Pinchback v State of New York & N.Y. State Div. of Parole

[*1] Pinchback v State of New York & N.Y. State Div. of Parole 2017 NY Slip Op 27441 Decided on December 19, 2017 Court Of Claims Weinstein, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on December 19, 2017
Court of Claims

Jamal Pinchback, Claimant,

against

The State of New York and New York State Division of Parole, Defendants.



122134



For Claimant:

Cellino & Barnes, P.C.

By: Lisa F. King, Esq.

For Defendants:

Eric T. Schneiderman, New York State Attorney General

By: Janet L. Polstein, Assistant Attorney General
David A. Weinstein, J.

In the matter before me, claimant Jamal Pinchback seeks damages against defendant State of New York for false arrest and malicious prosecution, arising out of his March 4, 2011 arrest for violation of parole and subsequent nine months of confinement. He now moves for summary judgment pursuant to CPLR 3212.

I.Background

The allegations underlying the claim, as set forth in the present motion, are as follows:[FN1]

On December 8, 2009, claimant was released on parole from a sentence of incarceration (Aff in Supp ¶ 5). Bernisa Mejia was assigned to serve as his parole officer. She visited his home once or twice a month, until the arrest at issue took place (id. ¶ 7).

A.The Search of Claimant's Residence

At some point, a New York City Police Department ("NYPD") detective, Andres Libreros, received an anonymous tip that Pinchback was selling drugs outside his home. According to claimant, because Libreros lacked probable cause for a warrant, he asked the Division of Parole to arrange a search during which he could go along and collect evidence to support a prosecution (id. ¶ 10). A parole "chrono" report for February 23, 2011 records this conversation as follows: "Det Libreros Qns Narcotics . . . request if NYPD can accompany [parole officer] on [home visit] due to ongoing investigation that subj is selling drugs out of the second floor and has weapons in the basement[.] Det states complainant rec [drugs] from a[n] [*2]unknown male . . ."[FN2] (Mot Ex B). The report indicates that a supervising parole officer said she would inform Mejia of the request, and that Mejia unsuccessfully tried to reach Libreros on February 25 (id.).

On February 25, 2011, Libreros and other officers arrested claimant, on the ground that they had observed him engage in a drug transaction (Aff in Supp ¶ 11). Following that arrest, and claimant's release, a search was conducted of Pinchback's home on March 4, 2011 in which both Libreros and Mejia participated (id. ¶¶ 12-13). Neither NYPD nor the Division of Parole obtained a warrant prior to the search (id. ¶¶ 15-16). Claimant's central contention in this case is that this search — which provided the basis for Pinchback's subsequent arrest and incarceration for parole violations — was illegal because the parole officers were merely being used as a conduit for a search by the NYPD which, without warrant or probable cause, had no legal basis to perform the search absent the participation of the Division of Parole.

The March 4 search uncovered a scale with white residue, seeds later determined to be marijuana, and two bullets. Pinchback, who had been handcuffed at the beginning of the search, was placed under arrest as a result of these findings (id. ¶¶ 18-19). He was released on bail, but the Division of Parole then issued a warrant for his detention on March 8 [FN3] (Mot Ex C; Probable Cause Tr at 34, in Ex G). Claimant was also charged with Criminal Sale of Marijuana in the Fourth Degree based on the events that had led to his February 25 arrest, and with Sale/ Possession/Use of an Imitation Pistol, Possession of Ammunition and Unlawful Possession of Marijuana based on the findings made during the March 4 search (see Mot Ex E at 1).

B.Probable Cause Hearing

A probable cause hearing was conducted on March 15, 2011, at which Mejia offered testimony. She stated that after Pinchback's February 25 arrest, she discussed the case with her supervisor, and they decided to do a search of his residence at that time (Prelim Hearing Tr, in Cl Mot Ex G at 7). She acknowledged that Libreros had called her supervisor on February 23 to ask if police officers could accompany her during the next home visit, but this did not occur until after the February 25 arrest (id. at 31). Mejia spoke to Libreros personally on March 2, at which time he described the events of February 25 (id. at 17-18).[FN4] In turn, Mejia expressed the belief that she "probably" briefed her supervisor on her conversation with Libreros, after which she asked the police "team" she worked with to accompany her on the search (id. at 20).

Mejia said that the search was ultimately conducted by herself and a parole officer named Fuller, although the police helped with "heavy lifting" (id. at 27). According to Mejia, the scale [*3]was in plain sight on top of a dresser (id. at 27-28). She described Pinchback's conduct during the search as "extremely cooperative," but noted that he had been handcuffed "just for our safety" (id. at 7-8). After finding the bullets, scale and seeds, she consulted with her supervisor, and they decided they had enough evidence to make an arrest (id. at 8). Mejia testified that she handed the evidence to the NYPD "[b]ecause they decided to take the arrest and they were going to voucher the items for the criminal case" (id. at 10). Mejia also indicated that results of the scale residue test indicated the presence of cocaine and marijuana (id. at 11).

In a ruling at the conclusion of the hearing, the hearing officer rejected Pinchback's contention that the parole officers had acted as a conduit for the police, and found probable cause that Pinchback had violated the terms of his parole by possessing drug paraphernalia, specifically the scale (Def Opp Ex D at 39-40).

C.Suppression Hearings

Pinchback then moved to suppress the evidence obtained during both the February 25 arrest and the March 4 search. In regard to the former, he moved to suppress certain currency recovered by Detective Libreros. Following a Mapp hearing, Judge Yavinsky granted the motion by Decision and Order dated July 22, 2011. The Judge found Detective Libreros' testimony at the hearing to be "incredible, " noting inter alia that "Libreros admitted to having contacted the defendant's parole officer and attempting to accompany her to a home visit of the defendant's residence in the hopes of being present for a search of that residence" (Cl Mot Ex D at 5-6). The Judge took this as an "indication that Detective Libreros would have preferred to bypass the necessity for probable cause by tagging along with the Division of Parole on a home visit/search" (id.). He also did not credit Libreros' testimony that Pinchback had dropped a $20 bill never mentioned in his paperwork after the incident, and found it unlikely that Libreros could have observed some of the events at issue (id. at 6-7).

A Mapp hearing was then conducted regarding the March 4 search, at which Mejia again testified. Initially, she described the conditions that Pinchback signed prior to his release on parole, which she said were fully explained to him at the time (Cl Ex A at 30). These included the following: "I will permit my Parole Officer to visit me at my residence and/or place of employment and I will permit the search and inspection of my person, residence and property . . ." (Def Opp Ex C).[FN5]

Pursuant to this rule, Mejia indicated that she had visited claimant's home "many times," to "ensure that he was staying away from trouble" and was home during curfew, and generally to "keep a close eye" on him (Cl. Ex A at 9). She conceded, though, that while she had "looked around," she had never before conducted a full search (id. at 27).

According to Mejia's testimony, she and her supervisor decided to conduct a search of Pinchback's home on March 4 because "it was brought to [their] attention that he had been arrested twice within a six, seven month period and for allegations of possession of drugs, sale of drugs" (id. at 10). She stated that a search was a standard next step following an arrest (id. at 32). Specifically, Mejia noted that Pinchback had been arrested for marijuana possession on September 8, 2010 (although she decided not to "violate" him at that point), and the NYPD made [*4]the call to her supervisor reflected in the February 23 chrono file entry, and indicated that the police "were investigating the residence, particular[ly] Mr. Pinchback because of some sort of allegations" (id. at 26). On March 2, Mejia spoke to Detective Libreros to find out (in her account) the "details of the [date of] arrest" of Pinchback, which Libreros informed her involved the observation of a "[drug] transaction" on February 25 (id. at 29).

During the March 4 search, Mejia brought six NYPD officers along for what she characterized as "crowd control,"[FN6] explained as follows: "We never know what we're going to encounter on the other side of the door. So for precautionary measures, the more officers, the better" (id.).

Mejia testified that she led the "entire search," and that all of the evidence found was uncovered by her, while the NYPD officers were engaged in "crowd control . . . to make sure that nobody exited or entered the residence" (id. at 11-12; see also id. at 24 [Mejia testimony that she found the bullets]). She agreed that an officer helped her move a console, while denying that any items were moved without her direction (id. at 22, 31). She also handed the bullets and marijuana seeds to the NYPD when she recovered them, and acknowledged that the parole minutes list Libreros as Pinchback's arresting officer (id. at 25, 30).

Mejia admitted that neither she, nor the police had a warrant, but said that Pinchback gave specific consent for the search (id. at 20 ["When Mr. Pinchback comes to the door I tell him . . . [w]e're going to search the residence. He consents to it. . . . ."]). Pinchback was handcuffed at the outset of the search for his and the officers' "safety," but Mejia denied that this meant he was in custody (id. at 19).

Judge Yavinsky suppressed the evidence from the March 4 search in a Decision and Order dated December 9, 2011 (Mot Ex E). The opinion noted that Pinchback, like every parolee, agreed to allow the search of his "person, residence and property" by his parole officer as a condition of his parole (id. at 2). He found, however, that the parole officers participating in the search were just a "conduit" for Libreros and other NYPD officers (id. at 3). In making this finding, he rejected testimony by Mejia that the officers had been brought along for "crowd control" (id. at 3). He also detailed ways in which Libreros had aided in the search, including helping to move a mattress and console (id. at 3).

As a result of these decisions, both the criminal and parole violation matters were dismissed, and Pinchback was released from custody on December 20, 2011. This action followed.

D.The Present Motion

In support of his motion, claimant submits various documents in addition to the record described above, including Pinchback's deposition in a parallel Supreme Court action brought against the New York City Police Department and certain named defendants, the transcripts of the preliminary parole revocation hearing and of the Mapp hearing before Judge Yavinsky concerning the March 4 search, and Judge Yavinsky's written decisions.

At his deposition, Pinchback testified that he was never told the reason for the February [*5]25 arrest, and denied he had any drugs in his possession at the time (Cl Ex F at 27, 34). In regard to the March 4 search, he stated that after the doorbell rang, Mejia came in and her partner told him to step outside (id. at 38). When the police officers entered, Mejia informed claimant's father that the NYPD was present "to secure the premises" (id. at 40). In the end, though, the NYPD officers searched the house, "tearing [his bedroom] up" and lifting up his bed, while doing nothing to secure the location (id. at 40, 43). This was the first time that police had been present when Mejia visited (id.).

Pinchback testified that he was sitting down during the search, handcuffed (id. at 41). At the conclusion of the search, Mejia's partner took his handcuffs off, and the police put theirs on him, placing him under arrest (id. at 45).

Defendant State of New York opposes the motion via the affidavit of counsel, by which it asserts that Mejia's testimony indicates that she was acting within her responsibilities as a parole officer. Defendant supports this contention, inter alia, with the transcript of the probable cause hearing and the Conditions of Parole signed by Pinchback. In addition, the State argues that the actions of its officers were discretionary, and protected by the doctrine of governmental immunity (see Aff in Opp ¶¶ 10-12).

On reply, claimant provides excerpts from the transcript of a deposition Libreros gave in Pinchback's Supreme Court action (Reply Aff Ex I). Libreros acknowledged that the police did not have probable cause for a search on February 25, 2011, since neither the confidential informant nor any undercover officer could "pinpoint" the location of the sales at issue (id. at 49). Instead, he was arrested based on the detective's observation of what appeared to be a drug transaction (id.).

Claimant also asserts that any factual issues are foreclosed by the doctrines of collateral estoppel and res judicata, on the ground that Judge Yavinsky's ruling on Pinchback's suppression motion is controlling here (Reply Aff ¶¶ 30-38).

II.Discussion

To prevail on a motion for summary judgment, the movant must make a prima facie showing of his entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Once this showing has been made the burden shifts to the party opposing the motion to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

To prove a claim for false arrest/imprisonment, claimant must show (1) the defendant intended to confine him; (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 (see Broughton v State of New York, 37 NY2d 451, 456 [1975], cert denied Schanbarger v Kellogg, 423 US 929 [1975]). To show malicious prosecution, Pinchback must prove: "(1) the commencement or continuation of a criminal proceeding by the defendant against the plaintiff, (2) the termination of the proceeding in favor of the accused, (3) the absence of probable cause for the criminal proceeding and (4) actual malice" (see De Lourdes Torres v Jones, 26 NY3d 742, 760 [2016] [citation omitted]).

On the false imprisonment cause of action, the dispute on this motion regards only the fourth element — whether the confinement was privileged — while on the malicious prosecution claim defendant maintains that claimant has not shown the absence of any issue of material fact regarding lack of probable cause and actual malice.

Claimant argues that Pinchback's arrest and subsequent imprisonment were not privileged because they were undertaken without probable cause, warrant or other valid basis. Defendant counters that Mejia's testimony "reveals that she was performing her job and fulfilling her duties as claimant's assigned parole officer to insure that he was abiding by the conditions of his parole and was staying out of trouble with the law" (Aff in Opp ¶ 4), and that the search was therefore legal.

The initial legal premise for claimant's position is correct: Evidence seized pursuant to an illegal search cannot be used to establish probable cause for an arrest (see Murray v City of New York, 154 AD3d 591, 591 [1st Dept 2017]; see also Ostrover v City of New York, 192 AD2d 115, 118 [1st Dept 1993] ["The fruit of an illegal search cannot give rise, in a juristic sense, to probable cause to arrest, and the conceded illegality of the search and seizure is thus conclusive against the defendant on the issue of privilege"]). The question here is whether claimant has demonstrated that there is no issue for trial as to his factual premise: that the search, in fact, lacked probable cause or other lawful basis. Claimant maintains that it has met that burden based both on collateral estoppel and on its evidentiary submission. I address these in turn.

A.Collateral Estoppel

Claimant argues that lack of probable cause can be established alone by Judge Yavinsky's Decision and Order of December 9, 2011, under the principle of collateral estoppel (Reply Aff ¶¶ 30-38). I find that this doctrine cannot serve to meet claimant's burden.

A non-party to a prior litigation may be subject to collateral estoppel if it had "a relationship with a party" to that litigation "such that [its] own rights or obligations in the subsequent proceeding are conditioned in one way or another on, or derivative of, the rights of the party to the prior litigation" (Juan C. v Cortines, 89 NY2d 659, 667 [1997] [citations omitted]). Such a relationship is sometimes referred to in this context as one of "privity" (see id.).

Here, I find that the rights of the State in this proceeding are neither conditioned on, nor derivative of, those of the Queens County District Attorney ("DA") in the criminal case against Pinchback. Particularly persuasive in this regard are Brown v City of New York (60 NY2d 897 [1983]) and Taveras v City of New York (222 AD2d 338 [1st Dept 1995]). Both these cases concerned claims of false arrest asserted against New York City, in which claimant sought to invoke the collateral estoppel effect of a decision made in a prior criminal proceeding. In Brown, the criminal trial court found the arrest on which the criminal charge was based to be unlawful, but the Court of Appeals declined to find that holding preclusive in the subsequent civil case against the City, on the ground that "[t]he city and the District Attorney are separate entities and . . . do not stand in sufficient relationship to apply the doctrine" (id. at 898-899).

Taveras addressed a motion by plaintiff for summary judgment against the City of New York on his claims for wrongful arrest and malicious prosecution, based on a prior decision granting a motion to suppress in his criminal case. The Appellate Division ruled as follows:

"This Court's determination . . . in a prior criminal case, that the police officers' search of plaintiff herein was unlawful does not collaterally estop defendant in this civil action from contesting the issue. Defendants herein are not in privity with the New York County District Attorney's Office which prosecuted the criminal case, such as would warrant application of the doctrine of collateral estoppel" (id. at 338 [citations omitted]).

The same principle applies here. The DA who prosecuted Pinchback in his criminal case is not an officer of the State (see Fisher v State of New York, 10 NY2d 60 [1961]; Whitmore v State of New York, 55 AD2d 745, 746 [3d Dept 1976], lv denied 42 NY2d 810 [1977]). Thus, the DA and State of New York are not normally in privity for purposes of civil liability (see Restivo v State of New York, UID No. 2009-045-008 [Ct Cl, Lopez-Summa, J., Mar. 5, 2009]).[FN7] While claimant points out that the criminal case was prosecuted on behalf of "the People of the State of New York" (see Reply Aff ¶ 35 ["the State of New York brought the two criminal cases against Mr. Pinchback"]), that is not sufficient to establish privity here (see Fisher, 10 NY2d at 61 ["the District Attorney is in a sense part of the judicial system of the State and prosecutes criminal causes in the name of the People of the State but he does not act as a State officer or employee in any such sense as would make the State liable for his wrongdoing"]).

That said, this question is complicated here by two factors: the particular relationship of the decision of the Parole Board and the DA's Office when they are acting in a prosecutorial capacity, and the participation of Officer Mejia at the suppression hearing.

In regard to the former, the Court of Appeals found in People ex rel. Dowdy v Smith (48 NY2d 477 [1979]), that an acquittal at a criminal trial, which indicated that the jury had upheld defendant's entrapment defense, estopped the Board of Parole from reaching a contrary determination in a revocation proceeding. The Court stated: "we encounter no difficulty in concluding . . . that for present purposes the People as prosecutors in the criminal action stood in sufficient relationship with the Division of Parole in the parole proceeding to meet the requirements of the [collateral estoppel] doctrine in this respect" (id. at 482 [emphasis added]). It similarly found the Parole Board estopped by a suppression decision in a criminal trial (see People ex rel. Piccarillo v. New York State Bd. of Parole, 48 NY2d 76, 83 [1979]).

The Court of Appeals later indicated, however, that the holding in these cases was "based on the unique relationship between the Division of Parole and the People, qua prosecutors" in a "law enforcement proceeding" (see Juan C., 89 NY2d at 674 [emphasis added]; see also Restivo, supra [cases where DA held in privity with Division of Parole "based on the unique relationship between the Division of Parole in the parole proceeding and the People as prosecutors"; the DA has "never been held to stand in privity with the State of New York in an unjust conviction and imprisonment context"]). There is no such identity of relationship or interest that binds the State in a civil damages action, where the State is represented by the Attorney General, to a ruling [*6]made against the DA in a criminal case [FN8] (see Restivo, supra [criminal proceedings do not estop the State in civil damages suit, since criminal proceedings took place ""without any functional or legal involvement from the Office of the Attorney General" representing State in civil action]; Shakur v State, 54 Misc 3d 674, 679 [Ct Cl, 2016] [citations omitted] [District Attorney and Attorney General not in privity with one another in damages action for collateral estoppel purposes, since "[a]n Assistant Attorney General . . . is a 'state officer' and an Assistant District Attorney is a 'local officer' as those terms are statutorily defined under Public Officers Law § 2"]). Put simply, the defendant in this case is not the Division of Parole acting in a quasi-prosecutorial capacity, but the State of New York as a civil defendant (see Juan C., 89 NY2d at 668 ["a party appearing in an action in one capacity is not bound by the doctrine of collateral estoppel in a subsequent action in which the party appears in a different capacity"]). Since the State was not a party to the earlier criminal proceeding, the logic of Brown, Taveras and Restivo bars the use of collateral estoppel against it in this case.[FN9]

Finally, while Mejia testified in the prior proceeding, that does not mean the State was a participant in that case. In this regard, Taveras is controlling: the fact that the arresting NYPD officers testified at the suppression hearing in that case (see People v Taveras, 155 AD2d 131 [1st Dept 1990], appeal dismissed 76 NY2d 871 [1990]) did not estop the City of New York (their employer) from contesting the legality of a search in a subsequent civil proceeding. For the same reason, the fact that Mejia was a witness in the suppression hearing does not place the State in privity with the District Attorney for purposes of this action.

Accordingly, claimant is not entitled to summary judgment on the basis of collateral estoppel.

B.The Evidentiary Record

Turning to the specific evidence presented on this motion, I find that claimant has made out a prima face case for summary judgment by showing that Pinchback was arrested without a warrant. When that is the case, the burden shifts to the defendant to establish that the arrest was privileged, by showing legal justification or probable cause (see Broughton, 37 NY2d at 458 ["Whenever there has been an arrest and imprisonment without a warrant, the officer has acted extrajudicially and the presumption arises that such an arrest and imprisonment are unlawful"] [citations omitted]; Gil v City of New York, 146 AD3d 939, 941 [2d Dept 2017] ["In an action to recover damages for false arrest based on a warrantless arrest, the defendant has the burden of [*7]proving legal justification or probable cause as an affirmative defense "] [citations omitted]).

Defendant's defense is that Mejia was entitled to execute the search as part of her duties as parole officer, and based on Pinchback's consent as part of the conditions of his parole. Claimant's rejoinder is that Mejia was acting as a mere "conduit" for the NYPD officers to carry out an illegal search.

A parolee's rights against unreasonable searches and seizures "is not violated when his [residence] is searched, without a search warrant, by his parole officer if the latter's conduct is rationally and reasonably related to the performance of his duty as a parole officer" (People v Huntley, 43 NY2d 175, 179 [1977]). Thus, in evaluating the lawfulness of a search, "what may be unreasonable in respect to an individual who is not on parole may be reasonable with respect to one who is" (id. at 181). Further, the conditions of Pinchback's parole specifically authorized such a search (see Def Mot Ex C; People v Hale, 93 NY2d 454, 460 [1999] [upholding search by probation officer based on consent set forth in terms of probation; the court-ordered provision and consent were valid provided they "were circumscribed to specified types of searches by probation officers acting within the scope of their supervisory duty and in the context of the probationary goal of rehabilitation"]).

However, these principles do not authorize a parole officer's warrantless search when she "becomes the conduit of [a] police officer in doing what the police officer could not do himself" (People v Candelaria, 63 AD2d 85, 90 [1st Dept 1978]). In determining whether a parole officer is acting within the proper scope of her duties, or as a mere conduit, courts have looked to a number of factors. When the parole officer initiated and conducted the search, that weighs in favor of a finding that it is reasonably related to the officer's duties (see People v Johnson, 94 AD3d 1529, 1532 [4th Dept 2012], lv denied 19 NY3d 974 [2012] [noting, in upholding parole officer's search, his testimony that "he alone made the decision" to carry it out, supported by "legitimate reasons"]; People v Vann, 92 AD3d 702, 703 [2d Dept 2012], lv denied 19 NY3d 868 [2012] [upholding search which was "initiated and conducted" by parole officer, and which was related to his duties]). So too does evidence that the law enforcement agency for which the parole officer is ostensibly a conduit was not conducting its own, independent investigation and prosecution (see People v Sapp, 147 AD3d 1532, 1534 [4th Dept 2017] [noting in rejecting conduit theory, that although FBI participated in the search, it "played no role in the decision to search defendant's residence" and "did not have an open file on defendant"]; People v Escalera, 121 AD3d 1519, 1520 [4th Dept 2014] [rejecting conduit theory where DEA agent indicated that the agency most likely did not want to get involved, and no federal charges were filed]).

On the other hand, the fact that the search is seeking to uncover evidence not reflecting an independent parole violation, except to the extent it is relevant to a criminal investigation run by other law enforcement personnel, supports the notion that the parole officer is acting as an instrument of the police (see Candelaria, 63 AD2d at 90 [search evidence suppressed under "conduit" theory where "search of [parolee's] apartment was clearly designed to elicit evidence of [crime being investigated by police] and not evidence that [parolee] had violated parole . . ."]). The presence of other law enforcement agencies during the search, however, does not by itself demonstrate that the parole officer was a conduit (see Vann, 92 AD3d at 703 ["the assistance of police officers at the scene did not render the search a police operation"]; Johnson, 94 AD3d at 1532 ["the fact that officers from other law enforcement agencies assisted in the search does not [*8]demonstrate that the parole offices in this case were used as a 'conduit' for doing what the police could not do otherwise"]).

Given these standards, there are ample questions of fact here precluding summary judgment. As noted, Mejia testified at the preliminary hearing and suppression hearing that she had made the decision to conduct the search in conjunction with her supervisor; that she did so to ensure that Pinchback was complying with the terms of his parole; and that she directed the search and brought police along to control the scene and avoid trouble. Claimant argues, as Judge Yavinsky found, that the proximity in time between the conversations Mejia had with Libreros, the NYPD's arrest and the decision to search the residence demonstrates that Mejia was merely carrying out the police's intentions, as does the fact that the police ultimately arrested Mejia after the search and used the evidence found to charge him criminally. Moreover, to the extent I credit Pinchback's testimony that the police played a leading role in the search, rather than Mejia's testimony that she was in charge of all aspects thereof, that would support claimant's argument for the State's liability. But these matters turn on credibility assessments, and present questions of fact to be determined at trial.

Claimant places great weight on the fact that Mejia admitted that prior to the search at issue, she had only visited Pinchback's home once or twice, and never performed a full search until Libreros raised the issue (see Reply Aff ¶ 14). While that evidence indeed permits an inference that Mejia was acting for the police, such is not the only conclusion that may be drawn. An alternative inference is that, following Pinchback's February 25 arrest, the parole officers decided that they had reason to search Pinchback's apartment to determine if he was violating the terms of his parole by possessing or selling narcotics. On this construction, the search would be legal, since it is within the ambit of a parole officer's duties to search for contraband whose possession would violate parole — even if such possession would also be a criminal violation (see Sapp, 147 AD3d at 1533 [search by parole officer upheld where officer searched apartment "for the purpose of determining if defendant was in violation of the conditions of his parole because he 'received credible information from law enforcement sources that defendant possessed a large quantity of cocaine in his' residence"] [citing Escalera, 121 AD3d at 1520]).

On this motion, I must draw all inferences in the non-movant's favor (see Sherman v New York State Thruway Auth., 27 NY3d 1019, 1022 [2016]). Presented with two possible alternative readings of the evidence, only one of which entitles claimant to prevail, I cannot grant claimant summary judgment.

In sum, I find that the record before me does not eliminate all issues of material fact regarding claimant's "conduit" claim, and therefore does not establish the merits of Pinchback's cause of action for false arrest as a matter of law. I accordingly deny claimant's motion for summary judgment on this cause of action.[FN10]

I reach the same conclusion in regard to the malicious prosecution cause of action. As noted, to prevail on that claim Pinchback must show "actual malice" (see supra p 9). Actual [*9]malice requires a showing that the prosecution was brought based on a "wrong or improper motive, something other than a desire to see the ends of justice served" (see Nardelli v Stamberg, 44 NY2d 500, 502 [1978]). Further, while malice can be inferred from lack of probable cause or conduct that was reckless or grossly negligent (see Fortunato v City of New York, 63 AD3d 880, 881 [2d Dept 2009]), these predicates have not been established as a matter of law. Absent such proof, and when all inferences are drawn in defendant's favor, plaintiff cannot prove defendant's malice on this motion (see Howell v Davis, 58 AD2d 852 [2d Dept 1977], affd 43 NY2d 874 [1978] ["malice . . . is usually a factual question to be proven at the trial"]). Since there is a question of fact as to the legality of the search, which provided the probable cause for Pinchback's arrest, I cannot grant summary judgment on this claim.

Finally, the State raises the defense of governmental immunity on the ground that the decision to arrest Pinchback was a discretionary exercise of the State's governmental function. Although the State has not cross-moved for summary judgment, I have the power to search the record to grant summary judgment on a non-moving party's behalf (see CPLR 3212 [b]), so I briefly pause to address this issue.

Governmental immunity "shield[s] public entities from liability for discretionary actions taken during the performance of governmental functions" (Valdez v City of New York, 18 NY3d 69, 76 [2011]). Thus, the defense is only available if the governmental unit being sued "establishes that the action taken actually resulted from discretionary decision-making —i.e., the exercise of reasoned judgment which could typically produce different acceptable results" (Trimble v City of Albany, 144 AD3d 1484, 1487 [3d Dept 2016] [citations and internal quotation marks omitted]). Furthermore, "[e]ven where the functions and duties of the municipal actor's particular position entail the exercise of discretion and judgment the governmental function immunity defense is only available when the conduct giving rise to the claim is related to an exercise of that discretion" (id. [citations and internal quotation marks omitted]).

As discussed above, it is claimant's position — which for reasons I have stated and set forth in Judge Yavinsky's decision and order is not without evidentiary support in this record — that the State's parole officers were not exercising reasoned discretion here, but were acting as cats' paws for the NYPD, so that officers of the latter could search Pinchback's apartment without warrant or probable cause. Thus, assuming without deciding that governmental immunity would otherwise be applicable here, there are at very least questions of fact that must be resolved before I can rule on the merits of this defense.

Given the foregoing, claimant's motion for summary judgment is denied. The Court will contact the parties upon the filing of this decision to set a trial date.

Albany, New York

December 19, 2017

DAVID A. WEINSTEIN

Judge of the Court of Claims

Papers Considered:

1.Claimant's Notice of Motion, dated June 29, 2017, Affirmation in Support with Exhibits annexed;

2.Defendant's Affirmation in Opposition, dated October 17, 2017 with Exhibits annexed; and

3.Claimant's Reply Affirmation, dated November 8, 2017 with Exhibit annexed. Footnotes

Footnote 1:This outline is derived largely from the affirmation of claimant's counsel.

Footnote 2:The report was entered by an individual named Mark Parker, who appears from other record evidence to have been Mejia's supervisor (see infra p 3).

Footnote 3:Mejia testified at a subsequent probable cause hearing that the violation was based on the scale, not the bullets (Preliminary Hearing Transcript at 24, in Cl Ex G). But she said that the arresting NYPD officer told her that Pinchback was being taken into custody based on "the stuff that was recovered" generally (id. at 35).

Footnote 4:Mejia acknowledged that she had not decided to carry out the search at the time she initially spoke to her supervisor, although she informed Libreros that they would "most likely" search the residence, and if they did they would ask for the NYPD's assistance (id. at 18).

Footnote 5:The specific language cited is from the conditions of release submitted with defendant's motion papers. The sum and substance of the provision was described by Mejia in her testimony.

Footnote 6:At one point, Mejia seemed to indicate that there were six officers in total (i.e., including the parole officers), but conceded that in testimony at the probable cause hearing, she said that there were eight law enforcement officers present altogether (see id. at 18-19).

Footnote 7:This and other decisions of the Court of Claims may be found on the court's website: http://www.nycourts.gov/courts/nyscourtofclaims/

Footnote 8:The Attorney General's role in representing the State here, when it had no part in the criminal proceeding, is key in finding the absence of privity. Indeed, the Second Department found that when the county was represented in a proceeding by the County Attorney, it was not in privity with the DA from the very same county for purposes of collateral estoppel (see Matter of Saccoccio v Lange, 194 AD2d 794, 794-795 [2d Dept 1993]).

Footnote 9:I note one further quirk of this case, which neither party raises, and which I need not address in light of my decision above. The record reflects two rulings made on the "conduit" theory vis-a-vis the March 4 search: that of a Division of Parole hearing officer at the probable case hearing that Mejia was not serving as a conduit for the NYPD, and that of Judge Yavinsky at the suppression hearing that she was. I presume for present purposes that the only ruling that matters for collateral estoppel purposes was that of Judge Yavinsky.

Footnote 10:There is one more potential basis for denying the motion. Mejia's testimony at the suppression hearing can be read to state that Pinchback gave her specific consent to conduct the search at issue (see supra p 6 [citing Cl Ex A at 20]). The parties' submissions contain no discussion of this testimony or its import, and I do not rely on it for my ruling.