New York State Court of Claims

New York State Court of Claims
MONTGOMERY v. STATE OF NEW YORK, # 2009-014-043, Claim No. 111090


Case information

UID: 2009-014-043
Claimant short name: MONTGOMERY
Footnote (claimant name) :
Defendant(s): STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 111090
Motion number(s):
Cross-motion number(s):
Claimant's attorney: Goldstein & Goldstein, P.C.
By: Mark I. Goldstein, Esq.
Defendant's attorney: Andrew M. Cuomo, Attorney General
By: Robert S. Schwerdt, Assistant Attorney General
Third-party defendant's attorney:
Signature date: August 19, 2009
City: New York
Official citation:
Appellate results:
See also (multicaptioned case)


The claim alleges that the New York State Division of Criminal Justice Services (DCJS)(2)

misidentified the claimant as another individual, which resulted in his imprisonment for eight days. The claimant seeks to hold the defendant liable on the ground that its employees, through DCJS, were negligent in performing ministerial duties. A trial was held on the issue of liability.

Based on the claimant's testimony and documentary evidence, the trial record establishes the following: In 1987, the claimant Walter Montgomery was arrested by the New York City Police Department (NYPD) and convicted on a guilty plea for operating a motor vehicle under the influence of alcohol. At the time, he was fingerprinted, and the prints were sent to DCJS. A criminal history report, or rap sheet, was generated, on which this arrest and conviction is chronologically the first entry. The claimant was assigned a New York State identification number, also referred to as NYSID, associated with his rap sheet (Claimant's Exhibit 1).

Over fourteen years later, on January 29, 2002, Mr. Montgomery was arrested by the NYPD for operating a motor vehicle while unlicensed. He was fingerprinted at the 77th Precinct in Brooklyn. In order to verify his identity, a fingerprint-based criminal transaction inquiry was sent to DCJS, which responded identifying him as Walter Montgomery, with the same NYSID (Claimant's Exhibit 7). He was released the same day of the arrest and received a summons. This charge does not appear on the claimant's rap sheet (Claimant's Exhibit 1).

The following day, January 30, 2002, another individual named Richard Booker was arrested by the NYPD for burglary and criminal intent to damage property, and was fingerprinted at the same Precinct. A criminal transaction inquiry was sent to DCJS (Claimant's Exhibit 5). In a reply, DCJS rejected the data, and requested that the individual be reprinted because one or more fingers had been printed out of sequence or duplicated. Prints were then resubmitted to DCJS. A fingerprint card resulted, which somehow contained Booker's biographical data, crimes charged, arrest number, but with Mr. Montgomery's fingerprints. When the fingerprints were processed by DCJS, it identified Booker under Mr. Montgomery's NYSID.

On the day of this arrest, Booker was arraigned (as Montgomery) and charged with criminal trespass, criminal intent to damage property, and trespass. Then, on March 20, 2002, a bench warrant was issued by King's County Criminal Court for his failure to appear on the charges. As a result, the information as to Booker's January 30, 2002 arrest, arraignment, and the subsequent bench warrant were added to the claimant's rap sheet as the chronologically second entry.

Apparently this confusion did not become manifest until July 8, 2003, when Mr. Montgomery was arrested by the NYC Housing Authority for criminal possession of marijuana. He was taken to Kings County Central Booking, was fingerprinted and spent the night in custody (Defendant's Exhibit A). The following day, he consulted with a Legal Aid attorney, who told him that there was a problem with an outstanding warrant under the name Richard Booker. He was then arraigned before a Judge, who informed him that he would receive time served for the marijuana possession, but that because of the outstanding warrant, he would be remanded to the custody of the New York City Corrections Department. Mr. Montgomery remained in custody, part of the time spent in shackles in Kings County Hospital, and the rest served in Rikers Island, until July 16, 2003, at which time he was released on bail. The following day, he returned to court of his own volition, and the case against him was dismissed, because it was determined that he was not Booker.

The claimant called James Stanco to testify. Mr. Stanco is employed by DCJS as Chief of the Records Management Bureau. His responsibilities include administration of the operations office, which handles fingerprint processing, disposition processing and record reviews. His unit is also involved with criminal history reports.

Criminal history reports list the dates that individuals are arrested and the dispositions of the arrests. Mr. Stanco was questioned about the use of mug shots and other biographical data, for the purpose of identifying an individual. He noted that, in the first place, his expertise did not include the topic of mug shots. However, he went on to testify that such photographs may eventually become associated with a criminal history report, though not every arrest results in the transmission of a mug shot. Mr. Stanco identified Claimant's Exhibit 1 as the criminal history report of Mr. Mongomery, with his NYSID, and Claimant's Exhibit 2, as mug shots associated with his NYSID.

Mr. Stanco explained that his unit handles the fingerprint portion of the criminal history report and that the processing, including identification of individuals that is done at DCJS, is based on fingerprints, and that DCJS does not check the photographs or other physical information that may be associated with a criminal history for identification purposes. Mug shots and other biographical data, such as height, date of birth, Social Security number, Mr. Stanco clarified, are considered an "added value" to a criminal history and they are used for identification purposes by criminal enforcement agencies in the field, but not by DCJS.

Mr. Stanco testified that Claimant's Exhibit 6 is a fingerprint card with Booker's pedigree information, but with Montgomery's prints. He explained that the reporting agency, in this case the NYPD 77th Precinct, would electronically scan the fingerprints, and key in the biographical data and then forward the information to DCJS in the form of an electronic image. The image would then be printed onto blank card stock located in a machine in DCJS in Albany, which results in the production of a hard copy. The card contains an individual's pedigree information, crimes charged, arrest number, fingerprints, as well as the arresting agency and its contact information. After prints are received at DCJS, they are assigned a pattern-type classification, and then the images are loaded into a search computer, and once completed, a list of possible identification candidates or suspects is developed. The prints on the card produced by DCJS (Exhibit 6) matched the prints that were on file for Mr. Montgomery's 1987 arrest, and therefore became associated with Mr. Montgomery's NYSID. As a result, the crimes that Booker was charged with (as Montgomery) on January 30, 2002, and their subsequent dispositions, including the issuance of a bench warrant, were added to Mr. Montgomery's rap sheet. Mr. Stanco explained then when the claimant was arrested on July 8, 2003, he was fingerprinted (Defendant's Exhibit A), and the prints were sent to DCJS, at which time he was identified as Mr. Montgomery, with his NYSID. DCJS electronically transmitted Mr. Montgomery's rap sheet to the NYPD, which contained the outstanding warrant on it.

Mr. Stanco testified that he had no personal knowledge as to how the claimant's fingerprints wound up on a card with Booker's pedigree information when it was produced by the computer at DCJS in Albany. He did state, however, that based on 42 years experience, the mingling of information such as that contained in Claimant's Exhibit 6 could not have originated at DCJS, but rather would have been generated and sent by the arresting agency.

The claimant advances two bases on which to predicate liability for ministerial neglect: 1) that DCJS mistakenly merged the Montgomery and Booker fingerprints and pedigree information in its system; and 2) that DCJS either failed to compare, or improperly compared, the claimant's mug shots and other pedigree information, with that of Booker.

There was no evidence at trial that DCJS has the responsibility to provide information based upon photographs (mug shots) or to confirm the accuracy of pedigree information it receives.

The claimant's proof at trial, however, did establish that DCJS produced the fingerprint card with the mistake in Albany. There is no direct evidence whatsoever that the mistake was made by someone else, somewhere else. The suggestion by the defendant, and by Mr. Stanco in his testimony, that the mistake was made at the 77th Precinct in Brooklyn is speculation, based solely on the defendant's contention that the DCJS computer is infallible. The only proof of that is the testimony of the Chief of the Records Management Bureau at DCJS, to the effect that based on his 42 years of experience, the computer has never made a mistake -- presumably that whenever a mistake occurs it is always someone else's fault. While his experience is certainly relevant, this Court is unprepared to accept it as credible proof of the computer's infallibility, particularly in a matter affecting someone's personal liberty.

In the absence of any direct proof that the mistake was made elsewhere, the Court is unaware of any legal authority, judicial notice or otherwise, which would require the finder of fact at trial to accept testimonial evidence to the effect of "computer says," as the end of the matter.

The defendant alleged "culpable conduct of others" as its first affirmative defense in the verified answer. It was the defendant's burden to prove that at trial. It did not.

The defendant's argument that the arraignment Judge was free to ignore the information he was given, and that he could have released Mr. Montgomery at arraignment despite it appearing that a bench warrant had been issued for his arrest for not appearing in court on a prior occasion, misperceives the breadth of discretion afforded a Judge at arraignment, particularly when he or she is presented with purportedly infallible information from DCJS that a criminal defendant has an outstanding bench warrant.

It has long been settled law that the State may be liable for the ministerial acts of its employees or agents. In Lapidus v State of New York, 57 AD3d 83, 92-93 [2008], the Court stated: "Although 'ministerial negligence' is not cloaked with immunity, it does not automatically provide a basis for the imposition of liability (Lauer v City of New York, 95 NY2d [95] at 99 [2000]; see Tappan Wire & Cable, Inc. v County of Rockland, 7 AD3d 781, 782-783 [2004]). 'Rather, a ministerial wrong "merely removes the issue of governmental immunity from a

given case" (Lauer v City of New York, 95 NY2d at 99, quoting Lauer v City of New York,

258 AD2d 92, 111 [1999]). Thus, to hold the State liable for negligence, a claimant must

establish the elements of a negligence claim, which are the existence of a duty, a breach of that

duty, and that such breach was a proximate cause of the events which produced the injury (see Pulka v Edelman, 40 NY2d 781, 782 [1976]; Pironti v Leary, 42 AD3d 487, 489 [2007]; Coral v

State of New York, 29 AD3d 851 [2006]; Vetrone v Ha Di Corp., 22 AD3d 835 [2005]). Withregard to the issue of duty, case law demonstrates that court employees have a duty to exercise due care in performing their ministerial duties, and that there is 'ample authority for imposing liability upon the State based upon the negligent performance of a ministerial act' (Boland v State of New York, 218 AD2d 235, 245 [1996]; see Hunt v State of New York, 36 AD3d 511[2007]; Marx v State of New York, 169 AD2d 642 [1991]; National Westminster Bank, USA v State of New York, 155 AD2d 261 [1989], affd 76 NY2d 507 [1990]; Stewart v State of New York, 18 Misc 3d 236, 239 [2007]; Schwandt v State of New York, 4 Misc 3d 405, 410 [2004]). Indeed, the negligence of court employees formed the basis for imposing liability upon the State in three cases discussed above in connection with the issue of governmental immunity: National Westminster, where the Bronx County Clerk failed to timely docket a judgment, Marx, where Housing Court clerks caused the issuance of a warrant of eviction based on recreated papers, and Hunt, where court officers failed to transmit to DOCS a directive that an inmate be held in protective custody. Accordingly, the alleged failure of court employees in this case to exercise due care in the ministerial duties of recording entries on Lapidus's court file and in preparing a duplicate commitment order can potentially subject the State to liability, provided that the alleged negligence was a proximate cause of Lapidus's increased period of imprisonment."(3)

The defendant's act upon which liability is predicated was the "act" of the DCJS computer. Accepting, for this purpose, the defendant's contention that the computer does not make mistakes, this is quintessentially ministerial in nature. The Court also finds that in fulfilling its responsibility to match his fingerprints with his criminal record knowing that it would be presented to the Judge at arraignment, the defendant owed the claimant a duty of care, and that it was reasonably foreseeable that if the defendant incorrectly matched his fingerprints so that the Judge was informed he was someone for whom a bench warrant was outstanding, the claimant would be deprived of his liberty.

In accordance with the foregoing, the defendant is liable for any injuries sustained by the claimant as a result of his detention for 8 days.

All motions on which the Court may have reserved decision or which were not previously determined are denied.

A conference is hereby scheduled for September 24, 2009 at 10:00 AM, for the purpose of ascertaining whether any discovery pertaining to the issue of damages is necessary, and to discuss the scheduling of a trial on the issue of damages.


August 19, 2009

New York, New York


Judge of the Court of Claims

2. Pursuant to New York State Executive Law 837 (6), 837 (7) and 837 (8), the Division of Criminal Justice Services is the State repository for criminal history record information and other data for the purpose of establishing identity and previous criminal record; DCJS is required to assure the security and privacy of this data. Under CPL 160.20, an arresting agency has the duty to forward copies of fingerprints to DCJS, and under CPL 160.30 (1), DCJS has the duty to classify the fingerprints, search its records for prior history, and transmit to the arresting agency a report with respect to an arrested person's previous record. CPL 160.30 (2) provides that DCJS must return illegible fingerprints, with an explanation, to the arresting agency and request that the fingerprints be retaken if possible.

3. The Court has considered the recent decision of McLean v City of New York, 12 NY3d 194 [2009], and does not read it as affecting the settled law found in these decisions, or as precluding a finding of liability in this case, based on the trial record.