New York State Court of Claims

New York State Court of Claims

CHRISTON v. THE STATE OF NEW YORK, #2003-032-514, Claim No. 103707


Case Information

GEORGE CHRISTON, SR., Individually and as Parent and Natural Guardian of GEORGE CHRISTON, JR., an Infant
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:
Poissant, Nichols & Grue, P.C.By: Joseph P. Nichols, Esq.
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney General
By: Michael W. Friedman, Esq., Assistant Attorney General,Of Counsel
Third-party defendant's attorney:

Signature date:
June 25, 2003

Official citation:

Appellate results:

See also (multicaptioned case)

This claim is based on allegations that certain acts or omissions on the part of the New York State Police, in relation to claimant George Christon, Jr.,[1]
constituted the common law torts of false arrest (false imprisonment) and negligence, as well as a constitutional tort based on alleged violation of the New York State Constitution's guarantee against unreasonable searches and seizures (Article 1, section 12). The Court holds that a constitutional tort is inapplicable in the circumstances presented here and that claimants have failed to prove the causes of action based on either false arrest or negligence.
Claimant George Christon, Sr., testified at trial that in April 2000, his son, George, Jr., found some guns in a tin can in the woods on or near their property in Morrisonville, New York. Mr. Christon called a New York State Police Trooper, Randy Cumm, who was a friend of the family, and told him about the guns, supplying their serial numbers. He stated that he never heard back from the State Police on this matter. Eventually, Mr. Christon stated, one of his nephews discovered the owner of the guns and offered to return them (Tr, 16-17).

Some time later, his son discovered some marijuana plants growing along the river near their property. George told his parents about the plants and indicated that they belonged to a neighbor, Michael Hebert, who lived in a trailer about 1,000 feet from the Christon home. Mr. Christon directed his son to stay away from the property, because he did not trust Mr. Hebert and believed that he had a tendency to become violent. Mr. Christon told his brother-in-law, Jimmy Parker, a sergeant with the New York State Police, about the plants. Once again, Mr. Christon never heard back directly from the State Police.

Subsequently, his wife received a call informing her that a Trooper Rivette of the State Police had had some sort of contact with George. When George returned home that evening, he was, according to Mr. Christon, "extremely frightened" and "scared to death" and began locking doors and closing curtains, saying that he was afraid Hebert or one of Hebert's friends was going to come after him (Tr, 21).

Peggy Christon testified that the day she received the call about her son was a Saturday in early June.[2]
She was informed by the mother of George's girlfriend, at whose home George was visiting, that someone in a State Police vehicle had come to the house and left with George in the State Police car. Mrs. Christon went directly to the friend's home and also called her brother-in-law who was with the State Police. Her brother-in-law was not on duty, but the Trooper to whom she spoke told her where her son had been taken. She immediately recognized the location as the site of the marijuana plants her husband and son had been talking about. She estimated that that earlier conversation, about the plants, had taken place in late May or early June (Tr, 42). Contrary to her husband's testimony, she believed that she had been the one to actually speak with her brother-in-law. "I told them, my son knew who the crop owner was because [of] the vehicle that was always there when he'd hiked through the woods" (Tr, 43).
Once Mrs. Christon learned where George had been taken, she waited at the girlfriend's house until he was brought back by Trooper Rivette. She did not know this Trooper but had observed his vehicle driving by the Christon house about thirty minutes to an hour before she received the phone call about her son. Mrs. Christon asked the Trooper why he had taken her son but received no satisfactory reply (Tr, 32-33). George, who was not restrained in the Police vehicle, indicated to the Trooper that his mother was aware of everything and that he (George) would tell her what happened.

Approximately three weeks after this incident, Mrs. Christon called Trooper Rivette to inform him that her son reported being "run off the road" by Hebert (Tr, 34-35). According to Mrs. Christon, George was not physically injured because he had moved quickly enough to get out of the way. She asked the Trooper if he would please talk to Hebert about this and several prior incidents involving her son. She never heard back from Trooper Rivette or anyone else connected to the State Police about this complaint. At one point, Mrs. Christon testified that she called Trooper Rivette on two occasions (Tr, 54), but she never described the subject of the second call.

George Christon, Jr., testified that he was seventeen years old in 2000. At one point, in the spring of that year, he found some guns on a stone wall located about a quarter-mile behind his house. He took the guns to his father and never handled them after that. At around the same time, he discovered marijuana growing in the woods while out hiking. He did not attempt to remove the plants but mentioned finding them to his parents. He also told his parents that he believed they belonged to their neighbor, Hebert, because his truck was frequently parked in that area. George himself did not notify authorities about the marijuana but was aware that his parents had done so. George's father told him to stay away from the area where the plants were growing, and he complied.

Some time after this, State Police Trooper Rivette came to George's girlfriend's house in Dannemora and asked to speak with George. Trooper Rivette insisted that they go to the Stewart's parking lot that was next door to the house to talk. Once they reached the parking lot, the Trooper asked George if he would like to sit in the police vehicle to talk. George thought that this request was odd, but he complied. The Trooper then started the car and, according to George, said that either he could show him where the marijuana plants were growing or he could go to jail for stealing two guns (Tr, 68). At that point, George stated, he was frightened and did not feel free to leave.

At first George told the Trooper that he did not know where the marijuana was growing but, because he was afraid that he might get in trouble over the guns, he eventually identified the marijuana patch after the Trooper drove to the general location on Kent's Falls Road. Hebert's vehicle was at the location when he arrived, which made George very nervous and scared. Despite this, Trooper Rivette instructed him to get out of the truck and show him where the marijuana was growing. He then asked if George wanted go with him or to remain by the car. George elected to go with him, although telling the trooper that he did not want to proceed into the woods because he knew Hebert was in there (Tr, 75). He was assured that everything would be okay, but as they moved into the woods, they met Michael Hebert (Tr, 74). George reported that Trooper Rivette then became agitated and reached down for his gun, but he did not take it out. Nevertheless, this made George nervous and visibly upset Hebert. Hebert apologized to Trooper Rivette.

Trooper Rivette removed the marijuana plants and, at the same time, questioned Hebert as to why he was there and why there was a hammer at the site. George testified that while Trooper Rivette was occupied picking up the plants, Hebert looked at George and said that "my ass was his." He further stated that he was going to get George and beat him up (Tr, 77). At another point, according to George, Hebert said he was going to kill him (Tr, 78). George said that Trooper Rivette heard this comment but did nothing about it.

When they returned to the police vehicle, Trooper Rivette asked George to sit in the vehicle. George observed the other two talking by the front of Hebert's truck and said that Trooper Rivette may have given Hebert a paper (Tr, 80). Everyone then got into their vehicles and left. Trooper Rivette drove George to his girlfriend's house (Tr, 81), but they had minimal conversation along the way. George did tell Trooper Rivette that he thought Hebert would come after him because it had looked like he (George) turned him in. Trooper Rivette gave his cell number to George and said that he should call if a problem occurred.

A few weeks later, there was an incident at Sand Road in front of a house belonging to George's friend. Hebert was driving down Sand Road and, when he saw George walking to his car in front of the house, Hebert stopped, got out of the vehicle with an object in his hand, and proceeded to swear at George (Tr, 84). George then got into his vehicle and drove off, although Hebert was standing almost in front of George's vehicle (Tr, 84). George went home very upset and told his mother what had transpired (Tr, 85). Later that evening, George called Trooper Rivette to relay that afternoon's events (Tr, 85, 86). Trooper Rivette asked George whether Hebert had touched him, and George responded that he had avoided that situation. Trooper Rivette said he could not help George if he had not suffered any physical harm (Tr, 86).

Subsequently, there was another incident when George saw Hebert downtown in Plattsburgh on the porch of a house (Tr, 88). When Hebert saw George's vehicle, Hebert left the porch, got into his vehicle, and closely followed George. Hebert drove erratically behind George, causing his vehicle's tires to squeal. George also reported this incident to Trooper Rivette, who again told him essentially that unless Hebert actually did something to him, the State Police could not help him (Tr, 88-89). In addition to the encounters with Hebert, George testified, some of the kids at school also made comments to him, calling him "piece of shit" due to the incident and saying that he should mind his own business. He reported this incident to his guidance counselor (Tr, 91).

On cross-examination George testified that he had had minimal prior contact with Hebert. The year before, while riding his bike, George had talked to Hebert in Hebert's front yard (Tr, 94), and on another occasion he had spoken to Hebert at a friend's house where Hebert was fixing the friend's vehicle. In other words, they were acquaintances (Tr, 95). George testified that he had been to the marijuana patch three times before the incident with Trooper Rivette but was aware that marijuana was growing there on only two occasions (Tr, 95). He recognized that it was marijuana because he had seen products depicting that plant at Spencer's Gifts, a store in the mall (Tr, 97). Between the discovery of the marijuana and the trip with Rivette, George was near the marijuana patch approximately three times, passing by it while going to swim with his friends (Tr, 103). He was curious about whether the police had come to take it away, but he did not get close enough to the site to be able to tell. He did not report any of these subsequent visits or the status of the marijuana patch to his parents.

George stated that he had seen Hebert's truck parked in that area before he found the marijuana for the first time and that he had seen Hebert fishing at the river (Tr, 107, 109). George never spoke to Hebert about the existence of the marijuana patch, either at the river location or in the neighborhood where they lived, prior to the incident with Trooper Rivette (Tr, 109). George also stated that he had never seen people smoking marijuana down at the river (Tr, 111).

He was aware that his parents had reported his discovery to the State Police but not that his name was used in making the report (Tr, 101, 112). On the day of the incident he had gone to his girlfriend's house and it was possible he had stayed there the night before (Tr, 114, 115). He could not recall if it was a school day or a weekend day when Trooper Rivette came to see him at that location. It was mid-afternoon when Rivette arrived. George was on the couch and believes that his girlfriend's sister answered the door (Tr, 117). Trooper Rivette did not tell George that he was under arrest, did not force George to leave the house, and did not force George to enter the police vehicle (Tr, 117). George could not recall whether he had asked the Trooper if he could call his parents, or anyone else, before going down to the marijuana patch (Tr, 119). On redirect, George stated that the Trooper never told him that he could call his parents or a lawyer and never read him his rights or informed him that he was under arrest (Tr, 121).

State Police Trooper Joel Rivette, who is presently an investigator in Malone, New York, was assigned to the Dannemora area at the time of the incident involving George Christon, Jr. (Tr, 125). He testified that he had received information about the marijuana patch not through George's parents but from a friend, Don Benware, who had gotten the information from a neighbor (Tr, 127-128). At the time, Benware was an investigator for the Department of Social Services for Clinton County; he is now a State Park police officer (Tr, 130). Benware's neighbor had also reported that George Christon, Jr. had stolen some guns from a shed on the neighbor's property and that he had stolen marijuana plants in the area of Kent's Falls Road but had been confronted by Hebert and made to return them (Tr, 131-132). The neighbor's guns were returned, although Trooper Rivette did not know when or by whom, and the neighbor indicated that he was not concerned about criminal prosecution regarding the guns (Tr, 132).

On the day of the incident giving rise to this claim, Trooper Rivette observed George's car at a parking lot by Stewart's next to a house. He knew it was George's car because he had stopped George for a vehicle and traffic violation a few weeks earlier (Tr, 133). Although he knew George was sixteen or seventeen years old, he stated that he never contacted the parents about the marijuana patch, concluding that it was better to contact George directly. He wanted, he stated, to go to "the person who stole the marijuana" to learn more about where it was located (Tr, 135). There is nothing in his training, Rivette indicated, to suggest that it was improper to approach a sixteen or seventeen year old during an investigation (Tr, 168).

After knocking on the door of the house and getting George to come to the door, Rivette told him that he wanted to talk to him privately and he asked if he would sit in the police vehicle. George complied (Tr, 138). Rivette then relayed the information that he knew to George: that George had taken the guns, that the owner was not interested in prosecution, and that George had stolen marijuana but had given it back (Tr, 138-139). Although he could not recall the precise words used, Trooper Rivette stated that George acknowledged both of the accusations (Tr, 139, 141). Rivette then asked George to bring him to the property where the marijuana was, and George agreed to do so (Tr, 139).

At this point, according to Trooper Rivette, he was not conducting a criminal investigation of the alleged gun theft; he simply wanted to let George know that he knew what had happened (Tr, 140). He did not arrest George or threaten to arrest him but simply asked his help in locating the marijuana (Tr, 145). At no time did he read the Miranda warnings to George or suggest that he was under arrest. According to Rivette, George did not show or communicate any concern about being seen with the trooper, nor did he object to participating in the investigation (Tr, 149). Trooper Rivette did not remember George identifying Hebert's vehicle when they reached the location. He did not hear George and Hebert speak to one another after they encountered Hebert in the woods, and he heard no threats made by Hebert (Tr, 150). Specifically, he did not hear the alleged statement by Hebert, "Your ass is mine" (Tr, 150). Trooper Rivette issued a ticket charging Hebert with unlawful growing of cannabis (Public Health Law §3382) (Exhibit B).

About a week after the visit to the marijuana patch, George called Trooper Rivette about a verbal obscenity that had been shouted at him by Hebert, while Hebert drove past George and gave him the finger (Tr, 153). The Trooper was aware of the crime of intimidating a witness in the third degree, which is a felony under the Penal Law, but he did not think that Hebert's actions at any time rose to this level. Rivette confirmed that the New York State Investigation Report, which he completed and which mentioned George's name (Exhibit 1), could be obtained by anyone after the case was fully adjudicated. Interestingly, on the form Rivette did not mention that he had received information from Don Benware or refer to the alleged theft of marijuana or burglary of the guns (Tr, 155). Although he did indicate on the investigative report that he had received a complaint, he acknowledged at trial that he had not actually done so (Tr, 156). Trooper Rivette added that he did not think George was in any danger and did not perceive a need to conceal his identity for any reason (Tr, 157). Trooper Rivette stated that Hebert does not have an imposing physical appearance, being approximately 5 feet 5 inches tall and weighing around 130 pounds (Tr, 163). On cross-examination Trooper Rivette confirmed that on the way back to the girlfriend's house, George had asked what he should do if an altercation arose between him and Hebert. He gave George his phone number (Tr, 162). Later, after the incident in question, he stopped Hebert two times for vehicle violations.

Applicable Law and Discussion
Brown v State of New York (89 NY2d 172 [1996]), the "narrow remedy" of a constitutional tort was determined to exist in those situations where such a remedy is needed to assure that a constitutional provision is effective and to further its purpose (id, at 187). No such remedy exists, however, where the "constitutional tort allegations may be analogized to an existing common-law tort[s] for which there are adequate alternate remedies" (Augat v State of New York, 244 AD2d 835, 837 [3d Dept 1997], lv denied 91 NY2d 814; see also, Martinez v City of Schenectady, 276 AD2d 993 [3d Dept 2000], Remley v State of New York, 174 Misc 2d 523 [Ct Cl 1997]). In the present situation, the common law torts that are alleged by claimants provide adequate protection of any constitutional interest implicated in these events. In addition, for the reasons set forth below, neither Federal nor State constitutional protections would be implicated here, because the situation did not involve a detention from which a reasonable person would not feel free to leave (see, Landsman v Village of Hancock, 296 AD2d 728 [3d Dept 2002], appeal dismissed 99 NY2d 529).
False imprisonment is defined as an "unlawful detention contrary to the will of the person detained, accomplished with or without process of law", and false arrest is such a detention "accomplished by means of an unlawful arrest, and is a trespass against the person arrested" (59 NY Jur 2d, False Imprisonment § 1). To establish that an individual was falsely imprisoned, it must be proven (1) that defendant intentionally confined him, (2) that he was conscious of the confinement, (3) that he did not consent to the confinement, and (4) that the confinement was not otherwise privileged (Broughton v State of New York, 37 NY2d 451, 456 [1975], cert denied sub nom. Schanbarger v Kellogg, 423 US 929).
George Christon, Jr., was never formally arrested by Trooper Rivette. For a cause of action for false arrest to be maintained, therefore, it must be established that he was the subject of a de facto arrest. A de facto arrest occurs when police actions impose such significant restraints on a citizen that a reasonable person would conclude that he was not at liberty to ignore the police presence and freely go about his business (People v Bigelow, 66 NY2d 417 [1985]). To determine if such an arrest has occurred, the courts must look "at what a reasonable person, innocent of any crime, would have thought if he or she had been in the same position" (People v Baptiste, __ AD2d ____, 2003 WL 21283656 [3d Dept 2003]).
Police officers may not detain an individual unless they have probable cause to make an arrest or some other specific legal justification, because they have only a "right to request information * * * and the common-law right to inquire" (
People v DeBour, 40 NY2d 210, 223 [1976], see also People v Howard, 50 NY2d 583 [1980]). The party of whom such inquiry is made has the right to refuse to respond (People v Madera, 189 AD2d 462 [1st Dept 1993], affd 82 NY2d 775). On the other hand, where there has been no physical confinement of a person who is being questioned and no threat of confinement if they attempt to leave, then the individuals' own fear of arrest or other adverse consequences if they should attempt to leave "does not constitute the detaining force necessary to establish the tort of false imprisonment" (Malanga v Sears, Roebuck and Co., 109 AD2d 1054 [4th Dept], affd 65 NY2d 1009; Fernandez v State of New York, 2002 WL 31955397 [Ct Cl 2002]). In order to prove this cause of action, therefore, it must be established that "the arrest or imprisonment [was] caused, authorized, directed or instigated by the defendant" and that some arrest or detention actually occurred (59 NY Jur 2d, False Imprisonment §12).
In the instant case, claimants failed to establish, by a preponderance of the credible evidence, that George Christon, Jr., was arrested or detained by Trooper Rivette. Even if George's testimony is fully credited, there were no overt actions on the part of Trooper Rivette that evidenced an intention to restrict George's movements or to refuse to let him leave if he chose to do so. The officer asked George to leave the house, asked him to accompany him to the Stewart's parking lot, and asked him if he would agree to sit in the State Police vehicle. There is simply no evidence to suggest that George was not free to decline any of these requests. If George objected to being driven away from the parking lot, there was no testimony or other evidence that he voiced such objections or asked to be let out of the vehicle. In short, the testimony of all witnesses indicates that George's communications with Trooper Rivette and his actions in accompanying the trooper, both to the property in question and then into the woods where the marijuana was located, were strictly voluntary.

As to the cause of action alleging negligence, it is true that when police or other officials seek the assistance of a citizen to help in investigation of a crime, they owe a duty of care to assure that such request does not expose the individual to a foreseeable risk of harm (
Ast v State of New York, 66 NY2d 998 [1985]). Furthermore, it is the public policy of this State that compensation should be provided to private citizens who have been injured (or to their estates if they are killed) as a result of aiding in law enforcement (62A NY Jur 2d, Government Tort Liability §127).
The elements that must be proven to establish any cause of action in negligence are "(1) the existence of a duty on defendant's part as to plaintiff; (2) a breach of this duty; and (3) injury to the plaintiff as a result thereof" (
Akins v Glen Falls City School Dist., 53 NY2d 325, 333 [1981], citing to Prosser, Torts [4th ed.], §30, p 143). Even if the Court were to assume, arguendo, that Trooper Rivette's actions (providing his phone number to George, listening to and assessing reports of Hebert's subsequent actions, and perhaps maintaining a watchful eye on Hebert) constituted a breach of the duty owed to one who assists the police in their work, claimants failed entirely to prove that either George or his father suffered any compensable injury as a result. While courts have recognized that there can be recovery for emotional harm caused by negligence even in the absence of physical impact, such liability is limited to "zone of danger" situations (Bovsun v Sanperi, 61 NY2d 219 [1984]) and claims in which a litigant's mental or emotional distress is supported by medical or psychological evidence, (see, e.g., Kennedy v McKesson Co., 58 NY2d 500, 506 [1983] [to be compensable, emotional injury must be a direct, rather than consequential, result of the negligence]; Johnson v State of New York, 37 NY2d 378, 381 [1975] [recovery possible for negligently-caused psychological impact where there is "ensuing psychic harm with residual physical manifestations"]). Neither George's apprehension that there might be some consequences nor his upset at Hebert's alleged hostile acts rise to this level. Without injury there can be no cause of action for negligence.
The Court holds, therefore, that claimants have failed, by a preponderance of the credible evidence, to prove either that the State of New York violated any duty owed toward them or that they suffered any compensable injury as a result of the events described above.

Let judgment be entered accordingly.

June 25, 2003
Albany, New York

Judge of the Court of Claims

[1] The claim of his father, George Christon, Sr., is derivative in nature and seeks compensation for loss of his son's services.
[2] The appearance ticket ultimately issued by Trooper Rivette indicates that the date was June 4, 2000, which was a Sunday.