Wyllie v State of New York

[*1] Wyllie v State of New York 2005 NY Slip Op 52149(U) [10 Misc 3d 1064(A)] Decided on October 26, 2005 Ct Cl Ruderman, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 26, 2005
Ct Cl

Ingrid Wyllie, Claimant, v State of New York, Defendant.



102680



Claimant's attorney:Mendes & Mount, LLP By: Leo Fraiser, Esq. and Michael S. Barrett, Esq.

Defendant's attorney:Hon. Eliot Spitzer, Attorney General for the State of New York By:Gail Pierce-Siponen, Assistant Attorney General

Terry Jane Ruderman, J.

Claimant Ingrid Wyllie seeks damages for injuries she sustained on July 2, 1999 as a result of her alleged wrongful arrest by court officers employed by the New York State Office of Court Administration. The trial of this claim was bifurcated and this decision addresses solely the issue of liability.

Claimant is an attorney formerly employed by the Kings County District Attorney's Office. On July 2, 1999, she was assigned as a felony arraignment assistant in the criminal courts building at 120 Schermerhorn Street, Brooklyn, New York. Her testimony and that elicited from court officers James Vergano and James Campbell[FN1] on claimant's direct case established that on that date, she was taken into custody by Vergano and Campbell in the Arraignment Part 1 (AR-1) courtroom and subsequently arrested and charged with petit larceny and possession of stolen property. She was transported to the 84th Precinct for processing and was later returned to the courthouse and arraigned on charges of criminal possession of stolen property, petit larceny and grand larceny (T-29).[FN2] The charges were presented to a grand jury in Brooklyn and the grand jury returned no indictment.

The circumstances surrounding claimant's arrest were more fully explored on defendant's case. Defendant elicited testimony from claimant, Desiree Martinez, a paralegal employed by the District Attorney's Office, Vergano, Campbell and Court Officer Captain Patricia Coyne. On rebuttal, claimant testified on her own behalf and introduced the testimony of former New York City police officer Karen Fiorello.

Claimant testified that on the morning of July 2, 1999 she was assigned to handle arraignments in Arraignment Part 2 (AR-2). While she was on the record in AR-2, she was approached by Desiree Martinez. Martinez's duties encompassed arraignments in both Arraignment Parts 1 and 2, but she worked at a desk in the AR-1 courtroom. Claimant recalled that Martinez handed her a file and "said it was a warrant or extradition or something" (T-39) and then left but when claimant later examined the papers, only an arrest file was included, not an extradition file as she expected. After unsuccessfully attempting to contact Martinez by telephone, claimant walked to the AR-1 courtroom purportedly to obtain the correct papers.

The layout of AR-1 was established by the testimony of the witnesses and by photographs admitted into evidence (Exs 30, 33, 34). The courtroom is divided into public and working sections by a rail with a single opening in the center. The area behind the rail is designated for spectator seating. The judge's bench is centered along the front wall of the courtroom. From a perspective facing the bench, the main doors are located along the right-hand wall behind the rail. The District Attorney's well, an enclosure made up of work surfaces and file cabinets, is situated along the left wall immediately in front of the rail and the defense attorneys' well is directly across the room along the right wall. The judge's bench is flanked by two doors: [*2]the left presumably leading to the judge's chambers and the right leading to a prisoner holding area. A plexiglass-enclosed seating area for inmates awaiting arraignment is located along the right wall just below the judge's bench.

Claimant entered AR-1 through the main door at approximately 11 a.m. At that point, she observed Vergano "standing across from the District Attorney's well, close to the defense attorney's were [sic] the prisoners come out" (T-32). She walked through the opening in the rail into the District Attorney's well and approached Martinez who was speaking on the telephone while seated at a desk facing the defense attorneys' well. Claimant could not recall whether she and Martinez had a conversation, but claimant testified that she received the desired extradition file from Martinez. Claimant explained that she noticed certain forms were missing which she knew could be found in a drawer of the file cabinet behind Martinez's chair. Claimant acknowledged that the same forms may have been available in a drawer in AR-2, but explained that the drawer in AR-2 is "not organized" and "[t]he drawer where all the forms are kept and organized is in AR-1" (T-40-41). According to her testimony, after standing next to Martinez for a few seconds, claimant turned toward the file cabinet where she believed the forms were kept. The cabinet was a two-drawer lateral cabinet positioned along the courtroom wall between the rail and a four-drawer vertical file cabinet and was, in claimant's estimation, "a couple feet" behind Martinez's chair (T-42). The top drawer of the cabinet was partially filled with hanging file folders (T-81-83, 108; Exs 23, 27). The bottom drawer contained shoes and other miscellaneous items and was not used for filing (T-83-84; Ex 26). Claimant recalled that there were some books and a pocketbook resting on the top of the cabinet. She testified that she set the file from Martinez on the top of the cabinet and "stooped down * * * on the balls of [her] feet" (T-46) and opened the top drawer. Claimant explained that when the drawer slid open, the entire cabinet tipped toward her. As she attempted to push it back to prevent it from falling over on her, she felt Campbell grab her arm and pick her up. He said nothing to her prior to this action. Claimant noted that Campbell had a pocketbook in his hand and inquired whether it was hers. When she advised Campbell it was not, he "proceeded [to] just literally, just drag [her] out of the courtroom" (T-51). Claimant testified that Campbell did not ask Martinez or anyone else about the ownership of the pocketbook at that time.

Campbell and Vergano escorted claimant to a room, referred to as the fingerprint room, located in the rear of Captain Coyne's office. Claimant was advised that she was under investigation and later that she was under arrest. She was handcuffed at some point while in the fingerprint room and at various times throughout the period leading up to her arraignment. She acknowledged making a statement to Coyne the sum and substance of which was "I didn't have anything in my hand" (T-55).

Claimant testified that she never had any problems or made any complaints about her treatment by Vergano or Campbell prior to this incident and she knew of no reason the officers would have arrested her. She denied having come into contact with the pocketbook or having seen or touched a wallet at any time while in AR-1.

Desiree Martinez testified that she had known claimant for six or seven years at the time of the incident and described their relationship as "very good" (T-96). Martinez was unaware of any problems between the District Attorney's Office and Vergano or Campbell. When claimant entered the AR-1 courtroom during the morning of July 2, 1999, Martinez [*3]assumed it was to pick up an extradition folder she had prepared. Martinez testified she had included all the necessary forms and, to her knowledge, no other paperwork was required. She recalled that she was seated facing toward the judge. Claimant went behind Martinez's chair. Thereafter, Martinez heard a noise that sounded like the cabinet was falling. She turned around and saw Campbell helping claimant to her feet. According to Martinez, Campbell had her pocketbook and wallet in one hand and in response to his question as to whom the pocketbook belonged, she identified it as hers.[FN3] She described the pocketbook as a knapsack-shaped bag with a zipper closure. She testified that she had left her pocketbook zippered closed, with the wallet inside, on top of the lateral file cabinet and when she saw it in Campbell's hand, the zipper was open. Some time later, in Coyne's office, Martinez identified her pocketbook and wallet. Martinez testified she had not given claimant permission to open the pocketbook.

James Vergano testified that generally, between four and seven court officers were assigned to AR-1 at a given time, including three officers stationed in the front part of the courtroom near the bench to provide security for the judge and perform various functions in connection with the arraignment process; a rail officer stationed at the opening in the rail to monitor and control access to the working part of the courtroom; and a floor officer in charge of security in the spectator gallery. In addition, two or three police officers would be present in the courtroom to maintain custody of the defendants. According to Vergano, those officers would remain in the front of the courtroom to the right of the bench near the door leading to the holding cells and the plexiglass-enclosed defendants' seating area.

According to Vergano, he was the rail officer and Campbell the floor officer on the date of the incident. In response to questioning from defendant's counsel, Vergano related the following series of events. He was positioned in front of the rail to the right of the opening when claimant entered AR-1 at approximately 11:45 a.m. He watched her proceed to the District Attorney well and begin walking back and forth, then pick up a penal law book and place it on a brown, knapsack-style pocketbook on the top of the lateral file cabinet. He was unconcerned at that point and continued to scan the courtroom. When he looked back to claimant not long after, he noticed she had walked away from the pocketbook and he observed her move back toward it and thumb through the pages of the penal law. As he was watching her, she "was turning around and might have caught [his] eye while she was starting to unzipper a bottom part of the zipper to that pocketbook" (T-135). He saw her reach inside and "kind of just finger around" and then pull out a black wallet (T-136). Vergano attempted to catch Campbell's eye without success. Vergano believed he made eye contact with claimant but "it was like she was looking right through [him]" (T-136). He observed claimant remove the wallet and place it on the top of the file cabinet. At some point, Vergano was successful in catching Campbell's eye and, communicating with head-nodding gestures, directed him to look at claimant. Campbell was positioned in the spectator gallery to the left of the opening in the rail. In response to Vergano's communication, Campbell moved toward the left side of the courtroom, closer to the District Attorney's well but still behind the rail. [*4]

Vergano testified that he saw claimant open the top drawer of the file cabinet and slide the wallet into the drawer. He observed her looking around and squatting down into what he described as a catcher's position with her hands in the drawer, no longer visible to him. He heard Campbell state "step up and step out" to claimant apparently startling her. The file cabinet drawer slid out farther causing the cabinet to tip forward. As claimant fell backwards, she "[threw] the wallet back towards the pocketbook" which was still on the top of the cabinet (T-140-141). Vergano observed Campbell pick up the pocketbook and wallet from the top of the cabinet and ask to whom the pocketbook belonged. After Martinez indicated that it was hers, Vergano and Campbell escorted claimant from the courtroom to the fingerprint room.

Vergano advised Captain Coyne of the incident and she telephoned the District Attorney's Office and New York State Court Officer's Union President Denis Quirk. After a return call from the District Attorney's Office, Coyne advised Vergano that the arrest was theirs and they should take it. Vergano returned to the fingerprint room and placed claimant under arrest on charges of petit larceny and possession of stolen property.

Four days after the incident, Vergano prepared an Unusual Occurrence Report setting forth the circumstances leading up to the arrest (Unusual Occurrence Report [7/6/99], Ex A). The report states in part: R/O [Reporting Officer] observed perp, an A.D.A., enter the well area of AR-1. Perp then entered the well area of the District [Attorneys] Office. R/O observed the perp place a N.Y.S. Penal Law on top of a pocketbook, not belonging to perp. While reading the Penal Law R/O observed perp unzip the side compartment of said pocketbook. R/O then observed perp remove a small brown purse from the pocketbook and placing [sic] purse on large black file cabinet that is in the D.A.'s well area. R/O then notified C.O. James C. Campbell, Jr., Shield # 6177, of the occurrence that was taking place. R/O then observed perp knock purse into the top drawer of the file cabinet. R/O and C.O. Campbell then approached perp and C.O. Campbell observed perp going through open purse. Perp was then removed to D.C.O. for further investigation.

On cross-examination, Vergano indicated that although he saw claimant throw the wallet and he knew it landed "in the approximate vicinity" of the pocketbook and not on the floor, he could not recall specifically where the wallet landed, including whether it landed on the cabinet or in the pocketbook (T-156). He further admitted that he could not recall whether he had seen the wallet in Campbell's hand in the courtroom.

In an effort to impeach Vergano's credibility, claimant's counsel questioned him regarding his testimony before the grand jury in connection with the criminal charges against claimant. Vergano acknowledged telling the grand jury that he had spoken to Campbell and advised him of claimant's activity, as opposed to merely communicating with nonverbal gestures, before Campbell approached claimant. Claimant's counsel also questioned Vergano regarding a worksheet he prepared on the day of the incident in connection with the processing of claimant's arrest (Worksheet, Ex 15). The worksheet recites in part that both Vergano and Campbell "observed perp. open pocketbook belonging to C/W [the complaining witness] and go through said pocketbook removing a purse belonging to C/W." According to Vergano, the form was a [*5]synopsis of what both saw and was admittedly "[not] artfully worded" (T-170-171).

Campbell testified that he observed claimant enter the courtroom on the day of the incident and approach the District Attorney's well, but he paid no further attention to her until he noticed Vergano gesturing to him. Campbell recalled that he was positioned to the right of the opening in the rail at that time. He saw Vergano nod in the direction of the District Attorney's well, a communication Campbell understood to mean that he was to investigate. In response, Campbell began walking along the rail toward the District Attorney's well, a distance he estimated to be a few feet. He observed claimant "in a squat position with her hands inside the cabinet" in a part of the drawer not filled with hanging file folders (T-183). Claimant was going through a wallet "very fast, as if in a hurry to find something" (T-185). Campbell alerted claimant to "get up and step out" (T-185). In her surprise, claimant lost control of the wallet and either grabbed the cabinet or fell against the cabinet, creating a disturbance. She "released" the wallet and it "ended up" with the pocketbook on top of the cabinet in front of where claimant was squatting (T-185, 187). According to Campbell, he came around the rail through the opening he estimated as two steps away, and entered the District Attorney's well at approximately the same time as Vergano. Campbell grabbed the pocketbook, which he noticed was open, and the wallet and inquired as to whom the pocketbook belonged. Martinez replied that it was hers. Campbell then asked claimant to come with him and escorted her from the courtroom to the fingerprint room.

On cross-examination, Campbell testified for the first time that he grabbed the wallet while he was still on the gallery side of the rail. He also clarified that he believed he only asked to whom the pocketbook belonged, not the wallet. Like Vergano, Campbell acknowledged he had testified to the grand jury that before he approached claimant, he and Vergano had a conversation regarding her activity.

Captain Coyne, the supervisor of the court officers in the criminal courts building on July 2, 1999, testified to the assignment of court officers and police officers in the courtroom. She described the responsibility of police officers in the courtroom as generally limited to the security of prisoners during their arraignments and their transfer back and forth to the Department of Correction; the police officers have no responsibility for security in the spectator area, the rail, the District Attorney's well or the bench. Coyne testified she became aware of the events of July 2, 1999 when Vergano and Campbell brought claimant into the fingerprint room and apprised Coyne of the situation. She notified the District Attorney's Office and advised Vergano that he would be the arresting officer. According to Coyne, she spoke to claimant in the fingerprint room and claimant stated: "I didn't have anything in my hand" (T-233).

On her rebuttal case, claimant presented the testimony of Karen Fiorello, a former New York City police officer who was assigned to AR-1 on July 2, 1999. Fiorello explained that generally two police officers were assigned for arraignment purposes, one to process paperwork and the other to stand behind and make sure the defendant does not break security. Fiorello testified that at the time of the incident, she was positioned next to the rail to the left of the opening. She recalled that Vergano was near the courtroom entrance and Campbell was standing near the door to the judge's chambers, just to the left of the bench. As Fiorello described the incident, Campbell ran approximately 15 feet from his post near the front of the courtroom and hurdled the railing at the top of the District Attorney's well enclosure, placing a foot on a desk [*6]located just inside the railing and landing inside the well. At that point, "[p]eople were turning around and looking" and the judge "looked a little puzzled" but did not otherwise react (T2-25). Claimant was bending down in a "semi-crouch" (T2-23). Campbell grabbed her by the arm, held up a dark bag and said "[g]et Frank, get Frank," apparently referring to Frank Minaro, arraignment supervisor for the District Attorney's Office (T2-14). Fiorello observed that the pocketbook appeared closed and she did not see a wallet or see claimant throw anything.

It should be noted that Fiorello did not observe claimant speaking to Martinez or Martinez handing claimant a file. Indeed, Fiorello did not testify as to any of the activity in the District Attorney's well prior to Campbell's approach. Further, Fiorello's description of the events she did purportedly observe diverges widely from the testimony of all the other witnesses. Fiorello alone testified that Vergano was in the gallery. Both court officers and claimant placed him in front of the rail, either directly at the opening or further forward next to the defense attorneys' well. As for Fiorello's own vantage point, purportedly at the opening in the rail, the court officers, Coyne and Fiorello herself made clear that the purpose of the police officers in the courtroom was to maintain custody of the prisoners during their arraignments, a function which would require them to position themselves in the area toward the front of the courtroom where the prisoners were located, not at the opening in the rail. Campbell testified without contradiction that the arraignment of an emotionally disturbed person was underway at the time of the incident, a situation which would presumably require the police officers in the courtroom to be in even closer physical proximity to the prisoner. Moreover, had Campbell run across the courtroom and hurdled the rail into the District Attorney's well creating a sufficient disturbance to attract the attention of the judge and other people in the courtroom, as Fiorello depicted, it is unlikely the activity would have escaped the attention of claimant and Martinez.

In order to prevail on a cause of action for false arrest and imprisonment, the claimant must prove that the defendant intended to confine her, she was conscious of the confinement, she did not consent to same and the confinement was not otherwise privileged (Broughton v State of New York, 37 NY2d 451, cert denied sub nom. Shanbarger v Kellogg, 423 US 929). A warrantless arrest is presumptively unlawful and the defendant has the burden of demonstrating that it was supported by probable cause and therefore legally justified (id. at 458; Martinez v City of Schenectady, 97 NY2d 78, 85; Carlton v Nassau County Police Dept., 306 AD2d 365).[FN4]

Probable cause exists where the facts are such as would induce a reasonable [*7]person, in like circumstances, to believe the claimant has committed a crime (Colon v City of New York, 60 NY2d 78; Smith v County of Nassau, 34 NY2d 18, 25; see also Norasteh v State of New York, 8 Misc 3d 1019). What is required is not "awareness of a particular crime, but only that some crime may have been committed" (Wallace v City of Albany, 283 AD2d 872, 873). Further, the arrest "need not be supported by information and knowledge which, at the time, excludes all possibility of innocence" (People v Sanders, 79 AD2d 688, 690). "Where an officer, in good faith, believes that a person is guilty of a [crime], and his belief rests on such grounds as would induce an ordinarily prudent and cautious man, under the circumstances, to believe likewise, he has such probable cause for his belief as [would] justify him in arresting without a warrant" (Minott v City of New York, 203 AD2d 265, 266-267, quoting People v Coffey, 12 NY2d 443). Thus, the court's inquiry must be based upon the facts known to the arresting officers at the time of the arrest, not on whether sufficient evidence was presented to a grand jury to sustain an indictment (Myers v State of New York, 175 Misc 2d 90, 94, citing People v Coffey, 12 NY2d 441, 443; Minott v City of New York, supra; see CPL 190.65 [setting forth when a grand jury is authorized to issue an indictment]).

When the defense of probable cause is based upon disputed testimony, the inquiry is one of credibility for the fact finder (Parkin v Cornell Univ., 78 NY2d 523, 529; Willinger v City of New Rochelle, 212 AD2d 526). In a parallel Supreme Court action brought by claimant against Vergano and Campbell individually, among other defendants, the Appellate Division, Second Department, recognized that such a factual question was presented by the conflicting accounts of the events leading up to claimant's arrest (Wyllie v District Attorney of County of Kings, 2 AD3d 714). The Court affirmed the denial of the court officers' motion for summary judgment holding that although the officers presented evidence establishing that their arrest of claimant was supported by probable cause, claimant's grand jury testimony regarding the occurrences preceding her arrest was sufficient to raise triable issues of fact (id. at 718). In a non-jury trial, particularly in a close case, evaluating the credibility of witnesses is a matter committed to the court's discretion (Anastasio v Bartone, __ AD3d __, 2005 WL 2659513 [2d Dept]).

While cognizant of the inaccuracies in the testimony of Vergano and Campbell, the Court, having had the opportunity at trial to observe their demeanor and that of all the other witnesses, credits the court officers' account of the events leading up to claimant's arrest. Their testimony establishes that Vergano observed claimant walking back and forth in what can be characterized as a suspicious manner, he saw her pick up a pocketbook, unzip it and reach inside and remove a wallet and place it on the lateral file cabinet. He was able to attract the attention of Campbell and direct him toward the District Attorney's well to observe claimant. Campbell then approached the District Attorney's well and saw claimant crouched over a drawer with her hands inside hurriedly looking through a wallet. He questioned claimant and Martinez as to the ownership of the pocketbook and was informed by claimant that it was not hers. Martinez subsequently identified the pocketbook and wallet and indicated she had left the pocketbook closed, with the wallet inside, and had not given claimant permission to be in her belongings. Under the circumstances, based on their personal observations and the facts as they appeared at the time, Vergano and Campbell had reasonable cause to believe that claimant committed the charged offenses. [*8]

As both parties acknowledge, the Court is presented with two improbable explanations for the events of July 2, 1999. On one hand, defendant proffers an account in which an Assistant District Attorney chose to enter a courtroom crowded with a judge, several court officers, police officers, lawyers, defendants and spectators and attempt to steal money from a co-worker with whom she had a friendly personal relationship. On the other hand, claimant seeks to convince the Court that two experienced court officers with whom she had a cordial professional relationship arrested her without cause and fabricated a series of lies to cover their tracks. Claimant's theory flows from two explanations: either the officers were acting in concert with one another to frame claimant or they mistakenly believed they were witnessing a crime and that belief was not objectively reasonable. The former seems unlikely in that it would have required the court officers to predict that claimant would enter the District Attorney's well of AR-1 and act in a way that dovetailed with their story. Moreover, although malice is not a requisite element of false arrest, the absence of any factual basis to infer a subjective motivation for the court officers' actions does bear on the issue of credibility. As for the latter, the Court is simply not persuaded that the innocuous acts described by claimant could be subject to such gross misinterpretation. Consequently, the Court resolves the factual dispute in favor of the defendant and concludes that the claim must be dismissed. All motions not heretofore ruled upon are denied.

LET JUDGMENT BE ENTERED DISMISSING CLAIM NO. 102680. Footnotes

Footnote 1: James Campbell was a Court Officer on the date of the incident, but has since been promoted to Sergeant.

Footnote 2: Pages of the trial transcript dated June 17, 2005 are preceded by the letter "T". References to the transcript of proceedings held June 30, 2005 are designated "T2".

Footnote 3: Martinez's grand jury testimony was that she did not see her purse (wallet) when Campbell held up her pocketbook. She conceded at trial that she may not have seen the wallet and that Campbell's question and her answer may have related only to the pocketbook.

Footnote 4: Claimant was initially charged with misdemeanor petit larceny and possession of stolen property (T-144). Pursuant to section 155.25 of the Penal Law, "[a] person is guilty of petit larceny when he steals property." The offense is established where the person charged takes property owned by another without the owner's consent in order to deprive the owner of the property or to appropriate it to herself or a third person (People v Shurn, 69 AD2d 64, 65). Misdemeanor possession of stolen property is established when the person charged "knowingly possesses stolen property, with intent to benefit himself or a person other than an owner thereof or to impede the recovery by an owner thereof" (Penal Law § 165.40).