Jailed for attack I couldn’t physically do: suit

A BRONX MAN who spent more than two years in jail before he was acquitted of a pipe attack is suing the arresting officer, claiming he couldn’t have picked up the weapon in the first place — because he doesn’t have enough fingers.

Keith Mitchell says he lost the middle and ring fingers of his right hand to frostbite in 1993 when he was homeless. The index and pinkie fingers, as well as thumb of his right hand, remain curled.

“I can’t tie my shoes right,” Mitchell, 64, told the Daily News in an exclusive interview. “I can’t do the belt. I can’t carry things. I use one finger.”

Mitchell says NYPD Detective Brianna Constantino tried to pin a 2014 burglary and pipe attack in Fordham Heights on him — knowing he was “not physically capable of committing the crime” because the perpetrator was right-handed, according to the lawsuit.

Constantino, the only defendant in Mitchell's lawsuit, did not respond to requests for comment. The city Law Department, the NYPD and the Bronx district attorney’s office also declined comment.

On the evening of Aug. 26, 2014, two men were spotted at a home under construction on E. 187th St. and Bathgate Ave. They snatched tools and copper pipe, police said. When they were leaving — carrying large, heavy bags filled with copper pipe — a neighborhood handyman watching the house confronted them.

The handyman told cops one of the men used his right hand to swing a copper pipe at him, according to the civil suit filed last month.

When the handyman met with Constantino at the 48th Precinct stationhouse on Sept. 5, she showed him dozens of photographs — including three of Mitchell, according to the court transcript and lawsuit.

The handyman passed over Mitchell the first time his photo popped up, the suit claims. The second time, the handyman said his “brain” pointed him to Mitchell's photo, according to a transcript from the criminal trial obtained by The News.

Constantino, 34, told the handyman his brain did that “for a reason,” but he said Mitchell was the wrong guy. The handyman also wavered after Mitchell’s photo appeared a third time, but Constantino said he was right — prompting the handyman to make a bogus ID, according to the suit. The detective arrested Mitchell on Sept. 8.

“She couldn’t fingerprint me,” Mitchell recalled, explaining Constantino and her partner struggled to open his clenched hand at the stationhouse.

The handyman picked Mitchell out of a lineup after his arrest, but none of the other men presented looked like him, charges the civil suit, filed by Debra Greenberger of the law firm Emery Celli Brinckerhoff & Abady LLP.

A judge set Mitchell’s bail at $100,000. Mitchell couldn't pay, so he was held on Rikers Island. When Mitchell’s trial began two years later, Constantino repeatedly testified she couldn’t remember whether he was missing fingers, transcripts of the proceedings show.

The handyman testified he wasn’t sure of Mitchell’s involvement until he saw his photo a third time — becoming more convinced each time he saw the image, according to trial transcripts. Justice Nicholas Iacovetta, who presided over the case, asked whether he was sure because of his judgment, or because of the detective.

“Because of me and then the detective told me, ‘That's him, let’s print it,’ ” the handyman testified.

After Iacovetta asked the question again, the handyman replied, “Because I thought it was the person.”

When contacted by The News last week, the handyman insisted Constantino didn’t push him to identify Mitchell, adding that he hesitated out of fear.

“I’m sure but I’m still scared because, I don’t know, maybe tomorrow he’ll come back and do something to me because he knows me now," he said.

A jury cleared Mitchell of all charges on Oct 19. He has no violent criminal history in New York, records show.

“I stayed in jail so long,” said Mitchell, who is seeking unspecified damages in the lawsuit. “I just don’t want this to happen to anyone else.”