|Claimant(s):||VICTOR M. RE|
|Claimant short name:||RE|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :||The caption was amended on the record at trial to reflect the proper defendant.|
|Judge:||Alan C. Marin|
|Claimant's attorney:||Macron & Cowhey, P.C.
by: John J. Macron, Esq.
|Defendant's attorney:||Andrew M. Cuomo, Attorney General
by: John M. Hunter, AAG
|Third-party defendant's attorney:|
|Signature date:||December 9, 2010|
|See also (multicaptioned case)|
This is the decision following the trial on liability of Victor Re's claim for false arrest and assault at Family Court in Queens County on April 1, 2008. Mr. Re, an attorney, had a matter scheduled at the Court for 10 a.m., but arrived earlier to obtain child support forms for a friend.
The basics of what happened to Victor Re that morning are not disputed: he was detained and handcuffed by court officers, but never formally charged. Beyond that however, the testimony offered on behalf of each party differs greatly, and, consequently, the two narratives are set out at some length.
Testimony of the Claimant
Mr. Re testified that he arrived at the courthouse at about 8:30 or 8:40 a.m., asked where he could obtain child support forms, and was directed to the Cap Unit 1 window, which was staffed by two women working behind a counter. Claimant recalled that one of the women called him over, and this exchange ensued:
I said yes, Ma'am, I would like to have forms for my friend for child support . . .then she started to ask me questions. . . is this person married? I said, Ma'am, I really don't know much about her, I just want to pick up the forms. She said well, by the way, did the person have child visitation? Ma'am, please I just want the forms. I don't know anything about it. I didn't know if this was her routine . . . I don't know what it was. I said, Ma'am, I'm trying to do a friend a favor. Can I please have the forms - - and each question she asked, I said, please, I don't have the answers. She became more visibly annoyed every time I said, Ma'am, could I just have the forms.
Re testified that he finally received a number of forms (cl exhs 2-4), but the employee, apparently Ms. Sabrina Kindred-Battle, became "really angry" and "threw [the forms] at me . . . tossed them in front of me."
According to claimant, with respect to the form that is claimant's exhibit 4, Ms. Kindred-Battle crossed out its notarization section. Re explained that he wanted to read the crossed out material so that he could fully explain matters to his friend, but was having trouble reading or understanding it through the cross out, and testified that Kindred-Battle's solution was to, "just use your f - - ing glasses."
Claimant asked her again what the crossed out portion said; in fact, "I might have asked her three times." Kindred-Battle responded, "leave now or I'm going to have you arrested." Claimant testified, "I left. So what I did is I left." But Re did not leave; he got back on line in order to "get the nice lady and ask the same question. That's what I anticipated doing."
Continuing with his narrative, Re said that, "all of a sudden I'm bumped . . . and I turn around . . . [it's a] female court officer . . . [who] had bumped into me . . ." Later in his testimony, Re commented that he did not know if the bumping was accidental or intentional. Claimant testified that the officer, Bridget Maloney, said, in a low voice, "Shut up or otherwise, I'll arrest you."
Re testified that his response to the officer was that if she did so, she would be abusing her discretion, and she replied, "that's it, you're under arrest." Officer Maloney and another officer took hold of him; both officers announced that claimant was under arrest for disorderly conduct.
The second officer, Christopher Wresch, held Re's arms high behind his back, which caused him "excruciating pain," and claimant got up on his toes to avoid the pain. Then a group of some six officers, including Maloney and Wresch, helped, "escort . . . push, shove" claimant into the Operations Office of Family Court and then into a bathroom, where they "smash[ed] me into the bathroom wall . . . I fell to the ground, and when I fell to the ground, they pat[ted] me down and that's when they handcuffed me."
Claimant continued that after 45 minutes of being detained in the bathroom, a captain came in and declared that he was not being arrested, he had never been arrested. The captain, Fred Beneri, returned in what Re thought was about ten minutes, and ordered, "guys, please, remove the cuffs. Come with me, come with me, sir."
Claimant recalled his back-and-forth with the captain to the effect that: "Why don't you forget about all this, why don't you just drop it? I'm not dropping it. I want the name of the officer that arrested me . . . I was wrongfully arrested. Oh, no you were not arrested . . . the Captain said to me."
On cross-examination, claimant testified as follows: "I might have very well raised my voice at a time, especially after she told me, use your f - - ing glasses. Yeah, I may have raised my voice, and I still tried to contain myself because I still didn't have the answer I wanted . . . So yelling, I deny. Raising my voice, in all probability." Mr. Re denied using profanity, throwing his briefcase down to the floor, and telling the officers that he was not going anywhere. But he did testify that, "I was annoyed . . . it might have been more than annoyed. I don't know, I was disgusted, displeased, outraged."
Claimant maintained that he had suffered bruises to his wrist and shoulder. He did not take any photographs of his injuries because he did not think it was necessary and he felt humiliated; he would have to ask someone to take the photographs, explaining, "I don't know how to take photographs." But a few minutes earlier, inconsistently and oddly, he had testified that, "when I've taken photographs of other people in accident cases, unless you take the camera at a certain angle when you have the strobe on, it doesn't show up much . . ."
Testimony of Sabrina Kindred-Battle and Officers Maloney, Wresch and Beneri
The testimony of Sabrina Kindred-Battle was received via her deposition of March 24, 2010. Portions of it were read at trial, and the entire deposition became defendant's exhibit A without objection. Ms. Kindred-Battle explained that she was an employee of the City of New York and had worked for the City's Human Resources Administration/Department of Social Services for some five years. On April 1, 2008, she held the position of clerk for the agency's Support Collection Unit, Child Support Unit.
That meant that Ms. Kindred-Battle worked at the front counter: "I'm the initial person that people that are trying to obtain child support see at the window. I provide them with . . . all the papers to be processed for child support." That counter or window ordinally opens at 8:30 in the morning as Kindred-Battle recalls it did on the day in question.
She noted that the basic form as it existed at the time already had the notarization portion section crossed out (cl exh 4). Kindred-Battle testified that on April 1, 2008, claimant approached her window before 9 a.m. and "requested a summons or to pick up a summons, and [said] he was an attorney." The clerk said that since court personnel did not arrive until 9 or 9:10 a.m., she directed Re to the right end of the counter to wait. Claimant "was very impatient . . . He wanted me to stop and assist him immediately with obtaining documentation . . ." She indicated that he needed to see an employee of the Family Court.
"Then he proceeded to become upset, a little hostile, and you know, after [a] lapse of time, he became loud." Re was "yelling" and "pacing the counter touching different documentation [that was] on both sides of the counter . . . he was really hostile and really angry." In addition, Kindred-Battle described him as "very persistent" in refusing to leave the area. She heard him say to a young woman "that he would have to be carried out of the area because he was not moving."
Ms. Kindred-Battle testified that claimant was loud enough to draw attention to the area. "[I]t just escalated to the point where I had to call the female officer because he was very impatient."
Claimant has pointed out that Ms. Kindred-Battle characterized her encounter with Mr. Re as a "small quarrel," but Kindred-Battle could recall no previous occasion at the Cap Unit where she had to summon uniformed assistance.
As far as the physical interaction between claimant and the court officers, Kindred-Battle's testimony is supportive of the position that improper force was not used:
[H]e was surrounded by the court officers, and maybe they had to lift him a little, but nothing alarming. He was escorted the best way they could. He was not dragged or pulled or really carried, just helped along the way from the area is the best way I could say, gracefully a little.
Court officers Bridget Maloney and Christopher Wresch, as well as Captain Fred Beneri, took the stand at trial. Officer Maloney was the first officer on the scene.(2)
That day she was assigned to the first floor from 8:30 to 10 a.m., and "I was just sitting there, and I hear screaming . . ." Both women from the Cap Unit were motioning her over. When Maloney got closer, she saw "Mr. Re pacing back and forth, screaming and leaning over the counters . . . pointing and screaming at them . . ."
Re exclaimed, "you're all f - - ing pigs." Maloney recalled that her response was: "[C]alm down. I can help you . . .We can fix this." But Re came back with, "F you . . . you're going to wish you were never born . . . He was ranting and raving and threatening me and screaming at the [woman] over the counter . . ."
The officer testified that claimant threw his briefcase down and again Maloney offered, "we can go to the Captain's office and fix this," but Re once more asserted his unwillingness to move: "I'm not going anywhere, I'm not leaving, I'm not moving . . ." As for the other persons having business with the Family Court that day, Maloney testified that claimant was causing a "huge scene."
Having summoned help over her radio, Maloney continued, "I said, get his one arm, I'll take the other arm, and I looped my arm into his arm, Officer Wresch, I think, took his elbow, and we walked him to the Captain's office." She explained that they walked him about 100 feet to the Operations Office and then into the "quiet room." Officer Maloney said that she did not observe any officer twist claimant's arm up behind his back - - "he came with us." The officer denied that Re was slammed against a wall or thrown to the ground.
In the quiet room, Maloney testified that they had to handcuff Mr. Re because, "[h]e was trying to escape . . . to push past me, he was flailing his arms, and he would not listen to me." She said she did not threaten him, nor did any other officer. When the witness was informed that Re said that the officers told him that if he did not keep quiet, he would get the s - - t beaten out of him, Maloney answered that, "No. He was doing all the screaming and yelling."
Officer Wresch was assigned to the lobby or first floor of the Family Court on the morning of Re's incident, and he and the other officers in the lobby received Maloney's radio call. Wresch recalls hearing a commotion and loud yelling. As he approached, the officer saw "Mr. Re in Officer Maloney's face," his voice was getting "very, very loud," and he was using profanity. Wresch testified that claimant was asked "multiple times" to remove himself from the area.
Wresch saw claimant "slam" his briefcase to the ground, observing that there were children in the area, and that the crowd had become "even bigger than before." In accord with Maloney, he recalled that the two of them escorted Re to Operations (Wresch denied twisting his arm), and then to what Wresch called a holding room. Re was offered a seat, but declined, "flailing his arms [and] acting erratic," and that's when claimant was placed in handcuffs.
Wresch recalled that claimant was at Operations for a few minutes before Captain Beneri came in, and during that time, Re was not threatened. Captain Beneri was the senior officer in the building, with authority over 65 court officers together with five sergeants and lieutenants. When he received the radio call, Beneri was up on the fifth floor in the Clerk's Office. The captain went down to the Operations Office, heard Re screaming, entered the quiet room and saw Re in handcuffs. Beneri proceeded to the Cap Unit and spoke briefly to the women there and returned to Operations, where Re was still yelling.
Captain Beneri conferred with his officers and then spoke to claimant. He reminded Re that as an attorney, he was an officer of the Court and that his behavior that morning was not very professional. Beneri inquired of claimant what his business was that day, and Re responded that he had a case in front of one of the support magistrates. The captain recalled having a brief discussion with his officers, and he then turned to Re and said that he should probably give him a summons, but as a professional courtesy to a lawyer, he would let him go about his business in the courthouse.***
Officer Maloney, Officer Wresch and Captain Beneri were not disinterested observers, but their testimony was credible. It was straightforward, unforced and consistent with one another, without being too pat; and their testimony was corroborated by an employee of the City of New York, Ms. Kindred-Battle - to the extent she observed the incident as it unfolded.
For his part, claimant's demeanor on the stand was not sufficiently credible to overcome
the weight of the testimony of the above witnesses. Among other things: he initially denied a crowd was forming, but then hemmed and hawed when he realized that in his deposition he had said a crowd of about 25 persons had gathered; the above-noted inconsistency on his facility with taking photographs; claimant's parsing of his decibel level, as in, "So yelling, I deny. Raising my voice, in all probability"; and when asked about whether he told the court officers that he would not move, answering with what came across as an overreaction, "Absolutely not true. Total lie."
Claimant of course bears the burden of proving the case by a fair preponderance of the credible evidence. To this trier of fact, Mr. Re did not meet the evidentiary burden that his version of events be more likely than defendant's. Thus, the Court finds these facts:
- Victor Re was yelling loudly on the first floor of the Queens Family Court building;
- He cursed at the court officers;
- He threw his briefcase down;
- His actions attracted a crowd of people who were there with business at the courthouse;
- He repeatedly refused to leave the area when asked to do so by what he knew to be the proper authorities;
- He was detained and arrested, and then handcuffed, but was not formally charged with any crime or offense; and
- There was no improper physical contact or excessive use of force on the part of the officers.
As for charging Mr. Re with a crime, as noted above, claimant testified that when officers Maloney and Wresch took his arms, "[t]hey both said I'm arrested for disorderly conduct."
The Unusual Occurrence Report (def exh B) reflects Officer Maloney's testimony that she warned Re that if he did not calm down, he would be issued a summons. The Report contains no reference to any paperwork, and Captain Beneri testified that no summons was issued.
An arrest for disorderly conduct can withstand a suit for false arrest if the arresting officers had probable cause. Here the activities of Re occurred within the presence (and hearing) of the officers and the above facts bring claimant within the Penal Law provisions proscribing disorderly conduct (§240.20). The Court of Appeals has emphasized the public dimension of the statute:
The clear aim was to reserve the disorderly conduct statute for situations that carried beyond the concern of individual disputants to a point where they had become a potential or immediate public problem. In deciding whether an act carries public ramifications, courts are constrained to assess the nature and number of those attracted, taking into account the surrounding circumstances, including, of course, the time and the place of the episode under scrutiny.
People v Munafo, 50 NY2d 326, 331 (1980).
Thus, the officers had probable cause to arrest claimant and issue him a summons for disorderly conduct.(3) That ultimately Re was never formally charged does not alter the validity of the officers' actions on the scene at the time. Claimant did not develop an argument to that end; for example, the detaining of an individual may be pretextual to remove him or her from a public meeting, speech or demonstration.
Finally, an otherwise lawful arrest may include excessive force (see Raefski v State of New York, Ct Cl 2004 [unreported, cl no. 102248, UID #2004-016-040]). But given the facts as the Court has found them, claimant has not met his burden on this cause of action.
In view of the foregoing, the claim of Victor M. Re (claim no. 115177) is dismissed; the Clerk of the Court is directed to enter judgment accordingly.
December 9, 2010
New York, New York
Alan C. Marin
Judge of the Court of Claims
2. The Unusual Occurrence Report, which was handwritten by Maloney within the hour and then entered into the computer by Captain Beneri, is consistent with Maloney's testimony (def exh B).
3. This Court is not persuaded otherwise by People v Tarka, 75 NY2d 996 (1990) or by People v Tichenor, 89 NY2d 769 (1997), both cited on behalf of claimant in his post-trial submission.