Free Reply to Response to Motion - District Court of Connecticut - Connecticut

Case 3:01-cv-01913-DJS

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UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT HOWARD JOHN GOMBERT, JR.,: Plaintiff : : v. : : LARRY LYNCH and WILLIAM : KAMINSKI, : Defendants : CIVIL ACTION NO. 3:01CV1913(DJS)

FEBRUARY 8, 2007

DEFENDANTS' LOCAL RULE 56(a)2 STATEMENT Pursuant to Local Rule 56(a)(1) and (2), defendants Larry Lynch and William Kaminski respectfully submit this Response to the Plaintiff's Supplemental Local Rule 56(a)1 Statement dated January 19, 2007. Also set forth below is the Defendants'

statement of Disputed Issues of Material Fact pursuant to Local Rule 56(a)(2), regarding the Plaintiff's Renewed Motion for Summary Judgment. RESPONSE TO PLAINTIFF'S LOCAL RULE 56(a)1 STATEMENT 1. Admitted in part. Denied insofar as the Firebird was The defendants do not have

"in its usual spot in the driveway."

personal knowledge as to where the plaintiff usually parked the Firebird, and J.'s deposition testimony does not support this

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assertion.

Deposition of J. ("J. Dep. Tr."), attached hereto as

Exhibit C, at 44. 2. Admitted in part. Denied insofar as J.'s deposition

testimony was that she did not return to the house on February 29, 2000. 3. 4. J. Dep. Tr. at 45. Admitted. Denied. Investigator Lynch and Investigator Kaminski

did not meet with J. and a detective from the Carmel Police Department on February 29, 2000. Deposition of William Kaminski

("Kaminski Dep. Tr."), attached hereto as Exhibit B, at 86-87, 117; Deposition of Larry Lynch ("Lynch Dep. Tr."), attached hereto as Exhibit A, at 87. 5. Denied. Investigator Lynch and Investigator Kaminski

were unaware of any investigation of the plaintiff being conducted by the Carmel, New York Police Department on February 29, 2000 and on March 1-2, 2000, when they were executing the search warrant. Id.; Deposition of James Mullin ("Mullin Dep.

Tr."), attached hereto as Exhibit D, at 75. 6. Denied. Investigator Lynch and Investigator Kaminski

did not meet with J. and a detective from the Carmel Police

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Department on February 29, 2000. 117; Lynch Dep. Tr. at 87. 7.

Kaminski Dep. Tr. at 86-87,

Admitted in part, denied insofar as it implies that

the defendants were aware of Carmel, New York's investigation of the plaintiff on February 29, 2000 and during the execution of the search warrant on March 1, 2000. 8. Id.

Admitted insofar as J.'s deposition testimony was that Denied

she spent the night of February 29, 2000 at a hotel.

insofar as her deposition testimony was that the police transported her to the hotel. 9. J. Dep. Tr. at 15.

Admitted, with the clarification that the plaintiff Affidavit of

was arrested at 5:46 p.m. on February 29, 2000.

William Kaminski of 11/23/04, ¶ 14 (Exhibit B to Defendants' 11/23/04 Motion for Summary Judgment). 10. 11. Admitted. Denied. Investigator Kaminski witnessed the plaintiff

being captured. 12.

Kaminski Dep. Tr. at 93.

Admitted in part, denied that Kaminski "has never Investigator

seen" a higher bail set in a sexual assault case.

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Kaminski testified at his deposition that he does not specifically recall a higher bail. 13. 14. Admitted. Admitted only insofar as Investigator Kaminski did not One of the purposes for viewing the Firebird Id. at 129-30. Id. at 112.

have a warrant.

was to ensure no weapons were present. 15.

Admitted only that Investigator Kaminski collected

information and transmitted it to Investigative Services for purposes of obtaining a search warrant. Denied that he

transmitted a "detailed description of the Firebird and its contents." 16. 17. 18. Id. at 204-05. Admitted. Denied. Lynch Dep. Tr. at 223.

Admitted that Investigator Lynch spoke with ASA Guy

Wolf while preparing his application for a search warrant. Denied that Investigator Lynch spoke with ASA Guy Wolf about the Firebird. As to the claim that "State's Attorney Wolf's advice

regarding the bags was to `seize them but don't look in them", that claim is denied. conversation. Investigator Lynch does not recall that

Id. at 221.

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19. 20. 21.

Admitted. Admitted. Admitted in part. Items were removed from the car for Kaminski

safekeeping, not pursuant to an investigatory seizure. Dep. Tr. at 136; Lynch Dep. Tr. at 177-78. 22.

Admitted in part, denied insofar as the description of Exhibit J

the particulars of the search warrant is incomplete.

to Plaintiff's Opposition to Defendants' Renewed Motion for Summary Judgment ("Pl.'s Opp."), dated January 19, 2007. 23. 24. Admitted. Admitted in part, denied insofar as the description of Exhibit

the particulars of the consent to search is incomplete. K to Pl.'s Opp. 25. 26. 27. 28. 29. 30. Denied. Admitted. Admitted. Admitted. Admitted. Denied as stated. Lynch Dep. Tr. at 157.

Defendants admit only that items

were removed from the Firebird after the search of the house and

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that they did not have a warrant for the Firebird.

Items were

removed from the Firebird for safekeeping, not pursuant to an investigatory search and seizure. Lynch Dep. Tr. at 177-78. Kaminski Dep. Tr. at 136;

Also, although her credibility is at

issue, J. has claimed that she removed items from the Firebird on March 1, 2000. 31. 32. Denied. Denied. J. Dep. Tr. at 24-25. Kaminski Dep. Tr. at 130-31, 171. Kaminski Dep. Tr. at 86-87, 117; Lynch Dep.

Tr. at 87, 169. 33. Denied. Kaminski Dep. Tr. at 86-87, 117; Lynch Dep.

Tr. at 87; Mullin Dep. Tr. at 123. 34. 207-09. 35. Admitted that Investigator Lynch came into possession Lynch Dep. Tr. at 16, 171-72. Denied. Kaminski Dep. Tr. at 139; Lynch Dep. Tr. at

of the items in the Firebird.

Denied insofar as Investigator Kaminski does not recall personally removing items from the Firebird. at 132. Kaminski Dep. Tr.

Also, although her credibility is at issue, J. has

claimed that she removed items from the Firebird on March 1, 2000. J. Dep. Tr. at 24-25.

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36.

Admitted that Investigator Kaminski and Investigator

Lynch did not look inside the bags removed from the Firebird. Denied that Investigator Kaminski has a recollection of removing items from the Firebird. Denied that customary practice in 2000

"would have been to inspect any items taken into custody for safekeeping." Investigator Kaminski actually testified that the

current policy is to open containers taken for safekeeping, but that he was not sure what the policy in 2000 was. Tr. at 154-55. 37. 38. 39. Admitted. Admitted. Denied. Kaminski Dep. Tr. at 160-61; Lynch Dep. Tr. Kaminski Dep.

at 179, 237; Mullin Dep. Tr. at 174. 40. Admitted in part. Denied as to the characterization

"warrantless search."

J. pointed out a necklace located in the

Fiero, which was her car, and an officer took that necklace. 41. 87. 42. Admitted that the necklace was not connected to the Denied that Investigator Lynch Denied. Kaminski Dep. Tr. at 87; Lynch Dep. Tr. at

plaintiff's sexual assault on J.

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testified that the necklace was connected to the Carmel, New York investigation. 43. Lynch Dep. Tr. at 200-202.

Admitted only that Lynch photographed the necklace. Id. at 213.

Denied that Lynch seized the necklace. 44.

Admitted that the items from the Firebird were placed

into the crime scene van and transported to NMPD headquarters. Denied insofar as the defendants have no specific recollection of moving the items from the Firebird to the crime scene van. Kaminski Dep. Tr. at 132; Lynch Dep. Tr. at 16, 171-72. 45. 20-23. 46. 47. 48. 49. Admitted. Admitted. Admitted. Denied as stated. Investigator Kaminski's opinion on Denied. Kaminski Dep. Tr. at 80-81; Lynch Dep. Tr. at

an acceptable time frame is irrelevant, immaterial and inadmissible. 50. Kaminski Dep. Tr. at 82. Investigator Lynch testified that the

Denied.

property was in the evidence room between March 1, 2000 and March 9, 2000. Lynch Dep. Tr. at 41.

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51.

Admitted only insofar as the necklace was not logged

into the computer and that it was released by Investigator Mullin to the Carmel Police. Denied that the necklace was

improperly seized, rather it was in J.'s car where the plaintiff had no expectation of privacy. Tr. at 16-17. 52. Admitted, however the fact is incomplete as it Lynch Dep. Tr. at 85-86; J. Dep.

excludes Investigator Lynch's testimony that he reversed the coding when logging the items into the computer system, giving items taken for safekeeping an "evidence" designation and items taken as evidence a "held for safekeeping" designation. Dep. Tr. at 61-63. 53. Admitted, however the fact is incomplete as it Lynch

excludes further testimony that items designated as evidence can also be held for safekeeping. 54. Denied. Id. at 47-48.

One reason why property held for safekeeping

could be listed as evidence is that the computer operator mistakenly miscoded the property. 55. Admitted. Id. at 62.

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56. found.

Admitted except as marking the property as lost or

Investigator Lynch's testimony was that there is only

one designation called "lost and found" not that he could have marked the property "lost" or "found". 57. Denied. Id. at 64.

Investigator Kaminski was not involved in the Kaminski Dep. Tr. at 164. Investigator

April 17, 2000 search.

Lynch was involved in the search, but does not recall whether he seized any property. Lynch Dep. Tr. at 129. The plaintiff

provides no evidentiary support for the assertion that "they never logged those items [seized on April 17] into the NMPD's computer system or created any documentation of the seizure." 58. 59. Admitted. Denied insofar as Investigator Lynch does not recall

whether he photographed any or all of the property during the inventory on May 9, 2000. him to do so. 60. Denied that NMPD policies required

Lynch Dep. Tr. at 113-14.

Denied insofar as the roll call room is open to Mullin Dep. Tr. at 144.

"anyone" at the NMPD. 61. Admitted.

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62.

Denied insofar as the notation means that the item has

been given to the Connecticut State Police before May 9, 2000. Lynch Dep. Tr. at 119. 63. Denied as stated. Investigator Lynch completed an The

inventory of the items in the bags taken from the Firebird. inventory returned to the court pursuant to the May 8, 2000

search warrant, which is a separate document, listed only some of the items. Investigator Lynch does not recall why not all of

the items in the bags were listed on the inventory returned to the court. Lynch Dep. Tr. at 111-12. However, the inventory

returned to the court listed the jewelry taken from the bags and Investigator Lynch had applied for the search warrant specifically to search for stolen jewelry that was suspected to be in the bags. Affidavit and Application for Search and

Seizure Warrant dated May 8, 2000 and Inventory returned to the court dated June 1, 2000, Exhibit E to Pl.'s Opp. 64. Admitted that the plaintiff authorized L. Panico to

retrieve his property. 65. Admitted that the plaintiff sent correspondence to Denied that the

Investigator Lynch regarding his property.

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plaintiff sent six letters to Investigator Lynch.

Denied that

the plaintiff sent correspondence regarding his property to Investigator Kaminski. 66. Exhibit N to Pl.'s Opp.

Denied that Investigator Kaminski received

correspondence from the plaintiff regarding his property. Kaminski Dep. Tr. at 34; Exhibit N to Pl.'s Opp. Denied that Lynch Dep.

Investigator Lynch "refused" to return the property. Tr. at 132-34. 67. Admitted as to Investigator Lynch.

Denied as to

Investigator Kaminski. 68. at 164.

Kaminski Dep. Tr. at 164. Kaminski Dep. Tr.

Denied as to Investigator Kaminski.

Admitted in part as to Investigator Lynch, denied that

Investigator Lynch showed property to the New York State Police or the Putnam County Sheriff's Office. Denied as to the

characterization of "Gombert's property" when only some items were shown to the named individuals or agencies. at 105-06. 69. Tr. at 164. Denied as to Investigator Kaminski. Kaminski Dep. Lynch Dep. Tr.

Admitted in part as to Investigator Lynch, denied

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that property was released to the Danbury State's Attorney's Office. 70. Denied that defendants released any property to the Kaminski Dep. Tr. at 164; Lynch Dep.

Carmel police department. Tr. at 86-87.

Denied that Investigator Kaminski allowed Carmel Kaminski Dep.

police officers to view the plaintiff's property. Tr. at 164.

Admitted insofar as Investigator Lynch testified

that "it was possible" that Carmel police officers viewed some of the plaintiff's property. 71. Lynch Dep. Tr. at 106.

Admitted in part, denied that Investigator Lynch

retained responsibility for the property once it was released. 72. 73. 74. Admitted. Admitted. Admitted insofar as the policies state: "As a general

rule, a search should seldom be conducted without a search warrant, if time and circumstances permit obtaining one." 75. Admitted that the NMPD policies and procedures in

effect in 2000 set forth circumstances where officers could conduct warrantless searches and seizures.

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DEFENDANTS, LARRY LYNCH and WILLIAM KAMINSKI BY /SS/ James N. Tallberg Federal Bar No.: ct17849 Karsten, Dorman & Tallberg, LLC 8 Lowell Road West Hartford, CT 06119 Their Attorney Tel. 860-233-5600 Fax. 860-233-5800 [email protected]

CERTIFICATION I hereby certify that, on February 8, 2007, a copy of the foregoing was filed electronically and served by mail on anyone unable to accept electronic filing. Notice of this filing will

be sent by e-mail to all parties by operation of the Court's electronic filing system or by mail to anyone unable to accept electronic filing. Court's system. /SS/ James N. Tallberg Parties may access this filing through the

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