New York State Court of Claims

New York State Court of Claims

BOOMER v. THE STATE OF NEW YORK, #2000-015-506, Claim No. 98463


Absent a demonstration that the conduct of the police violated a governing statute or deviated egregiously from accepted practices applicable in criminal cases a malicious prosecution cause of action will fail for not having established a lack of probable cause.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):

Cross-motion number(s):

Claimant's attorney:
Fiol & HershkowitzBy: Steven A. Hershkowitz, Esquire
Defendant's attorney:
Honorable Eliot Spitzer, Attorney GeneralBy: Michael W. Friedman, Esquire
Third-party defendant's attorney:

Signature date:
May 8, 2000
Saratoga Springs

Official citation:

Appellate results:
Affirmed - Third Dept., 11/21/01
See also (multicaptioned case)


This is a claim to recover damages allegedly arising from the malicious prosecution[1]
of claimant upon a charge of the sale of a controlled substance.
The uncontested facts in this record reflect that at approximately 2:30 p.m. on December 20, 1996 several individuals of African-American heritage sold controlled substances in the City of Troy to undercover State Trooper Vonnie Vardine and Investigator Samuel Mercado. The sale transactions were recorded by a video camera contained within the vehicle occupied by Mercado and Vardine. On February 3, 1997, an indictment was filed in the Rensselaer County Court charging claimant with the sale of a controlled substance. Trooper Mercado was presented to the Grand Jury as a witness and identified claimant as one of those who had sold him drugs. Claimant was arrested pursuant to a warrant on February 5, 1997 and was incarcerated in the Rensselaer County Jail for approximately four weeks until his bail hearing. At the bail hearing, claimant asserted an alibi defense and the presiding judge required the prosecution to produce its identity evidence. The prosecution provided both the December 20, 1996 video surveillance tape and a photograph which had been distilled therefrom. The items were reviewed
in camera and found by the Court to be inconclusive, resulting in the claimant's release and the dismissal of all charges against him on March 24, 1997.
"In order to establish a prima facie case of malicious prosecution, a ... [claimant] must demonstrate (1) the commencement of a criminal proceeding by defendant against him, (2) the termination of that proceeding in his favor, (3) the absence of probable cause for the proceeding and (4) actual malice" (
Ellsworth v City of Gloversville, ____ AD2d ____, 703 NYS2d 294, 296). The first two elements of the cause of action are not contested by the defendant and the issues before the Court are whether claimant has established the absence of probable cause and actual malice.
"It is well settled that a Grand Jury indictment creates a presumption of probable cause to reasonably believe that the plaintiff committed the crime charged and that the presumption may be overcome by the plaintiff showing fraud, perjury, or the withholding of evidence, or by evidence establishing that the police conduct deviated egregiously from either statutory requirements or accepted practices applicable to criminal cases" (
DeFilippo v County of Nassau, 208 AD2d 793, 794, 795). Claimant has not made any argument of fraud, perjury, or the withholding of evidence. Instead, claimant argues that the conduct of Investigator Mercado deviated so egregiously from accepted practices as to negate the presumption of probable cause arising from the Grand Jury indictment.
Claimant relies upon the case of
Hernandez v State of New York, 228 AD2d 902, in which the identification of an alleged drug seller by Mercado was found to have "deviated so egregiously from acceptable police activity as to demonstrate an intentional or reckless disregard for proper procedures" (id 904). In Hernandez, the Third Department made clear that "there is no requirement that the defendant's acts 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" (id 904). Thus, the dispositive issue in this litigation is whether the conduct of Investigator Mercado in identifying claimant before the Grand Jury as one of the individuals who had sold him drugs on December 20, 1996 was so egregious as to "permit the trier of fact to infer grossly negligent conduct sufficient to overcome the presumption of probable cause arising from the Grand Jury's indictment" (Hernandez v State of New York, supra, at 905).
The evidence presented at trial established that during December of 1996, the New York State Police and Troy Police were conducting a joint undercover drug operation in the City of Troy, New York. The plan in place at the time of the operation called for Mercado and New York State Trooper Vonnie Vardine to travel about Troy in an automobile equipped with a video camera and attempt to purchase drugs from street drug vendors while recording the sales on the video camera concealed within the vehicle. The persons making the sales would not be arrested immediately following the transactions. Instead, if Mercado, Vardine or police back-up teams could not make an identification of the drug seller, still photographs would be made from the videotape and placed in a folder and delivered to State Police Investigator Michael Student. Investigator Student was part of the undercover drug operation with the assigned duties of backing up the undercover officers, identifying the individual drug sellers and participating in their arrest. Student would examine the photographs to determine where the sales took place and then inquire of Mercado and Vardine if they knew where to locate the suspects. Absent that source of identification, Student would display the photographs to local Troy police officers in the hope that those officers could identify the sellers. If a positive identification was made by a Troy police officer, Student would prepare a Narcotics Investigative Worksheet naming the suspect and relating the source of the positive identification. Investigator Student would then deliver the Narcotics Investigative Worksheet to Mercado and explain the manner in which the suspect was identified. Mercado would then go before the Grand Jury to identify the suspect and explain the manner by which the individual was identified. An indictment would then issue and the suspect would be arrested.

In this case, a still photograph was developed from the videotape of the drug buys of December 20, 1996. The photograph, received into evidence as Exhibit 2, was placed in a folder and delivered to Investigator Student. Investigator Student showed Exhibit 2 to Troy Police Officer Colleen Goldston in an attempt to identify the seller because he knew that she was a street enforcement officer involved in the Troy Police drug detail and had made reliable identifications from photographs on prior occasions. Officer Goldston identified the person depicted in Exhibit 2 as the claimant. Based upon the positive identification made by Officer Goldston, Investigator Student prepared a Narcotics Investigative Worksheet, received into evidence as Exhibit 10, which identified the claimant as the perpetrator. Student then delivered a copy of the Worksheet to Mercado and informed him of Officer Goldston's positive identification. When summoned before the Grand Jury, Mercado identified claimant as the person who had sold him drugs on December 20, 1996 and stated to the Grand Jury that the basis of his identification was information received by him from another member of his investigating unit advising him that Troy Police Officer Goldston had positively identified claimant as the drug dealer depicted in a photograph taken from the surveillance videotape. Mercado, Vardine, Goldston, claimant, and Student all testified during the trial of this claim and a review of their testimony will not be undertaken in detail. However, the highlights of that testimony relevant to the issues of probable cause and malice will be recounted.

Samuel Mercado was an experienced undercover investigator for the State Police at the time of the events giving rise to this claim. He did not know claimant prior to the time of the arrest and never personally identified claimant as one of the persons who sold him drugs on December 20, 1996 either by a lineup or through photographs. Mercado was not involved in obtaining the still prints from the videotape or displaying them to other officers. Mercado testified that showing still pictures from the surveillance tape to Troy police officers in order to identify the drug sellers was a normal investigative process employed by the State Police and other police agencies to identify offenders and that the same procedure has been used both before and after the incident of December 20, 1996. Mercado testified that he never personally viewed the claimant or a photograph of him prior to his Grand Jury testimony and that his only involvement after December 20, 1996 was his Grand Jury appearance.

Vonnie Vardine testified that while she took part in the undercover drug buy on December 20, 1996 she had no further involvement with claimant's arrest. She had never met him prior to the incident and did not identify him as one of the drug vendors either in person or through photographs. Troy Police Officer Colleen Goldston testified that she had been a Troy police officer for approximately fifteen years and held the position of patrolman during December of 1996. Officer Goldston testified that she was sometimes involved in drug arrests and that she was shown Exhibit 2 by the State Police in December of 1996 because she was familiar with the area where the sale occurred as a result of her work with the Rensselaer County Department of Social Services and her duties as a police officer. Officer Goldston stated that she identified claimant as the person depicted in Exhibit 2 making the drug sale on December 20, 1996 to Mercado and Vardine. Officer Goldston stated that after she identified claimant as the drug dealer from the photograph she never saw him again and was not involved in his arrest.

Investigator Student testified that he had been involved in similar undercover drug operations on many occasions prior to this incident and stated that his major assignment in the course of the investigation was to confirm the identification of the persons from whom the undercover officers purchased drugs. He confirmed that he received Exhibit 2 in a folder from a supervisor and showed it to Officer Goldston who identified claimant as the person depicted in the photograph. Based upon that identification Investigator Student completed a Narcotics Investigative Worksheet and advised Mercado of the positive photographic identification. Although Student requested a picture of the claimant from the New York City Police Department after doing a computer search of his criminal history, that photograph was never received. Investigator Student testified that identifying a suspect by the use of a photograph was an accepted method used by all local police agencies, had been used on many prior occasions, and was highly reliable.

The Court reserved decision upon the defendant's motion to dismiss the claim for failure to establish a prima facie case of malicious prosecution made at the close of the claimant's case and that motion will now be addressed.

In order to sustain claimant's cause of action for malicious prosecution the Court must determine from the testimony and exhibits "that the police conduct deviated egregiously from statutory requirements or accepted practices applicable in criminal cases" (
Gisondi v Town of Harrison, 72 NY2d 280, 285). Claimant's counsel has not set forth any statutes violated by Mercado or Vardine and the Court's own research has not revealed an egregious deviation from a statutory requirement. Thus, the case reduces to whether the conduct complained of by claimant violated accepted practices applicable in criminal cases. Upon that issue, the Court notes that claimant did not introduce any evidence of policies of the New York State Police or the Troy Police Department which were allegedly violated, nor was any expert evidence introduced establishing the applicable police procedures and any deviation therefrom. As the Court of Appeals stated about most triers of fact in Selkowitz v County of Nassau, 45 NY2d 97, 102, "few indeed are familiar with authorized police procedures".
Here, Investigator Student testified that the use of a photograph taken from surveillance videotape to identify claimant as the perpetrator of the crime was accepted police practice for making an identification and was highly reliable. "[I]t is settled law that probable cause for a valid arrest may be provided by a photographic identification" (
Williams v Moore, 197 AD2d 511, 514). That is so, even when the person mistakenly identified bears no real resemblance to the photograph and has proffered alibi evidence (Gisondi v Town of Harrison, 72 NY2d 280, supra). The fact that the photographic identification subsequently proves to be invalid is not a basis in and of itself for finding a lack of probable cause, as the probable cause necessary in the context of a grand jury presentation is the requirement of "such facts and circumstances as would lead a reasonably prudent person in like circumstances to believe plaintiff guilty" (Maxwell v City of New York, 156 AD2d 28, 34).
The claimant argues that the identification made by Senior Investigator Mercado before the Grand Jury was improper. Upon a facial examination, the identification would appear to be improper as Senior Investigator Mercado as the complaining witness did not identify claimant before the Grand Jury from a photograph as the perpetrator with the claimant later being identified by the custodian of the police photographic records (
see, People v Brewster, 63 NY2d 419; People v Hughes, 159 Misc 2d 663). However, the question before this Court is whether the actions complained of rise to the level of grossly negligent conduct so as to overcome the presumption of probable cause which results from the Grand Jury indictment.
In this case, Senior Investigator Mercado as the officer in charge of the investigation testified before the Grand Jury that the claimant was identified as the perpetrator based upon a photograph selected by Troy Police Officer Colleen Goldston. The only proof at trial was that such identifications are good and accepted police procedures. No proof to the contrary was offered. Unlike the circumstances in
Hernandez v State, 228 AD2d 902, supra, Investigator Mercado did not directly identify the claimant as the perpetrator before the grand Jury. Rather, he related the Goldston identification as the basis of his testimony. More importantly, there is no proof that the investigation ignored the obvious inconsistencies present in Hernandez including differences present in the age, height, weight and place of residence of the perpetrator and the accused. In the absence of proof regarding the failure to follow accepted investigatory procedures and under the circumstances here present, the Court finds that the claimant has failed to prove reckless or grossly negligent conduct sufficient to overcome the presumption of probable cause arising from the Grand Jury indictment. As a result, claimant has failed to establish a prima facie case of malicious prosecution requiring the granting of the defendant's motion to dismiss.
Let judgment be entered accordingly.

May 8, 2000
Saratoga Springs, New York

Judge of the Court of Claims

[1]Although the claim refers to constitutional tort, wrongful imprisonment, malicious prosecution and negligent retention, training and supervision of the involved troopers, claimant's counsel took the position in support of the claimant's successful motion for permission to serve and file a late claim that claimant intended only to proceed upon theories of malicious prosecution and negligent hiring, training and supervision (Boomer v State of New York, filed May 18, 1998, motion no M-57144, J. Collins). In his memorandum of law submitted after trial, claimant has further limited his theory of recovery to a malicious prosecution cause of action. Consequently, since claimant has refined the focus of his allegations to encompass a recovery solely upon a malicious prosecution theory all of the other causes of action referred to in the claim are deemed abandoned (Huzar v State of New York, 156 Misc 2d 370, 371).