New York State Court of Claims

New York State Court of Claims

REDWOOD v. THE STATE OF NEW YORK, #2002-028-506, Claim No. 97098


The Court held that the Park Police Officer had probable cause to arrest Claimant when he observed Claimant in an area of the park closed to the public. The Court also held excessive force was not used by the arresting officer.

Claim dismissed.

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:
Defendant's attorney:
BY: John Shields, Esq. Assistant Attorney General
Third-party defendant's attorney:

Signature date:
September 20, 2002

Official citation:

Appellate results:

See also (multicaptioned case)

This Claim seeks damages for injuries sustained by Claimant, Yvonne Redwood (Claimant) on October 18, 1995 at Hempstead Lake State Park when she was arrested by New York State Park Police Officer Francis Dillon. The Claim alleged causes of action for false arrest, false imprisonment, malicious prosecution and assault.[1]
Trial of this action was bifurcated by an Order of the Court and this decision addresses only the issue of liability.
On October 18, 1995, Claimant, a registered nurse and mother of one child, left work and began her drive home. On this clear, dry, autumn day, Claimant decided to stop at Hempstead Lake State Park. Claimant testified she arrived at the State Park at approximately 5:45 p.m., while it was still daylight, and parked her car near the concession stand area. When she exited her car, Claimant locked her pocketbook in the trunk and proceeded to the lake area. Her walk to the lake took her from the parking lot, across Lake Drive (Exhibit 2 - photograph of the crosswalk)[2]
and down a path to the lake. Along the way, Claimant observed signs indicating
"no swimming" and "no fishing" but did not observe any signs which indicated the area was closed to the public. The water level in the lake was extremely low (Exhibits 4 and 5) and Claimant testified that there were footprints and tire tracks visible in the lake bed. According to Claimant, the lake was so low you could go from one side - "Lakeview - West Hempstead side"[3] to the other - "Rockville Center side". Claimant walked out onto the lake bed and turned left, walking parallel to the shoreline. She was praying, with her hands in the pockets of her blue denim jacket, while she walked. When Claimant was walking on the lake bed on the return to her car, she saw a person [Dillon][4] coming down towards the shoreline. She described the person as a white man, wearing gray, possibly a uniform a maintenance worker would wear, no hat and black shoes.
Testifying for the Defendant, Francis Dillon, (Dillon) then a New York State Park Police Officer, and currently a Detective Investigator in the Kings County District Attorney's office, on the day in question was assigned to routine patrol in a marked police vehicle. Dillon described the police vehicle as white with green markings, with Park Police emblems on both doors and the words "police" on both front fenders and across the trunk of the vehicle. The vehicle was also equipped with a rotary light/roof rack. Dillon stated he was in his uniform which consisted of gray trousers and shirt. Affixed to the shirt was his name tag, awards, collar brass and a Park Police shoulder patch. He was wearing a gunbelt which carried his handcuffs, radio and pepper spray.[5]
Dillon first observed the Claimant while driving north on Lake Drive at approximately 6:40 p.m. as he looked to his right and observed the Claimant on the lake bed kneeling, gesturing and walking in circles. Dillon testified he had "numerous concerns" and stated that her actions were not ordinary. Dillon's concerns stemmed in part from his experience that individuals from nearby Mercy Medical Center's psychiatric ward would find their way into the State Park. Dillon considered being on the lake bed dangerous and the lake is not open to the public. Dillon parked his police vehicle on the pavement near the crosswalk (Exhibit 2) and exited the vehicle. He testified his intention at that time was to determine if Claimant was all right, learn her identity and where she belonged and to get her out of there [the lake bed].
The foregoing testimony, which the Court finds to be credible, sets the stage for these witnesses subsequent interactions leading up to Claimant's arrest. Their differing version of what transpired follows.

Claimant testified that as she was getting ready to leave, the man had reached the shoreline and had "whistled" to get her attention. He then said to her, " Don't let me have to come out there and get you" and "Don't make me get mud on my shoes." Claimant made no response and kept walking. The man then crossed into the lake bed and demanded, "ID, I want to see ID now." Claimant responded that it was in her car. Claimant asked, "Who are you" and the man responded, "Can't you tell by my uniform." Claimant testified she continued to walk away as she was not comfortable with the situation as it was unfolding. Since the man did not identify himself as a police officer, she continued up the path towards her car. Claimant testified the man said, "You better not run", to which she responded, "I'm uncomfortable with you." The next thing Claimant knew she was being tackled to the ground from behind and handcuffed. Claimant began screaming and at some point wrapped her leg around a stationary pole and kept screaming. A young coupled approached and Claimant implored them not to leave her. Claimant testified she was afraid she might be killed or raped; she still didn't know who this man was. Claimant was then walked, in handcuffs, to the "building near the tennis courts where the police go", accompanied by the man and the young couple. When they arrived, there were no other officers present, but Nassau County police officers subsequently arrived at the building. Sometime near 9 o'clock that evening, she was released.

Dillon testified that he attempted to get Claimant's attention by yelling "Hey" or "Yo" and he gestured to her by waving his arm. He did this three times as Claimant ignored him. "She looked at me and returned to her actions." Dillon then proceeded onto the lake bed and approached Claimant. When he reached her, he asked why she hadn't come in to which she responded, "Who are you?" Dillon testified he gestured to his uniform, and stated, "I'm the police. You're not supposed to be out here. Do you have ID?" Upon learning her identification was in her car, Dillon testified he told Claimant to take him to her car." As they walked toward the roadway and drier ground, Claimant quickened her pace. Dillon directed her to "slow down, stay with me, I want to check your ID", at which point the Claimant then began to run. Dillon ordered, "Stop, you're under arrest"[6]
as Claimant continued across Lake Drive to a grassy area. Dillon testified he gave chase and when he caught up to her, he grabbed her left arm with his right hand. She wheeled around and she struck him in the chest with her right hand. Dillon testified he used the momentum of the turn and her swing to bring Claimant to the ground, where, after a struggle she was handcuffed. Dillon stated the young couple came upon the scene and that he requested of them that they accompany him to the police station in the park because he wanted a witness as Claimant was screaming, "Help me" and "Don't let him take me." Dillon stated Claimant was charged with Resisting Arrest, a class A misdemeanor, in violation of Penal Law §205.30, Harassment, a violation, in violation of Penal Law § 240.26(1) and Being in an Area Closed to the Public, a violation, in violation of 9 NYCRR §375.1[h]. Dillon testified that after his sergeant arrived at the station, he was advised to issue Claimant an appearance ticket.
Defendant also called to testify Officer Tony Astacio, whose testimony concerned matters following his arrival at the police station.

It was stipulated that the criminal charges were resolved on April 16, 1996 in the Nassau County District Court, First District at which time Claimant entered a plea of guilty to the Harassment charge, the Resisting Arrest charge was Adjourned in Contemplation of Dismissal and the NYCRR violation was dismissed in satisfaction of the other plea.

To establish a cause of action for false arrest, the Claimant must show: (1) the Defendant intended to confine her, (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. In a false

arrest case, the Defendant has the burden of proving legal justification as an affirmative defense. (Smith-Hunter v Harvey, 95 NY2d 191, 195; Broughton v State of New York, 37 NY2d 451, 457, cert. denied sub nom. Schanbarger v Kellogg, 423 US 929; Romero v State, 294 AD2d 730).
There can be no argument based upon the record evidence that the first three elements have been satisfied. The parties differ on whether probable cause existed. Claimant focuses not on what the officer observed, but rather on what the Claimant was doing in the lake bed area and what knowledge Claimant had relative to her being in a closed area, to wit, none. Claimant's theory divides her rendition of the occurrence into discreet parts and seeks to examine probable cause for each charge lodged by the arresting officer.
Defendant makes two arguments. The first, that Claimant's plea insulates the entire transaction from scrutiny. The second, that the arresting officer had probable cause in the first instance based upon Claimant's presence in the prohibited area.

Probable cause is defined as such facts and circumstances which would lead a reasonably prudent person to believe the Claimant is guilty given the facts known or reasonably known to be true to the defendant (
Colon v City of New York, 60 NY2d 78, 82). 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). A police officer may arrest and take into custody a person when he has probable cause to believe that person has committed a crime, or an offense in his presence (CPL 140.10; People v De Bour, 40 NY2d 210, 223). It is well-settled that the subjective beliefs of the arresting officers are not controlling on the issue of whether probable cause exists for an arrest (see, People v Green, 103 AD2d 362). Rather, it is for the Court to make this determination upon a review of all relevant objective information known to the officer at the time of the arrest (see, People v Lopez, 95 AD2d 241). Regrettably for this Claimant, her perceptions as to what might occur drove her in the first instance to ignore the officer's attempts to move her off the lake bed, prohibited her from acknowledging Dillon as a Park Police Officer[7] and ultimately caused her to attempt to flee, resulting, as Dillon testified, in "removing my discretion." In reaching these findings, the Court finds Dillon's testimony regarding the exchanges between himself and Claimant to be credible (see, LeGrand v State of New York, 195 AD2d 784, 785, lv denied 82 NY2d 663) . Thus, the Court finds that Dillon had probable cause to arrest Claimant upon his observation of her within the lake bed area, an area he testified was closed to the public[8]. Dillon's actions in attempting to secure Claimant's identity under the circumstances was also proper (see, People v De Bour, 40 NY2d 210, supra). Accordingly, the Claim for false arrest must fail as there was probable cause for the arrest of Claimant.
The Court turns now to the excessive force/assault cause of action[9]
. Claims of excessive force must be examined within the context of the circumstances in which they arose (cf., Passino v State of New York, 175 Misc 2d 733, 736, affd 260 AD2d 915, 916; lv denied 93 NY2d 814; Lewis v State of New York, 223 AD2d 800). Law enforcement officers are permitted to use force which is reasonable and appropriate under the prevailing circumstances (see, Wester v State of New York, 247 AD2d 468; Higgins v City of Oneonta, 208 AD2d 1067, lv denied 85 NY2d 803; Arnold v State of New York, 108 AD2d 1021, appeal dismissed 65 NY2d 723; Stein v State of New York, 53 AD2d 988). Notwithstanding Claimant's testimony that her chin struck the ground when she was tackled, having credited Dillon's version of the events, there is no evidence whatsoever that Dillon utilized any force other than that which was reasonably necessary under the circumstances to effectuate Claimant's arrest (see, Skobbeko v State of New York, Ct Cl, O'Rourke, J., November 29, 2000, Claim No. 80735-A, UID No. 2000-017-610). Thus, these Claims must also fail.
Accordingly, the Court finds that the Claim must be dismissed in its entirety, and the Chief Clerk is directed to enter judgment accordingly.

All motions upon which the Court had reserved decision are hereby denied. Claimant's motion (M-65078) to amend the Claim to assert a demand for damages made following the close of the trial is denied as moot.

September 20, 2002
Albany, New York

Judge of the Court of Claims

[1] At trial, the Court permitted the Claimant to withdraw her cause of action for malicious prosecution when she acknowledged she could not establish malice or that the proceedings terminated in her favor. The Court also granted a motion to conform the pleadings to the proof, thereby alleging a claim for excessive force.
[2] The photographs that were received in evidence (Exhibits 2-5) were taken on October 19, 1995, the day after the incident giving rise to this Claim. The photographs were introduced through Margaret Limthong, the photographer and a friend of Claimant.
[3] Unless otherwise indicated all quotations are from either the Court's trial notes or the audiotapes of the proceedings.
[4] All references to "the man" or "person" in Claimant's testimony refer to arresting officer Francis Dillon.
[5] Upon exiting the police vehicle, Dillon was unsure whether he had his hat on.
[6] On cross-examination, Dillon testified that she was at that point under arrest for being in a prohibited area. The harassment and resisting arrest charges followed from her striking the officer. As will be seen, infra, this distinction is the lynchpin of Claimant's theory of liability for false arrest.
[7] In this regard, the Court notes Claimant's testimony confirmed Dillon's testimony that upon reaching Claimant reference was made to his uniform.
[8] As a consequence of finding probable cause for the arrest of Claimant based upon her presence in the lake bed, the Court need not reach defendant's alternative argument, which the Court believes would implicate New York's "no sock" law, Penal Law § 35.27; cf, People v Felton, 78 NY2d 1063, [violation of "no-sock" law, when officer grabbed the arm and defendant spun around, striking officer in face, could not serve as basis for transforming otherwise illegal arrest of defendant into lawful arrest]).
[9] The use of excessive force by a law enforcement official in the lawful course of his/her duties has been found to support a cause of action for assault (see, Stein v State of New York, 53 AD2d 988; Jones v State of New York, 33 NY2d 275; Hinton v City of New York, 13 AD2d 475).