New York State Court of Claims

New York State Court of Claims

OCTAVE v. THE STATE OF NEW YORK, #2001-001-019, Claim No. 97393, Motion No. M-62801


Synopsis



Case Information

UID:
2001-001-019
Claimant(s):
MCGREGOR D. OCTAVE
Claimant short name:
OCTAVE
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
97393
Motion number(s):
M-62801
Cross-motion number(s):

Judge:
Susan Phillips Read
Claimant's attorney:
Law Office of Lewis B. Oliver, Jr., Esq.By: Mark A. Edwards, Esq., Of Counsel
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Michael C. Rizzo, Esq., Assistant Attorney General, Of Counsel
Third-party defendant's attorney:

Signature date:
March 30, 2001
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read and considered on defendant's motion for summary judgment pursuant to CPLR 3212: Notice of Motion, dated and filed December 6, 2000; Affidavit of Michael C. Rizzo, Esq., AAG, sworn to and filed December 6, 2000, with annexed Exhibits 1-17; Defendant's Memorandum of Law, dated and rec'd December 6, 2000; Affirmation in Opposition of Mark A. Edwards, Esq., affirmed February 15 and filed February 20, 2001, with separately bound Exhibits A-Z and AA-EE; Claimant's Memorandum of Law in Opposition, dated February 15 and rec'd February 20, 2001; Expert Witness Affidavit of Ralph J. Capone, sworn to February 6 and filed February 20, 2001, with annexed Exhibit A; Examination Before Trial ("EBT") testimony of Senior Investigator Samuel Mercado, taken February 8, 2000; EBT testimony of Investigator Vonnie Vardine, taken February 8, 2000; EBT testimony of Investigator Donald A. Wilkinson, taken March 14, 2000; EBT testimony of Ralph W. Marshall, taken March 14 and 16, 2000 [two volumes]; EBT testimony of Senior Investigator David F. Madden, Jr., taken March 16, 2000; EBT testimony of Investigator Peter S. Scotti, taken March 16, 2000; EBT testimony of John J. Mahoney, taken February 10, 2000; EBT testimony of Patrick A. Russo, taken February 10, 2000; excerpts from EBT testimony of McGregor D. Octave, taken February 7, 2000; and Reply Affidavit of Michael C. Rizzo, Esq., AAG, sworn to February 21 and filed February 22, 2001, with annexed Exhibits 18-19.

The Troy Police Department and the New York State Police conducted a joint undercover drug-buying investigation into the sale and distribution of crack cocaine and marijuana, called "Operation Video Sale," in the City of Troy, Rensselaer County, New York in the winter of 1996-97 (EBT testimony of Senior Investigator Samuel Mercado, taken February 8, 2000 ["Mercado EBT"], at 17, 21; EBT testimony of Investigator Donald A. Wilkinson, taken March 14, 2000 ["Wilkinson EBT"], at 20; Affirmation in Opposition of Mark A. Edwards, Esq., affirmed February 15 and filed February 20, 2001, with separately bound Exhibits A-Z and AA-EE ["Edwards Aff."], Exh. U ["Raid Briefing"]). As part of this so-called "drug sweep," undercover New York State Police officers bought drugs from street-level dealers. The officers traveled in vehicles equipped with hidden cameras pointed at the passenger-side window (Mercado EBT, at 20-22, 42-43); and later documented each drug transaction on a "buy sheet" (Mercado EBT, at 33; Affidavit of Michael C. Rizzo, Esq., AAG, sworn to and filed December 6, 2000 ["Rizzo Aff."], Exh. 16).

During the drug sweep, State Police Senior Investigator Samuel Mercado ("Mercado") and his partner, State Police Trooper Vonnie Vardine (Mercado EBT, at 19-20), purchased crack cocaine from an individual known as "Dre" on December 18 and 30, 1996 and on January 3 and 14, 1997 (Rizzo Aff., ¶ 9; Mercado EBT, at 25-37; EBT testimony of Investigator Vonnie Vardine taken February 8, 2000, at 25, 44, 54). During the undercover officers' encounter with "Dre" on December 18, 1996, he approached the passenger-side window and lingered long enough for the officers to record his image on videotape (Mercado EBT, at 44-45; Rizzo Aff., Exh. 16 ["buy sheet" for December 18, 1996]).[1]

On December 30, 1996, the next time the undercover officers encountered "Dre," he was operating a red, four-door Geo Prism. Mercado memorized this vehicle's license plate number and his back-up team officers also were able to note it (Mercado EBT, at 31-33; Rizzo Aff., Exh.16 ["buy sheet" for December 30, 1996]). When the officers encountered "Dre" on January 3, 1997, he was operating a maroon pick-up truck, the license plate number for which was not obtained (Rizzo Aff., Exh. 16 ["buy sheet" for January 3, 1997]; Wilkinson EBT, at 84-87). When the officers encountered "Dre" for the last time, on January 14, 1997, he was again operating the red, four-door Geo Prism (Rizzo Aff., Exh.16 ["buy sheet" for January 14, 1997]).[2]

State Police Investigator Donald A.Wilkinson ("Wilkinson") undertook an investigation to identify "Dre," starting with the license plate number of the Geo Prism (Wilkinson EBT, at 82, 90). When Wilkinson took this number and checked the computer records of the Department of Motor Vehicles ("DMV") to see to whom the corresponding vehicle was registered, he traced the Geo Prism to an individual named Evelyn Villeneuve ("Villeneuve"), whose address was listed as 6 Bickford Lane, Troy (Mercado EBT, at 34; Wilkinson EBT, at 82, 90-92).[3]

Next, Wilkinson surveilled 6 Bickford Lane and observed the "target" vehicle, the red, four-door Geo Prism, parked nearby (Wilkinson EBT, at 92). He also looked at the mailbox for names and contacted the postal service for a "postal check" to find out who obtained mail at this address. The "postal check" revealed the name of claimant McGregor Octave ("claimant"), along with the names of Villeneuve and others (id.; Rizzo Aff., Exh. 5 [Wilkinson's investigative notes]).[4]

Checking DMV's computer files in a group search, Wilkinson obtained claimant's date of birth and then proceeded to make a license check, a vehicle check and a criminal history check, which disclosed claimant's arrest on December 8, 1996 in the Town of Schaghticoke, Rensselaer County--just 10 days before the undercover team's initial contact with "Dre"--at which time claimant gave 6 Bickford Lane as his home address ( id.; Rizzo Aff., Exh. 5 [criminal history records of claimant]). These records also disclosed that claimant had been arrested in the City of Albany for driving while intoxicated on October 18, 1995 while driving the "target" vehicle, the red, four-door Geo Prism (Wilkinson EBT, at 102; Rizzo Aff., Exh. 5 [criminal history records of claimant]).

Wilkinson obtained an arrest photograph of claimant from the Albany Police Department for the 1995 arrest and showed the picture to Mercado, who compared it to a "still" photograph of "Dre" taken from the videotape of the December 18, 1996 transaction (Wilkinson EBT, at 93-94; Mercado EBT, at 116; Rizzo Aff., Exhs. 12-13).[5] Noting that he paid particular attention to the nose and lips of the subject of a photograph and that he generally does not consider facial hair because easily removed (Mercado EBT, at 118, 120), Mercado adjudged the still videotape photograph of "Dre" and the arrest photograph of claimant to portray the same person (Mercado EBT, at 117-118).[6]

Based on this information, the case was presented to the Rensselaer County District Attorney's Office, which decided to proceed against claimant (Mercado EBT, at 139). Thereafter, Mercado testified before the Rensselaer County Grand Jury in late January 1997 (Mercado EBT, at 52, 73-74).[7] Claimant was subsequently indicted by the Grand Jury on February 3, 1997 (Rizzo Aff., Exh. 17), and on that same day a warrant was issued by Rensselaer County Court for his arrest (Rizzo Aff., Exh. 15).

Claimant was arrested at St. John's Project Lift, a drug rehabilitation facility located in the City of Albany, on February 7, 1997 and confined to the Rensselaer County Jail (EBT testimony of Investigator Peter S. Scotti, taken March 16, 2000, at 11, 26-35; EBT testimony of Senior Investigator David F. Madden, Jr., taken March 16, 2000, at 18-34; EBT testimony of John J. Mahoney, taken February 10, 2000 ["Mahoney EBT"], at 57-71; Octave EBT, at 94-100; Rizzo Aff., Exh. 10 [New York State Police Report]; Edwards Aff., Exh. S).[8] On February 7, 1997 (the day of claimant's arrest), the District Attorney served (among other things) a demand for "Notice of Alibi" (Edwards Aff., Exh. Z).

On March 10, 1997, the Public Defender representing claimant served a "Notice of Alibi" in response to the District Attorney's demand, which alleged that claimant was at Conifer Park, 79 Glenridge Road, Scotia, New York, on the date and time of each count charged in the indictment (Edwards Aff., Exh. Z; see also, id., Exh. BB, letter dated March 10, 1997 from Conifer Park to the Public Defender, requesting authorization to release information from claimant's medical records).

On March 17, 1997, the Public Defender made an application for a writ of habeas corpus based upon claimant's residence at rehabilitation programs from December 28, 1996 until the time of his arrest, and his consequent misidentification (Edwards Aff., Exh. AA [Petition For Writ of Habeas Corpus]). On March 18, 1997, Rensselaer County Court allowed the writ, made returnable on March 21, 1997 (Edwards Aff., Exh. AA [Writ of Habeas Corpus]).

Mercado was asked to identify claimant as "Dre" at the District Attorney's office (Mercado EBT, at 129, 134). At that face-to-face meeting, Mercado noticed claimant's heavy accent and realized that although claimant and "Dre" had similar features, claimant was not "Dre" (Mercado EBT, at 118, 129). After the hearing on March 21, 1997, claimant was released (Edwards Aff. Exh. CC); the indictment was dismissed in early April 1997 (Edwards Aff., Exh. DD).


Claimant subsequently filed this claim sounding in malicious prosecution, false imprisonment and false arrest because of his erroneous identification by the State Police as the drug dealer who operated under the street name "Dre" (claim, dated and filed November 25, 1997 ["claim"], ¶¶ 10, 55). The claim also states causes of actions for alleged violations of the New York State Constitution, article I, §§ 6 and 12 (claim, ¶¶ 4, 63, 67).

After extensive (and sometimes contentious) discovery (see, Octave v State of New York, Claim No. 97393, M-62068, decision dated October 24, 2000, New York State Court of Claims #2000-001-064), defendant State of New York ("defendant" or "the State") has moved for summary judgment to dismiss the claim (Notice of Motion, dated and filed December 6, 2000). Trial is scheduled for April 5, 2001.

The State argues that (1) there was probable cause for claimant's indictment and arrest; (2) there was no egregious departure from acceptable police policy in the investigation leading up to claimant's indictment and arrest; (3) the arrest was made pursuant to a valid warrant issued by a court having jurisdiction; and (4) the availability of the established torts of malicious prosecution and false arrest precludes application of the limited remedy for constitutional tort provided by Brown v State of New York (89 NY2d 172) (Rizzo Aff., ¶¶ 27-30; Defendant's Memorandum of Law, dated and rec'd December 6, 2000). Claimant counters that material issues of fact exist as to (1) whether there was probable cause for claimant's identification and subsequent indictment and arrest; and (2) whether the State Police egregiously failed to follow acceptable police procedures in identifying claimant as "Dre" (Edwards Aff., ¶¶ 4-7; Claimant's Memorandum of Law in Opposition, dated February 15 and rec'd February 20, 2001 ["Claimant's Memorandum of Law"], at 1-24). Claimant also argues that his causes of action for constitutional tort are viable because "claimant does not have any other form of adequate relief . . . , for violation of his State Consitutional rights to be free from unreasonable search and seizure without probable cause" (Edwards Aff., ¶ 8; Claimant's Memorandum of Law, at 31-38); and that issues of fact preclude granting summary judgment on his action for negligent training and supervision (Claimant's Memorandum of Law, at 24-31).[9]

I
. The Cause of Action for Malicious Prosecution

For reasons of public policy, the law imposes "a heavy burden on malicious prosecution [claimants], requiring that they establish [the following] four elements: ‘(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' " (Smith-Hunter v Harvey, 95 NY2d 191, 195, quoting Broughton v State of New York, 37 NY2d 451, 457, cert denied sub nom. Schanbarger v Kellogg, 423 US 929). Only the latter two elements are disputed.

When, as here, an arrest is the result of a Grand Jury indictment, there is a presumption of probable cause supporting the prosecution, which claimant must overcome in order to establish a prima facie case of the absence of probable cause (see, Colon v City of New York, 60 NY2d 78; Lawson v New York City Hous. Auth., 223 AD2d 532). To do so, claimant here seeks to establish that the "conduct of the police 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; see, DeFilippo v County of Nassau, 208 AD2d 793, lv denied 85 NY2d 806; Boomer v State of New York, Ct Cl, unreported decision, supra).

In order to rebut this presumption of probable cause and demonstrate the existence of a material issue of fact, claimant proffers the expert witness affidavit of Ralph J. Capone, president of a criminal justice training and consulting corporation and former police officer/investigator for the Broward County, Florida, Sheriff's Department (see, Expert Witness Affidavit of Ralph J. Capone, sworn to February 6 and filed February 20, 2001 ["Capone Aff."]). Over the course of 98 pages, Capone opines that "the [New York] State Police Investigators deviated egregiously from acceptable undercover investigation procedures . . . in rushing to judgment on the ID of claimant . . . without having probable cause, and overlooking the significant, exculpatory information about [claimant] that the State Police Investigators had in their possession" (Capone Aff., at 4-5) because (1) claimant's ties to the vehicle used during two of the controlled buys and the identity of his address and the address of the vehicle's owner was insufficient to place him under suspicion as a suspect and subsequently to support his identification as "Dre" (Capone Aff., at 6, 38-42); (2) the investigators should have refocused their investigation after "Dre" appeared to recognize Mercado during the last controlled buy on January 14, 1997 (Capone Aff., at 7-8, 29-36);[10] (3) the investigators ignored the differences between the age (eight years), weight (30 pounds) and height (three inches) of claimant and "Dre" (Capone Aff., at 11); (4) the investigators used a crude videotape surveillance system and improperly used the videotape still and prior arrest photographs of claimant, which did not allow for comparison of all significant features (Capone Aff., at 44-46); (5) Mercado made a positive identification based on the photographs when "the two photographs show relevantly two different people" (Capone Aff., at 47); (6) the State Police did not investigate a pager number given to Mercado by "Dre" (Capone Aff., at 12, 69-70);[11] (7) the investigators did not interview Villeneuve regarding the use of her car by "Dre" or conduct a search of her apartment (Capone Aff., at 63-66); and (8) Mercado failed to do a post-arrest, in-person identification to ensure proper identification of claimant (one of the 90 arrests made as a result of the drug sweep) (Capone Aff., at 78-83).

Generally, "[p]robable cause exists when an officer has knowledge of facts and circumstances ‘sufficient to support a reasonable belief that an offense has been or is being committed' " (People v Maldonado, 86 NY2d 631, 635, quoting People v Bigelow, 66 NY2d 417, 423; see, Smith v County of Nassau, 34 NY2d 18, 25; Orminski v Village of Lake Placid, 268 AD2d 780). When the facts leading up to an arrest and the reasonable inferences to be drawn from these facts are not in dispute, the presence or absence of probable cause can be decided as a matter of law (see, Parkin v Cornell Univ., 78 NY2d 523; Quigley v City of Auburn, 267 AD2d 978; Navarro v Federal Paper Bd. Co., 185 AD2d 590).[12] Here, even taking everything claimant avers as true (i.e., the State Police could have done more investigation into the identity of "Dre" before claimant's prosecution), the relevant issue is whether the State Police's actions in investigating and identifying claimant as "Dre" constituted an egregious departure from acceptable police practices (see, Hernandez v State of New York, supra). Moreover, the existence of probable cause negates any inference of such an egregious departure. Here, the information on which claimant's identification was based is sufficient to establish probable cause for his indictment and arrest. Notably, "the police are not obligated to pursue every lead that may yield evidence beneficial to the accused, even though they had knowledge of the lead and the capacity to investigate it" (Gisondi v Town of Harrison, 72 NY2d 280, 285 citing Lee v City of Mount Vernon, 49 NY2d 1041; see, Lawson v New York City Hous. Auth., 223 AD2d 532, supra). Additionally, discrepancies between a claimant's description and the physical attributes of the actual perpetrator are insufficient to overcome the presumption of probable cause, as is an alleged failure to investigate an alibi (see, De Filippo v County of Nassau, 208 AD2d 793, 795, supra; Manno v State of New York, 176 AD2d 1222; Carthens v City of New York, 168 AD2d 408, 409) or an accused's exculpatory statement (see, Quigley v City of Auburn, supra, at 979-980). Notwithstanding claimant's contention that the investigators in this case should have done more, the evidence contained in the motion papers establishes that there was a substantial degree of corroborating circumstantial evidence to connect claimant to the identity of "Dre" even before Mercado compared the videotape still and claimant's prior arrest photograph.

Next, this case differs significantly from Hernandez v State of New York (228 AD2d 902, supra), a case relied upon heavily by claimant. In Hernandez, the police "failed to carry out the most rudimentary investigation before charging claimant with a serious felony" (id., at 905) by basing claimant's identification solely upon a six-year old photograph and a cursory name check of DMV records (id.); and ignoring that claimant did not reside in the relevant geographic area (Hernandez v State of New York, Ct Cl, unreported decision filed Jan. 10, 1995, Benza, J., Claim No. 80884, affd 228 AD2d 902). By contrast, in this case substantial information supported the State Police's conclusion that claimant and "Dre" were one and the same individual; specifically, (1) claimant was arrested for drunk driving in 1995 (approximately 14 months before the undercover officers' first encounter with "Dre") while operating the same vehicle used by "Dre" in two of the four drug transactions; (2) claimant was tied to the same address as the owner (Villeneuve) of this vehicle, which Wilkinson observed parked near this address; and (3) claimant had listed this address as his home as recently as December 8, 1996 (10 days before the undercover officers' first encounter with "Dre") when he was arrested in Schaghticoke on an unrelated charge. This evidence standing alone--and especially in conjunction with the obvious likeness between claimant's arrest photograph and the videotape still of "Dre" (see, n 5, supra)-- provided a reasonable and "sufficient basis for the defendant's believing that the identification of the [claimant] . . . was correct" (Hernandez v State of New York, Ct Cl, unreported decision, supra, at slip opn p 19, quoting 66 ALR 10, 17, § 2 [a]). Consequently, claimant has failed to raise any material issue of fact about whether defendant's actions were insulated by probable cause or, similarly, were egregiously taken with reckless disregard for proper procedures.

Finally, claimant cannot establish that defendant's actions were taken with actual malice. The element of actual malice in malicious prosecution/mistaken identity actions is generally demonstrated by showing that the prosecuting authority undertook actions with reckless disregard (see, Hernandez v State of New York, 228 AD2d 902, supra; Boomer v State of New York, Ct Cl, unreported decision, supra) and therefore is intertwined with the element of probable cause (see, Martin v City of Albany, 42 NY2d 13, 17-18; Hernandez v State of New York, Ct Cl, unreported decision, supra, at slip opn p 18). As discussed above, the undisputed facts of this case do not support such a finding.
  1. The Constitutional Tort Causes of Action
In Brown v State of New York (89 NY2d 172, supra), the Court of Appeals, relying in part on the reasoning of section 874 A of the Restatement (Second) of Torts, determined that a "narrow remedy" (id., at 192) for constitutional tort is properly implied where needed to assure a constitutional provision's effectiveness and further its purpose (id., at 187). No such need exists where, as is the case here, claimant's "constitutional tort allegations may be analogized into existing common-law tort[s] for which there are adequate alternative remedies" (Augat v State of New York, 244 AD2d 835, 837, lv denied 91 NY2d 814; see also, Remley v State of New York, 174 Misc 2d 523). These common-law torts, if proven, afford remedies adequately protecting the interests at stake (see, Remley v State of New York, supra; see also, Martinez v City of Schenectady, 276 AD2d 993). In any event, the existence of probable cause vitiates the remedy for constitutional tort sought by claimant (see, e.g., Edwards Aff., ¶ 8).

III. False Imprisonment and False Arrest

Lastly, an arrest made pursuant to "[a]n arrest warrant validly issued by a court having jurisdiction precludes an action for false arrest" (St. John v Marlborough, 163 AD2d 761, 762) and false imprisonment (see, Russo v Village of Port Chester, 198 AD2d 408; see also, Broughton v State of New York, 37 NY2d 451, 457-458, supra). This is undisputably what happened here.

IV. Conclusion

Based on the foregoing, the Court grants the State's motion for summary judgment and dismisses the claim.

March 30, 2001
Albany, New York

HON. SUSAN PHILLIPS READ
Judge of the Court of Claims




[1]"Dre" failed to do this during his other encounters with these undercover officers and/or Mercado was required to exit his vehicle to consummate the drug transaction (Mercado EBT, at 45-46).
[2]Mercado recorded this license plate number on the "buy sheet" created to document both the December 30, 1996 and January 14, 1997 transactions (Rizzo Aff., Exh. 16 ["buy sheets" for December 30, 1996 and January 14, 1997]; Mercado EBT, at 33-34).
[3]Excerpts from claimant's EBT indicate that Villeneuve had once been claimant's girlfriend and was also the mother of his son (excerpts from EBT testimony of McGregor Octave, taken February 7, 2000, at 56-57).
[4]Wilkinson's investigative notes also contain another address for claimant along with the notation "re-hab?" (Rizzo Aff., Exh. 5).
[5]The State has provided the Court with both photographs.
[6]On the general subject of his training in identification, Mercado said that he tried to look for scars or other immutable characteristics such as a disfigurement. "[W]hen it comes to the face," he testified, "you try to look at the eyes and the nose and lips as best as possible" (Mercado EBT, at 119).
[7]During the same Grand Jury proceeding, Mercado also testified regarding Raheem Boomer, who was arrested as part of the same drug sweep and later determined to have been misidentified (Mercado EBT, at 75-78). Boomer subsequently brought a claim against the State for malicious prosecution, which was dismissed after trial on account of claimant's failure to establish a prima facie case. In the absence of proof regarding the failure to follow proper investigatory procedures and other circumstances, the Court found that claimant had failed to overcome the presumption of probable cause arising out of the Grand Jury indictment (see, Boomer v State of New York, Claim No. 98463, decision dated May 8, 2000, New York State Court of Claims #2000-015-506). This and many other decisions of the New York State Court of Claims can be found on its website at htpp://court.acemet.net/MacLaw.
[8]Officer Mahoney of the Troy Police Department vaguely remembered claimant stating something to the effect that he had an alibi and that the police had the wrong guy which, Mahoney testified, is what "everybody says" when arrested (Mahoney EBT, at 70-71).
[9]The Court does not address this cause of action, which claimant did not plead and which, in any event, does not exist in the State of New York. When the negligence alleged is premised on an arrest, as is the case here, a claimant must resort to the traditional remedies of false arrest/imprisonment and malicious prosecution (Ellsworth v City of Gloversville, 269 AD2d 654, 657; Heath v State of New York, 229 AD2d 912; Boose v City of Rochester, 71 AD2d 59).

[10]Mercado had appeared in January 1995 as an expert witness in a drug case against the actual "Dre," Henry Lamont. Mercado's testimony in that case was confined to aspects of the drug trade between New York City and the Capital District (see, People v Lamont, 227 AD2d 873).


[11]Wilkinson testified that he served a subpoena to trace the pager number, but not until after claimant was arrested in order to safeguard the undercover operation (Wilkinson EBT, at 103-104).
[12]This is especially so here, where the factfinder is also the Judge deciding the dispositive motion, and it is reasonably presumed that claimant has "presented [his] best evidence in opposition" to the motion (Campagno v Ipco Corp., 138 Misc 2d 44, 46).