New York State Court of Claims

New York State Court of Claims

ACCORDINO v. THE STATE OF NEW YORK, #2000-017-005, Claim No. 96654


The Court dismissed claimant's claim for malicious prosecution on the ground that he failed to establish that the underlying criminal charges were terminated in his favor, that probable cause for his arrest was lacking, or that the arrest was made with malice.

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:
Hayward, Parker & O'LearyBy: Richard L. Parker, Esq.
Defendant's attorney:
Hon. Eliot Spitzer
Attorney General of the State of New YorkBy: Dewey Lee, Esq., Assistant Attorney General
Third-party defendant's attorney:

Signature date:
May 25, 2000
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)

Claimant filed the instant claim alleging malicious prosecution after criminal charges leveled against him in connection with an assault on an inmate housed in the Mid-Hudson Psychiatric Center, where claimant was employed, were dismissed. A bifurcated trial was held and this decision pertains solely to the question of liability.

The facts elicited at trial establish that on April 18, 1995 Deryck Lashley was transferred from Hudson River Psychiatric Center to Mid-Hudson Psychiatric Center after assaulting another patient at the first facility. When Mr. Lashley arrived at the Mid-Hudson facility in the afternoon on that date, he was assigned to a ward staffed on the evening shift by claimant, Mr. Judkins, Mr. Nelson and Mr. Chimente. At the time, Mr. Lashley was designated as an assault and suicide risk. At approximately 8 p.m. that evening, an altercation arose between Mr. Judkins and Mr. Lashley during which Mr. Lashley sustained a cut to his lip. Mr. Lashley was placed in a camisole or straightjacket after the altercation. Photographic evidence admitted at trial establishes that sometime thereafter Mr. Lashley received severe burns to his face, chest and back (
see, Exhs. A1-A4).
An internal investigation of the matter was conducted by employees of the facility (
see, Exh. C), and their investigation summary indicates that Mr. Lashley consistently stated in two interviews that Mr. Judkins verbally abused him, that after the verbal exchange he was kicked in the face by a white male staff member having a mohawk-type hair cut and that each of the three persons assigned by the facility to conduct an investigation concluded that that unnamed employee was claimant (see, Exh. C., p. 3). The report indicates that several patient witnesses have identified both Mr. Judkins and claimant by name as having physically abused Mr. Lashley by punching him, kicking him and slamming him against a sofa (see, id., p. 4). The report also documents that Mr. Lashley and other patient witnesses identified Mr. Judkins as pouring hot water on Lashley's face, chest and back and that patient witnesses placed claimant in the vicinity at the time those acts were committed (see, id., p. 4). The proof elicited at trial also establishes that a microwave and coffee urn from which hot water could have been obtained were available to staff members on the ward on the date of this incident
Mr. Judkins, who was acquitted of criminal charges arising from the incident, testified at this trial that he is currently employed as a Security Hospital Treatment Assistant at Mid Hudson Psychiatric Center, and has been so employed since May of 1991. Mr. Judkins recalled that he worked from 3:00 p.m. to 11:00 p.m. on the evening of April 18, 1995 and was assigned to wards 35 and 36 on that date. He testified that he worked with claimant, Mr. Nelson and Mr. Chimente on those wards and that Deryck Lashley was a new admission that day. According to Mr. Judkins, he was stationed at a desk in the gymnasium and claimant was seated at an adjacent desk. He also recalled that Mr. Nelson was stationed at the end of the gymnasium and that Mr. Chimente was stationed down a corridor in the dormitory area. On that day, he was assigned to complete paperwork in addition to supervising approximately 40 patients. Mr. Judkins learned that Lashley was an emergency transfer, and that he was designated an assault and a suicide precaution, meaning he had the propensity to hurt himself or another.

Mr. Judkins testified that he was stationed approximately 12 feet from Lashley and he recalled speaking with Lashley when he was admitted. He testified that at approximately 7:45 p.m. he was inspecting Lashley's belongings as part of the admissions process which apparently angered Lashley and prompted him to lunge at Judkins. Mr. Judkins testified that he attempted to restrain Mr. Lashley and admitted that he punched Lashley in the face in defense. He testified that he grabbed Lashley to subdue him and was assisted by claimant. According to Mr. Judkins, a supervisor, Mr. Schoen, was contacted and arrived on the scene and directed the assistants to place Mr. Lashley in a camisole (
see, Exh. B). He testified that he and claimant had put Lashley in the camisole, and recalled that thereafter Mr. Lashley was seen by Nurse Burns, and a doctor. Mr. Judkins testified that he continued to monitor Mr. Lashley that evening and that Lashley never complained of any pain or distress. He testified that Mr. Lashley remained in his sight the entire time and that claimant never punched or kicked Mr. Lashley.
On cross-examination, Mr. Judkins testified that after the incident with Mr. Lashley he filled out an incident report and had an obligation to complete the report truthfully. He conceded that he failed to mention in that report that he had punched Mr. Lashley and did not include that fact in a statement that he provided to Penny Watkins, who was one of the employees assigned to internally investigate the matter (
see, Exh. E). He also acknowledged that he could be criminally charged with putting a false entry into a record. He candidly added that he should not have punched Mr. Lashley and had not been taught to punch patients in restraint training. He admitted that as part of his employment duties he is responsible for the care and well being of patients. He testified that he never saw claimant assault Mr. Lashley and had no idea how Mr. Lashley sustained the burns shown in the photos marked as Exhibits A1-A4. Mr. Judkins conceded that he had previously been convicted of three crimes, but explained that he committed them as a youth over 25 years ago, and has since overcome the drug problem that led him to commit those crimes. He conceded, however, that he listed only two of the three convictions on his application for employment at Mid-Hudson Psychiatric Center.
Donald Schoen testified that he has been employed by Mid Hudson Psychiatric Center for 19.5 years and has been a Security Hospital Senior Treatment Assistant since 1992. He recalled that he was responsible for wards 35 and 36 on the incident date and worked the 3-to-11 shift that day. He testified that he did not witness the incident on the ward with Mr. Lashley, but was summoned there and observed three treatment assistants restraining Mr. Lashley, whom he described as uncontrollable at that time. He explained that because Mr. Lashley remained uncontrollable, he ordered the staff to place him in a restraint. He testified that he remained on the ward for approximately one hour after the incident and during that time observed a small amount of blood on Mr. Lashley's lip. He called for medical attention and a duty nurse and the on-duty doctor, Dr. Caioli, responded to the scene. Mr. Schoen testified that he never saw claimant hit, punch or kick Mr. Lashley, he did not observe any blood on claimant's garments, and he never observed anyone pour hot water on Mr. Lashley.

On cross-examination, Mr. Schoen testified that he arrived on the ward in response to a call for assistance around 8 p.m. and left at around 9:15 p.m. He recalled that when he left, Mr. Judkins and claimant were still working. He was shown Exhibits A1 through A4, and recognized them as photos of Mr. Lashley. He testified that he did not see those injuries on Mr. Lashley at 9:15 p.m. when he left the ward.

James Thomas Burns was employed as a Registered Nurse at Mid Hudson Psychiatric Center on the date of the incident and was assigned to wards 35 and 36 on that date. Mr. Burns testified that he worked the 3-to-11 shift on that date and had his first contact with Mr. Lashley before 4:00 p.m.. He recalled that Mr. Lashley was
agitated, hostile, and verbally abusive, and that he was on precaution status for assault and suicide. He did not note any physical injuries on that initial contact. Mr. Burns also testified that he saw Mr. Lashley again after he was placed in the camisole. At that time, he observed that Mr. Lashley had a swollen lower lip and a cut to the tongue. He testified that Mr. Lashley denied having injuries other than what was visible. He estimated that he was in Mr. Lashley's presence 10 or 15 minutes and did not observe any staff hit, punch or kick him during that time. Mr. Burns testified that he saw Mr. Lashley again at approximately 9:00 p.m. that evening as part of the facility's protocol for patients in restraints (see, Exh. C, p. 66). Mr. Burns never noticed any liquid on the camisole, which he touched during his attempts to take Mr. Lashley's vital signs.
Vincent Chimente, who was stationed in the hallway outside Mr. Lashley's unit at the time of the incident in question, testified that he assisted the other Security Hospital Treatment Assistants, including claimant, in subduing Mr. Lashley. He recalled observing blood on Lashley's lip, but never saw anyone strike, hit, kick or throw water on the patient.

Christine Thorn, who has been employed by Mid Hudson as a Security Hospital Treatment Assistant for 12 years, testified that she worked the 7:00 to 3:00 shift on the morning of April 19, 1995, and recalled that she had direct dealings with Mr. Lashley that morning. She testified that he did not complain of pain or discomfort during that time and never saw any wet spots on the camisole. Claimant's account of the incident at trial was similar to that presented by Mr. Judkins. He testified that he never hit, kicked or poked Mr. Lashley, never saw anyone else do so, and never saw anyone pour scalding water on the patient. He reiterated that after Mr. Lashley was placed in a restraint, he was monitored every 15 minutes by a Treatment Assistant and every hour by a nurse. During that time, claimant never heard Mr. Lashley complain of pain or distress.

Claimant recalled that approximately two months after the alleged incident two New York State Police Troopers came to his house and identified themselves as Investigators Marsh and Rogan. He testified that he was not placed under arrest at that time. He recalled that in February 1996 he received a call from Investigator Marsh and retained legal counsel. He testified that he and his attorney arranged to meet with police and he surrendered himself the following day at the State Police barracks. He recalled that his attorney had a conversation with the Assistant District Attorney and the police officers outside of his presence and that thereafter he was formally charged with several charges which were eventually dismissed. He testified that disciplinary charges were brought against him as a result of the charges.

Investigator Michael Rogan was deposed in connection with this matter, and his deposition testimony was admitted into evidence as Exhibit 19. Investigator Rogan testified that he has been employed by the New York State Police for 16 years and had investigated the events that transpired at Mid-Hudson Psychiatric Center involving Deryck Lashley on April 18, 1995. He testified that he first became involved in the investigation when the alleged assault on Lashley was reported to the State Police on or about April 20, 1995 by one of the directors of the facility. According to Investigator Rogan, upon receiving that report, he and Senior Investigator Denny Marsh visited the facility and interviewed several staff members regarding an internal investigation of the incident. He testified that he learned from those interviews that Mr. Lashley was admitted to the facility several days earlier with no injuries, but was later found to have very serious injuries, including facial lacerations and burns on his face, chest and back. He also recalled that the staff members provided them with the names of the persons who were working on the relevant ward on that date and had indicated that they had taken statements from Mr. Lashley and employees on the ward. Investigator Rogan testified that he and Investigator Marsh visited the ward where the incident occurred and took photographs of the area. He also recalled that Mr. Lashley told him that he was involved in an argument with Mr. Judkins who subsequently grabbed him in front while another person grabbed him from behind and that he was kicked an punched before being placed in a camisole. Investigator Rogan remembered Mr. Lashley referring to a "blond guy," but could not recall the descriptions of the other people that Lashley implicated in the incident. Investigator Rogan testified that Mr. Lashley "seemed fairly lucid" during the interview.

Investigator Rogan also testified that he and Investigator Marsh attempted to interview claimant at his home, but that claimant told him that he had already given a statement at work and that they should refer to that statement for answers to their questions. He testified that claimant's hair was brown at the time he visited his home. Investigator Rogan also obtained through subpoenas the internal investigative report prepared after the assault of Deryck Lashley (
see, Exh. C) and the personnel records of the four employees who were present on the ward when the assault occurred, which he reviewed. He recalled that the investigative report contained documentation of several interviews of Mr. Lashley and that he reviewed the summary contained in the final internal investigative report. He testified that he also consulted with Assistant District Attorney LoBiondo, and subsequently swore out four criminal informations that charged claimant with official misconduct, assault in the third degree, endangering the welfare of an incompetent person and criminal facilitation in the fourth degree which led to claimant's arrest. Investigator Rogan acknowledged that claimant could have avoided arrest if he cooperated in the prosecution of Mr. Judkins.
Richard Nelson Bennett, who was the administrator in charge of the facility on the date of the incident, was deposed in connection with this Claim, and his deposition testimony was admitted as Exhibit 20. Mr. Bennett testified that he assigned three special investigators to investigate the Lashley matter, including William Sonner, Tim Denier and Penny Jude Watkins. He recalled that those employees were specially trained by the Office of Mental Health on the gathering of evidence, interrogation and interview of witnesses, organization of an investigation and preparation of a written report. The report they completed was admitted into evidence as Exhibit C. Mr. Bennett testified that he was present during one of the interviews with Mr. Lashley and that it was "obvious" that Mr. Lashley was describing claimant as one of his assailants, although he did not refer to claimant by name (
see, Exh. 20, p. 13, line 21).
Claimant seeks damages for malicious prosecution based on the proof elicited at trial. The law is well-settled that to sustain a cause of action sounding in malicious prosecution, the claimant must establish that a proceeding was initiated, it was terminated favorably to claimant, and that the prosecution was initiated without probable cause and with malice (
see, Colon v City of New York, 60 NY2d 78, 82). Here, there is no dispute that a proceeding was initiated, given that claimant was arrested and charged with official misconduct, assault in the third degree, endangering the welfare of an incompetent person and criminal facilitation in the fourth degree in connection with the physical abuse of Deryck Lashley that allegedly occurred on April 18, 1995. However, defendant vigorously argues that claimant has failed to establish the remaining three elements of the cause of action.
A threshold question arises as to whether claimant has met his burden of establishing that the prosecution terminated in his favor (
see, MacFawn v Kresler, 88 NY2d 859, 860). The Court of Appeals has ruled that "[a] criminal proceeding terminates favorably to the accused, for purposes of a malicious prosecution claim, when the final disposition of the proceeding involves the merits and indicates the accused's innocence" (id.). The standard has not been met when the question of the accused's guilt or innocence remains unanswered (see, Ward v Silverberg, 85 NY2d 993, 994). The parties stipulated at trial that, had the Assistant District Attorney who handled claimant's prosecution testified at this trial, he would have testified that all of the underlying criminal charges against claimant were dismissed "in the interest of justice." Uncertainty has emerged in judicial authority as to whether a dismissal "in the interest of justice" can constitute a favorable termination for purposes of a malicious prosecution action. While the Second Department, with which this Court is most concerned, has ruled that a termination in the interest of justice pursuant to CPL 170.40 is not a termination favorable to the accused as a matter of law (see, DiCecilia v Early, 234 AD2d 335; Wolosin v Campo, 222 AD2d 432; Miller v Star, 123 AD2d 750; see also Kramer v Herrera, 176 AD2d 1241 [4th Dep't 1991]), other courts have determined that a claimant is entitled to present proof to establish that the dismissal in the interest of justice was based on a judicial assessment of the claimant's innocence (see, Hankins v Great Atlantic and Pacific Tea Co., 208 AD2d 111 [1st Dep't 1995]; Reinhart v Jakubowski, 239 AD2d 765 [3rd Dep't 1997]; Gallagher v State of New York, 176 Misc 2d 226; Brown v Town of Henrietta, 118 Misc 2d 133; but see, Smith-Hunter v Harvey 257 AD2d 239, 242 [Earlier suggestion in Third Department case law "suggesting that (the Court) will look behind the disposition to determine whether the dismissal implied that the charge lacked a reasonable foundation" was dismissed as dictum and a simple effort to resolve all issues raised on appeal]). Based on the authority emanating from the Second Department, this Court concludes that claimant has failed to establish that the criminal prosecution was terminated favorably for purposes of maintaining this malicious prosecution action.
Even assuming that this Court were to engage in a search of the record for the reasons underlying the dismissal, the Court would reach the same result because it contains insufficient proof that the charges against claimant were dismissed on the basis of his innocence
. The only proof provided by claimant on the nature of the termination of the prosecution was his own testimony that the four charges leveled against him were "dismissed" as well as a certificate of disposition which provides plainly that two of the four charges were "dismissed" (see, Exh. 16). In the aggregate, this proof falls short of establishing that the dismissal in question rested on a judicial consideration of claimant's innocence (see, Gallagher v State of New York, 176 Misc 2d 226, 236, supra).
The Court also finds on the proof elicited at trial that claimant has failed to establish that the prosecution was initiated without probable cause and with malice. A prosecution is said to have been undertaken without probable cause when no reasonably prudent person would have believed that claimant was guilty of the crimes charged, given the facts known or reasonably known to be true to defendant at the time the prosecution was initiated (
see, Munoz v City of New York, 18 NY2d 6). Importantly, "[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 v City of New York, 60 NY2d 78, 82, supra).
Here, Investigator Rogan's deposition testimony establishes that in placing claimant under arrest, he relied on the results of the internal facility investigation, numerous eyewitness statements to the alleged attacks on Mr. Lashley and Mr. Lashley's multiple, consistent statements which all implicated claimant in the abuse of Mr. Lashley (
see, Exh. C). Claimant has failed to demonstrate that because Mr. Lashley and many of the eyewitnesses to the incident suffered from various mental illnesses they were incapable of providing a truthful or reliable account of the incident at issue upon which a determination of probable cause could have been predicated at the time of the prosecution. Likewise, claimant has failed to convince this Court that the prosecution was instituted with malice simply because claimant declined to testify against Mr. Judkins. Claimant has not demonstrated that the offer of a deal in exchange for his testimony against Mr. Judkins was motivated by malice rather than a genuine prosecutorial interest in securing a conviction against the more serious alleged offender, Mr. Judkins, and claimant has failed to provide this Court with proof of any other acts of defendant's agents or circumstantial evidence from which malice may otherwise be inferred (see, Martin v City of Albany, 42 NY2d 13, 17; cf. Avildsen v Prystay, 204 AD2d 154, 155).
Accordingly, Claim No. 96654 is dismissed. All trial motions not heretofore decided are deemed denied.


May 25, 2000
White Plains, New York

Judge of the Court of Claims