On December 22, 1996, claimant and his acquaintance Shawn Donnelly were
arrested by the New York City Police Department. Originally arrested as John
Doe 1, and John Doe 2, he and Donnelly were indicted for forgery in the second
degree and criminal possession of stolen property in the 4th and 5th degree
(Exhibit 8, pages 1 and 2). Partially through the machinations of Donnelly, who
managed to switch identities with claimant, a parole hold that was attributable
to Donnelly was placed on claimant. The parole hold prevented claimant’s
release on bail, and his confinement continued beyond the point it otherwise
Claimant testified that he drove his automobile on December 21,
1996, from Westfield, Massachusetts, to New York City, in order to visit his
family for the holidays.
On weekdays, claimant stayed in Westfield, to be
near his place of employment, at an automobile dealership, and on weekends and
holidays he traveled to the Bronx to spend time with his wife Sharon Shaw and
his stepchildren, or to Manhattan to visit with other family members. In
Westfield he shared an apartment with Irma Donnelly, sister of his close friend
Eugene Donnelly who had died a number of years earlier. He lived there for
three years through 1996.
Shawn Donnelly, another brother of Irma Donnelly,
whom claimant only vaguely knew, asked him for a ride to New York City, and
claimant agreed. He had met Donnelly for the first time a year or so earlier.
Donnelly accompanied him on the ride to New York City that day. At the time,
claimant was unaware that Donnelly was a convicted felon and an absconder from
parole. Claimant’s criminal record consisted of one DWI conviction in
Massachusetts, the terms of which had been completed.
The two men arrived in
New York City around 7:30 that evening. Upon their arrival, claimant tried to
help Donnelly find his friends in Manhattan, but was unsuccessful. At some
point the two men purchased some food and alcohol, which they consumed while in
the automobile. According to claimant they shared about one quart of rum. At
about 10:00 p.m. they decided to go to a club where claimant consumed an
additional seven alcoholic drinks. Too intoxicated to drive and not wanting to
go home to his family in such a condition, claimant asked Donnelly to find a
room for him. He and Donnelly made their way to the Renaissance Hotel in
Claimant stated that he remained in his vehicle while Donnelly
entered the hotel to arrange for accommodations. Unbeknownst to claimant,
Donnelly paid for the room with stolen travelers checks and a stolen credit
card. After ten or 15 minutes Donnelly returned to the vehicle and informed
claimant that “everything was fine.” As the men entered the hotel
Donnelly carried a duffle bag that he had placed into the rear of
claimant’s vehicle before they left for New York City. Claimant testified
that he was unaware of the contents of the duffle bag. When claimant entered
the hotel the management asked him to provide some identification, and he
produced his driver’s license. Then the men went to a hotel room where
claimant made another drink, and finally fell to sleep.
At some point during
the morning of December 22, claimant was roused out of bed by New York City
policemen. His clothes were put on him, he was handcuffed, and he was removed
from the room. He told the police that he had not done anything, and inquired
as to why he was being handcuffed and arrested, but received no reply.
next thing he knew, the police draped Donnelly’s duffle bag over his
shoulder, informing him that Donnelly told them it was his bag, despite
claimant’s protestations that he did not have a bag. Claimant later
learned that the bag contained stolen credit cards and stolen travelers
Darly King, an employee of the hotel, was called as a witness by the
defendant. He testified that he followed the police officers into the room, and
that neither occupant responded to police requests to identify
Claimant and Donnelly were led out of the hotel and placed into
a police car where he fell asleep. Claimant was unable to recall details of
what transpired during the arrest due his continued inebriation.
claimant’s arrival at the police precinct a pedigree interview was
conducted. Claimant stated that he thought that his responses to police
questioning were accurate, but conceded that it was possible, due to his
condition, that some information may not have been correct.
that he gave his name, birth date, and address as 140 Union Street, Westfield,
Massachusetts. He was asked his mother’s phone number, but he could not
remember it. He was also unable to state his wife’s phone number because
he “couldn’t function to get any phone number out. Everything was
just fogged,” because of the alcohol he had consumed.
He believed he
gave the correct name and address for his wife Sharon Shaw. However, on cross
examination, claimant maintained that if he told a police officer that his
wife’s name was Irma Donnelly, he did so only because he was still drunk,
no other reason.
At the police precinct claimant’s wallet,
containing Massachusetts and New York driver’s licenses bearing his
photograph and correct name, was taken and vouchered (Exhibit 27). He explained
that he acquired the Massachusetts license for his work in that state.
claimant “finally woke up” he was fingerprinted and his picture was
taken. Prior to this occasion, claimant had never been fingerprinted. Several
times during this process he informed the police that his name was Craig Tyrone
Pinkney and that the other man’s name was Shawn Donnelly . He added that
during the course of his confinement, the New York City Police Department and
the District Attorney’s Office fingerprinted him at least five times;
however, he said he was never fingerprinted by the Division of Parole.
the precinct claimant was offered the opportunity to place a telephone call, but
he declined. Again, he was unable to remember phone numbers due to his
condition, and in any case, assumed that his arrest was a big mistake and that
he would be able to go home soon.
Taken to Manhattan Detention, claimant met
with a court-appointed lawyer in a holding pen near the criminal court part
where he was to be arraigned. He noticed two dockets on the table: one
captioned, “Tyrone [claimant’s middle name] Pinkney - First
Arrest;” and the other, “Shawn Donnally, also known as Craig
Pinkney.” According to claimant, despite his stating that there had been
a mixup in the paperwork, the assigned attorney ignored his protestations.
Sharon Shaw, claimant’s wife, testified on his behalf. When her
husband did not arrive home on schedule she contacted his mother and brother to
see if either had any information concerning his whereabouts. On December 23,
she received a telephone call from Donnelly in jail, who informed her of the
arrests. According to Ms. Shaw, he told her that he was calling from the Tombs
Prison, and asked her to come and bail him out, but that she could not bail her
husband out because there was some sort of problem that he could not explain to
her at that time, but assured her that he would “straighten out the whole
At some point that day Ms. Shaw received a telephone call
from an attorney who asked her for a description of her husband. According to
her, the lawyer informed her that there was an identity mixup.
day she traveled to 100 Centre Street in Manhattan to post bail on her husband
when she was confronted with a discrepancy: she was shown a photograph of
Donnelly, and not of her husband. The photograph was associated with the name
Ms. Shaw stated that claimant telephoned her
on December 24. He informed her that he had been out drinking and was arrested
because of something having to do with a credit card, and that there was
“problem with the names.” She sought the services of an attorney to
represent her husband.
Claimant testified that on December 24, 1996, he was
arraigned, and a plea of not guilty was entered on his behalf. He gave his name
as “Craig Tyrone Pinkney,” and Donnelly gave his name as
“Tyrone Pinkney.” He asked his lawyer “what’s going on
here, how can he do this.” This was the first time claimant learned that
Donnelly assumed the name “Tyrone Pinkney.” Claimant testified that
at no time did he conspire or agree with Donnelly for the latter to use his name
in order to facilitate his release from jail.
In order to resolve the
confusion further fingerprinting was performed. Bail was set, but he was
remanded due to a parole hold which had been lodged. The parole hold was
actually attributable to Donnelly, who had been serving a term in New York State
prison until he was placed on parole in October 1991. In July 1992, Donnelly
absconded from parole supervision (Exhibit 9). A Parole Warrant was issued on
August 13, 1992, and the matter was transferred to the parole absconder unit
After the re-fingerprinting, claimant returned to the court
where the case proceeded as if he were Shawn Donnelly and Donnelly were Tyrone
Claimant was then taken to a facility maintained by the New York
City Department of Correction. He stated that at intake he began to sign his
real name on a property receipt, but was told by someone, whom he identified as
Captain Gonzalez, to sign “Shawn Donnelly ,” the name on the docket,
or “something would happen to [him].” Perceiving the directive as a
threat, he complied (Exhibit 15
). Moments later he signed another form with the name “Shawn
From that point, claimant was involved in two separate and
ongoing proceedings: one was before a Parole Hearing Officer for the parole
violation where he was represented by assigned counsel Abraham Strassfeld, and
the other was before the Supreme Court, where he was represented by Steven
Hornstein, a criminal defense attorney.
Parole Officer Slevens was called to
testify by claimant. He was informed that Donnelly had been arrested on
December 22, 1996, and that his presence was required at a preliminary parole
violation hearing on January 3, 1997. At the time of the hearing Officer
Slevens was assigned to Bayview Correctional Facility as a work-release parole
officer. When Donnelly had initially come under his supervision, his assignment
was in the Bronx where he carried a case load of 100 or so parolees.
to the hearing, while incarcerated at the Tombs, claimant was served by a
“court officer or parole officer” with a notice of violation form
directed to Shawn Donnelly, but he refused to sign the document because he was
not Shawn Donnelly (Exhibit B, a blank example copy of Form 9011).
Slevens attended the January 3 preliminary parole violation hearing with
claimant and his assigned counsel Mr. Strassfeld present. The case was held
before Gayle Walthall
, a Hearing Officer for the New York State Division of Parole (Exhibit 1).
Officer Slevens brought with him a copy of the Violation of Release Report that
had been forwarded to him, but did not have Donnelly ’s parole folder that
generally contained descriptive data including a photograph. At this hearing
claimant stated that his name was Craig Pinkney and not Shawn Donnelly, and that
the real Shawn Donnelly “is still in the Tombs,” and that he was
using the name “Tyrone Pinkney” (Exhibit 1). Officer Slevens was
unable to identify claimant as Shawn Donnelly .
At Mr. Strassfeld’s
request, the hearing was adjourned to January 6, 1997, for further
identification purposes. The Hearing Officer directed Officer Slevens to check
records concerning Shawn Donnelly and make arrangements with the Parole
Violation Unit [“PVU”] for claimant’s production at the
January 6 proceeding. It was also suggested that Mr. Strassfeld “pursue
an avenue or two” on his own.
Under the mistaken belief that the
Hearing Officer would contact the PVU, Officer Slevens conceded that he had
“neglected to call” the unit, and as result, claimant was not
produced for the January 6 hearing, and the matter was further adjourned at the
Parole Division’s request to January 13, 1997, the first available day on
Officer Slevens’ schedule due to training he was registered to attend.
Prior to the January 6 hearing, Officer Slevens had inspected
Donnelly’s parole folder, which was maintained in the Bronx. He located
Donnelly’s fingerprint card, but there was no photograph of Donnelly in
the folder. Officer Slevens brought a copy of the fingerprint card with him to
the hearing, but made no attempt to locate a photograph from another source. At
some point he viewed a photograph of Donnelly attached to another document but
it was of such poor quality it did not aid in an identification. He explained
that he did not request that the Division of Parole make a fingerprint
comparison because no one in the division was qualified to make such a
determination. On one occasion he asked a correction officer to make a
fingerprint comparison, but was told that the procedure was not done at that
Given his doubts of the identity of the accused
absconder, Officer Slevens stated that he contacted an Assistant District
Attorney to inform him of the possibility of a mistaken identification and
request that claimant be re-fingerprinted. He also conveyed his suspicions to
his supervisor, Officer Wasserman, and to Mr. Lefkowitz, a supervisor at the New
York State Division of Parole.
Meanwhile, Mr. Hornstein, a criminal defense
attorney, was retained by claimant’s wife to represent claimant. Mr.
Hornstein testified on claimant’s behalf. On January 7, claimant was
produced before Judge Wittner, in Supreme Court, New York County, on the
Donnelly case. Assistant District Attorney Lilly appeared for the People and
brought with him a file for Shawn Donnelly that contained a photograph.
According to Mr. Hornstein, those present were “fairly certain that the
photograph did not match Mr. Pinkney,” and there was also a discrepancy in
the listed height: Donnelly was 5 foot 8 inches tall and claimant was 6 foot 3
inches tall. At this point Mr. Hornstein believed that the parole hold would be
shortly lifted, but it was not.
Mr. Hornstein filed an order to produce with
the Department of Correction, and on January 10 claimant appeared before Judge
Adlerberg. The court was advised as to the possible misidentification, and the
Judge directed that Donnelly and claimant be re-fingerprinted, and the matter
was adjourned to January 17.
On January 13, claimant, represented by Mr.
Strassfeld, and Officer Slevens appeared once again before Hearing Officer
Walthall (Exhibit 2). Officer Slevens testified that he brought
Donnelly’s fingerprint card that he had obtained prior to the adjourned
January 6 hearing.
Mr. Strassfeld testified on claimant’s behalf.
He stated that at the onset of the hearing he sought to have the warrant lifted,
because the 15-day period to conduct a preliminary hearing had lapsed. The
application was not ruled upon, Ms. Walthall stating that she was “not
allowed to rule on those matters. That is an issue best reserved for Supreme
Ms. Walthall noted that while additional fingerprints had been
taken, an analysis was not completed. The hearing officer stated, that based on
the fact the fingerprints that had been taken of claimant upon intake into
Correction corresponded with those of Donnelly’s, she determined to
proceed with the hearing as if claimant were Donnelly, but also directed Officer
Slevens to further investigate the matter.
At this hearing claimant refused
to enter a plea on the ground that he was not Shawn Donnelly. The hearing
officer stated, “I’ll enter a plea on his behalf . . . I don’t
find the individual who claims he’s not Shawn Donnelly to be credible . .
. I will enter the plea of not guilty on his behalf.”
hearing, Officer Slevens stated that he was “90 percent sure that this man
is not Shawn Donnelly ,” but he needed to complete a fingerprint
comparison to be sure.
The hearing officer determined that there was
probable cause to believe that claimant violated the conditions of his parole
and he remained in custody (Exhibits 2, 4, 5).
Claimant conceded that while
his family members were available for the parole hearings, at no time did he
suggest to his attorney that they testify on his behalf or supply documentary
evidence to establish his true identity.
According to Mr. Hornstein, at the
January 17 appearance before Judge Adlerberg, the fingerprint issue persisted;
once again the fingerprints that belonged to Donnelly were attributed to
claimant. The judge ordered that claimant be re-fingerprinted and the matter was
On January 28, Assistant District Attorney Lilly appeared before
Judge Adlerberg and informed him that claimant was not the subject of the parole
hold, and the hold should be lifted. According to Mr. Hornstein, at that point
the judge reduced that bail amount, but the parole hold persisted.
Hornstein testified that as a result, his law partner dispatched a letter dated
January 28, 1997, to the Security Captain at Rikers Island, asking him to
expedite claimant’s release (Exhibit 26). Copies of the letter were sent
to Officer Slevens and Officer Wasserman with whom conversations also took
place. Mr. Hornstein was not certain if anyone from his law firm spoke to
Officer Slevens about the matter prior to the date of the letter.
According to Mr. Hornstein, prior to this correspondence to the New York
City Department of Correction, no other written efforts were made by his firm to
correct the situation regarding the misidentification of his client. Mr.
Hornstein further acknowledged that the times he appeared in court on behalf of
his client, his dealings were with employees of the District Attorney’s
Office and the assigned judges hearing the matter. He was not involved in
claimant’s parole hearings.
Mr. Hornstein believed that on January 30
and 31, his law firm contacted Mary Hollander, Deputy Chief, New York State
Division of Parole, to discus the matter. Ms. Hollander was called to testify
by claimant. On February 3, after discussing the matter with Officer Slevens,
she sent a letter to Judge Adlerberg stating that the parole hold should be
lifted on claimant, because “re-verification of the subject’s
fingerprints in conjunction with parole officer’s identification that the
defendant is not Shawn Donnelly , have provided us, the Division of Parole, with
enough evidence to believe that the individual is not the fugitive known as
Shawn Donnelly .” (Exhibit 6).
On February 5, with the parole hold
still in effect, Mr. Hornstein stated that he once again contacted Ms.
Hollander, who indicated to him that she would send someone to Rikers Island,
only to discover that claimant had been signed out of the facility, in order to
appear in court.
Officer Slevens testified that on February 5, he brought
the letter that Ms. Hollander had written to New York Supreme Court, Part 50, to
have the parole warrant lifted from claimant.
Finally, on February 7, 1997,
the parole hold was lifted on claimant, his wife posted $1,500 bond and gained
her husband’s release (Exhibit 8, p. 79).
On August 4, 1997, claimant
was found “not guilty of all counts after bench trial,” relating to
the December 22, 1996 criminal charges (Exhibit 8, p. 35).
to hold defendant liable for damages he sustained due to the negligence of the
New York State Division of Parole and its employees which resulted in his false
Defendant argues that the decisions made by the Division of
Parole are quasi-judicial in nature and therefore are protected by absolute
immunity. Defendant further asserts that claimant’s own behavior
contributed to the problem of his misidentification.
In order to prevail on
a claim for false arrest or imprisonment, it must be established that defendant
intended to confine the claimant, that claimant was conscious of the
confinement, that claimant did not consent to such confinement, and that the
confinement was not otherwise privileged (see Broughton v State of New
, 37 N.Y.2d 451, 456, 373 N.Y.S.2d 87, 335 N.E.2d 310, cert denied
sub nom. Schanbarger v Kellogg
, 423 US 929).
The facts established at
trial do not support a cause of action for false arrest or imprisonment.
“An arrest made pursuant to a warrant valid on its face . . . is
privileged (Broughton v State of New York
, 37 NY2d 451 [other citations
omitted] . . .” Boose v City of Rochester
, 71 AD2d 59,
Similarly, the determination of the Parole Hearing Officer on January 13
cannot provide a basis for liability on the part of the defendant. It was a
quasi-judicial discretionary determination, for which the defendant is immune.
At the same time however, the allegations in the claim, and the proof at
trial, encompass other actions by agents of the Division of Parole which were
not discretionary in nature, and, if negligent, might provide a basis for
liability. See e.g. Ostrowski v State of New York
, 186 Misc 2d 890.
Specifically, the circumstances surrounding the claimant’s retention in
custody are fundamentally indistinguishable from those present in the so-called
“misnomer cases,” where a valid arrest warrant is executed against
the wrong person. Davis v City of Syracuse
, 66 NY2d 840; Dennis v
State of New York
, 96 AD2d 1143; Boose v City of Rochester,
; Williams v City of Buffalo
, 72 AD2d 952; Maracle v State
of New York
, 50 Misc 2d 348. In those cases, the guiding principle is
whether law enforcement personnel, once apprised of the possibility that the
wrong person was in custody, acted reasonably, and diligently, to ascertain the
actual identity of the person in custody.
By that standard, the claimant
has failed to satisfy his burden of establishing that the non-discretionary
actions of the agents of the Division of Parole constitute negligence sufficient
to sustain a finding of liability. By the claimant’s own testimony, he
was re-fingerprinted five times, based upon his repeated protestations that he
was not the subject of the parole warrant, Shawn Donnelly. The record at trial
indicates that, inexplicably, he continued to be identified as Shawn Donnelly.
The investigative efforts of Officer Slevin, including consultation with his
supervisors, were an adequate response to the situation.
cannot be ignored that throughout the time that he was held on the basis of the
parole warrant, the claimant was represented by counsel in two separate
proceedings at which the issue of his identity was repeatedly raised, including
appearances before two Justices of the Supreme Court.
In accordance with the
foregoing, the claim is dismissed.
LET JUDGMENT BE ENTERED