Santiago v City of Rochester

[*1] Santiago v City of Rochester 2004 NY Slip Op 51588(U) Decided on October 1, 2004 Supreme Court, Monroe County Siracuse, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 1, 2004
Supreme Court, Monroe County

Jose Santiago, Plaintiff,

against

City of Rochester, Detective Vito D'Ambrosio, and other unnamed Police Officers of the Rochester Police Department, Defendants.



1997/10964



APPEARANCES:Schiano Law Offices, P.C. (Charles A, Schiano, Jr., of counsel), attorneys for plaintiff

315 Wilder Building

One East Main Street

Rochester, New York 14614

Linda Kingsley, Corporation Counsel (Matthew Brown, of counsel), attorney for defendants

30 Church Street

Room 400A

Rochester, New York 14614

Andrew V. Siracuse, J.

The plaintiff in this case has clearly suffered without justification. He was imprisoned for several months facing trial for a crime he did not commit, based upon hearsay allegations and the victim's identification following a photo array. In the end the witness decided that he could not make a positive identification, and before plaintiff had presented photographic evidence in support of his alibi defense the charges were dropped. Plaintiff has now sued both the City of Rochester and the investigating officer, Vito D'Ambrosio, for false imprisonment and malicious prosecution, along with Federal civil rights violations. [*2] Groundless suffering, however, does not always amount to an actionable claim under our law, and relief in any case must be pursued through the procedures through which that law is administered. In sprite of its great sympathy with the plaintiff, the court must conclude that his first cause of action is time barred and the second is insufficiently supported by the record.The crime involved was a murder and attempted murder that took place on December 13, 1995. Assailants identified as two males of Hispanic appearance killed Maira Soliman and wounded her husband Francisco. A few weeks later an informant volunteered that she had heard rumors that the plaintiff was one of the two killers. Mr. Soliman was shown two photo arrays on January 4, 1996. In the first he identified Miguel Ortiz, who had been identified as the other shooter. In the second he identified the plaintiff. Although the interpreter present at the time later testified that Mr. Soliman said the image of the plaintiff looked "like" and then "very much like" the other assailant, his written statements were free even of this possible equivocation, and in later interviews with Assistant District Attorney Gregory Heuther he was consistent in his identification.Plaintiff was arrested on February 21, 1996. On March 25, 1996, the Grand Jury indicted him, and he was arraigned on April 2, 1996. At the arraignment his attorney, then-Assistant Public Defender Elma Bellini, told the court that she had "photographic evidence" that her client was at a car wash at the exact time the murder was committed. She did not supply the evidence, a still from a surveillance camera at the car wash, to the prosecution, presumably for tactical reasons. The notice of alibi, filed the next day, listed someone from the car wash as a witness.Pretrial examinations and procedures continued, and the plaintiff was released on bail during their pendency, on June 21, 1996. During further interviews with the District Attorney's office, Mr. Soliman told Mr. Heuther that he was no longer able to make a positive identification of the plaintiff. Mr. Heuther then moved to dismiss the indictment, and his motion was granted on February 1, 1997.The plaintiff filed a Notice of Claim with the City of Rochester on March 20, 1997, and on October 31, 1997, he filed his complaint. The defendants answered on November 10, 1997. Almost seven years elapsed before the defendants moved for summary judgment.As far as the false imprisonment claim, however, their motion is more properly one to dismiss on statute of limitations grounds. The essence of the tort of false imprisonment is actual physical detention without justification. The plaintiff's claim therefore accrues at the moment he or she is released from detention. In this plaintiff's case, the accrual date is thus June 21, 1996, and his Notice of Claim and complaint are both untimely.This may be hard to square with the psychological realities of the situation in which criminal defendants find themselves; in the midst of [*3]defending against a charge of murder one is not likely to think of a civil suit against the police. It is, however, the law, and the court must follow it (see the decision, on similar facts, in Boose v City of Rochester, 71 AD2d 59).Plaintiff argues that the limitations period should be extended because he remained under the threat of imprisonment until the charges were dropped. This argument is unavailing because, as noted above, it is the reality of detention that constitutes false imprisonment, not the threat of detention. Plaintiff also charges that the defendants are guilty of laches. This is not a defense when the action itself is untimely, and in any case there is no showing that the extended delay in prosecuting this case was the product of the defendants' acts alone. The claim for false imprisonment is untimely and must be dismissed.To be malicious, the prosecution of an action must be without probable cause, along with other factors, and as a general rule an indictment creates a presumption of probable cause. This presumption may be overcome by evidence of police conduct that "deviated so egregiously from acceptable police activity as to demonstrate an intentional or reckless disregard for proper procedures" (Hernandez v State of New York, 228 AD2d 902, 904). This activity must be such that it affects the Grand Jury's deliberations or must show in retrospect that the Grand Jury's findings were based on evidence that was falsified or otherwise misrepresented by the police. Upon the indictment, at the very latest, the direction of the case is committed to the hands of the District Attorney's office, and their conduct is not before this court, as they are not parties to the lawsuit.It is difficult to say that the police failure to conduct a line-up, regrettable as it was, amounts to an egregious violation of police procedures. The argument made by plaintiff's attorney, in fact, demonstrates the weakness of his case by overstating the nature of the police activity. At oral argument he charged that the police had suppressed evidence—a very substantial violation of both procedural and constitutional law. This claim was based, however, on the failure to investigate the alibi. Under no circumstances can the failure to develop evidence be equated with the suppression of evidence. What is more, the availability of the photographic evidence was not known to the police until the arraignment, a week after the indictment was handed down.Plaintiff's counsel also reiterates the charge that the prosecution lacked probable cause, and he claimed that the identification was improper. Yet though the hearsay tip was inherently unreliable, it was not unreasonable for the police and District Attorney's office to rely on the written and oral statements of the victim, all of which maintained that plaintiff was one of his assailants. The mild uncertainty that plaintiff's counsel tries to read into his statements when he was shown the photo array is ambiguous at best. (It is more literally true to say of a photograph, [*4]"that looks like him" than it is to say, "that is him.") If the interpreter entertained any doubts they were not relayed to Detective D'Ambrosio, who spoke no Spanish, and any that existed were resolved by the witness's later statements. It cannot be said that the police acted so improperly as to taint the Grand Jury determination or any subsequent proceeding.For these same reasons the claims under Federal law must be dismissed. The civil rights claim against the City is further defective in that plaintiff has shown no municipal procedure or practice that resulted in actionable harm. If anything, he claims that the police acted in violation of those procedures which the City had established.The complaint in its entirety is dismissed, without costs or disbursements. The court reiterates that this ruling does not go to the issue of the plaintiff's innocence, which is unquestioned. It is merely the issue of whether or not he has a right to pursue this particular action that has been litigated here. DATED: Rochester, New York______________________ October 1, 2004Andrew V. Siracuse, J.S.C.