you get out of that are explained number one i want to i want to explain the unique situation in a police misconduct case is that what the police say that the  presumption of probable cause so that you know again i'd be with you if they had to show and they can't because there were witnesses or rules it's also hearsay but here you have the presumption of probable cause and so the burden shifts to you fair enough now we presented several different categories of non hearsay information before the court number one we brought this witness to a deposition at her deposition she denied seeing the shooter and her deposition she admitted to telling the police that she did not get a good look at the shooter she also was brought to an independent source hearing before this case was bro she she testified and the criminal court found that she did not have an independent source said testify pretty plainly that the police officers complied with their procedures she denied that she was pressured in any way and she did make an identification she did not make identification she could not recall if she made up the identification she was equivocal on all of these points she said they provide they went along with procedure but she has no idea what that procedure is she's sixteen your honor and there was he he said things both sides but did she say anything given that she said also the things that the presiding judge has said that is sufficient for you to overcome a presumption i mean at most she's been on both sides and you might well call her yourself and when she says b the hearsay evidence to of attack her credibility but still that isn't bringing it in number merits that it's attacking her credibility and so you're still left to something that at her deposition she could not recall if she even went to the grand jury we don't have her grand jury testimony we never were able to receive it but her statement on at her deposition that she did not see the shooter is that not sufficient to create an issue of fact in this case isn't that not isn't that non hearsay testimony sufficient to create an issue of fact as to what she saw keep in mind this is a single witness identification case with absolutely no other evidence what so ever there was several adult witnesses at the at the table where this shooting happened the detective ignored all of them and went straight to this sixteen year old girl and here we are trying to piece witness has said to the police officers that man grabbed my purse and ran away with it and you want to add to it she testified in the grand jury that man i grabbed my purse and you ran away with it you're saying that you if on a deposition one elicits from her i did not see the person who grabbed my purse that that u does that creates a question whether the police officers had probable cause if there is no if there is no evidence contradicting that she said to the police officers that man stole my part that's exactly the issue in this case she she doesn't remember saying any of these things that a police she does it the police say that she said this number she's not a victim she's just a witness but she doesn't remember saying any of this we deposed we asked her did you identify anybody had a line up she said maybe she's brought to an independent source here and he says the judge finds that she has no ability to question that you put you have a grand jury indictment no question and a presumption in all that you are saying might be enough if the question was before was there was not her so on but we do have this rule that because we don't know what went on before but you are a grand jury that where there is a grand jury indictment that is enough for probable cause and you can only attack it on the basis of fraud and the bases of very powerful limited things so what you are before us understandably given the situation and given the hearsay trying to show is something that  i'm not sure you have the evidence this court in cox this court in boyd allowed the plaintiff to proceed to trial despite the fact that there was a grand jury indictment our case is absolutely no different we had a judge review the grand jury minutes she she wrote an opinion that they were utterly on remarkable we don't know we asked miss williams if she actually testified at a grand jury she couldn't recall ok if there was a grand jury testimony all the officers admit it was based only on this sixteen year old's identification of the plaintiff that's it there was nothing else then she comes to court and she says i didn't see the shooting she goes to the criminal court and the criminal court observes that she had an insufficient does testify that i told the police that they didn't get a good look at the shooter that's what she said and we asked her did you go to a lineup was it were you sure that this was the person she said it was maybe completely insufficient evidence that any of the officers testimony in caught in in contrast was she was a one hundred percent confident witness in this case good morning may please the court my name is scott shore i'm here on behalf of the detectives gainer and winters because plaintiffs speculation and conjecture failed to create a fact issue for trial this court should affirm the order dismissing his most as prosecution unfair trial claims on summary judgment with respect to the malicious prosecution claim the plaintiff did not rebut the presumption of probable cause that arose from the grand jury indictment decided cocks from the eastern district of new york not this court cox was a completely different case where the reviewing judge determined practically soo a sponsor that there was legally insufficient evidence for an indictment and under those circumstances an indictment does not give rise to the presumption here that didn't happen here there was legally sufficient information for the indictment and later on there were suppression rulings that meant that the prosecution was unable to proceed with the prosecution because it couldn't establish to process guilt beyond a reasonable doubt that does not vitiate the presumption whatsoever also the fact that the wait hearing in the suppression hearing resulted in the suppression of the iden retroactively invalidate the probable cause the police had for initiating this prosecution that's what this court said in restivo judge livingston i believe you were on that panel and receive the plaintiff says with great certainty fabrication proven fabrication about or the evidence could do it but here all plaintiff is relying on is fragments of deposition testimony that he's tried to twist into solid assertions of fact and that's just not what they are miss williams said clearly two things that she was not coerced and by the police detectives and that the event was so traumatic that she was if you had if you could enter the testimony of the victim and it is william says father that there was coercion that there was fraud there was a piece feelings that might well raise an issue of fact as to whether the grand jury had been i don't say tampered with but in effect an inappropriate kind of thing so that it isn't as if they don't have some stuff but they don't have anything that comes in the marriage so that's that's my problem on a different record your honor perhaps a kind of evidence would enough to rebut to create a fact issue sufficient to survive a summary judgment motion but that's not what they have here what they have from ms williams are some very equivocal statements about whether she saw the guy and then asked was asked well who was the guy and she said i don't know so that's not evidence that she said i never saw the shooter but detectives were very clear that she had a clear look at the shooter and his face in fact described him as having a mean face and she also said that she wasn't sure what she told the police about her view of the shooter that was a quizzical as well so the things that she was certain about were that she wasn't coerced and she would have remembered if she had been and that the event was so traumatic she was trying very hard to block the whole thing from her memory which goes some way towards explaining why her statements two and a half five years after the shooting were so different from what the police detectives wrote down the d d five statements in discovery  acknowledging that again she said things that contradict one another that are not necessarily consistent but did she at any time say in discovery that she had pointed and made an identification in the line up or in the photo id she i don't recall that specifically your honor but the lineup identification sheet is in the record and we have her deposition testimony where she's asked is that your signature on the lineup identification document and she says yes that is my sort of yours on the on the sheet that she identified mr de bras as the shooter what does it say it says that he was in a position of or five i believe and she circles number five as to identify the person and she signed it and she deposition that was her signature go really aren't good elicit the fact that she said that he had a mean face said anything budget mean you could say that about almost any panel of the school not  she it goes to show that she had a good look at his face which is why the police investigation here was a good one reason why it was a good police investigation she was the only person who saw the shooting who saw the shooter face and who was willing to tell the police what she saw my adversary just said that other adult witnesses said that the shooter was younger well the other adult witnesses didn't say that they had seen the shooter they said that they saw someone in the backyard or running out of an alley or approaching the victim and then walking away but never said that they saw that person with a gun that person was the shooter so that doesn't do anything to contradict what ms williams told the police detectives  also asked why all of these witnesses who didn't get a good look at the shooter were brought back to the precinct for further questioning detective gainer answer that question in his deposition on page one thousand it was a requirement sheaf polaski required detectives to do exactly that with respect to the fair trial claim just like to make a couple of points that the sections of the daily as transcript that they rely upon do not say what they like them to say he did not deny telling detective gainer that he had an ongoing dispute pages forty nine to fifty one of his deposition transcript alias did not deny telling gainor that he suspected the plaintiff of shooting up his mother's house rather he expressed his belief that the two shootings were related and mr daly s would like to contradict everything the detectives attributed to him during their interview with him in the hospital but he can't because there is no dispute that that interview took place on september twelfth but mr daly a says well i didn't wake up until several months after that and i wasn't interviewed until police until several months after that so he has no recollection of the conversation during which he made the statements the police attributed to him and therefore he can't deny that he said the things that the police wrote down and i should add that everything he recorded in the d d five but there's no dispute that that conversation happened and the information they later got from the victim peter the earliest merely corroborated what they had from other sources michael dell yes and  you regardless of the grand jury presumption and i don't do not believe it should apply in this case because there is direct evidence that there was no competent evidence before the grand jury and if there was it was extremely brief and we have a much more detailed record here about exactly what ms williams sought about the what about the sheet of the identification the reason that we're here today judge is because the detective refused to allow the defense counsel an opportunity to come to the lineup that's why the lineup was suppressed you just said there was no competent evidence before the grand jury isn't the we don't know what happened from the grand jury none of us ok saying you're not saying there was no competent evidence you're just saying we don't know what was before that we don't know we had the we had the judge review   he said it was utterly on remarkable i just want to move on for one point judge there is there's a claim here that's not barred by any grand jury presumption if your honour's decide to bar the malicious prosecution by the grand jury presumption and that is the fabrication of evidence unlike what counsel has just said mr peter daly is the the victim in this case has completely contradicted the officers but there is a problem but you can see that the meeting two plays which would if that were not so then that argument might stand but once you concede that the meeting to place that means that every statement that he makes can be a direct contradiction of that you mean the media meeting between the victim and the police and that what every month twelfth the twelfth of the month meeting it as opposing counsel mention i don't know what meeting you're referring to your honor but what i can say is does this give a police officer license to say and write in his report whatever he chooses that a witness wants to say because that's exactly what happened here he met with mr dallas at the hospital it goes to whether by a witness could d feelings when he denied something occurred that is conceded to have occurred i can't i can't say on that i follow that but let me just say this there is no dispute that mr daly is provides  detailed analysis of why his discussion with officers in the hospital he's the victim they went to the hospital they met with him he explained how they tried to pressure him to circle his friend donald dobro so as the shooter in this case he refused he also explained that he had no dispute whatsoever with donald bros donald is his friend he explained that his deposition we also included in an affidavit the officers however  exactly how he interacted how they showed him pictures the officers never mentioned in their duty five showing him pictures or asking him to identify don liberals or him refusing to identify down in the pros all of these things happen according to mr dallas at the hospital so i agreed that there's no question that that meeting took place but what mr dahlia said at that those meetings was fabricated in the d d fives not just as to whether or not fruit punch who was a known friend of my client on the pros was present not just or whether or not mr de brose was involved in a prior shooting at mr dalliances house which mr dally is the denied and the officers attributed to him in the d d five so i don't again i can't say i understand exactly where your honor is going with that but what i could say is there it's clear under guard net that officers can not fabricate evidence and the only evidence that a plaintive can bring to bear against an officer riding in a d d five is to interview the person that was supposedly interviewed and ask them did you