New York State Court of Claims

New York State Court of Claims

CURRAN v. THE STATE OF NEW YORK, #2004-015-598, Claim No. 106083


The statutory presumption found in Penal Law § 220.25 in favor of knowing possession of a controlled substance by occupants of a motor vehicle in which the substance is found when added to other circumstantial evidence rendered claimant's arrest privileged and thereby defeated his claim for false arrest. With regard to malicious prosecution cause of action claimant failed to prove a termination in his favor, absence of probable cause and the presence of actual malice.

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:
John B. Garrity, Jr., Esquire
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Michael W. Friedman, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
July 7, 2004
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)

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, 2004.

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 vehicle.

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 directly home.

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 car.

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, 82).
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 (
see, 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. Workshop, 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 proceeding.
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 Teitelbaum, 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 York, 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.

July 7, 2004
Saratoga Springs, New York

Judge of the Court of Claims