New York State Court of Claims

New York State Court of Claims
WORMUTH v. STATE OF NEW YORK, # 2010-018-113, Claim No. 111184


Probable cause for the arrest can exist even when the charges are ultimately dismissed as they were here (see Mubarez v State of New York, 115 Misc 2d 57, 61). Claimant has failed to establish a cause of action for assault and battery. Based upon the foregoing, the claim is DISMISSED.

Case information

UID: 2010-018-113
Claimant(s): DEBBIE L. WORMUTH
Claimant short name: WORMUTH
Footnote (claimant name) :
Defendant(s): STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 111184
Motion number(s):
Cross-motion number(s):
Claimant's attorney: SAM C. BONNEY, ESQUIRE
Defendant's attorney: ANDREW M. CUOMO
Attorney General of the State of New York
By: Michael R. O'Neill, Esquire
Assistant Attorney General
Third-party defendant's attorney:
Signature date: April 13, 2010
City: Syracuse
Official citation:
Appellate results:
See also (multicaptioned case)


This claim seeks damages for an alleged false arrest, battery, and false imprisonment on August 8-9, 2004. The trial was bifurcated and this Decision addresses liability only. Claimant and her daughter, Tiffany Barto, testified at trial. Claimant's other daughter, Shana Barto's deposition was received into evidence by stipulation.(1) Defendant called two park police officers to testify, Joseph A. Bice and Adam Musso. Their depositions also came into evidence.(2)

The sequence of events the night of August 8 is set forth, as best can be determined, from the evidence. None of the witnesses clearly, or consistently, recalled the events from that night. This might be partially attributable to the emotional intensity of the events and the passage of time. Whatever the reason, the reliability of each of these witnesses' testimony as to what transpired that evening is suspect. Nonetheless, certain critical events were recurrent.

On Saturday, August 7, 2004, Claimant and her two daughters, Shana and Tiffany Barto, (ages 15 and 14 respectively) arrived at Cayuga Lake State Park in Seneca County. They were assigned to Cabin 9, where they spent the day enjoying the campgrounds. That night they had dinner and a bonfire. According to Claimant, at approximately 10:00 p.m., park employees came by and told her they were too noisy, although, they were only talking near the fire. They quieted down and the park employees left.

The next day, August 8, the Barto girls met two young men identified as Gregory Healy and Matthew Mangle who were staying in Cabin 167. The boys had dinner with Claimant and her daughters, left, then returned for a bonfire. Greg and Matthew brought a cooler with beer and, Claimant testified, she, too, was drinking beer that night. Claimant also invited some friends, Kim and John Tiaskun and their son, Nick, to join them for the bonfire. The Tiaskuns live a few miles from the park and they left by 10:00 p.m., when quiet hours for the park begin. Claimant said her family had stayed at the park before and were aware of the quiet-hours regulations. Claimant and the four young people were at Cabin 9, when shortly after 10:00 p.m., the park police arrived.

According to the officers, they and two other park employees went to Cabin 167 to speak with the occupants. Those campers had been warned the night before about park regulations and they wanted to reiterate that warning. When they found the cabin empty, they headed toward Cabin 9, either because they wanted to warn those campers about noise violations again, or because they learned the boys from Cabin 167 had been with the girls from Cabin 9 earlier. Also, Officer Musso testified they received complaints of noise coming from the Cabin 9 area while walking through the park.

When the officers arrived at Cabin 9, shortly after 10:00 p.m., they heard loud music coming from the radio of a van where they saw a boy and girl sitting on the tailgate. One of the officers requested that the music be turned off; they thought the girl turned it off, although neither was sure. One of the officers sought identification from the two occupants. According to Officer Musso, the boy provided some identification but the girl didn't have any. Officer Bice recalled that neither occupant had identification. The boy, Greg Healy, was not 21. Both officers testified they smelled alcohol. The girl, who was later identified as Shana, denied drinking any alcohol that night. One or both of the officers asked the girl her name, address and age. Shana gave the officers the wrong information. Officer Bice recalled that she gave a birth date of 1983 which made her 21, but neither of the officers believed she was that old. Shana acknowledged that she gave the officers the wrong information and birth date. She said that she gave them the wrong information because she didn't realize they were "real cops."(3)

Claimant could not clearly recall, however, where she or her daughters and the boys were when the officers arrived. At the deposition, she placed everyone in the cabin, while at trial she placed only herself in the cabin.(4) Other witnesses placed Claimant on the porch.

Officer Bice testified that he gave both boys a sobriety test. While Officer Bice performed the field sobriety tests, Claimant came over a couple of times and said she was an advocate and wanted to help. She was repeatedly told to stay on the porch. The boys were issued a noise violation ticket and ultimately taken back to their cabin, and evicted. Officer Bice testified that the boys were too drunk to drive. Officer Bice was the only witness who testified that the boys' vehicle was parked in front of Claimant's van.

At some point, the officers' police vehicle was brought to the site. One of the officers, possibly Officer Musso, tried to determine Shana's name, address, and birth date using the Department of Motor Vehicle records - without success. When they learned that Claimant was Shana's mother, they asked her for Shana's correct information; and eventually, Claimant directed Shana to provide the correct birth date - she was 15 years old at the time.

All the witnesses indicated that during the course of events, the officers took Shana over by the police vehicle to question her further. Tiffany and her mother also recalled that the officers questioned Tiffany alone as well, although neither officer could recall questioning Tiffany. Claimant kept asking to be with her daughters while they were questioned and trying to go to them. The officers repeatedly told Claimant to stay on the porch. While at least one of the officers was questioning Shana, Claimant eventually tried to go to her because, Claimant testified, Shana was crying, although Claimant is the only one who said that. Both girls testified they asked for their mother, which the officers didn't dispute, although they couldn't specifically recall it. Both officers testified Shana was not free to just walk away during the questioning. While Shana was being questioned, one officer, Claimant could not recall who, pushed her (Claimant) against the hood of the police vehicle and handcuffed her. Officer Musso acknowledged that he was the arresting officer. Claimant was then placed in the back of the police vehicle. Shortly after, she was allowed to go inside the cabin, change her clothes and make a call to her friends the Tiaskuns to come and get the girls.

Claimant was issued three violation tickets around 11:00 p.m. One ticket issued by Officer Musso was for a violation of 9 NYCRR 375.1 (F) (8) for failing to comply with quiet hours. The other two tickets issued by Officer Bice were for disorderly conduct - disobeying an officer (9 NYCRR 375.1 [F] [1], and the other for a minor lying to an officer, intoxicated minor (9 NYCRR 375.1 [J] [1]). This was related to Shana's conduct. Claimant was taken away from Cabin 9, leaving her two daughters alone before the Tiaskuns arrived. On the way to the Seneca Falls Town Court, the Tiaskuns' vehicle passed the police car. Claimant was arraigned and then taken to the jail in Waterloo for processing. Later, Claimant's mother arrived to pick her up. When Claimant arrived at her home, she found her two daughters with the boys that had been evicted from the park.

Both officers recalled that Claimant was loud, belligerent, and vulgar during the encounter, although, she didn't physically challenge them, try to resist arrest or escape. Both officers testified she was drinking when they arrived and continued to drink despite being asked several times to put down the beer. Neither officer gave Claimant or her daughters a sobriety test. Both Claimant and her daughters denied failing to quiet down or refusing to leave the campsite. They all also denied that Shana was drinking at any time.

When questioned during depositions and at trial about why Claimant was arrested, the officers gave a variety of reasons. Officer Bice testified, at his deposition, that it was because she wouldn't stop drinking or stay on the porch. At trial, Officer Bice testified she was arrested because she was belligerent and intoxicated and she failed to follow the officers' directions. Officer Musso testified at trial that after Claimant was issued the ticket for failing to abide by the quiet hours, she yelled and screamed and was then evicted from the camp. When she wouldn't leave, she was arrested. At his deposition, Officer Musso indicated she was arrested because she wouldn't quiet down and leave when she was evicted. The arrest report(5) prepared by Officer Musso indicates that there was excessive noise at Cabin 9, and Claimant was very intoxicated using vulgar and abusive language. It is also noted that an 18-year-old at the site admitted to drinking there.

Both officers were relatively new hires at the time of this incident. Officer Musso had the most experience - he had been hired in January 2003. In 2002, Officer Musso received a bachelor's degree from SUNY Cortland. On January 6, 2003, he was hired by the Park Police and began a six-month residential academy. After completing the training, he began working on patrols out of Fair Haven State Park. He had been actually working as a park officer approximately a year at the time of this incident. Officer Bice graduated from high school and then joined the Marine Corps for four years. He was honorably discharged and attended Jefferson Community College when he was called back into the Marines for 3 months. On December 1 or 3, 2003, he began the six-month residential academy; he had been working as an officer approximately three months before this incident.

It is Claimant's position that the State wrongfully confined her, committing the torts of assault, battery, and false imprisonment when Officers Musso and Bice handcuffed her and placed her in the police car. Claimant argues that the reason she was confined was because she wouldn't stay on the porch of Cabin 9 while her daughters were being questioned by the officers and that she was entitled (6) to be with her minor daughters as they were being questioned. Defendant, in opposition, argues that Claimant's behavior justified the officers actions that evening.

To establish a cause of action for false imprisonment, it is Claimant's burden to show (1) "the defendant intended to confine [her]; (2) the [Claimant] was conscious of the confinement; (3) the [Claimant] did not consent to the confinement and (4) the confinement was not otherwise privileged" (Broughton v State of New York, 37 NY2d 451, 456). False imprisonment and false arrest are largely synonymous as any false arrest necessarily is a false imprisonment (59 NY Jur 2d False Imprisonment 1). There is really no issue that the first three components of the cause of action have been met. The critical issue - as is so often the case - is whether the confinement was privileged. Here, Claimant's confinement was without judicial evaluation - without a warrant - and therefore a prima facie case of false imprisonment has been established. The burden then falls to Defendant to prove probable cause or justification (Id. at 457-458; People v DeBour, 40 NY2d 210, 223).

Probable cause is an objective standard which would permit a reasonably prudent person to reasonably believe Claimant is guilty of committing a crime or an offense (Colon v City of New York, 60 NY2d 78, 82; People v DeBour, 40 NY2d at 223; Wallace v City of Albany, 283 AD2d 872). Criminal Procedure Law 140.10 authorizes a police officer to arrest a person for an offense which he has reasonable cause to believe was committed in his presence, for a petty offense, a traffic infraction, or violation-committed or believed to have been committed within the geographical area of the police officer's employment when the arrest is made within the county where the petty offense was committed (see Criminal Procedure Law 140.10 [1] [a] and [2] [a] [b] and Criminal Procedure Law 1.20 [39]). A park officer is a police officer for purposes of the statute (Criminal Procedure Law 1.20 [34] [e]).

Despite the officers' inconsistent reasons for the arrest, the subjective intent of the arresting officer is not controlling rather the issue is whether based upon the established facts, the officers objectively had probable cause to believe Claimant had committed an offense in their presence (see Devenpeck v Alford, 543 US 146, 154-155; Wallace v City of Albany, 283 AD2d 872; People v Lopez, 95 AD2d 241). Probable cause does not "require an awareness of a particular crime but only that some crime may have been committed." (Wallace, 283 AD2d at 873). Probable cause for the arrest can exist even when the charges are ultimately dismissed as they were here (see Mubarez v State of New York, 115 Misc 2d 57, 61).

Section 375.1 of Title 9 of the Codes Rules and Regulations of the State of New York prescribe activities that are prohibited on the property of the Office of Parks, Recreation and Historic Preservation. Claimant was issued tickets for violations of 375.1 (F) (1), (F) (8), and (J) (1). A failure to comply with the regulations is a violation (Parks, Recreation and Historic Preservation Law 27.11 [l] [b]).

Section 375.1 (F), in relevant part describes "disorderly conduct" and states, "[n]o person shall do any of the following: (1) disobey a lawful order of any officer or employee of the office . . .(8) make any unreasonable noise." Section 375.1 (J) in relevant part relates to minors, and subsection (1) provides "[n]o person having custody or control of a minor shall permit such minor to do any act in violation of a rule or regulation of the office. . ."

When the officers came upon the Cabin 9 site, they found a radio playing loudly which was turned off after one of the officers made the request. Pedigree information was requested from both Shana and Greg. Shana, admittedly, gave the officer false information, which was readily apparent and she persisted in her misrepresentation. She appeared under the drinking age and smelled of alcohol.

During the encounter, Claimant left the porch of the cabin at least twice after being told to stay on the porch while Officer Bice administered sobriety tests to the boys. Claimant, admittedly, used foul language and was drinking. The officers found her uncooperative and belligerent. Despite repeated requests for her to stay on the porch, she came off again while one of the officers questioned Shana.

Although Claimant had every right to be with her minor daughter while she was being questioned,(7) and the officers should have allowed her to be present, the noise violation, Claimant's abusive language(8) throughout the encounter and Claimant's failure to follow the officers' directions while the two boys were being given sobriety tests provide the probable cause or justification for her confinement.(9)

Despite the Court's finding that probable cause existed, it's ironic that Claimant was ticketed for failure to supervise these minors and was later arrested and taken away, leaving these same minors completely unattended. This occurred in light of the officers' suspicion that at least one of the girls had been drinking, there was alcohol at the cabin, and they were left with the keys to the van. Although the benefit of hindsight always exposes mistakes - here a visit to Cabin 9 to enforce quiet hours expanded to an arrest under circumstances that should have been diffused.

The question now turns to whether Claimant has made a cause of action for assault and/or battery. An assault is the intentional placing of another person in apprehension of imminent harmful or offensive contact (PJI 3:2 [2010]). A battery is the intentional touching of another person without that person's consent, and which that person finds offensive or is harmful. The existence of probable cause for an arrest does not preclude a finding that the officer used excessive force committing an assault and battery (see Bennett v New York City Hous. Auth., 245 AD2d 254; Freeman v Port Auth. of N. Y. & N. J., 243 AD2d 409).

Here, Claimant testified that the officer intimidated her by stepping in front of her when she tried to go down to where her daughter was being questioned.(10) When she again tried to go to where Shana was being questioned, she proceeded around the officer, and he told her if she continued she would be arrested. She was then pushed against the police car, handcuffed and placed in the backseat of the police vehicle.(11) Claimant testified that she was "trying not to get in there [the car] because I wanted to know what was happening with my daughter."(12) The officer, thereafter, allowed Claimant to go into the cabin to change her clothes, get her keys, and make a phone call for her friends to pick up her daughters. Nothing from Claimant's testimony reflects an assault and battery in the context of her arrest. At the time Claimant was pushed over the vehicle, she had pushed by the officer and was admittedly trying to avoid getting into the car. No other force was used or threatened. Claimant has failed to establish a cause of action for assault and battery. Based upon the foregoing, the claim is DISMISSED.


April 13, 2010

Syracuse, New York


Judge of the Court of Claims

1. Exhibit E.

2. Exhibits 13 and 14.

3. Exhibit E, p. 13.

4. Trial Transcript, pp. 60-63.

5. Exhibit B.

6. See Family Court Act 724 and Application of Gault, 387 US 1 (1967).

7. See Family Court Act 724.

8. 9 NYCRR 375.1(f)(2) prohibits any person on state parks, recreation and historic preservation property from using abusive or obscene language.

9. The issue of the officers' authority to arrest Claimant solely on violations of the Parks, Recreation and Historic site regulations (9 NYCRR 375.1) was not raised (see 27.01 of the Parks, Recreation and Historic Preservation Act but see Redwood v State of New York, Ct Cl, Sise, J., dated September 20, 2002, Cl. No. 97098, UID #2002-028-506). Claimant's actions might also be sufficient to establish probable cause for a violation of 240.20 of the Penal Law (Disorderly Conduct) (see Devenpeck v Alford, 543 US 146, 154-155).

10. Trial Transcript, p. 50.

11. Trial Transcript, p. 52.

12. Trial Transcript, p. 52.