McPherson v City of New York Police Dept.

[*1] McPherson v City of New York Police Dept. 2009 NY Slip Op 52206(U) [25 Misc 3d 1220(A)] Decided on November 2, 2009 Supreme Court, Bronx County Ruiz, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 2, 2009
Supreme Court, Bronx County

Janice McPherson, Plaintiff,

against

The City of New York Police Department, POLICE COMMISSIONER RAYMOND KELLY, POLICE OFFICER PADILLA AND JANE DOES No.1, Defendants.



301138/2007

Norma Ruiz, J.

Defendants The City of New York Police Department, Police Commissioner Raymond Kelly, and Police Officers Padilla and Jane Does #

1 (hereinafter referred to as "City"), move for an Order pursuant to C.P.L.R. §3212 granting summary judgment in favor of the defendants on the grounds that probable cause existed for the arrest of the plaintiff.

Plaintiff served a Notice of Claim on the City on or about April 20, 2007 and thereafter commenced this action by filing a summons and verified complaint on or about September 19, 2007, alleging causes of action for false arrest and malicious prosecution by Police Officer Denise Emmanuel, civil rights violations pursuant to 42 U.S.C.§ 1983, as well as a number of negligence claims.

The predicate for this action arose following the arrest of the plaintiff on October 23, 2006. The arrest by Police Officer Denise Emmanuel was preceded by a complaint report filed with the New York City Police Department by complainants Jaqueline Kennedy and her ten year old son Joseph Kennedy who alleged that on or about October 19, 2006, the plaintiff had threatened the ten year old Joseph with a box-cutter. The criminal court complaint, which was drawn following a positive identification of the plaintiff from a photo array by Joseph Kennedy and the sworn statements of both complainants, charged the plaintiff with: Menacing in the second and third degrees (P.L.§120.14, § 120.15); Criminal Possession of a Weapon ( the box- cutter) in the fourth degree ( P.L. §265.01) and Endangering the Welfare of a Child ( P.L. § [*2]260.10). [FN1] Ultimately, the criminal charges were dismissed on February 21, 2007 by Acting Supreme Court Justice William Mogulescu. It is unclear whether the dismissal was on the merits, whether the charges were dismissed on procedural grounds (e.g. C.P.L. § 30.30 speedy trial), or whether the plaintiff received an adjournment in contemplation of dismissal (C.P.L.§170.55) which is a dismissal in the interest of justice and not on the merits.

The plaintiff opposes, arguing that the question of probable cause is a question of fact for the jury's determination. The plaintiff contends that a complaint primarily drawn on the sworn statement of a ten year old child, where no box-cutter was recovered from the person of the plaintiff upon her arrest approximately four days following the alleged crime, falls short of establishing probable cause to make the arrest.

PROBABLE CAUSE:

In order to prevail on the within claims, the plaintiff has the burden of proving that the defendants arrested her without probable cause to believe that she had committed the crimes as charged (Lee v City of New York 272A.D. 2d.586 [2nd Dept.2000] "reasonable" and "probable" charged (the terms "reasonable cause" and "proable cause" are used interchangeably as per statute and case law, see People v Johnson, 66 NY2d . 398 [1985]).

A police officer is authorized to arrest a person pursuant to Criminal Procedure Law§140.10(1), for:

(a) any offense when he has reasonable cause

to believe that such person has committed

such offense inhis presence

and

(b) a crime when he has reasonable cause to believe that such person has committed such crime, whether in his presence or otherwise... (emphasis supplied) [*3]

Reasonable Cause is defined as follows:

(C.P.L.§70.10 (2)

"Reasonable cause to believe that a person has committed an offense"exists when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it. Except as otherwise provided in this chapter, such apparently reliable evidence may include or consist of hearsay (emphasissupplied) (see also, Coleman v City of New York, 182 AD2d .2000 [1st Dept.,1992] Colon v City of New York, 60 NY2d 78[1983]).

Therefore, in evaluating probable cause, the Court considers the facts available to the police officer contemporaneous with the arrest. That is, those facts which "... would induce an ordinarily prudent and cautious person, under the circumstances to believe that plaintiff had committed the crime" (Drayton v City of New York, 292 AD2d . 182[1st Dept., 2002]).

Additionally, a party may act with probable cause even though mistaken, for a mistake of fact as to the identity of a criminal may be consistent with probable cause if the party acted reasonably under the circumstances in good faith. (Colon, supra ).

Moreover, information provided by an identified citizen accusing another of committing specific crimes is sufficient to provide the police with probable cause to arrest (People v. Williams, 301 AD2d 543, 753 NYS2d 377, 1v. denied 100 NY2d 589, 764 NYS2d 400,796 NE2d 492; see People v .Bingham, 263 AD2d 611, 612, 692 NYS2d 823, 1v. denied622 93 NY2d 1014, 697 NYS2d 573, 719 NE2d 934). The reliability and veracity of an identified citizen is presumed, particularly in light of " the criminal sanctions attendant upon falsely reporting...information to the authorities" (People v. Chipp, 75 NY2d 327, 340,553 NYS2d 72, 552 NE2d 608, cert. denied 498 U.S. 833, 111 S. Ct. 99, 112 L.Ed 2d 70; People v. Griffen, 15 AD3d . 502 [2nd Dept., 2005]; People v Brito 59 AD3d 1000, 1000, 872 NYS2d 621, 621-622 (N.Y.A.D. 4 Dept., 2009)

In her opposition, plaintiff makes much ado about the age of the complaining witness, a ten year old child, suggesting that Joseph Kennedy's information is less reliable solely attributable to his tender years. Such a contention is belied by the fact that the infant complainant made a sworn statement. Such may only be submitted in support of a criminal complaint to convert same into an information, where there has first been an examination of the infant who has satisfactorily demonstrated that he knew the difference between telling the truth and telling a lie, promised to tell the truth and acknowledged that he would be punished by his family and/or God if he did not tell the truth.(see C.P.L § 60.20 [2]; People v. Nisoff, 36 NY2d 560, 566, 369 N.Y.S.2d 686, 330, NE2d 638; People v. Mendoza, 49 AD3d . 559, [2nd Dept., 2008] [ five-year old competent to give sworn testimony]; Matter of James N., 19 AD3d 1047, 1048, 796, 678, 791 NYS2d 587; People v. Gillard, 7 AD3d 540, 541,776 N.Y.S 2d 95; People v. Brill, 245 AD2d 384, 666 N.Y.S 2d 195; People v. Roger S., 168 AD2d 581, 562 N.Y.S 2d 797).

As such, children are required to demonstrate that they understand the consequences of not telling the truth before their statements may be received in Court, in support of criminal complaints or indictments, or at trial and hearings.

Plaintiff also maintains that it was incumbent upon the police officers to conduct an investigation to verify the information provided by young Mr. Kennedy before placing her under [*4]arrest (citing Carlton v. Nassau County Police Dept.,306 AD2d 365 [2d Dept., 2003][police officer knew that plaintiff had provided his business card to restaurant owner on a dispute over a bill: question whether reasonable person would have made further inquiry before arrest]; Maskantz v. Hayes, 39 AD3d 211[1st Dept.,2007] [question of probable cause related to an individual initiating criminal charges]; Hernandez v. State, 228 AD2d . 902 [3rd Dept., 1996][undercover police officer failed to inform prosecutor that the individual from whom he had previously purchased drugs was not the plaintiff]; People v. Smith 18 Misc 3d 1136 (A) [Supreme Court, Bronx County, January, 2008][investigating Detective failed to interview any 911 witnesses and failed to apprise the assistant district attorney of the inconsistencies in the statement of two witnesses, as well as the implication that one of these witnesses may have participated in the subject crime]).

Reliance by plaintiff upon the cited cases is misplaced. Here, the arresting officer was faced with the exigent circumstances of a ten year old child allegedly being menaced with a weapon by an adult. Indeed, the complaining witnesses were being provided with temporary housing at a shelter where the plaintiff worked as a security guard. Too often the daily stresses and frictions experienced by residents and personnel in such settings have led to involvement by the NYPD on 911 calls. So that, "what is reasonable cause is a total judgment, a judgment based not upon technicalities, but upon the practicalities and exigencies confronting a prudent man at the moment". (People v. Horowitz, 27 AD2d . 367,369).

Moreover, because there was a possibility that the alleged conduct could be on-going, following the investigation of the underlying facts as reported by the complaining witness which included a photo array, the arresting officer acted reasonably in executing the arrest of the plaintiff, notwithstanding her exculpatory statements or sel-serving denial of the charges (See, Drayton, supra ; Coleman, supra ).

It is irrelevant to the question of probable cause whether the box cutter was recovered from the plaintiff upon her arrest. Nor, under the circumstances, were the police obligated to conduct a search for the weapon. (See, Stratton v City of Albany, 204 AD2d 924 [3rd Dept., 1994]). Indeed, whether or not the box cutter was recovered was an issue of fact, bearing upon the weight of the evidence, at the trial stage of the proceedings. "... the reasonable cause necessary to support an arrest cannot demand the same strictness of proof as the accused's guilt upon a trial, unless the powers of peace officers are to be so cut down that they cannot possibly perform their duties (internal citation omitted)". Horowitz, supra at 370. Ultimately, whether the District Attorney had sufficient evidence to establish proof beyond a reasonable doubt, at trial, is a much higher burden than whether the arrest was made with probable case. (See, Colon, supra ).

FALSE ARREST:

The elements of false arrest are: "(1) the defendant intended to confine plaintiff, (2) the plaintiff was conscious of the confinement, (3) the plaintiff did not consent to confinement, and (4) the confinement was not otherwise privileged," Martinez v Schenectady, 97 NY2d 78, 735 NYS2d 868, 761 NE2d 560; Parvi v Kingston,41 NYS2d 553, 394 NYS2d 87, 335 NE2d 960; Broughton v State, 37 NYS2d 451,373 NYS2d 310; Lorensen v State, 249 AD2d 762,671 NYS2d 790; Feldman v Bethel, 106 AD2d 695, 484 NYS2d 147; Gebbie v Getz Div. Of Allied Stores of New York, Inc., 94 AD2d 165, 463 NYS2d 482. [*5]

When an arrest and subsequent imprisonment are made without a warrant the arresting police officer is presumed to have acted unlawfully (Smith v County of Nassau, 34 NY2d 18, 23; Woodson v New York Housing Auth., 10 NY2d 30, 33; Circurel v Mollet, 1 AD2d 239, 241 affd1 NY2d 797;Bonnau v State of New York, 278 App Div 181, 182,affd 303 Ny 721; Clark v Nannery, 292 NY 105, 108; Schultz v Greenwood Cementary, 190 NY 279, supra .;). The defendant then has the burden of providing legal justification as an affirmative defense. (Woodson, supra ; Peterson v New York Cons. R.R. Co., 230N.Y. 566). That is, the defendant must prove that at the time the arrest was made there was probable cause to arrest. ( Broughton v. State, 37 NY2d 451). Moreover, on a claim for false arrest, the motives of the defendant are immaterial. A valid arrest will not be rendered unlawful by malicious motives. (Broughton, supra ).

MALICIOUS PROSECUTION:

The elements of a cause of action for malicious prosecution are :"(1) the commencement or continuation of a criminal proceeding by the defendant against the plaintiff, (2) the termination of proceedings in favor of the accused, (3) the absence of probable cause for the criminal proceeding and (4) actual malice" (Broughton v State of New York, 37 NY 2d451,457, 373 NY S 2d 87, 335 NE2d 310, cert. denied sub nom. Schanbarger v. Kellog, 423 U.S. 929, 96 S.Ct,. 277, 46 L.E. d 2d 257; see Oakley v City of Rochester, 71 AD2d . 15, 18, 421 N.Y.S 2d 472, affd. 51 NY2d 908, 434 NYS2d. 977, 415 NE2d 966). " The continuation of a criminal proceeding without probable cause may support a cause of action for malicious prosecution"

( Kemp v Lynch 275 AD2d 1024, 1026, 713 NY S. 2d 790).

In establishing the element of actual malice, " a plaintiff need not demonstrate the defendant's intent to do him or her personal harm, but need only show a reckless or grossly negligent disregard for his or her rights" ( Ramos v City of New York, 285 AD2d 284, 300, 729 NYS2d 678). Actual malice may be inferred from the facts and circumstances of the case, i.e., " something other than a desire [on the part of the defendant] to see the ends of justice served" (Nardelli, at 502, 406 NYS2d 443, 377 NE2d 500, 502, 406 NYS2d 443, 377 NE2d 975: see Ramos, 285 A..D. 2d at 300, 729 NYS2d 678).(citing Putnam v County of Steuben, 61 AD3d 139, 876 NYS2d 819).

CONCLUSION

In the case at bar, underlying two causes of action is the question of probable cause. Where the plaintiff brings a claim for malicious prosecution, she must plead the lack of probable cause. Where the claim is false arrest, the defendant must prove as an affirmative defense that the arrest was based upon probable cause and thus legally justified. (See Broughton, supra ). Under either claim, the Court finds that there was probable cause to make the subject arrest as a matter of law.

The facts herein are quite distinct from those in Smith, supra . There, on a report of an assailant firing a shotgun at a parked car, one of the passengers reported the incident to the police. In responding to the call, the victim purportedly pointed to a witness and informed the police officer, "that looks like him". A few weeks later the victim and the police officer went to plaintiff's home where a "show-up" was conducted, the victim signed a statement alleging that the plaintiff was the assailant and the officer immediately arrested the plaintiff without a warrant. [*6]Two days later at a preliminary hearing, the victim was unable to identify the plaintiff as his assailant. Additionally, the description provided on the night of the crime did not match that of the plaintiff. Nor did the police officer question the victim with regard to the discrepancy in the description or otherwise test his recollection. Under these circumstances the officer's reliance upon the victim's identification was not reasonable. Consequently, these facts would not induce an ordinarily prudent and cautious person to believe that plaintiff had committed the felony. Given such a scenario, the evidence gives rise to inferences on which reasonable people might differ, thus the question of probable cause should be determined by a jury.

Similarly distinct factually is Hernandez, supra , wherein an undercover police officer, who was not working on a buy and bust operation ( which typically entails various members of a back-up team arresting the seller following a contemporaneous identification at the scene by the undercover officer), recorded the details of the drug buy and description of the seller in his paperwork for police follow-up. Thereafter, a photo was shown to the undercover by another police officer purporting to fit the description of the seller and the undercover officer so conformed his paperwork to reflect that said individual was the seller. Subsequently, after reviewing plaintiff's arrest records and booking photographs, the undercover realized the plaintiff was not the seller and notified his superiors of his error. Nine months later on the eve of a Wade hearing to confirm the identification of the presumptive seller, the Court was advised by the District Attorney, for the first time, of the misidentification of the plaintiff. The Court found: "where it can be shown that the conduct of the police deviated so egregiously from acceptable police activity as to demonstrate an intentional or reckless disregard for proper procedures, the presumption of probable cause may be overcome (See Lee v City of Mount Vernon, 49 NY2d 1041, 1043). As the Appellate Division, Second Department, stated in Biener v City of New York (47 AD2d 520, 521), there is no requirement that the defendant's act be purposely evil or intended to harm, since malice may be inferred if the defendant has acted with a reckless or grossly negligent disregard of the plaintiff's rights ( See, Boose v City of Rochester, 71 AD2d 59, 70)", Hernandez, at 904.

In the instant case the identity of the plaintiff as the person who menaced the infant was not an issue as in Smith and Hernandez, supra . Whether or not the infant complainant had a malicious motive for instigating the subject apprehension of the plaintiff is irrelevant since, "a valid arrest will not be rendered unlawful by malicious motives :[Broughton, supra at 459]. (See, Kramer v City of New York, 173 A.D. 2d155) and there is no showing that the defendant police "deviated so egregiously from acceptable police activity".

Accordingly, since the facts giving rise to the arrest were undisputed and provided to the police by an identified citizen who provided a sworn affidavit, the Court finds that as a matter of law the arrest of the plaintiff was based upon probable cause. As noted, on her claim for malicious prosecution the plaintiff has failed to meet her burden of proof that the defendant lacked probable cause to arrest her and that the charges were dismissed, on the merits, in her favor. On the plaintiff's claim for false arrest, the defendant has successfully demonstrated that the confinement was privileged as a consequence of probable cause to arrest. Inasmuch as the question of probable cause has been satisfactorily established by the defendant, any of the remaining claims which derived from that arrest are similarly dismissed.

Defendant's motion to dismiss pursuant to CPLR § 3212 is granted in all respects. [*7]

This constitutes the decision and order of the Court.

Date

Bronx, New YorkNORMA RUIZ, J.S.C. Footnotes

Footnote 1:§120.14 Menacing in the second degree. A person is guilty of menacing in the second degree when: He or she intentionally places or attemptes to place another person in reasonable fear of physical injury, serious physical injury or death by displaying a deadly weapon, dangerous instrument or what appears to be a pistol, revolver, rifle, shotgun, machine gun or other fire arm

§ 120.15 Menacing in the third degree. A person is guilty of menacing in the third degree when, by physical menace, he or she intentionally places or attempts to place another person in fear of death, imminent serious physical injury or physical injury.

§ 265.01 Criminal possession of a weapon in the forth degree. A person is guilty of criminal possession of a weapon in the forth degree when: (2) He possesses any dagger , dangerous knife, dirk, razor, stiletto, imitation pistol, or any other dangerous or deadly instrument or weapon with the intent to use the same unlawfully against another

§ 260.10 Endangering the welfare of a child. A person is guilty of endangering the welfare of a child when: 1. He knowingly acts in a manner likely to be injurious to the physical, mental or moral welfare of a child less than seventeen years old or directs or authorizes such child to engage in an occupation involving a substantial risk of danger to his life or health