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Plea doesn't bar wrongfully convicted man's suit against New York City : court

By Bernard Vaughan

NEW YORK (Reuters) - A man whose 1998 murder conviction was overturned can sue New York City for violating his constitutional rights even though he pleaded guilty to a lesser charge in the crime, a federal appeals court ruled on Thursday.

Allegations in Marcos Poventud's lawsuit against the city are strictly related to his trial and "entirely independent" of his later plea agreement, a divided 2nd U.S. Circuit Court of Appeals ruled.

The court reached its decision after holding a rare "en banc" review of the case by all 13 of its active judges as well as two senior judges. Nine of the judges ruled in favor of Poventud, while five dissented and one dissented in part and concurred in part.

Poventud was convicted of attempted murder in the second degree and other crimes in 1998 for shooting a livery cab driver and sentenced to 10 to 20 years in prison, according to court papers.

His conviction was overturned in 2005 when it was revealed that police had not disclosed that the victim in the case, Younis Duopo, had originally mistakenly identified Poventud's brother Francisco as the shooter.

Francisco Poventud, whose identification cards were found in Duopo's cab, could not have committed the crime because he was incarcerated at the time, according to court papers. Duopo identified Marcos Poventud only after police officers showed Duopo a picture of him four times.

While the state weighed an appeal, Poventud pleaded guilty in January 2006 to third-degree attempted robbery and was immediately released. In 2007 he sued the city, Bronx District Attorney Robert Johnson and members of the police department for violating his constitutional right to due process.

In 2012, U.S. District Judge Deborah Batts dismissed Poventud's lawsuit, in part because of his guilty plea.

In the 39-page opinion issued Thursday, the 2nd Circuit disagreed with Batts and returned the case to the district court. Three appellate judges had come to the same conclusion in a 2-1 decision in April before the appeals court took the rare step of holding a re-hearing before the full panel.

Circuit Judge Richard Wesley, writing for the 2nd Circuit majority, said Poventud has the right to argue to a jury that he could have been acquitted based on reasonable doubt, or been convicted of a lesser charge, had police revealed that Duopo had at first identified someone else as his shooter.

" does not contest the legitimacy of his plea," Wesley wrote. "His claim is restricted to the acts of the police officers before and during his trial in 1998."

In one of three dissenting opinions, Circuit Judge Dennis Jacobs wrote that previous case law "plainly bars" the suit.

"The moral force of a guilty plea will no longer 'quite validly remove the issue of factual guilt from a case,'" Jacobs wrote, quoting from a prior opinion. "But will be merely an admission to be evaded in ... lawsuits impugning the results of extant state criminal proceedings."

A lawyer for Poventud praised the decision.

"We feel vindicated that the client is able to finally get justice for the constitutional violations that the police committed against him," said attorney Julia Kuan.

Mordecai Newman, an attorney for the city, said, "We are reviewing the decision and considering our options."

The case is Marcos Poventud v. City of New York et al, 2nd U.S. Circuit Court of Appeals, No. 12-1011.

(Reporting by Bernard Vaughan; Editing by Scott Malone and Cynthia Osterman)

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