New York State Court of Claims

New York State Court of Claims

HARRIS v. THE STATE OF NEW YORK, #2001-019-016, Claim No. 100532


Claim for malicious prosecution dismissed for failure to overcome presumption 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:
LEARNED, REILLY & LEARNED, LLPBY: Philip C. Learned, Esq., of counsel
Defendant's attorney:
BY: James E. Shoemaker, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
September 21, 2001

Official citation:

Appellate results:

See also (multicaptioned case)

Claimant, Keysha Harris, alleges she was unlawfully imprisoned on or about June 16, 1998 when she was arrested by the Elmira Police Department based upon on a Grand Jury indictment
charging her with Criminal Sale of a Controlled Substance in the Third Degree in violation of Penal Law 220.39 (1), a Class B felony. The unified trial of this Claim was held in the Binghamton District on June 4, 2001.

This Claim arises from an undercover drug sale that occurred on November 7, 1997 through a joint effort between the New York State Police Community Narcotics Enforcement Team (CNET) and the Chenango County Drug Enforcement Unit. Approximately six months later, on May 19, 1998, the State undercover officer involved in the sale, Investigator Michael Tullo, identified Claimant Keysha Harris from a photo array as the individual who sold him the drugs. The Grand Jury returned an indictment on May 21, 1998, based in large degree on Investigator Tullo's identification testimony. Thereafter, on June 16, 1998, Keysha Harris was arrested by the Elmira Police Department and remanded to the Chemung County Jail based upon the indictment
. Claimant remained in the Chemung County Jail between June 16, 1998 until she posted bail on August 7, 1998.[1] On August 28, 1998, upon motion of the Chemung County District Attorney's office, the Grand Jury indictment was dismissed for the reasons explained below.

Claimant's testimony about the events leading up to her arrest was understandably limited. She testified that on June 16, 1998,
at approximately 5:30 p.m., she was arrested by the Elmira Police Department and remanded to the Chemung County Jail and then arraigned the next day before the Hon. Samuel Castellano. At her arraignment, Judge Castellano initially set bail at $10,000 which was later reduced to $5,000. Claimant testified that she continually protested her innocence by stating this whole matter was one of mistaken identity and by writing letters to that effect to Judge Castellano which were later turned over to the Public Defender's Office. Claimant remained in the Chemung County Jail for approximately 53 days from June 16, 1998 through August 7, 1998.

The details of the investigation leading to Claimant's arrest were described in further detail on the State's case by its witnesses. First, Investigator Michael Tullo, is a sixteen-year veteran of the New York State Police and worked on the Community Narcotics Enforcement Team (CNET) since October of 1994. He testified that on November 7, 1997 he was working an undercover operation in conjunction with the Chenango County Drug Enforcement Unit. Investigator Tullo explained that a confidential informant set up a drug buy from a possible target for the undercover purchase of crack cocaine. Investigator Tullo proceeded to the meeting place which was a Burger King parking lot in the City of Elmira about 7:00 p.m. on the aforesaid date. Investigator Tullo explained that he parked his vehicle behind another vehicle, a Chrysler, when a woman got out of the Chrysler, whom he described as a black female wearing a black jumpsuit and a blue shirt. This black female entered Investigator Tullo's vehicle on the passenger side and informed him that "I brought you two"[2]
hits of crack cocaine, instructing him to pick one. Investigator Tullo testified that he picked the larger of the two rocks and paid $50.00 for the same. Investigator Tullo conceded on cross-examination that it was dark and that the dome light in his vehicle was not working. Investigator Tullo also conceded that the entire transaction lasted between 30 and 45 seconds; that the Chrysler was not followed after it exited the parking lot; that he did not personally request a DMV check of Chrysler's license plate; and that no "second buy" was ever conducted. Investigator Tullo further explained that he had no further involvement in this case until six months later when on May 19, 1998 another officer from the New York State Police, Bruce J. Nelson, produced a photo array for purposes of identification. From the photo array, Investigator Tullo identified the Claimant, Keysha Harris, as the woman who sold him the crack cocaine back in November 1997. Investigator Tullo later identified Keysha Harris before a Grand Jury early in the summer of 1998. (State's Ex. B). Despite the subsequent dismissal of the criminal charges as discussed below, Investigator Tullo maintained at this trial that his identification of Keysha Harris was accurate.

The State's second witness was Bruce J. Nelson, an eleven-year veteran of the New York State Police also working CNET at the time of the November 1997 incident. Investigator Nelson indicated that he provided backup surveillance to the November 7, 1997 undercover operation, but was not in a position to observe either the vehicle or the woman who sold the cocaine to Investigator Tullo. Officer Nelson testified that he received a photo array prepared by Investigator Robert Smallcomb of the Elmira Police Department relative to this investigation and showed said array to Investigator Nelson on May 19, 1998. (State's Ex. G). Officer Nelson relayed to Investigator Smallcomb that Investigator Tullo had identified one Keysha Harris, although he was personally unaware at that time that Claimant was the target of the investigation.

Claimant called as a witness, Michael Troccia, who was assigned Claimant's criminal case in July 1998 as an Assistant Public Defender from the Chemung County Public Defender's Office. Mr. Troccia recalled interviewing Claimant and her claims of innocence. She alleged no knowledge of the Chrysler vehicle involved in the transaction, nor any knowledge of the underlying charge. Mr. Troccia explained that he communicated his client's concerns to the district attorney's office including the allegation that the license plate of the target vehicle was never run through the Department of Motor Vehicles. According to Mr. Troccia, on the day of the scheduled Wade hearing, he was informed by an investigator for the district attorney's office that a check of the Chrysler's license plates had just been made by the district attorney's office. Mr. Troccia was further informed by the district attorney investigator that a telephone call had been placed to the owner of the vehicle - someone other than Claimant - who confirmed she owned the Chrysler vehicle and that a friend of hers, one Lakeysha Lewis, had borrowed the vehicle in early November 1997 in the Elmira area. According to Mr. Troccia, the district attorney's office moved to dismiss all charges against Keysha Harris indicating that this was a case of "mistaken identity." (Cl. Ex. 1). Moreover, Mr. Troccia testified that a check of a license plate takes only a matter of minutes, although subsequent follow-up related thereto would take additional time.

The majority of Claimant's own testimony focused primarily on matters relating to the issue of damages. Claimant stated that during her incarceration she became sick due to stress and nausea. Claimant also testified that as a result of this arrest she lost a job as a nurse's aide at the Bethany Village Nursing Home which was to have started on June 17, 1998 at the rate of $8.00 to $9.00 per hour. Claimant also testified that her nurse's aide license expired during her incarceration because she was not able to take the nurse's aide job and that the employer would have completed the renewal process for her. However, Claimant produced no evidence other than her own testimony substantiating these claims of illness, lost employment or the loss of her nursing aide license.

Interestingly, Claimant admitted that during her incarceration on this drug charge she pled guilty to an unrelated charge of Criminal Impersonation in the Second
Degree. Claimant explained that as part of this unrelated plea bargain she agreed to a 30-day sentence credited to time served while awaiting disposition of this drug charge. However, the State's cross-examination raised the possibility that Claimant's sentence on the criminal impersonation charge was 60 days, not 30 days, as indicated on her rap sheet. (State's Ex. E). In any event, neither party offered any certificate of conviction or proof of sentencing from which the Court could establish with any certainty the duration of Claimant's sentence on the criminal impersonation charge. As such, this Court can only conclude that although Claimant was arrested on June 16, 1998 on the subject drug charge, at least 30 days thereof and as many as 60 days were deemed as time served in relation to her sentence on the unrelated charge of criminal impersonation.

This claim alleges causes of action for negligence, false imprisonment, false arrest, and malicious prosecution. (Claim, ¶ 2). In view of the well-settled principle that there is no legally-cognizable cause of action for negligent investigation of a crime (
Jestic v Long Is. Sav. Bank, 81 AD2d 255), Claimant's remedies are limited to false arrest/imprisonment and/or malicious prosecution. These two theories of liability, false imprisonment and malicious prosecution, are separate and distinct causes of action. (Broughton v State of New York, 37 NY2d 451, cert den sub nom. Schanbarger v Kellogg, 423 US 929). The elements for a false imprisonment cause of action are: (1) the defendant intended to confine claimant; (2) claimant was conscious of the confinement; (3) claimant did not consent to the confinement; and (4) the confinement was not otherwise privileged. (Broughton v State of New York, supra, 37 NY2d, at 456-457). The elements for a malicious prosecution cause of action are: (1) the initiation of a criminal proceeding against Claimant; (2) favorable disposition to Claimant; (3) lack of probable cause; and (4) malice. (Colon v City of New York, 60 NY2d 78, 82, rearg denied 61 NY2d 670). As between these two theories, the proper choice when an arrest is made pursuant to a valid warrant, as is the case here, is a claim for malicious prosecution. (Broughton v State of New York, supra, 37 NY2d, at 457-458). Consequently, this Court will review this matter under the principles associated with a cause of action based upon malicious prosecution.[3]

The Court of Appeals has set out the necessary elements of the tort of malicious prosecution as follows: "(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 [citation omitted]." (
Broughton v State of New York, supra, 37 NY2d, at 457). The first two elements are typically undisputed and this case is no exception. As such, the Court will initially examine whether or not Claimant has established an absence of probable cause for the criminal proceeding.

Probable cause within this context has been described as 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. (
Munoz v City of New York, 18 NY2d 6; Colon v City of New York, supra, 60 NY2d, at 82). Further, an arrest which results from a grand jury indictment, such as here, creates a presumption of probable cause. (Colon v State of New York, supra, 60 NY2d, at 82). As such, based upon this Grand Jury's indictment the State is entitled to said presumption. In order to overcome the presumption, Claimant "[m]ust establish that the indictment was produced by fraud, perjury, the suppression of evidence or other police conduct undertaken in bad faith". (Colon v City of New York, supra, 60 NY2d, at 83). Stated another way, Claimant must demonstrate "[t]hat the conduct of the police deviated so egregiously from acceptable police activity as to demonstrate an intentional or reckless disregard for proper procedures...[citation omitted]." (Hernandez v State of New York, 228 AD2d 902, 904).

Here, Claimant asserts that the proof at trial demonstrates that the acts and omissions of the State Police qualify as egregious conduct sufficient to overcome the presumption of probable cause. More specifically, Claimant highlights, among other things, the following: identification took place six months after original contact; license plate of the Chrysler vehicle was never checked; the drug transaction lasted between 30-45 seconds; the parking lot was unlit; there was no working dome light in Investigator Tullo's vehicle. (Claimant's post-trial brief). Claimant contends that this proof is sufficient to overcome the presumption of probable cause because "[p]olice deviated so egregiously
from acceptable police activity as to demonstrate an intentional or reckless disregard for proper procedures [citation omitted]." (Hernandez v State of New York, supra, 228 AD2d, at 904 [emphasis added]).

Certainly, at first blush, a lag of 6 months appears to be beyond a prudent time period, but there was no evidence offered at trial establishing the normal range between contact and identification or, for that matter, why 6 months elapsed in this particular instance. Moreover, Claimant also failed to establish by competent evidence that the failure to verify the registration and ownership of the Chrysler vehicle; the brevity of the underlying single drug transaction; and the relative darkness in which the underlying drug sale took place deviated..."[s]o egregiously from acceptable police activity as to demonstrate an intentional or reckless disregard for proper procedures" – either individually or collectively. (
Hernandez v State of New York, supra, 228 AD2d, at 904). In short, this Court was provided little or no framework outlining proper police practice in drug investigations and/or subsequent identifications against which to compare the police activity in this case. Rather, Claimant appears to be relying on the general theory that a 6 month delay between investigation and identification should be considered a per se violation of proper police practice. In this Court's view, it is beyond the common knowledge of this fact finder to make the conclusion that a 6 month lapse in identification is an egregious deviation from proper police practice or that other actions taken during this drug investigation were improper. (Selkowitz v County of Nassau, 45 NY2d 97 [expert testimony admissible on proper police procedures in relation to a high speed chase]; Dier v City of New York, 79 AD2d 596 [expert testimony admissible on proper police procedures in effectuating an arrest in a case of alleged unreasonable force]). Consequently, this Court finds that without such expert proof of the applicable police procedures, it is impossible to conclude that the State's conduct was an egregious deviation from accepted police practice. (Octave v State of New York, Ct Cl., March 30, 2001, Read, P.J., Claim No. 97393, Motion No. M-62801; Boomer v State of New York, May 8, 2000, Collins, J., Claim No. 98463).[4] Accordingly, Claimant has failed to overcome the presumption of probable cause which flowed from the Grand Jury indictment and, as such, is unable to establish a prima facie case of malicious prosecution. Consequently, the Court need not address the issue of malice.

hetically, the Court notes that even if liability had been determined in favor of Claimant, the proof regarding the time served on this charge versus the unrelated criminal impersonation sentence, as well as any lost employment and/or wages, was so nebulous that the Court would have been hard pressed to find any demonstrable damage.

For the reasons stated above, Claim No. 100532 is hereby DISMISSED.

All other motions on which the Court previously reserved or which were not previously determined are hereby denied.


September 21, 2001
Binghamton, New York

Judge of the Court of Claims

[1]Claimant could not recall with certainty the date she posted bail and was released, but testified it was either August 7th or 8th, 1998. The Court will use the earlier date, but see the discussion herein relative to time served in relation to an unrelated charge. (Infra, pp 5-6).
[2]Unless otherwise indicated, all quotations are from the Court's trial notes.
[3]Although Claimant referred at trial to her sole ground of recovery as false imprisonment, the Claim pled a cause of action for malicious prosecution, and both parties appeared to use the terms interchangeably. Additionally, post-trial submissions focused on cases and principles associated with the malicious prosecution theory.
[4]Decisions of the Court of Claims are available via the Court of Claims website at