Bellamy v. City of N.Y. (914 F.3d 727, 2019)

Judge Jacobs dissents in a separate opinion.

John M. Walker, Jr., Circuit Judge:

Kareem Bellamy filed this action in the Eastern District of New York under New York state law and 42 U.S.C. § 1983 following the vacatur of his state convictions for murder in the second degree under N.Y. Penal Law § 125.25(2) and criminal possession of a weapon in the fourth degree under N.Y. Penal Law § 265.01(2), for which he served more than 14 years of a 25 years-to-life sentence. Bellamy sued investigating Detectives Michael Solomeno and John Gillen of the New York Police Department (and certain John Does) as well as the City of New York (at times, the "City"), alleging that each are responsible for constitutional infirmities that infected Bellamy's criminal trial, caused his wrongful conviction, and resulted in damages. The district court granted the Defendants' motion for summary judgment.

As relevant on appeal, Bellamy alleged that Detectives Solomeno and Gillen fabricated inculpatory evidence and failed to disclose material exculpatory or impeaching evidence depriving Bellamy of his rights to due process and a fair trial. Bellamy alleged that the City is responsible, pursuant to Monell v. Department of Social Services of City of New York , 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), for violations of Bellamy's due process rights caused by certain policies of the office of the Queens County District Attorney ("QCDA"), the office that prosecuted Bellamy. Principally, Bellamy alleged that (i) the QCDA's office failed to disclose to the defense substantial benefits received by a key state witness due to an office policy of purposefully shielding from prosecutors (and thereby the defense) the full scope of relocation benefits given to witnesses in its witness protection program; and (ii) his prosecutor made prejudicial improper remarks during his summation, which was ultimately a result of the QCDA's office's customary indifference to its prosecutors' summation misconduct.

The district court (Donnelly, J. ) granted Defendants-Appellees' motion for summary judgment and dismissed each of Bellamy's claims. As relevant here, the district court rejected the claims against Detectives Solomeno and Gillen on the ground that Bellamy raised no material issue of fact as to whether either detective fabricated or withheld material evidence. The district court rejected the claims against the City, concluding that the City could not as a matter of law be liable under Monell for the alleged policies of the QCDA's office, and that, in any event, Bellamy did not raise a material issue of fact as to either of the constitutional violations underlying his Monell claims.

The questions for our determination are whether Bellamy has produced sufficient evidence to raise material issues of fact that must be tried to a jury and whether the district court erred in dismissing the Monell claims as a matter of law. If not, summary judgment was proper; if so, then summary judgment should not have been granted.

We conclude that Bellamy has raised material issues of fact as to certain, but not all, of his claims that Detectives Solomeno and Gillen fabricated and withheld material evidence, and we therefore VACATE in part and AFFIRM in part the dismissal of Bellamy's claims against them. We further conclude that the City of New York may be held liable for the consequences of the alleged policies of the QCDA's office under the Monell doctrine, and that Bellamy has raised material issues of fact as to the underlying constitutional violations: the non-disclosure of financial benefits received by one of the state's principal witnesses and the impropriety of his prosecutor's summation. Consequently, we VACATE the dismissal of Bellamy's claims against the City.

We REMAND the cause for further proceedings consistent with this opinion.

BACKGROUND

This appeal requires us to address the complex and protracted facts surrounding the events pertaining to the 1994 killing of James Abbott. While Plaintiff-Appellant Kareem Bellamy was ultimately convicted in New York state court for Abbott's murder, the uncertain circumstances of the killing, and the investigation and trial that followed, sparked a lengthy, circuitous, and at times dramatic legal fight that continued into post-conviction proceedings. That battle began with what the record shows to have been a hard-fought criminal trial with no certain outcome in sight. Ultimately, Bellamy was acquitted on the charge of intentional murder but convicted of depraved indifference murder and unlawful possession of a weapon. After Bellamy exhausted his direct appeal opportunities without success, the post-conviction litigation proceeded in two general stages. First, after a prolonged and complicated state post-conviction process, the state court vacated Bellamy's convictions in light of newly discovered evidence that another individual might have committed the Abbott murder. Second, following the state's decision not to re-try him and his release from prison, Bellamy sought civil relief in federal court alleging that his criminal trial was infected with constitutional error. The instant lawsuit concerns only the latter fight, which pertains not to how or why Bellamy was released but whether constitutional error led to his conviction in the first place.

In assessing the constitutional propriety of Bellamy's criminal trial, we are aided by (i) an extensive summary judgment record, which includes documents related to the investigation and prosecution of Bellamy; (ii) the record of Bellamy's criminal trial; (iii) the record of Bellamy's state post-conviction proceedings; and (iv) extensive deposition testimony taken in this action. Although much is in contention in this case, what follows are the undisputed facts from this complicated record and other relevant facts that we identify as remaining in dispute.

I. James Abbott's Murder and the Resulting Investigation

Shortly before 10:00 a.m., on Saturday, April 9, 1994, an assailant fatally stabbed James Abbott near a phone booth during an altercation after Abbott left a C-Town Supermarket in Far Rockaway, Queens. Detectives Michael Solomeno and John Gillen of the NYPD's 101st Precinct were assigned to investigate. In canvassing the area, Detective Gillen, with other officers, entered the C-Town store with a photo of Abbott to see if anyone had witnessed anything. Detective Gillen spoke with Jay Judel, a C-Town deli clerk, who reported that Abbott, a regular customer, had been in the store alone that morning. Another officer interviewed Andrew Carter, a wheelchair-bound man living adjacent to the C-Town who said that he saw the attack while waiting at a bus stop down the street from the phone booth where the altercation took place. Carter told the officer that he saw three males he did not recognize leave the C-Town, and that when one stopped to use the payphone, the other two "started punching and kicking" him, and that "one of the males then produced a knife and started stabbing the victim numerous times about the body and head." App'x 234. Carter told the officer that the two men fled on foot.

The following week, on April 15, 1994, Detective Gillen received a phone call from a woman who identified herself as Anna Simmons. Simmons reported that she had overheard two individuals, Levon ("Ish") Martin and Rodney ("Turk") Harris, discussing the Abbott murder. Simmons said that she heard Ish and Turk bragging that they had killed Abbott following Abbott's refusal to join their gang, the Regulators. The following day, Detectives Solomeno and Gillen re-interviewed Carter, who was unable to identify Ish and Turk from a photo array. In the days that followed, Detectives Solomeno and Gillen tried to track down Simmons, but never found her.

On April 22, 1994, Linda Sanchez, a C-Town cashier who was working at the store on the morning of Abbott's murder, called the 101st Precinct. Detectives Solomeno and Gillen then interviewed her at her home. Sanchez told the detectives that on the morning of the murder, Abbott, whom she recognized, entered the store, collected certain goods and got in a cashier's line, and that two other men then came into the store and ultimately got in line behind Abbott. After making his purchases, Abbott remained in the store to speak with the store's manager, "JJ," while the two men behind Abbott in line had left the store and started walking through the parking lot "toward the chicken store." App'x 237. Sanchez noted that before they left the parking lot, the two men stopped and looked back at the C-Town store. Sanchez herself then walked to the parking lot to collect shopping carts whereupon she saw Abbott walk out of the store through the parking lot and also in the direction of the "[c]hicken store." App'x 237-238. The detectives showed Sanchez a photo array that included Ish and Turk-the two men identified in the Anna Simmons phone call-but she did not recognize them as the two men she had seen in the store in line behind Abbott.

Three weeks later, on May 13, 1994, Sanchez again called the precinct to report that a man, who was drinking a 40-ounce beer across the street from the C-Town, was one of the two men that she had previously reported were in the cashier's line behind Abbott on the morning of Abbott's murder. Shortly thereafter, Detective Gillen arrived on the scene with other detectives, and they saw Bellamy drinking a 40-ounce beer in the location Sanchez described. The detectives detained Bellamy in a squad car and told him that he was being taken to the station to be fined in relation to his public drinking. As we will discuss later, Detective Gillen said at trial that Bellamy made spontaneous and unprompted comments in the police car regarding a murder, but Bellamy denies that this occurred.

At the police station, Detective Gillen showed Bellamy a photo of Abbott's body and told him that there were witnesses identifying him as the assailant. Bellamy denied any involvement in the murder and told Detective Gillen that he was with a friend named Terrill Lee on the day of the murder. Bellamy was placed in a holding cell overnight.

The following day, May 14, 1994, Detective Gillen orchestrated a six-person lineup at the precinct, to be viewed by Sanchez and Carter, the sole eyewitnesses known to the detectives at that time. Bellamy was in position one. Sanchez identified the individual in position one as one of the two men she saw leave the C-Town prior to Abbott on the day of Abbott's killing. As to be discussed, the parties dispute certain aspects of what occurred during Carter's viewing of the lineup. All agree, however, that Carter initially recognized one of Abbott's assailants in either position one or two but that he subsequently told Detective Gillen in a separate room that he was "99% sure" that the person he recognized was in position one, which in fact was Bellamy. App'x 295, 2415.

Hours later, in the early morning of May 15, 1994, Detective Gillen and Assistant District Attorney (ADA) Stephen Antignani of the QCDA's office took a sworn statement from Terrill Lee, the man Bellamy claimed he was with on the day of Abbott's murder. Lee stated that although he was friends with Bellamy, he was not with him at all on April 9, 1994. Thereupon, that same day, Detective Gillen filled out a criminal complaint charging Bellamy with Abbott's murder.

II. Criminal Proceedings Against Kareem Bellamy

The grand jury indicted Bellamy on two counts of murder in the second degree under N.Y. Penal Law § 125.25(1) (intentional murder) and § 125.25(2) (depraved indifference murder), and one count of criminal possession of a weapon in the fourth degree under N.Y. Penal Law § 265.01(2). After unsuccessful suppression motions by the defense, the case proceeded to trial in November 1995 with ADA David Guy of the QCDA's office as the prosecutor.

As relevant to this appeal, the state called the following witnesses: (i) Detective Gillen; (ii) Linda Sanchez; (iii) Detective Solomeno; (iv) Carter; (v) Deborah Abbot, the victim's sister; and (vi) Veronica Walker, an eyewitness who surfaced for the first time during the trial. We summarize the relevant portions of each state witness's trial testimony and the summations.

Detective Gillen . Detective Gillen's testimony described his investigation of the Abbott murder. He testified about his initial discussion with Carter on the day of the murder, the Anna Simmons phone call the following week, and his role in the lineups. Detective Gillen also testified about the circumstances of picking up Bellamy following Sanchez's call to the precinct. Detective Gillen testified with reference to an unsigned handwritten note that he wrote, that he said was his contemporaneous memorialization of Bellamy's utterance in the squad car on the way to the police station: "This must be a case of mistaken identity-someone probably accused me of murdering someone." Trial Tr. 494-95; see App'x 290. Detective Gillen then testified that after arriving at the station he added the following notation on the same piece of paper: "Statement made by [Bellamy] while being asked his pedigree-spontaneous & unsolicited." Trial Tr. 534-40; App'x 1707. On cross-examination, Detective Gillen acknowledged that he did not incorporate any of Bellamy's statements in a "DD-5," known as a "complaint follow up" form, despite having prepared eight DD-5s throughout the investigation of the Abbott murder. Trial Tr. 527-28, 532-34.

Linda Sanchez . ADA Guy began his questioning of Sanchez by soliciting her biographical information and then asking if she "receive[d] any money from the office of the [QCDA] prior to coming into court today?" Trial Tr. 633. Sanchez acknowledged that she had received $50 from the QCDA's office and anticipated receiving another $50 from the office. She testified that the money was for "food for the babies, Pampers," and amounted to "$25 a day." Trial Tr. 634. She further testified that she "came [to court] with the detective," and that she was staying overnight at a "different location" than her residence, and that "[t]he detective" "put [her] into that differen[t] location." Trial Tr. 634-35.

Sanchez then testified as to what she saw on the morning of April 9, 1994. She identified Bellamy as being in the C-Town that morning, wearing a green jacket and braids in his hair, with "a lot of braids sticking up," and that he and another taller person went to the same line as Abbott. Trial Tr. 639-41, 774. Sanchez had seen Bellamy in the C-Town many times before and noticed him that day because "[h]e was buying beer on a Sunday-on a Saturday that day." Trial Tr. 642. Bellamy was in the store for about fifteen minutes and walked out before Abbott. Sanchez noticed Bellamy turn to the right after he left the store, rather than to the left, the direction in which he usually departed from the store. Sanchez then walked to the parking lot to retrieve shopping carts when she noticed Abbott catch up to Bellamy and the taller person and pass by them. Sanchez testified that when NYPD officers came to the C-Town later that morning, she did not speak to them.

Finally, Sanchez testified that Bellamy threatened her on two separate occasions after the Abbott murder. A week after the murder, Bellamy entered the C-Town and said to her: "You know, you know, you fucking bitch.... You're next." Trial Tr. 706. Then, Sanchez testified that the following occurred on the street on May 13, 1994 before she called the police: "He was pointing at me. You know yelling, at like, yelling something at me. Just pointing and pointing at my direction." Trial Tr. 710. Sanchez testified that she never told the police about these threats, and that she had not told anyone about them until one week before Bellamy's trial (in November 1995).

Detective Solomeno . Detective Solomeno testified that he was initially the assigned detective on the investigation of the Abbott murder, and that he played a role in the Ish and Turk photo arrays shown to Sanchez and Carter and that he conducted the April 22, 1994 interview of Sanchez. Detective Solomeno also testified that, in the days prior to his trial testimony, he had spoken to Deborah Abbott, the victim's sister, who had given him the contact information for a woman named Veronica Walker. Detective Solomeno testified that he spoke with Walker shortly before trial on December 1, 1995 and that he prepared a DD-5 in connection with that interview.

Andrew Carter . Carter testified as to what he saw on the morning of the murder and what happened at the Bellamy lineup. On April 9, 1994, as he was waiting for the bus, he saw three people walk out of the C-Town store, one by himself and the other two together. The three men came "right past" him, and then Carter looked in another direction. Trial Tr. 868. When Carter turned back towards the direction of the three men, "the other two guys were beating the hell out of [Abbott]." Trial Tr. 869. Carter then testified that one of the two men pulled out a "brass knuckle knife" and stabbed Abbott. Trial Tr. 872. Carter pointed to Bellamy from the witness stand and testified that the individual who stabbed Abbott was "the gentlemen right there." Trial Tr. 870-71. Carter had never seen any of the individuals before, but he got a good look at their faces. Trial Tr. 872-73. Carter had "[n]o doubt" that Bellamy was the person he saw stab Abbott that morning. Trial Tr. 872.

Carter then testified at length about viewing the lineup in which Bellamy was in position one. He testified that he initially told the detective that "it was either one or two, because they got their hair different." Trial Tr. 880. Specifically, Carter testified that the individual he saw stab Abbott did not have braids in his hair, but that the person in position one at the lineup did have braids. Carter then had a conversation in another room with an ADA and a detective where Carter "said [it was] two." Trial Tr. 883. Carter testified several times at trial that the individual he saw stab Abbott was in position number two in the lineup. Trial Tr. 895-96, 903-04. Nevertheless, Carter testified that he told the detectives at the time that it was "either one or two," but also that he was 99% sure the assailant was in position number one. Trial Tr. 882, 896, 903. ADA Guy tried to sum up (but not resolve) the confusion on redirect, asking Carter: "You told us today it was number two, but you told the detective it was number one that day?" Trial Tr. 904. Carter responded, "Yes." Trial Tr. 904.

Deborah Abbott . Deborah Abbott, the victim's sister, testified about a conversation she had with Veronica Walker in July of 1995, fifteen months after the killing of her brother but four months prior to the trial. Following that conversation, she called the police and spoke with prosecutor ADA Guy. The next time Deborah Abbott spoke to ADA Guy was one week before the trial, where she for the first time gave identifying information for Walker.

Veronica Walker . Walker testified as to what she saw on the morning of April 9, 1994. Walker stopped into the C-Town prior to a 10:00 a.m. hair appointment, and briefly spoke with Abbott who she recognized from her neighborhood. She left the store after about 5-6 minutes, got in her car, and began to drive away. She stopped at the adjacent intersection and saw through her car's passenger side window that Abbott was fighting with a lone man near a phone booth directly to her right. Walker then made a righthand turn when a skinny 5'6" man with braided hair "came from across the left-hand side of the street from the back of [her] car, running across the street," and joined in the fight between Abbott and the unidentified man. Trial Tr. 1001-03. Walker, who knew Bellamy personally, testified that she did not recognize the man who ran behind her car to join the fight, had never seen him before, and did not see him in the courtroom.

In an apparent attempt to impeach Walker's non-identification of Bellamy, ADA Guy then asked Walker about her interview with Detectives Solomeno and Gillen the previous week:

Q: Well, didn't you tell Detective Solomeno and Detective Gillen that you recognized that person [who you saw run by the car] as Kareem [Bellamy]?

A: No.

Q: What-Well, did you tell Detective Solomeno that the person looked like Kareem?

A: I said it could have been him. It could have.

Trial Tr. 1005. The defense asked Walker almost no questions.

Defense Summation . In summation, the defense argued that the state had not shown that Bellamy committed the Abbott murder beyond a reasonable doubt. It argued that the case was a "rush to judgment," and that "the district attorney was anxious to close this case and so they closed it." Trial Tr. 1099. The defense principally attacked the three eyewitnesses. It argued that Sanchez's story lacked common sense and that she had a motive to lie given her receipt of $25 per day by the QCDA's office. The defense focused on Carter's trial testimony to the effect that the assailant was in position two at the lineup, not position one, and downplayed Carter's in-court identification by arguing that Carter simply pointed to the only "black man" at the defense counsel's table. Trial Tr. 1099. Counsel reminded the jury that Walker did not identify Bellamy as the person she saw run by her car, and rather acknowledged only that it could have been him. The defense also focused on the differing accounts from the witnesses as to whether the assailant did or did not have braided hair. Trial Tr. 1093; compare Trial Tr. 774 & 1003 (Sanchez and Walker's testimony that the assailant had braids) with Trial Tr. 896 (Carter's testimony that the assailant did not have braids). The defense then argued that Bellamy never made the spontaneous "murder" statement in the squad car, and that even if he did, it was not inculpatory. Finally, the defense counsel reminded the jury that the state had never attempted to establish any motive for the killing.

State's Summation . ADA Guy delivered a lengthy summation, acknowledging, at the outset, that the evidence in the case was messy and was not presented in a "tidy little package" for the jury. Trial Tr. 1113. But, he argued, the jury's "task becomes relatively easy" when it applies common sense and focuses principally on the testimony of the three eyewitnesses. Trial Tr. 1115.

ADA Guy acknowledged that Sanchez "may not be the most articulate person," and that she "got a little confused from time to time" and "didn't testify all that well," in that she made certain mistakes and contradictions, but that her story was credible, she had no reason to lie, and there was no "evidence that she is a liar." Trial Tr. 1121, 1138-40, 1144. ADA Guy also acknowledged certain contradictions in Carter's testimony and argued that Carter "made a mistake" when he said that the assailant was in position two at the lineup. Trial Tr. 1134-36. But, ADA Guy argued, "[y]ou don't have to take my word. Common sense will tell you it's the defendant, number one, who is on trial, not some filler in a lineup." Trial Tr. 1137. ADA Guy also acknowledged Walker's non-identification of Bellamy in court but argued that the jury should instead focus on the physical description that she provided of the individual she saw on the morning of the Abbott murder, which is consistent both with Bellamy's actual description and the other eyewitnesses' description of the assailant.

ADA Guy then addressed the defense's remaining contentions. He answered the defense's contention that the state offered no motive for Bellamy's alleged killing of Abbott by arguing that there was no proof, either way, of motive in this case, "submit[ting that] there is no proof that he had no motive." Trial Tr. 1133 (emphasis added). ADA Guy also reminded the jury of Detective Gillen's testimony regarding Bellamy's "premature denial" in the squad car, arguing that it was in character with Bellamy's inability to "keep his mouth shut," a mouth that ADA Guy argued was "huge" and "cavernous," as well as Bellamy's status as a "liar." Trial Tr. 1145-48.

ADA Guy concluded by again imploring the jurors to use their common sense. As reflected in the trial transcript, ADA Guy told the jury: "I know who committed the murder. You know it was an intentional murder and you know there is no rational explanation for why so many people are pointing their fingers at [Bellamy]." Trial Tr. 1149. ADA Guy concluded in substance: "When the defendant asked why would someone be accusing me of murder, by your verdict you can answer his question. Because you are the murderer. It's because the evidence shows that you are the murderer, and that you are not going to get away with it, not this time." Trial Tr. 1150.

* * *

After three days of deliberations, during which the jury submitted eighteen notes to the judge, sought lengthy readbacks of testimony, and was given an Allen charge, the jury acquitted Bellamy of intentional murder but convicted him of depraved indifference murder and a weapons charge. The court sentenced Bellamy to 25-years-to-life. Bellamy appealed the convictions, arguing (i) insufficiency of the evidence; (ii) that Detective Gillen provided false testimony; and (iii) that Bellamy's statements to Gillen and the lineup identifications should have been suppressed. The state appellate court affirmed, 247 A.D.2d 399, 667 N.Y.S.2d 925, and leave to appeal to the Court of Appeals was denied, 91 N.Y.2d 970, 672 N.Y.S.2d 849, 695 N.E.2d 718. Bellamy's federal habeas corpus petition, which depended entirely on his assertion that Gillen falsely testified as to Bellamy's statements in the squad car following his pickup, was denied and not appealed.

III. Bellamy's State Post-Conviction Proceedings

In 2007, more than a decade after his conviction, Bellamy moved to vacate the judgment against him pursuant to N.Y. Crim. Proc. Law § 440.10(f), (g) and (h). See People v. Bellamy , 20 Misc.3d 1131A, 2008 WL 3271995, at *2-3 (Sup. Ct. Queens Cnty. June 27, 2008). The central basis for the sought-after relief was § 440.10(g), which under certain circumstances allows for the vacatur of a guilty verdict upon the discovery of new evidence. The principal new evidence relied on by Bellamy was that: (i) another individual, Ish, had confessed to the Abbott murder to a police informant named Michael Green, and that Green had Ish on tape discussing the crime; and (ii) Carter recanted his trial testimony that identified Bellamy as the assailant and was now asserting that he falsely inculpated Bellamy at trial under pressure by Detective Gillen.

The state post-conviction court conducted a lengthy hearing, which included taking the testimony of several of the trial witnesses, including Carter, Walker, Sanchez, and Detectives Solomeno and Gillen, as well as the testimony of Green and ADA Antignani. As will be discussed, some of the testimony at this hearing added further color to the events surrounding Abbott's murder, while other testimony conflicted with that given at trial. Following the hearing, the court granted Bellamy's motion and vacated his conviction based solely on the newly discovered evidence proffered by Green that inculpated Ish in Abbott's murder. See id. at *11-12 (finding Carter's recantation not credible).

After filing an appeal of that judgment, however, the state moved for reargument before the hearing court, arguing that the evidence from Green that the court relied on to vacate Bellamy's conviction was perjurious and fraudulent. The state submitted an affidavit from Green in which he now admitted that the tape he offered at the § 440 hearing purportedly capturing a conversation between Green and Ish was in fact a recording between Green and an acquaintance pretending to be Ish. See People v. Bellamy , 26 Misc.3d 1210A, 2010 WL 143462, at *1, (Sup. Ct. Queens Cnty. Jan. 14, 2010). The hearing court reopened the proceeding and again took significant witness testimony, including that of Green, who testified consistent with his affidavit that he created the false tape, that he lied at the earlier hearing, and that Ish never told him that he was involved in the Abbott murder.

Despite finding that Green had falsely testified about a fabricated tape, the court adhered to its earlier ruling ordering the vacatur of Bellamy's judgment of conviction. The court found parts of Green's testimony inculpating Ish at the initial hearing credible despite the fake tape and Green's subsequent recantation. Bellamy , 2010 WL 143462, at *6. The Second Department affirmed, agreeing that a "reasonable jury could find ... that [Green's] original unsolicited implication of [Ish] was truthful, regardless of [Green's] later recantation of those statements." 84 A.D.3d 1260, 1262, 923 N.Y.S.2d 681 (2d Dep't 2011). Leave to appeal to the Court of Appeals was denied, 17 N.Y.3d 813, 929 N.Y.S.2d 802, 954 N.E.2d 93, Bellamy was released from prison, and the state dismissed the indictment.

IV. The Instant Civil Action

In March 2012, Bellamy filed the instant action in the Eastern District of New York against the City of New York, Detectives Solomeno and Gillen, and two John Doe defendants. At the core of Bellamy's complaint were allegations that the Defendants engaged in material misconduct during the investigation and trial that deprived him of his rights to due process under the Fourteenth Amendment and to a fair trial under the Sixth Amendment. In short, Bellamy's claims at issue here fall into three general categories: (i) claims that Detectives Solomeno and Gillen fabricated material evidence; (ii) claims that Detectives Solomeno and Gillen withheld material evidence; and (iii) Monell claims against the City of New York based upon allegations that, pursuant to a policy, the QCDA withheld the full scope of relocation benefits it provided to Sanchez and that, due to a systemic failure to train or discipline, ADA Guy's summation was improper. Specifically, as relevant on appeal, Bellamy's complaint alleges that:

(i) Detective Gillen fabricated evidence that Bellamy referenced a murder in the squad car that escorted him to the police station on May 13, 1994 and falsely testified as to such at Bellamy's criminal trial;

(ii) Detective Solomeno fabricated evidence in the form of the contents of a DD-5 that reported that during her December 1, 2005 interview Walker identified Bellamy as the individual she saw on the morning of the Abbott murder;

(iii) Detective Gillen improperly pressured Carter to identify Bellamy in the lineup conducted on May 14, 1994, even though Carter was unsure if Bellamy was the person he saw stab Abbott;

(iv) Detective Gillen and/or Solomeno failed to disclose statements Sanchez made during the investigation indicating that the morning she saw Bellamy was a Sunday, rather than a Saturday, the day on which Abbott was killed;

(v) Detective Gillen failed to disclose Sanchez's statement during the investigation that the person she saw with Bellamy on the morning of the Abbott murder was Terrill Lee;

(vi) Detective Gillen failed to disclose Sanchez's statements to police officers on April 9, 1994, the day of Abbott's murder, that she "didn't see anything" and "didn't know anything";

(vii) Detectives Solomeno and Gillen failed to disclose Walker's statements during her December 1, 2005 interview that Bellamy was not the person she saw on the morning of the Abbott murder and that Walker refused to sign the DD-5 to the effect that she had seen Bellamy;

(viii) the prosecution failed to disclose to the defense the full relocation benefits received by Sanchez as part of her participation in the QCDA's witness protection program; and

(ix) ADA Guy committed prejudicial summation misconduct.

The district court stayed discovery on the core of Bellamy's Monell claims (viii and ix above) but allowed discovery to proceed in full on the claims against Detectives Solomeno and Gillen. See Dkt. No. 52. The parties took substantial deposition testimony, including from the following witnesses: (i) Bellamy; (ii) Detective Gillen; (iii) Detective Solomeno; (iv) ADA Antignani; (v) ADA Guy; (vi) Michael Mansfield, the Director of the QCDA's witness protection program; (vii) Daniel Cox, the administrator of the QCDA's witness protection program responsible for Sanchez's participation; (viii) Sanchez; and (ix) Walker. We refer to the deposition testimony in detail in our forthcoming analysis of Bellamy's claims, but simply preview here that the deposition testimony, like the testimony at the § 440 proceeding, provides further, albeit at times conflicting, accounts of the circumstances surrounding Abbott's murder and the resulting investigation.

At the close of discovery on the claims against Detectives Solomeno and Gillen, both parties cross-moved for summary judgment. In an 80-page ruling, the district court granted summary judgment to Defendants dismissing Bellamy's claims against Detectives Solomeno and Gillen and dismissing the Monell claims on the pleadings. Bellamy v. City of New York , 2017 WL 2189528 (E.D.N.Y. May 17, 2017). First, the district court dismissed Bellamy's malicious prosecution claims against the detectives on the ground that Bellamy failed to raise a triable issue of fact as to whether he was prosecuted without probable cause. Id. at *29-34. Second, it dismissed the core of Bellamy's due process and fair trial claims against Detectives Solomeno and Gillen upon concluding that Bellamy raised no material issue of fact as to whether either detective fabricated or withheld material evidence. Id. at *34-36. Third, it dismissed Bellamy's "shocks the conscience" due process claims against the detectives as duplicative of Bellamy's malicious prosecution claims. Id. at *36. Fourth, it dismissed Bellamy's intentional infliction of emotional distress claims against the detectives on the ground that Bellamy raised no triable issue as to whether the detectives conduct was "extreme and outrageous," and that, regardless, the claims were also duplicative of Bellamy's malicious prosecution claim. Id. at *37. Finally, the district court dismissed Bellamy's Monell claims against the City on the pleadings for two reasons: (i) in light of Van de Kamp v. Goldstein , 555 U.S. 335, 129 S.Ct. 855, 172 L.Ed.2d 706 (2009), the City of New York cannot as a matter of law be liable for the alleged policies of the QCDA's office; and (ii) regardless, Bellamy did not sufficiently establish the underlying constitutional due process violations he alleged: the nondisclosure of Sanchez's relocation benefits and ADA Guy's summation misconduct. Id. at *37-41.

Bellamy's appeal challenges only the dismissal of his due process and fair trial claims against Detectives Solomeno and Gillen and his Monell claims against the City of New York. His baseline position is that (i) as to the claims against Detectives Solomeno and Gillen, the evidence as a whole (from the trial, the post-conviction hearing, and the depositions in the instant civil case), presents disputed issues of material fact that necessitate a trial, and (ii) with respect to the Monell claims, the district court committed legal error and that material fact issues remain as to the underlying conduct alleged.

DISCUSSION

We review de novo both a grant of a summary judgment and the grant of judgment on the pleadings. Bank of New York v. First Millennium, Inc. , 607 F.3d 905, 914, 922 (2d Cir. 2010).

Summary judgment may be granted only "if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). We may affirm the grant of summary judgment only when, in "resolv[ing] all ambiguities and draw[ing] all permissible factual inferences in favor of the [non-moving] party ... the record taken as a whole could not lead a rational trier of fact to find for the non-moving party." Estate of Gustafson v. Target Corp. , 819 F.3d 673, 675 (2d Cir. 2016) (internal quotation marks omitted). Thus, in the present context and of significance here, where the summary judgment non-movant is a former criminal defendant bringing § 1983 claims related to his underlying criminal trial, the summary judgment standard, generally speaking, is the converse of the standard applicable direct appeal of a criminal defendant's conviction, which requires us to "view the evidence in a light that is most favorable to the government, and with all reasonable inferences resolved in favor of the government." United States v. Anderson , 747 F.3d 51, 60 (2d Cir. 2014) (internal quotation marks omitted).

A court may grant judgment on the pleadings only when, after "accept[ing] all factual allegations in the complaint as true and draw[ing] all reasonable inferences in favor of the [plaintiff] ... the complaint [does not] contain sufficient factual matter ... to state a claim to relief that is plausible on its face." Bank of New York , 607 F.3d at 922.

These principles lead us to conclude, contrary to the district court, that Bellamy has succeeded in raising material issues of fact as to a number of the claims subject to this appeal. This requires us to vacate in large part the dismissal of Bellamy's due process and fair trial claims against Detectives Solomeno and Gillen and to vacate in full the dismissal of Bellamy's Monell claims.

I. Claims Against Detectives Solomeno and Gillen

As we have previously discussed, Bellamy's claims against Detectives Solomeno and Gillen fall into two general categories: (i) claims that the detectives fabricated material evidence; and (ii) claims that the detectives withheld material evidence.

a. Evidence Fabrication Claims

"When a police officer creates false information likely to influence a jury's decision and forwards that information to prosecutors, he violates the accused's constitutional right to a fair trial." Ricciuti v. N.Y.C. Transit Auth. , 124 F.3d 123, 130 (2d Cir. 1997). Bellamy contends that Detective Gillen and/or Solomeno fabricated three pieces of material evidence: (i) Bellamy's "murder" statement in the squad car; (ii) Walker's statement implicating Bellamy as recorded in a DD-5 drafted by Detective Solomeno; and (iii) Carter's lineup identification of Bellamy. We conclude that Bellamy has raised material issues of fact precluding summary judgment as to the first two contentions, but not the third.

i. Bellamy's "Murder" Statement in the Squad Car

The prosecution relied at trial on Detective Gillen's testimony regarding an undated and unsigned note that Detective Gillen contended that he wrote while in the squad car shortly after he picked up Bellamy. The note purportedly captured the following utterance from Bellamy: "This must be a case of mistaken identity-someone probably accused me of murdering someone." App'x 290. The note also supposedly transcribed the following squad car statement from Bellamy, which Detective Gillen only added to the note after returning to the precinct: "Why would someone accuse me of something I didn't do?" App'x 290, 2413. Sometime thereafter, Detective Gillen again added to the note the following: "Statement made by def while being asked his pedigree-spontaneous & unsolicited." App'x 1707. The prosecution relied heavily on this evidence at trial. Detective Gillen, the state's first witness, testified at length regarding Bellamy's purported murder statement in the squad car, which Gillen allegedly memorialized in a handwritten note in his police spiral notebook. Trial Tr. 494-96, 529. ADA Guy relied on Bellamy's purported murder statement in summation, Trial Tr. 1124. The prosecution's reliance on this statement is unsurprising because, if Bellamy made it, it is highly inculpatory. No one mentioned Abbott's murder to Bellamy when he was picked up, and from Bellamy's perspective, all indications were that the detectives were detaining Bellamy solely for consuming alcohol in public.

Bellamy has consistently denied making the "murder" statement, including in his deposition in this case, and asserts as part of his fair trial claim that it was wholly fabricated by Detective Gillen. In a brief analysis, the district court rejected the claim, relying on Jeffreys v. City of New York , 426 F.3d 549 (2d Cir. 2005), for the proposition that self-serving deposition testimony that is "unsubstantiated by any other direct evidence" cannot raise an issue of material fact. 2017 WL 2189528, at *31.

We conclude, contrary to the district court, that Bellamy has raised a material issue of fact as to whether Detective Gillen fabricated the note purportedly memorializing Bellamy's "murder" statement in the squad car. Contrary to the district court's analysis, a § 1983 plaintiff's testimony alone may be independently sufficient to raise a genuine issue of material fact. See, e.g. , Rentas v. Ruffin , 816 F.3d 214, 221 (2d Cir. 2016). Jeffreys is inapposite because the self-serving testimony in that case was "contradictory and incomplete," and "so replete with inconsistencies and improbabilities that no reasonable juror would undertake the suspension of disbelief necessary to credit the allegations." 426 F.3d at 555. Here, Bellamy's testimony was consistent and uncomplicated: he never made the statement. Neither is his testimony wholly improbable: why would Bellamy offer such an admission when he was told only that he was being picked up on a public drinking charge?

Further distinguishing this case from Jeffreys is that there is evidence in the record, independent from Bellamy's unequivocal denial, tending to support an inference of fabrication. The DD-5 that Detective Gillen drafted that summarized the circumstances of Bellamy's pickup makes no mention of the "murder" statement, despite the fact that the DD-5 both identified that Bellamy was being investigated for homicide and that Detective Gillen was specifically investigating the Abbott murder when he went to pick up Bellamy. See App'x 1738; see also Trial Tr. 491. At trial, Detective Gillen will no doubt be asked to explain this omission from the DD-5. In so doing, he may repeat the explanation he offered at a pre-trial hearing that the omission was "basically an oversight." App'x 2411. The jury will be free, however, to weigh that assertion against evidence that NYPD detectives commonly understand that DD-5s are to be used at trial and that it is protocol for a suspect's statements to be incorporated into a DD-5, especially statements as significant as those that Detective Gillen attributes to Bellamy. See Solomeno Dep.

Tr. 27-28; Guy Dep. Tr. 79, 126-27; see also Trial Tr. 532-33 (Gillen testimony that he prepared eight DD-5s related to the Abbott murder investigation alone).

The jury will also be free to weigh other evidence tending to undermine Detective Gillen's testimony that Bellamy made the "murder" statement in the police car, such as the fact that Detective Gillen did not identify this statement during his grand jury testimony, see App'x 336-38, and the fact that the record shows that Detective Gillen, who was in the backseat with Bellamy, said that Bellamy "yell[ed]" the "murder" statement but neither of the two other officers who were in the car was asked to-or did-corroborate his story. Both of those detectives testified at trial and neither mentioned the "murder" statement. Gillen Dep. Tr. 53; Trial Tr. 495. In sum, the jury would be entitled to consider the lack of corroboration of Detective Gillen's testimony.

We conclude that, taken as a whole, the evidence compiled at summary judgment, viewed in the light most favorable to Bellamy, cannot rule out the inference that Detective Gillen fabricated the "murder" statement. Bellamy has therefore raised a material issue of fact precluding summary judgment on this fair trial claim.

ii. DD-5 Documenting Walker Interview

On December 1, 2005, while Bellamy's criminal trial was ongoing, Detectives Solomeno and Gillen for the first time interviewed Veronica Walker, who, as discussed, testified at trial that she had been at the scene in her car when Abbott was killed. Following that interview, Detective Solomeno drafted a DD-5 that, he testified, memorialized Walker's statements and forwarded the DD-5 to ADA Guy. Bellamy contends that Detective Solomeno fabricated the statements inculpating Bellamy attributed to Walker in that DD-5, and that the state materially relied on the fabricated DD-5 at trial. We conclude that the summary judgment record, again taken in the light most favorable to non-movant Bellamy, raises a material issue of fact as to whether Detective Solomeno in fact fabricated the evidence contained in the DD-5.

At her deposition, Walker testified in detail about her mid-trial interview with Detectives Solomeno and Gillen. Walker testified that the detectives told her they received her contact information from Deborah Abbott, the victim's sister, and that Deborah had reported to them that she had a conversation with Walker in which Walker said she witnessed Bellamy kill Abbott. Walker testified that she told the detectives that the story was not true, but the detectives continued to insist to her that she witnessed Bellamy murder Abbott. Detective Solomeno then showed Walker two photos of Bellamy, whom she told the detectives she recognized and had seen over 300 times in her life. Walker testified that she repeatedly told the detectives, however, that it was not Bellamy that she saw on the day of the Abbott murder. She testified that, despite those statements, Detective Solomeno drafted the following handwritten statement directly to the contrary and asked Walker to sign it:

Miss Walker stated that she drove past the two males fighting and that when ... she looked back and then saw another male black she knew as Kareem Bellamy also fighting with James [Abbott] and that Kareem and the other male black were kicking and punching James.

App'x 2128-29. Walker swore that she refused to sign the statement because, in her view and consistent with her repeated statements to the detectives, it was not true. As she explained in her deposition:

I read the whole thing and that is not what it stated that I said. It stated that I witnessed Kareem, that I seen Kareem and that is what I was saying to them and that's the reason why I didn't sign it because I did not see him.

Walker Dep. Tr. 40. Walker repeatedly characterized the statement as "lies," Walker Dep. Tr. 127-31, the same position she took years earlier when testifying at Bellamy's § 440 proceeding. First 440 Tr. 97 ("Absolutely not. Never told them that.").

While Detectives Solomeno and Gillen both insist the statement was true, they concede that Walker refused to sign the statement that Detective Solomeno drafted during their December 1, 2005 interview. Solomeno Dep. Tr. 42-43; Gillen Dep. Tr. 191. Detective Solomeno acknowledges that he nevertheless put the "almost word for word" statement in a DD-5, but failed to disclose in the DD-5 that Walker refused to sign it (as he concedes he "should have" done), and that he gave the DD-5 to ADA Guy, again without revealing to the prosecutor that Walker refused to sign the statement. Solomeno Dep. Tr. 143-45. ADA Guy testified that he was unaware of any of this and characterized the allegations of the concealment of the refusal to sign as "very troubling," and, if true, "reprehensible." Guy Dep. Tr. 117.

Significantly, the Defendants do not dispute that the above evidence at the least raises an issue of fact as to whether Detective Solomeno fabricated the Walker statement and forwarded it to ADA Guy. See Br. of Appellees 44-46. Their sole argument in favor of dismissal of this evidence fabrication claim is that the allegedly false DD-5 was immaterial in that it did not impact Bellamy's criminal trial because it was not introduced into evidence and, at trial, Walker did not identify Bellamy. For support, they rely on DuFort v. City of New York , 874 F.3d 338 (2d Cir. 2017), where we concluded that "[m]ere attempts to withhold or falsify evidence cannot form the basis of a § 1983 claim for violation of the right to due process when those attempts have no impact on the conduct of a criminal trial." Id. at 355. We find DuFort readily distinguishable.

DuFort involved a "paradigmatic example of an improperly suggestive lineup," in which detectives allowed a criminal suspect, DuFort, to wear a red sweatshirt during a lineup despite knowing that the sole eyewitness, Park, had told them that, although she could not identify his face, one of the assailants was wearing a red sweatshirt during the commission of the crime. Id. at 348. Park then selected DuFort out of the lineup but did so based solely on her knowledge that the assailant was wearing a red sweatshirt. During the subsequent criminal trial of DuFort, Park could not identify DuFort and testified that she only selected DuFort at the lineup due to his distinctive clothing. Id.

DuFort was acquitted and sued the detectives claiming that their manipulation of the lineup violated his right to a fair trial. We rejected the claim, noting that evidence fabrication claims rest on "the right to have one's case tried based on an accurate evidentiary record that has not been manipulated by the prosecution."

Id. at 355. We concluded that there was no such defect in DuFort's trial record in light of Park's unequivocal and unchallenged testimony to the jury that she only identified DuFort because of his clothing: "the evidence that DuFort claims was withheld or misrepresented was in fact disclosed in a straightforward manner at the trial: the prosecution elicited testimony from [the witness] that she recognized DuFort not by his face, but by his clothing." Id. Consequently, in DuFort , the jury was presented with the full universe of information, despite any earlier police misconduct. Indeed, we noted that it was "undisputed that [the] attempt [to distort the trial record] failed." Id .

DuFort is far afield from the instant case because it is not clear (and certainly not undisputed) that Detective Solomeno's allegedly false DD-5 report had "no impact on the conduct of [Bellamy's] criminal trial." DuFort , 874 F.3d at 355. (emphasis added). Although Walker did not identify Bellamy as the assailant at trial, there was an unacceptable risk, due only to the allegedly fabricated DD-5, that the jury was left with the potentially incorrect impression that she had done so previously. During Solomeno's testimony, ADA Guy elicited the fact that Solomemo had prepared a DD-5 to memorialize the interview with Walker. Trial Tr. 802. While ADA Guy did not introduce the DD-5 into evidence, he then asked Walker during her testimony, "didn't you tell Detective Solomeno and Detective Gillen that you recognized that person as Kareem?" Trial Tr. 1005. Despite Walker's response of "No," the jury could have viewed ADA Guy's question itself as suggesting that Walker did in fact tell the detectives that it was Bellamy she saw and that ADA Guy had a good faith basis for asking the question. And ADA Guy would have had no basis to ask that question if Detective Solomeno had not provided him with the allegedly fabricated DD-5. We have previously noted that, in contexts such as these, "defense counsel's unanswered questions about prior inconsistent statements [may] likely alert[ ] the jury to the issue of the reliability of [the] testimony," and, even where "the jury was told that the lawyer's questions are not evidence ... the sting survives such instructions." See Washington v. Schriver , 255 F.3d 45, 61 (2d Cir. 2001) (internal quotation marks omitted). Significantly, ADA Guy then closed the loop in summation when he argued to the jury that it should take stock of what Walker said in her interview with Detectives Solomeno and Gillen. Trial Tr. 1122-23; see also Trial Tr. 1144.

Further evidence supports the material impact of the Walker DD-5 on Bellamy's conviction. After the trial, ADA Guy stated that the DD-5 was "most helpful" to the prosecution. App'x 1752. As he wrote in a post-trial "commendation letter" to NYPD Commissioner William Bratton praising Detectives Solomeno and Gillen's conduct specifically with respect to the Walker DD-5:

[Detectives Solomeno and Gillen] also helped locate a previously unknown (second) eye-witness to the murder and interviewed her in the midst of my trial, and helped secure her appearance, too.

She proved to be fairly uncooperative, but because your detectives had prepared a detailed DD-5 of their conversation with her, she had less "wiggle" room, and in the end what she had told the detectives proved most helpful .

App'x 1752 (emphasis added). It is therefore plain that ADA Guy, for his part, thought that the DD-5 provided to him by Detective Solomeno was material to Bellamy's conviction. See also Guy Dep. Tr. 208 (testifying that he only sent commendation letters "from time to time in a case that I thought merited a little pat on the back ... Not many, more than just two or three"). Finally, it bears noting that the jurors apparently attached significance to Walker's testimony because that testimony prompted their only request for a second readback of particular testimony during deliberations. See Trial Tr. 1209, 1224-26. Under these circumstances, we find that there is "an overwhelming probability that the jury [was] unable to follow the court's instructions" that the lawyers' questions are not evidence, and "a strong likelihood that the effect of the evidence [was] devastating to the defendant." Greer v. Miller , 483 U.S. 756, 766 n.8, 107 S.Ct. 3102, 97 L.Ed.2d 618 (1987) (citation omitted).

Of course, it is entirely possible that Walker implicated Bellamy to the detectives and that her later denials were false, and that Detective Solomeno simply prepared a truthful DD-5 that Walker refused to sign. But this is a quintessentially disputed fact issue, as neither side contests, and it is a material one, as the record shows. We therefore conclude that, notwithstanding DuFort , Bellamy has raised a material issue of fact as to the truth or fabrication of the contents of the DD-5 purportedly memorializing Detectives Solomeno and Gillen's December 1, 2005 interview with Walker.

iii. Carter's Lineup Identification

Bellamy contends that Detective Gillen pressured Carter to identify Bellamy in the lineup that took place on May 14, 1994. Specifically, Bellamy contends that Carter initially was indecisive about whether the assailant was in position one or two, but that Carter was then taken to another room with Detective Gillen where Detective Gillen proceeded to put pressure on Carter to identify the individual in position one, which Carter ultimately did.

The sole direct evidence supporting this claim appears to be Carter's testimony at Bellamy's § 440 proceeding, in which Carter, in recanting his trial testimony, testified that Detective Gillen pointed out Bellamy at the lineup and pressured Carter to identify him. Subsequent to that testimony, however, Carter died, and Bellamy concedes that Carter's testimony at the § 440 proceeding will not be admissible at trial. Br. of Appellant at 24 n.10. And, it is axiomatic that, when reviewing a summary judgment determination, we may only consider admissible evidence. See Ehrens v. Lutheran Church , 385 F.3d 232, 235 (2d Cir. 2004) (per curiam). Bellamy therefore relies only on a claimed inference in his attempt to raise a genuine issue of fact as to whether Detective Gillen pressured Carter at the lineup. Bellamy focuses on two aspects of Detective Gillen's testimony: (i) that Detective Gillen told Bellamy to pat down his braids prior to the lineup; and (ii) that Carter then told Detective Gillen that the basis of his confusion as to whether the assailant was in position one or two was the braided hair of the individual in position one. Consequently, Bellamy contends that it is "likely [that Gillen] suggested to Carter the braids explanation for why he had failed to recognize Number 1." Br. of Appellant at 41. This contention is pure speculation and is therefore insufficient to raise a triable issue of fact. See Harlen Assocs. v. Inc. Village of Mineola , 273 F.3d 494, 502 (2d Cir. 2001). We affirm the district court's dismissal of this claim of misconduct.

b. Evidence Withholding Claims

When police officers withhold exculpatory or impeaching evidence from prosecutors, they may be held liable under § 1983 for violating the disclosure requirements of Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). See Bermudez v. City of New York , 790 F.3d 368, 376 n.4 (2d Cir. 2015) (citing Walker v. City of New York , 974 F.2d 293, 299 (2d Cir. 1992) ). To prevail on such a claim, a plaintiff must show the materiality of the nondisclosed evidence, a showing that "does not depend on factual innocence, but rather what would have been proven absent the violation ... [with] reference to the likely effect that the suppression of [the] particular evidence had on the outcome of the trial." Poventud v. City of New York , 750 F.3d 121, 134 (2d Cir. 2014) (en banc ) (internal quotation marks and emphasis omitted). Stated differently, to show prejudice the claimant "must demonstrate a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different." United States v. Ulbricht , 858 F.3d 71, 112 (2d Cir. 2017) (internal quotation marks omitted). For example, a § 1983 plaintiff proceeding on a Brady theory can succeed on his claim if, had the withheld information been disclosed prior to trial, "he would have been acquitted based on reasonable doubt or convicted on a lesser charge." Poventud , 750 F.3d at 134-35.

Bellamy contends that Detectives Solomeno and Gillen violated Brady by failing to disclose to prosecutors four categories of exculpatory or impeaching statements made by Sanchez and Walker during the course of the investigation of the Abbott murder: first, that in the weeks following the murder, Sanchez told Detective Gillen that she saw Bellamy in the C-Town trying to buy beer on a day in which C-Town did not (and legally could not) sell beer before noon, which could only have been a Sunday (rather than a Saturday, the day Abbott was killed); second, that Sanchez identified Terrill Lee to Detective Gillen as the person that she saw with Bellamy in the C-Town on the morning of Abbott's murder; third, that on the day of Abbott's murder Sanchez told Detective Gillen that she "didn't see anything" and "didn't know anything"; and fourth, Detectives Solomeno and Gillen failed to disclose Walker's claimed non-identification of Bellamy at her December 1, 1995 interview as well as her refusal to sign the DD-5 attesting that she had so identified Bellamy. We address each in turn.

i. Sanchez's Sunday/Beer Statement

Bellamy contends that Detectives Solomeno and Gillen failed to disclose to the prosecution statements Sanchez made to them during the investigation of the Abbott murder that the day in which she reported seeing Bellamy in the C-Town with Abbott was a Sunday and a day in which the C-Town could not have lawfully sold beer prior to noon (which could only have been a Sunday). See N.Y. Alco. Bev. Cont. Law § 105-a (1971) (amended 2006). It is undisputed that Abbott was killed on Saturday, April 9, 1994. Although Sanchez's several rounds of testimony in this legal saga have been consistently inconsistent, Sanchez more than once testified that she told detectives that she saw Bellamy on a Sunday. During Bellamy's § 440 proceeding, she repeatedly testified that Bellamy was trying to buy beer on a Sunday when he could not, and agreed that she "first told police that [she] saw Kareem Bellamy on a Sunday." First 440 Tr. 458-59. She reaffirmed this testimony in her deposition in this case, testifying that "[a]t some point" she told Detective Gillen th