Turner v State of New York

[*1] Turner v State of New York 2017 NY Slip Op 51338(U) Decided on July 7, 2017 Court Of Claims Soto, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 7, 2017
Court of Claims

Timothy Turner, Claimant,

against

The State of New York

[FN1], Defendant.

127421



For Claimant:

Jonathan D'Agostino & Associates, P.C.

By: Edward J. Pavia, Jr., Esq.

For Defendant:

Eric T. Schneiderman, Attorney General of the State of New York

By: Edward J. Curtis, Jr., AAG
Faviola A. Soto, J.

Timothy Turner (hereinafter, "claimant") brings this claim for intentional tort and negligence arising from his arrest on September 15, 2015 for allegedly violating conditions of his parole. A trial was held on February 6, 2017 and claimant, an investigator working for claimant's counsel, and parole officer Monique Newton testified at trial. The parties asked the Court to incorporate the testimony of the witnesses from the underlying hearings into this decision in-lieu [*2]of having these additional witnesses testify at this trial. The Court accepted this stipulation and reviewed the additional testimony in deciding this matter. After trial, the parties submitted post-trial memoranda of law as follows:

Claimant's Letter Brief dated April 4, 2017 by Edward J. Pavia, Jr., Esq.; and

Defendant's Post-Trial Memorandum dated April 12, 2017 by Edward J. Curtis, Jr., AAG.

FACTS

In June 2015, claimant, a parolee, was arrested while he was operating a vehicle. Law enforcement officers searched his vehicle and discovered marijuana. Ultimately, claimant plead guilty to disorderly conduct and was released, but special conditions were added to his parole. One such condition was that he was prohibited from operating a vehicle.

The Preliminary Revocation Hearing

On September 15, 2015, claimant was arrested at his home and charged for operating a vehicle on two prior occasions: September 2, 2015 (Charge 2) and September 9, 2015 (Charge 1). Pursuant to Executive Law § 259-i(c), a preliminary revocation hearing was held within fifteen days of claimant's arrest on September 28, 2015. The standard of proof at the hearing is probable cause. Id. At the end of the hearing, Administrative Law Judge ("ALJ") Mary Ross found that there was probable cause to believe that claimant violated the conditions of his parole as to Charge 1.[FN2] See Claimant's Exhibit 17, Preliminary Hearing Transcript, p. 35, lines 15-17.

At the preliminary hearing, Parole Officer Newton (hereinafter, "Newton"), an employee of the New York State Department of Corrections and Community Supervision ("DOCCS"), testified that she had been supervising claimant since September 14, 2014. Id. at p. 4, lines 16-19. Newton never personally witnessed claimant violate any of the conditions of his parole, but she drew up an arrest warrant based, in part, on information she received from her supervisor, Senior Parole Officer Zwaryczuk (hereinafter, "Zwaryczuk"). Id. at p. 15, lines 2-5.

Zwaryczuk testified that he personally witnessed claimant get into a vehicle and drive it away on September 9, 2015 after his parole meeting with Newton. Id. at pp. 15-16, lines 23-19. Zwaryczuk recognized claimant from prior interactions. Id. Zwaryczuk did not personally witness claimant driving on September 2, 2015, but was made aware of this by a police officer. Id. at pp. 24-25, lines 23-10.

Claimant denied driving following the June 2015 arrest and release. Id. at pp. 26-27, lines 12-24. He testified that when he needed to get around he would be driven by his girlfriend's brother, Lamiek Spivey (hereinafter, "Spivey"), or his supervisor, Philip Lynch (hereinafter, "Lynch"). Id at p.27, lines 1-20. On September 2, 2015, claimant testified that he was driven by Lynch and on September 9, 2015 he says he was driven by Spivey. Id. at p. 28, lines 7-11 and p. 29-30, lines 22-1. On cross-examination, claimant testified that he is six feet, five inches tall and weighs 290 pounds; that Spivey is six feet, one inch and weighs 230 pounds; and that Lynch is six feet, two inches and weighs 250 pounds. Id. at pp. 33-34, lines 12-19.

The Revocation Hearings

Pursuant to Executive Law § 259-i(3)(f), a revocation hearing was held within ninety [*3]days of the probable cause determination on October 28, 2015 and completed on November 4, 2015. The standard of proof at the revocation hearing is preponderance of the evidence. Id. at (viii). ALJ Casey dismissed Charge 1 at the hearing and in a separate written decision the ALJ dismissed Charge 2 and ordered claimant's release. See Claimant's Exhibit 19, Revocation Hearing Transcript, November 4, 2015 Part II, p. 59, lines 1-9. Thus, claimant was incarcerated from September 15, 2015 to November 5, 2015, for approximately fifty-two days.

Newton's and Zwaryczuk's testimony at the revocation hearing was mostly consistent with their prior testimony. Zwaryczuk added that he saw claimant sitting in the parole office waiting area before his meeting with Newton and made a plan with Newton to watch him as he left the building because Zwaryczuk suspected that claimant drove to the meeting. See Claimant's Exhibit 18, Revocation Hearing Transcript, October 28, 2015, pp. 29-31, lines 10-1. When he got a call from Newton letting him know that claimant was leaving the building, Zwaryczuk watched him enter a vehicle and drive off alone. Id. On cross-examination, Zwaryczuk testified that he saw claimant from a distance of one hundred yards and that traffic, parked cars, and parking lot fences did not disturb his view of claimant. Id. at pp. 60-67, lines 12-15. He also recalls that claimant was wearing a black tank top at the time. Id. at p.77, lines 4-8. In either event, he did not immediately arrest claimant. Id. at p. 82, lines 3-9.

Spivey testified that he and claimant have been friends since middle school, that they live together, and confirmed that claimant is his sister's boyfriend. Id. at p. 91, lines 11-19; p. 98, lines 6-12; Id. at p. 101, lines 1-6. Spivey averred that on September 9, 2015 he drove claimant to his parole meeting and then drove him back to their home. Id. at pp. 94-98, lines 3-5. He was wearing a black tank top on that day. Id. at p. 99, lines 17-24. Spivey, who is unemployed, also testified that he routinely drives claimant around and does so without compensation. Id. at p. 101, lines 10-14 and 18-21; and p. 93, lines 2-7.

Police Officer Cataldo, an employee of the New York City Police Department, testified that he believes claimant was driving on September 2, 2015 based on his personal observations and by recognizing him from prior arrests. See Claimant's Exhibit 19, Revocation Hearing Transcript, November 4, 2015 Part I, p. 8, lines 21-24. Claimant initially got into the passenger seat of the vehicle and someone else drove, but when the vehicle stopped at a gas station, he believes he saw claimant switch to the driver's seat and assumes that claimant drove the vehicle therefrom. Id. at pp. 9-14, lines 9-7. He did not, however, see claimant actually get into the driver's seat because his view was obstructed. Id. at p. 56, lines 8-23. Cataldo's sergeant, who was in the car at the time, called parole and communicated the details of the incident. Id. at p. 18, lines 11-25.

Lynch testified that he has been claimant's longtime friend for about seventeen years, in addition to being his supervisor. See Claimant's Exhibit 19, Revocation Hearing Transcript, November 4, 2015 Part II, p. 5, lines 2-13. He said he drove claimant to the parole office on September 2, 2015, picked him up after the meeting, drove to a gas station to pick up supplies, and then drove away; claimant was in the passenger seat the entire time. Id. at pp. 14-17, lines 24-23.

Claimant's testimony at the revocation hearing was consistent with his testimony at the preliminary revocation hearing.

ANALYSIS

The Court can decipher two allegations in this action: (1) false arrest and false imprisonment under 42 U.S.C. 1983 and the New York State Constitution and (2) negligent hiring and retention of employees working for the "New York State Division of Parole."

Claims Under 42 USC § 1983 Dismissed

To the extent that claimant brings federal constitutional claims under § 1983, they must be dismissed because the State is not considered a "person" as defined by that statute. See Brown v State of New York, 89 NY2d 172, 185 [1996]. Thus, such a claim cannot properly be asserted against the State.

The State had Probable Cause to Arrest Claimant

Unlike constitutional tort claims brought under § 1983, the Court of Claims has jurisdiction over claims alleging violation of certain rights protected by New York's Constitution. Id. at 186. This includes claims arising under NY Const, art 1, § 12, which prohibits seizures without probable cause. Id. at 191 and 197. However, the damages remedy provided under Brown is a "narrow remedy" and can only be extended where it is necessary and appropriate to insure the full realization of the rights they state. See Martinez v City of Schenectady, 97 NY2d 78, 83 [2001] (internal quotation marks and citations omitted). The damages remedy is not boundless and claimants must establish grounds that entitle them to a damages remedy, in addition to proving that their constitutional rights have been violated. Id. Recognition of claimant's state constitutional claim is neither necessary nor appropriate where there is an alternative remedy in a common-law claim, such as for false arrest and false imprisonment. See Lyles v State of New York, 2 AD3d 694, 695 [2d Dept 2003], affd on other grounds, 3 NY3d 396 [2004].[FN3]

Here, the claim states that claimant's arrest was "illegal, without probable cause and without authority of law..."; that he was "intentionally, negligently and wrongfully incarcerated and deprived of his liberty..."; and that these acts violated claimant's "civil rights under 42 U.S.C. 1983...secured to him under the Constitutions of the United States of America and the State of New York..." See ¶ 2 of Claim.

In order to sustain a cause of action for false arrest, a claimant must prove that: "(1) the defendant intended to confine [the claimant], (2) [the claimant] was conscious of the confinement, (3) [the claimant] did not consent to the confinement and (4) the confinement was not otherwise privileged." Broughton v State of New York, 37 NY2d 451, 456 [1975]. No cause of action arises for false arrest where the alleged confinement was privileged. Id. at 456. The terms false imprisonment and false arrest are interchangeable; both are used to describe a tort arising from an alleged unlawful detention. Id. also see Jacques v Sears, Roebuck & Co., 30 NY2d 466 [1972].

Probable cause existing at the time of the confinement is recognized as a privilege, and accordingly bars a cause of action for false arrest. Gisondi v Town of Harrison, 72 NY2d 280, 283 [1988]. "Once probable cause is established, the defendant has met his or her burden of [*4]proof for legal justification and the [claimant's] cause of action sounding in false arrest must fail." Minott v City of New York, 203 AD2d 265, 266 [2d Dept 1994], lv den., 83 NY2d 1000 [1994].

Probable cause "consists of such facts and circumstances as would lead a reasonably prudent person in like circumstances to believe [claimant] guilty." Colon v City of New York, 60 NY2d 78, 82 [1983]. "Probable cause does not require proof sufficient to warrant a conviction beyond a reasonable doubt but merely information sufficient to support a reasonable belief that an offense has been or is being committed by the suspected individual, and probable cause must be judged under the totality of the circumstances." De Lourdes Torres v Jones, 26 NY3d 742, 759 [2016] (internal quotation marks and citations omitted). "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, 60 NY2d at 82. Probable cause does not demand any showing that a belief is correct or more likely true than false; it is a flexible common-sense standard. Texas v Brown, 460 U.S. 730, 742 [1983]. The existence of probable cause is measured as of the moment of the arrest, not based on later developments. Beck v Ohio, 379 U.S. 89, 91 [1964].

"Under the fellow officer rule, a police officer can make a lawful arrest even without personal knowledge sufficient to establish probable cause, so long as the officer is acting upon the direction of or as a result of communication with a fellow officer or another police agency in possession of information sufficient to constitute probable cause for the arrest." People v Ketcham, 93 NY2d 416, 419-420 [1999] (internal quotation marks and citations omitted). Information received from another police officer is presumptively reliable. Id. "When, for example, the hearsay informant is a police officer who imparts to fellow officers information gathered while personally participating in or observing an undercover drug transaction, there is little doubt as to the reliability of the informant or the basis of knowledge." Id. at 420.

Here, claimant was arrested on a warrant written by Parole Officer Newton based on information provided to her by fellow officers following their personal observations of claimant's parole violations. This hearsay information was presumptively reliable, especially given that both Zwaryczuk and Police Officer Cataldo were familiar with claimant and were able to identify him based on prior incidents. It also is undisputed that they were veteran officers trained in surveillance. Zwaryczuk's account is particularly compelling given that he first saw claimant at the office waiting area, recognized him from a prior incident, told Newton of his plan to surveil claimant because he suspected that he drove to the office, then was informed by Newton that claimant left the office, and then followed claimant from the office. When measured at the moment of claimant's arrest, this information provided sufficient probable cause because one can reasonably conclude that claimant had violated a condition of his parole.[FN4] Even if the officers [*5]were mistaken about claimant's identity or some other detail, such as what he was wearing on the day of his alleged violation, the officers acted in good faith and reasonably under the circumstances. See De Lourdes Torres, 26 NY3d at 759. Thus, claimant's arrest was privileged.

Even though probable cause is fatal to both false arrest and false imprisonment claims, as an alternative grounds for dismissal, the Court notes that claimant failed to allege or prove that the parole warrant was facially invalid or that DOCCS lacked jurisdiction to issue the arrest warrant. See Wright v The State of New York, UID No. 2015-038-521 [Ct Cl, DeBow, J., Apr. 24, 2015].

Accordingly, claimant's false arrest and false imprisonment claims are dismissed.

Claimant Failed to Prove his Negligence Claims

Claimant also alleges that the State was negligent in hiring, retaining, and training its officers and that negligence led to his arrest. See ¶ 2 of Claim. As an initial matter, claimant did not proffer any evidence at trial to support this claim and, thus, he failed to meet his burden. In either case, the Appellate Division, First Department, clearly set forth the reason why this type of allegation must be dismissed in Karoon v New York City Transit Authority, 241 AD2d 323 [1st Dept 1997]: "Generally, where an employee is acting within the scope of his or her employment, thereby rendering the employer liable for any damages caused by the employee's negligence under a theory of respondeat superior, no claim may proceed against the employer for negligent hiring or retention . This is because if the employee was not negligent, there is no basis for imposing liability on the employer, and if the employee was negligent, the employer must pay the judgment regardless of the reasonableness of the hiring or retention or the adequacy of the training." (Citation omitted.)

Additionally, it is well-settled that the state is afforded immunity for discretionary acts, such as decisions regarding hiring, training, and supervision. See Arteaga v State ofNew York, 72 NY2d 212, 216-217 [1988]; also see Mon v City of New York, 78 NY2d 309, 311, 313 [1991]; Haddock v City of New York, 75 NY2d 478, 484 [1990].

To the extent that claimant's negligent hiring, training, and retention claim is really a claim regarding how the parole officers conducted their investigation before arresting him, such a broad claim of negligence in the commission of intentional torts do not constitute a valid cause of action in New York. See Swinton v City of New York, 61 AD3d 557 [1st Dept 2009] and Carlton v Nassau County Police Dept., 306 AD2d 365, 366 [2d Dept 2003].

CONCLUSION

Defendant is not liable to claimant for any claimed injuries. Claimant failed to prove that his constitutional rights were violated or that he is entitled to damages. The Chief Clerk is directed to enter judgment in favor of the defendant, dismissing claim number 127421. Any motions or objections not previously ruled on are hereby denied as moot.

Let judgment be entered accordingly.

New York, NY

Dated: July 7, 2017

FAVIOLA A. SOTO

Judge of the Court of Claims Footnotes

Footnote 1:The remaining defendants listed in the original caption (The New York State Division of Parole and Senior Parole Officer John Zwarcyczuk) are sua sponte dismissed from this case because they are improper parties to an action brought in the Court of Claims. See Court of Claims Act § 9. The caption is, therefore, amended to reflect the only properly named defendant.

Footnote 2:The transcript of the preliminary revocation hearing does not indicate whether the ALJ found probable cause as to Charge 2. Nevertheless, both charges survived as of the subsequent revocation hearing.

Footnote 3:Although claimant made claims for state constitutional torts instead of making claims for common law false arrest and false imprisonment in violation of the rule set out in Lyles, the Court will nevertheless consider his state constitutional tort claims since the defendant did not move to dismiss for this reason.

Footnote 4:Although not determinative of the Court's decision here, it is worth noting that the ALJ Ross found that there was probable cause to support claimant's arrest and continued detention after the preliminary hearing. See Claimant's Exhibit 17, Preliminary Hearing Transcript, p. 35, lines 15-17. ALJ Casey found no reason to disturb ALJ Ross' probable cause finding and did not dismiss the charges against claimant on probable cause grounds, rather he found that the state failed to meet their burden of proof. See Claimant's Exhibit 20, Parole Revocation Decision Notice, pp. 4 and 6.