|Claimant short name:||ABDUL-WAHHAB|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||JUDITH A. HARD|
|Claimant's attorney:||Law Office of Mark Mishler, P.C.
By: Mark Mishler, Esq.
|Defendant's attorney:||Hon. Eric T. Schneiderman, NYS Attorney General
By: Jessica Hall, Assistant Attorney General,
|Third-party defendant's attorney:|
|Signature date:||June 18, 2012|
|See also (multicaptioned case)|
Claimant, Amira Abdul-Wahhab, commenced this action in 2008 to recover damages for the alleged violation of her rights by the University Police Department (UPD) of the State University of New York (SUNY) in a December 2007 incident. Although the claim contains eight causes of action, claimant maintains in her post-trial submission that she is pursuing the First Cause of Action for false arrest; the Third Cause of Action for malicious prosecution; the Fourth Cause of Action for malicious prosecution on the University's disciplinary charges; and the Fifth Cause of Action for negligence. Claimant's 2nd, 6th, 7th and 8th causes of action are hereby dismissed. Defendant plead in its answer that its actions were "judicially or quasi-judicially privileged, or discretionary determinations . . . and are, therefore, immune from liability." The Court finds that claimant failed to prove her causes of action for malicious prosecution, false arrest, negligent training and supervision. However, even if she had done so, the actions of the UPD were discretionary governmental functions that are immune from liability.
Claimant testified that in December 2007 she was a student at SUNY, having just completed her first semester of freshman year. On December 13, 2007, after 8:00 p.m., she was with her boyfriend, Luis Feliz, in his room in the Eastman Tower dormitory. Claimant is of African-American descent and Luis is of Dominican descent. After 11:00 p.m., they decided to purchase food from the vending machines located in the basement of Eastman Tower. After they entered the vending machine area, Luis pointed out to claimant that there was a book bag(1) in the corner of the vending machine area. Luis took the bag, and according to claimant, it was with the intent to see who owned the bag in order to return it. The couple returned to his room. She testified that it was not her intent to steal the bag or any of the items within it. Her intent was to go through the bag, find some type of identification, and return the bag to the person who owned it. Back in the room, Luis went through the wallet and claimant took the cell phone with the intent of calling someone to advise them that she had the book bag. However, there was no battery in the phone. Luis found that the names on the credit cards did not align with the license name.
Soon thereafter, the UPD knocked on Luis' door. They were let in by Luis' suite-mate. Before they entered the suite, Luis threw the bag under a raised bed upon which the claimant sat. Claimant maintains that the bag was visible under the bed. The UPD officers asked where the bag was and she pointed to underneath the bed. She testified that the UPD asked them why they had the bag. Claimant and Luis told the UPD that they were going to return it. Claimant and Luis were told that they had to leave the suite and accompany the UPD. She was not informed that she was arrested at this time. According to claimant, it was cold and snowy outside. She was dressed in a T-shirt, basketball shorts, socks and Adidas sandals. She did not have an overcoat with her.
Claimant testified that when she and Luis were taken out of Eastman Tower, they were arrested and read their Miranda rights. They were driven to the SUNY's police station in a police car. They were fingerprinted and mug shots were taken. They were then placed in separate rooms and interrogated by the police. The UPD told her that she was charged with a felony and she was given paperwork with a court appearance date. She was also informed that she could be required to pay fines and be expelled from school. She was told to report to the office of Clarence McNeill, the head of the University's Office of Conflict Resolution and Civic Responsibility, the following day. She testified that she was crying, confused, scared and angry. They discharged her at 1:00 a.m. and she walked to a friend's dormitory. On cross-examination, she testified that she asked for a ride to her dormitory but the request was denied.
The following day she met with Mr. McNeill who informed her that she could be expelled. She appeared in Albany City Court in December of 2007, was released on her own recognizance and was informed to appear again on February 1, 2008. She did so accordingly and the charges were dropped that day. She eventually met with the Director of Multicultural Student Affairs at SUNY and was informed that the disciplinary charges were being dropped by the University.
Paul Burlingame, presently a lieutenant in the UPD, was working as a plain-clothes patrol officer on the 10:00 p.m.-7:00 a.m. shift on December 13, 2007. Specifically, he was assigned to a theft suppression detail that evening which utilized a decoy bag in the State Quad with hope of stopping a series of thefts on campus. That evening, he and Sergeant Farina decided where to place the bag by the vending machines in Eastman Tower. They stood watch using a peephole in the women's bathroom doorway. Shortly after 11:00 p.m., Officer Burlingame noticed claimant and Luis by the bag. Luis's behavior and the amount of attention he paid to the bag caught Burlingame's attention. He did not see anything in claimant's behavior that indicated that she was going to steal the book bag. He observed Luis pick up the bag. He followed claimant and Luis to the tenth floor of Eastman Tower. He knocked at Luis's door and identified himself as UPD. When he entered the suite, he did not see anyone there except claimant and Luis (T:143). After claimant pointed to where the bag was under the bed, Luis was placed under arrest and claimant was informed that she was being taken to their station for further investigation. After claimant was brought out of Eastman Tower, a Lieutenant Karosky told Officer Burlingame to place claimant under arrest for larceny. An official felony complaint was filed in Albany City Court (Exhibit 2). She was charged with accessory of conduct (T:160). Officer Burlingame was aware that the presence of credit cards in the book bag would impact the level of crime to be charged if it was stolen. Although he was extensively trained in the Penal Law, he never received any training in the Personal Property Law.
On cross-examination, Officer Burlingame testified that the amount of thefts in that particular area was unusually high. Approximately a dozen people passed by the book bag that evening without touching it. He observed Luis walk over to the book bag then walk back to the vending machines. Luis walked back to the book bag, unzipped it, then looked inside of it. He walked away from the book bag, looking towards the area of the staircase and elevators, and then back to the book bag again, this time placing his hand inside of it. Lieutenant Burlingame testified that it appeared like he was looking at another part of the book bag. He thought Luis's actions were suspicious. He observed Luis bringing the book bag to claimant's attention and they had a conversation. Luis then picked up the book bag and the two proceeded to Luis's suite. He testified that claimant and Luis were evasive in their answers to questions initially posed to them while they were in the suite. He testified that the book bag was hidden under a bed. The book bag was unzipped when he located it in the suite but all the contents were within it. After he retrieved the book bag, claimant became visibly upset and said either "I told him not to" or "I told him not to do it". Handcuffs were placed on Luis in the suite. Handcuffs were placed on claimant outside the dormitory before she was led to the UPD police station. He testified that the race of claimant and Luis was not a factor in his decision-making. He believed they had committed a crime. At the police station, after receiving her Miranda warnings, claimant would not give him any information or sign a statement. She was issued an appearance ticket and released on her recognizance. He was unaware if claimant was given a ride back to her dormitory.
Officer Burlingame filed a felony complaint in Albany City Court on December 14, 2007, accusing claimant with Grand Larceny 4, a violation of Penal Law § 155.30 (4), a Class E felony (Exhibit 2). The Assistant District Attorney informed him that she was fielding calls and getting some pressure regarding this incident. She discussed with him that Personal Property Law §252 would prevent prosecution of this matter because such section allows a person ten days to return lost property to its rightful owner. On March 14, 2008 a Certificate of Disposition was filed in Albany Police Court certifying that a Judgment of Dismissal was entered on February 1, 2008 acquitting claimant of the charges (Exhibit 3).
Clarence L. McNeill is an assistant vice-president at the University of Albany and Director for the Office of Conflict Resolution and Civic Responsibility. The main focus of this Office is to enforce the student's code of conduct at the University. The UPD referred claimant's case to him. His associate director, Sally D'Alessandro, met with claimant and Luis. Mr. McNeill also instructed his Director of Multicultural Students, Mr. King, to meet with them. As a result of these meetings, the decision was to dismiss the charges but to assign some type of community service (Exhibit 4). They believed that claimant and Luis did not intend to steal the property. Upon cross-examination, he testified that he did receive two phone calls from University officials attesting to the good character of claimant and Luis.
Paul Berger testified that he has been the Assistant Chief of the UPD since 2002. He is the night commander for the afternoon and overnight shifts. He was aware of the decoy bag operation. He was not aware of the provisions of the Personal Property law prior to the use of the decoy bag on December 13, 2007. The UPD has not used a decoy bag since December 2007.
LAW AND DISCUSSION
I. MALICIOUS PROSECUTION
The essential elements of a cause of action for malicious prosecution are: (1) commencement of a criminal proceeding against a claimant; (2) the termination of the proceeding in favor of the claimant; (3) absence of probable cause for the criminal proceeding; and (4) actual malice (Martinez v City of Schenectady, 97 NY2d 78 ; Broughton v State of New York, 37 NY2d 451, 457 , cert denied sub nom. Schanbarger v Kellogg, 423 US 929 ).
There does not appear to be any dispute regarding the first two factors, namely, that a criminal proceeding was commenced against claimant, and that the criminal proceeding was terminated in favor of claimant. Accordingly, the Court will begin its analysis with the third factor, specifically, whether defendant lacked probable cause for the criminal proceeding against claimant.
When an arrest is made pursuant to a warrant there is a presumption that the arrest was issued on probable cause. When an arrest is made without a warrant, the presumption arises that the arrest is unlawful and the burden is on defendant to prove that there was probable cause (Smith v County of Nassau, 34 NY2d 18 ). In People v Coffey, 12 NY2d 443, 451 , the Court approved the following formulation for probable cause (internal citation omitted): "Where an officer, in good faith, believes that a person is guilty of a felony, and his belief rests on such grounds as would induce an ordinarily prudent and cautious man, under the circumstances, to believe likewise, he has such probable cause for his belief as will justify him in arresting without a warrant" (see also Smith v County of Nassau, 34 NY2d 18, 24 , supra). "[P]robable cause depends upon probabilities, not certainty" (People v Rodriguez, 168 AD2d 520, 521 [2d Dept 1990][internal quotation marks and citation omitted]).
Based upon the frank and genuine testimony of Officer Burlingame, the Court finds that defendant proved the existence of probable cause. His very specific testimony regarding the actions of Luis and claimant, particularly with regard to the amount of attention they gave the bag prior to the taking, as well as their behavior and the placement of the bag in the dormitory room thereafter, was persuasive. Their actions, as described by Officer Burlingame, would be deemed suspicious by an ordinarily prudent and cautious person under the same circumstances. Moreover, Officer Burlingame convinced the Court that his actions were undertaken in good faith. Although the Court believes claimant's testimony at trial, that she did not intend to steal the bag, her testimony regarding what happened that night was vague and insufficient to convince this Court that an ordinarily prudent and cautious person would not have deemed her behavior suspicious at that time.
Regarding the fourth element of malicious prosecution, claimant may prove malice if shown that defendant commenced criminal proceedings "due to a wrong or improper motive, something other than a desire to see the ends of justice served" (Nardelli v Stamberg, 44 NY2d 500, 503 ). "Malice may be shown by proof that probable cause was lacking or that the conduct was reckless or grossly negligent" (Haynes v City of New York, 29 AD3d 521 [2d Dept 2006]). Malice may be manifested in an egregious deviation from proper investigative procedures (Ramos v City of New York, 285 AD2d 284 [1st Dept 2001], citing Hernandez v State of New York, 228 AD2d 902 [3d Dept 1996]). A person acts recklessly if he or she is aware of and consciously disregards a substantial and unjustifiable risk (Royal Indem. Co. v Love, 165 Misc 2d 890 [Sup Ct, Nassau County 1995], citing People v Galatro, 194 AD2d 552 [2d Dept 1993]).
The Court does not believe that malice was a motive of the UPD or Officer Burlingame on the evening of December 13, 2007. There had been a series of thefts in the State Quad near Eastman Tower and logically the UPD wanted to catch the wrongdoer(s) in order to have justice served. Their use of a decoy bag and a peephole through a bathroom door, arguably zealous in technique, was not malicious or conducted recklessly.
Based upon the Court's finding that claimant failed to prove probable cause and malice, her claims for malicious prosecution are dismissed.
II. FALSE ARREST/FALSE IMPRISONMENT
"The tort of false arrest is essentially the same as the tort of false imprisonment [citations omitted] . . . Every false arrest is itself a false imprisonment, with the imprisonment commencing at the time of the arrest [citations omitted]" (Blanchfield v State of New York, 104 Misc 2d 21, 24 [Ct Cl 1980]). The elements of a cause of action for false imprisonment are: (1) the defendant intended to confine the plaintiff; (2) the plaintiff was conscious of the confinement and did not consent to the confinement; and (3) the confinement was not otherwise privileged (Martinez v City of Schenectady, 97 NY2d 78, 85 , supra; Guntlow v Barbera, 76 AD3d 760 [3d Dept 2010] appeal dismissed 15 NY3d 906 ). Neither malice nor want of probable cause is an essential element of an action for false imprisonment (Broughton v State of New York, 37 NY2d 451 , cert denied sub nom. Schanbarger v Kellogg, 423 US 929 , supra), but "[A] showing of probable cause is a complete defense to an action alleging false arrest or false imprisonment (internal citations omitted)" (Lewis v Caputo, 944 NYS2d 1, 4 [1st Dept 2012]; see Martinez v City of Schenectady, 97 NY2d 78 , supra; Broughton v State of New York, 37 NY2d 451 , cert denied sub nom. Schanbarger v Kellogg, 423 US 929 , supra).
The first two factors, that defendant intended to confine claimant and that claimant was conscious of and did not consent to the confinement do not appear to be in dispute. The third factor, whether defendant was not otherwise privileged, is at issue here.
As noted above, the Court finds that the UPD had probable cause to arrest claimant. As defendant had probable cause, its arrest of claimant was lawful. Accordingly, defendant has met its burden of establishing that the arrest was privileged and claimant's cause of action for false arrest/false imprisonment is dismissed.
Claimant plead that defendant was negligent in the proper training and supervision of its police officers in the detention of citizens, commencement and prosecution of criminal charges, commencement of University disciplinary charges, and on discriminatory enforcement of the law (Claim ¶¶ 37, 47). "Where it is undisputed that an employee was acting within the scope of his or her employment when the conduct giving rise to a claim occurred, a cause of action alleging negligent hiring, investigation, training or supervision must be dismissed as a matter of law (Morra v State of New York, UID No. 2011-015-276, Claim No. 117968 [Ct Cl, Collins, J., November 29, 2011], citing Leftenant v City of New York, 70 AD3d 596, 597 [1st Dept 2010]; Passucci v Home Depot, Inc., 67 AD3d 1470 [4th Dept 2009], lv denied 72 AD3d 1658 [4th Dept 2010]; Russ v State Empls. Fed. Credit Union (SEFCU), 298 AD2d 791 [3d Dept 2002]). When an employee is acting within the scope of such employment, "claimant's only avenue of redress is by way of the traditional tort remedies of false arrest and malicious prosecution" (Morra v State of New York, UID No. 2011-015-276, [Ct Cl, Collins, J., November 29, 2011], quoting Coyne v State of New York, 120 AD2d 769, 770 [3d Dept 1986]). Further, the Third Department has held that "a claim for negligent training in investigative procedures is akin to a claim for negligent investigation or prosecution, which is not actionable in New York" (Russ v State Empls. Fed. Credit Union (SEFCU), 298 AD2d 791, 793 [3d Dept 2002], supra).
In the present claim, whether or not the UPD knew about the personal property law, the Court finds that the use of a decoy bag was an investigative procedure and a claim for negligent investigation is not actionable in New York. Further, the cause of action for negligent supervision is also dismissed as the Court finds that the UPD officers were acting within the scope of their employment.
Even if claimant was successful in proving any or all of the alleged causes of action, the claim would be dismissed because the discretionary actions of defendant are immune. When the State engages in proprietary activities, it is subject to ordinary tort liability. Conversely, when it engages in a governmental activity, the State could be immune under certain circumstances (see Sebastian v State of New York, 93 NY2d 790, 793 ). The providing of police protection is a classic governmental function (Valdez v City of New York, 18 NY3d 69 ). Although the State waived sovereign immunity under Court of Claims Act §8, a governmental function immunity defense may shield defendant from liability for certain discretionary acts. A discretionary act has been defined as an act that involves "the exercise of reasoned judgment" (Lauer v City of New York, 95 NY2d 95, 99 ). This defense is viable even if claimant proves a prima facie case. However, defendant must timely raise the defense and prove that the alleged act or omission involved the exercise of discretionary authority (Valdez v City of New York, 18 NY3d 69 ). Here, defendant has done so.
The professional judgment rule insulates a municipality from liability where an employee's performance of his or her duty reflects the exercise of a professional judgment, despite injury to a member of the public (Johnson v City of New York, 15 NY3d 676 ). "The decision whether to stop and apprehend an individual acting in a suspicious manner or to observe said individual for a period of time is a discretionary decision for the [police] officer and cannot be held hostage to "second-guessing" after the fact . . . [The police officer's] tactical decision, while it may have evidenced poor judgment in retrospect, nevertheless, entailed the exercise of discretion or expert judgment in a policy matter and thus is cloaked with governmental immunity." (Rodriguez v City of New York, 189 AD2d 166, 177-178 [1st Dept 1993], citing McCormack v City of New York, 80 NY2d 808, 811 ; Mon v City of New York, 78 NY2d 309 ; see Keselman v City of New York, 95 AD3d 1278 [2nd Dept 2012]). Here, perhaps the use of a decoy bag was poor judgment, but it was a tactical decision, made with reasoned judgment, and therefore, as a discretionary act it is immune under the common law.
In view of the foregoing, the Court, upon review of the documentary evidence, oral testimony and the observance of the demeanor of the witnesses, dismisses the claim. All motions not heretofore addressed are denied.
Let judgment be entered accordingly.
June 18, 2012
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims
1. The claim alleges that a back-pack was left on the floor (¶ 10). During trial it was referred to as a book bag or bag.