The trial of the liability portion of this claim seeking money damages for
false arrest and malicious prosecution was held in Albany on April 5,
Eric Curran was the sole witness for the claimant and testified in relevant
part as follows:
On February 21, 2002 he was employed as a snow tube instructor at the
Rocking Horse Ranch (the ranch) in Highland, New York. On that date he worked
from 7:00 a.m. to 4:00 p.m. At approximately 4:30 p.m. he left the ranch and
traveled to a nearby deli. When he returned to the ranch parking lot he met a
coworker, Hal Cooper, who invited claimant to go with him to a friend's house
to obtain money which Cooper intended to use to purchase a boom box from the
claimant. The two left the parking lot shortly after 5:00 p.m. in a Dodge Colt
automobile operated by Mr. Cooper. Claimant stated that he does not know where
Cooper's friend's house was located or what route Cooper took to get there.
Claimant alleges that when they arrived at the friend's house he stayed in the
vehicle while Cooper went inside and returned approximately 15-20 minutes
later. The two began their return trip to the ranch at approximately 5:30 p.m.
and allegedly made no stops until a New York State Trooper pulled them over on
Pancake Hollow Road.
Claimant testified that after being stopped by the State Trooper Cooper
produced a driver's license and registration for the vehicle. The witness
described Cooper as acting nervous and stated that the trooper asked Cooper to
step out of the car. Mr. Cooper exited the vehicle and, after a short
conversation with the trooper, claimant observed Cooper reach into his pocket
and produce a baggie. The trooper then approached the passenger side of the
vehicle and asked claimant to step out of the car. Upon being asked by the
trooper if he had anything the trooper should know about claimant replied that
he had nothing in his pockets. Claimant was patted down and directed to stand
in front of Cooper's car.
Shortly thereafter a second and third police vehicle arrived at the scene.
Claimant was unsure whether the newly arrived officers were State Troopers or
local police. He was then subjected to a second pat down. Claimant allegedly
observed the police look inside Cooper's car but did not witness a search of the
vehicle. Claimant was handcuffed, placed in the back of one of the police
vehicles and taken to the State Police Barracks on Route 299 where he was placed
in a room and shackled to the wall by his ankle.
Claimant alleges that he was never advised that he was under arrest and that
Miranda warnings were not administered. He remained at the trooper barracks for
approximately one hour during which time he was directed to remove all of his
clothing and upon doing so was subjected to a search. Ultimately he was issued
an appearance ticket charging him with unlawful possession of marijuana and was
then released. Claimant alleges that he appeared twice in Town Court and that
the ticket was dismissed on the second visit.
Claimant concluded his direct testimony by stating that Trooper De Quarto never
told him he was under arrest and never showed him any baggies seized from the
On cross-examination claimant testified to his educational background, his
two-month association with Hal Cooper prior to the date of the incident and his
work experience at the ranch. Claimant denied knowing Cooper's present
whereabouts and could not recall having his wallet with him at the time of the
traffic stop or of having produced identification for the trooper. He stated
that he did not know who Cooper went to see and admitted that it was not
necessary for him to have gone with Cooper. He alleged that both he and Cooper
had received paychecks that day but did not explain why Cooper had to go to a
friend's house to obtain money.
Claimant testified that he and Cooper never completed the sale/purchase of the
boom box since Cooper only obtained $25.00 from his friend and the agreed-upon
purchase price was $50.00. He stated that he and Cooper made no stops between
Cooper's friend's house and the time they were stopped by the trooper. He
testified that he was in the passenger seat of the vehicle and spoke to the
trooper through the window opening.
Claimant stated on cross-examination that he did not see Cooper pull the baggie
out of his pocket but rather that he saw Cooper reach into his pocket and tell
the trooper that he had a bag of marijuana. He was asked to recall testimony
given at an earlier examination before trial regarding his observation that
Cooper appeared to be acting nervously when confronted by the trooper. He
reiterated his direct testimony regarding police personnel at the scene of the
traffic stop and his inability to distinguish trooper from non-trooper. The
witness stated that Cooper's girlfriend picked him up at the State police
barracks and took him back to the ranch where he retrieved his car and went
On redirect examination claimant indicated that Cooper never showed him his
appearance ticket or told claimant what charges were lodged against him. He
also related that he did not ultimately sell Cooper the boom box because the
transaction was interrupted by their arrest.
On re-cross-examination the witness stated that Cooper admitted to claimant
that he had marijuana. Claimant's exhibits 1 and 2 were received in evidence
without objection and claimant rested his case.
The Court reserved decision on the defendant's motion to dismiss the claim for
failure to prove a prima facie case. That motion is now denied.
Defendant's only witness was Trooper Paul De Quarto who testified that he had
been a New York State Trooper for 3½ years at the time of trial and was a
1998 graduate of Marist College. Trooper De Quarto also had previous police
experience with the Ulster County Sheriff's Office and the police departments of
the towns of Lloyd and Hyde Park, New York. On the date of this incident the
witness was stationed at the Highland Barracks on Route 299 and was assigned
routine patrol duties on the 3:00 p.m. - 11:00 p.m. shift.
The witness recalled stopping the vehicle in which claimant was a passenger at
approximately 6:00 p.m. on Pancake Hollow Road near its intersection with Tina
Drive which he described as a residential area. Trooper De Quarto first
observed the vehicle as they passed each other in opposite directions on Pancake
Hollow Road. He testified to his belief that the vehicle had excessive tint on
the side windows and that he turned his vehicle around and stopped the vehicle
driven by Hal Cooper.
Trooper De Quarto testified that as he approached the vehicle he detected the
odor of burnt marijuana and that Cooper admitted that he had smoked marijuana
two hours earlier. When asked if he had any more marijuana Cooper admitted he
did. He then reached into his pocket and produced three 1" x 1" glassine
envelopes containing marijuana.
The witness then directed Cooper to the rear of the vehicle, called for backup
and approached the claimant who was still seated in the front passenger seat.
Trooper De Quarto inquired as to where claimant and Cooper had been and what
they were doing. He then asked claimant to step out of the vehicle. As
claimant did so Trooper De Quarto observed a glassine envelope on the floor of
the passenger compartment near the edge of the seat. He later searched the
vehicle and found nine additional envelopes between the center console and the
front passenger seat. The witness also found a controlled substance prescribed
for Ferdinand Romero in the vehicle's glove box.
Trooper De Quarto requested that claimant produce identification and a pat down
search was conducted. The witness stated that he had no further contact with
the claimant until later at the barracks when he inquired as to where the
marijuana was purchased. The witness completed an arrest report and vehicle
search documents (see Exhibit A) and signed an information charging claimant
with unlawful possession of marijuana. Cooper was charged with unlicensed
operation of a motor vehicle, excessive tint of side windows and unlawful
possession of marijuana. He related that Cooper's case was still pending and
that a warrant for his arrest was outstanding.
Although the witness was aware that claimant was searched at the trooper
barracks he did not participate in the search. He explained that a strip search
is discretionary and appropriate where the arresting officer noted nervous or
fidgety behavior on the part of the arrestee. He alleged that he made such an
observation of Hal Cooper and that both Cooper and claimant were searched for
other possible contraband.
The witness identified Exhibit 1 as a court-issued certificate of disposition.
Although the document indicates that the charge of unlawful possession of
marijuana against claimant was dismissed it does not specify the basis for the
dismissal. Trooper De Quarto denied having been notified to appear in Town
Court regarding the charge against claimant.
On cross-examination the witness was questioned about his familiarity with
Criminal Procedure Law § 30.30 (speedy trial) and admitted that he did not
know whether the baggies seized in this case had ever been tested. He
acknowledged that Exhibit 3 indicates only that the seized material was sent to
the lab for testing and does not report any test results.
He reiterated his earlier testimony on direct regarding the location of the
baggies in the front passenger compartment of the vehicle and discussed how he
placed the baggies seized from Cooper in his pocket and later secured all of the
evidence in a bag before leaving the scene. The witness reported that he weighed
the baggies seized and determined their gross weight to be 10 grams. As shown
in Exhibits A and B, the witness charged Cooper with possession of 2 grams of
marijuana and claimant with possession of 8 grams. Trooper De Quarto reported
that he called for backup as a precaution even though he denied being in fear
for his safety.
The claimant, Eric Curran, was called as a rebuttal witness. He testified
briefly that while positioned in the front of Cooper's car he did not observe
Trooper De Quarto or anyone else pull baggies from the passenger side of the
The Court in observing the demeanor of the two witnesses at trial determined
Trooper De Quarto's testimony to be credible while claimant's testimony was at
times sketchy and lacking in credibility.
The following elements must be shown to establish a cause of action for false
arrest: (1) the intentional confinement of the claimant, (2) claimant's
conscious awareness of the confinement, (3) claimant's lack of consent to the
confinement, and (4) the confinement was not otherwise privileged (
Broughton v State of New York
, 37 NY2d 451, 456, cert denied sub nom.
Schanbarger v Kellogg
, 423 US 929). Legal justification for an
arrest is an affirmative defense to be alleged and proved by the defendant
(see Gebbie v Gertz Div. of Allied Stores of N.Y.
, 94 AD2d 165).
An arrest is deemed privileged if the arresting officer had probable cause to
make the arrest. Probable cause has been defined as such facts and
circumstances as would lead a reasonably prudent person to believe claimant is
guilty of an offense given the facts known or reasonably known to be true to the
defendant (see Colon v City of New York
, 60 NY2d 78,
Trooper De Quarto's stop of the vehicle for an equipment violation under
Vehicle and Traffic Law §375 (12-a) (b)(2) (excessive tinting of side
windows) is not disputed. Nor has claimant cast into question the trooper's
testimony that he detected the scent of burnt marijuana. Further, the
admission of Hal Cooper that he possessed marijuana is not contested.
Added to these facts is the well known statutory presumption set forth in Penal
Law § 220.25 (1) which in relevant part provides "[t]he presence of a
controlled substance in an automobile, other than a public omnibus, is
presumptive evidence of knowing possession thereof by each and every person in
the automobile at the time such controlled substance was found . . . ". In the
Court's view, the statutory presumption together with the other circumstances
directly observed and credibly testified to by Trooper De Quarto establish
probable cause for claimant's arrest as well as the initial stop of the vehicle
upon a potential equipment violation. Accordingly, claimant's arrest was
privileged and his cause of action for false arrest must be dismissed.
With regard to the portion of the claim alleging malicious prosecution "[t]he
law . . . places a heavy burden on malicious prosecution plaintiffs, requiring
that they establish 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' (
Broughton v State of New York
, 37 NY2d 451, 457, cert denied sub nom.
Schanbarger v Kellogg
, 423 US 929)" (Smith-Hunter v Harvey
95 NY2d 191, 195).
Here there is no doubt that a criminal proceeding was instituted against
claimant by the filing of the information charging him with a violation of Penal
Law § 221.05 (
, Criminal Procedure Law § 100.05). Claimant, however, failed to
sufficiently prove the remaining elements. Clearly the burden of proving that
the underlying criminal action was terminated favorably to him is borne by the
claimant (Ward v Silverberg
, 85 NY2d 993; Reinhart v Jakubowski
239 AD2d 765). "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
(Hollender v Trump Vil. Coop.
, 58 NY2d 420; Halberstadt v New York
Life Ins. Co.
, 194 NY1)" (MacFawn v Kresler
, 88 NY2d 859, 860). Here
claimant offered only a certificate of disposition (Exhibit 1) showing that the
charge of unlawfully possessing marijuana was dismissed by the Lloyd Town Court.
The reason for the dismissal does not appear on the face of the certificate and
no testimony was offered to explain why the charge was dismissed.
Romero v State of New York
(294 AD2d 730, at 732, appeal dismissed
98 NY2d 727, lv to appeal denied
99 NY2d 503), the Appellate Division,
Third Department held "the mere dismissal of a charge does not, in and of
itself, establish the element of favorable termination." Where the order of
dismissal in the criminal action "leaves the question of guilt or innocence
unanswered" claimant's burden in this regard has not been met (see
Delello v State of New York
, 221 AD2d 1010; see also Ryan v
New York Tel. Co.
, 62 NY 494, 504-505; Witcher v Children's Tel.
, 187 AD2d 292, 294). The instant certificate of disposition
stands mute on the subject and the failure of the claimant to explain the
underlying basis for the dismissal leads the Court to conclude that claimant has
not met his burden to establish a favorable termination of the criminal
Claimant has also failed to sufficiently prove the absence of probable cause
and the existence of actual malice. "For purposes of the tort of malicious
prosecution, probable cause has been defined as 'the knowledge of facts, actual
or apparent, strong enough to justify a reasonable man in the belief that he has
lawful grounds for prosecuting the defendants in the manner complained of'
Burt v Smith
, [181 NY 1, error dismissed
203 US 129]) or whether
'a discreet and prudent person would be led to the belief that a crime had been
committed by the person charged' (Carl v Ayers
, 53 NY 14, 17; see,
also, Hyman v New York Cent. R.R. Co.
, 240 NY 137)" (Loeb v
, 77 AD2d 92, 102-103). As noted above with regard to the false
arrest cause of action, this Court finds that Trooper De Quarto had probable
cause both to stop the vehicle and to charge claimant with unlawfully
possessing marijuana. The trooper testified that he observed Cooper's vehicle
on Pancake Hollow Road and that he believed the vehicle's window tint was
excessive and not in compliance with the requirements of the Vehicle and Traffic
Law. Once the vehicle was stopped the trooper testified credibly that he
detected the odor of marijuana, Cooper admitted to possessing marijuana at the
scene and that he observed and later seized marijuana from the front passenger's
compartment where claimant was seated.
Finally, claimant neither pled nor proved that Trooper De Quarto acted with
actual malice, i.e., ill will or personal hostility toward the claimant (
see Martin v City of Albany
, 42 NY2d 13, 17) nor may the Court
infer malice from the surrounding facts and circumstances where probable cause
to initiate a criminal proceeding has been found (id.).
Accordingly, claimant has not sustained his burden of proof regarding the cause
of action for malicious prosecution and it too must be dismissed.
Although the claim filed in this action also alleged the denial of claimant's
civil rights under the Fourth, Fifth
, Sixth and Fourteenth Amendments to the United States Constitution claimant's
attorney did not address the so-called constitutional claims at trial or in his
post-trial brief. It is well settled that alleged violations of an
individual's rights under the United States Constitution are not subject to
adjudication in the Court of Claims (Brown v State of New York
, 89 NY2d
172, 184; Ferrer v State of New York
, 172 Misc 2d 1). Nor is the State a
"person" amenable to suit under 42 USC § 1983 (Ferrick v State of New
, 198 AD2d 822; Matter of Thomas v New York Temporary State Commn. on
Regulation of Lobbying
, 83 AD2d 723, affd
56 NY2d 656). Accordingly,
claimant's attempt to predicate liability against the State upon alleged
violations of the Fourth, Fifth, Sixth and Fourteenth Amendments of the United
States Constitution is unavailing.
The claim is dismissed in its entirety and the Clerk of the Court is directed
to enter judgment in accord with this decision.