Opinion
# 2015-015-603 Claim No. 122843
10-19-2015
CHANTAL BIEN-AIME v. THE STATE OF NEW YORK
Stephen L. Lockwood, P.C. By: Daniel N. Cafruny, Esquire Honorable Eric T. Schneiderman, Attorney General By: G. Lawrence Dillon, Esquire Assistant Attorney General
Synopsis
Following trial, claim alleging violations of the search and seizure clause of the NYS Constitution and common law causes of action for false arrest, negligence and excessive force was dismissed. Court found State Trooper's conduct was reasonable and proper. Inasmuch as local police, not state police, performed the arrest. Causes of action for false arrest and excessive force were dismissed.
Case information
| UID: | 2015-015-603 |
| Claimant(s): | CHANTAL BIEN-AIME |
| Claimant short name: | BIEN-AIME |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | The caption is amended sua sponte to reflect the only properly named defendant. |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 122843 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | FRANCIS T. COLLINS |
| Claimant's attorney: | Stephen L. Lockwood, P.C. By: Daniel N. Cafruny, Esquire |
| Defendant's attorney: | Honorable Eric T. Schneiderman, Attorney General By: G. Lawrence Dillon, Esquire Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | October 19, 2015 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant seeks damages for a violation of the search and seizure clause of the State Constitution, false arrest, negligence and excessive force by police on March 28, 2013. Trial was bifurcated and this decision relates solely to the issue of liability.
Claimant testified that on the evening of March 28, 2013 he resided with his girlfriend at 515 West Dominick Street in Rome, New York. He was involved in work rehabilitating a convenience store at the same address when, at approximately 10:50 p.m., he decided to go to a nearby store to get something to eat. After stopping at a friend's house in Liberty Gardens the claimant was walking on West Dominick Street when he noticed that he was being followed by a vehicle. He testified that he became uneasy and continued walking. The claimant eventually turned and observed a State Trooper vehicle. He continued walking on West Dominick Street and the State Police vehicle continued to follow him. Claimant stopped walking, turned and the State Trooper vehicle began to shine his spotlight on him. Claimant turned around and continued walking on West Dominick Street while the State Trooper continued to shine a spotlight on him. Claimant testified that he felt uncomfortable at this time and turned and approached the Trooper's car, inquiring whether anything was wrong and whether there was any assistance he could provide. The State Trooper, Donald Moore, responded that he was looking for an individual who had committed a crime. The claimant asked Trooper Moore whether he had a description of the person sought, to which the Trooper replied that the suspect was described as 5' 11" in height, wearing dark jeans and a "hoodie" sweatshirt. Trooper Moore then asked claimant to provide identification. Although claimant possessed his wallet he informed the Trooper that he did not have identification on his person. According to the claimant, he was wearing bulky clothes at the time and thought he had left his wallet at his home. Also according to the claimant, Trooper Moore would not allow him to leave and continued requesting identification. Thinking his wallet was at home, claimant offered to go home and retrieve his identification but Trooper Moore would not allow him to do so.
The claimant asked Trooper Moore whether he was being detained or arrested to which the Trooper responded in the negative, although the Trooper would not allow the claimant to leave. Claimant informed Trooper Moore that he felt unsafe and called his girlfriend and asked her to contact his lawyer and explain that he was being detained by a New York State Trooper. Claimant testified that he never threatened Trooper Moore or other officers and did not attempt to flee. Approximately 15 - 20 minutes after first encountering Trooper Moore, other officers arrived at the scene, and began to surround the claimant. Claimant informed the officers that he felt unsafe and that he was in a "police dominated environment." When the claimant, who was facing one of the other officers, turned, Trooper Moore attempted to grab him by his left arm. Claimant pulled his arm away and the Trooper again took hold of his left arm. At the same time the other officers present grabbed the claimant and took him to the ground. The officers immobilized claimant's arms and legs and he was tasered while officers instructed him to "stop resisting." Claimant was handcuffed and removed from the scene. He was thereafter charged with resisting arrest and two counts of disorderly conduct. Claimant denied that he fought with the officers or that he swore or used abusive language during their encounter. Although the claimant was not aware of the actions of Trooper Moore during the time he was on the ground being restrained and tasered, he testified that Trooper Moore neither directed the officers to cease and desist nor physically restrained the other officers. Claimant testified that he was never informed that he was under arrest.
The officers were from the Rome Police Department and Oneida County Sheriff's Office.
All quotations are taken from the trial recording.
On cross-examination claimant stated that he left the storefront where he was working to go to a convenience store near his home. On his way he contacted a friend and stopped at his residence at Liberty Gardens, which was approximately a fifteen-minute walk from the claimant's home. Claimant agreed that he was mistaken when he informed Trooper Moore that he did not possess his identification, but stated that he pointed to his residence, which was only "a stone's throw away," and offered to return to his home to obtain his ID. The claimant denied he became agitated and states, instead, that he was cooperative with the officer. Claimant agreed that Trooper Moore was not the officer who arrested, tasered, handcuffed or transported him to jail following the incident. According to the claimant, Trooper Moore grabbed his left arm twice before he was grabbed and taken to the ground by the other officers present at the scene.
Claimant next called New York State Trooper Donald Moore. Trooper Moore testified that on the evening of March 28, 2013 he overheard a report through the Oneida County 911 dispatch of a possible murder and providing a description of the suspect who was last seen on foot - a black male, 5' 10" in height with short hair and wearing a dark hooded sweatshirt and dark jeans. Trooper Moore testified that he observed the claimant walking alone on West Dominick Street. He also observed that the claimant was wearing a hooded sweatshirt, with the hood up on a warm evening, which the Trooper viewed as "peculiar". Trooper Moore shined his spotlight on the claimant who continued to walk along West Dominick Street. Trooper Moore approached the claimant and requested that he provide identification, including his name, date of birth and address. The Trooper described claimant as uncooperative and testified that he continued to walk away while he was speaking to him. The witness did not observe a firearm, blood or any other indication of claimant's physical involvement in a crime. The claimant would not, however, provide identification and continued to walk down the street. At that time, Trooper Moore viewed claimant as a "bona fide" suspect in the murder reported over the Oneida County 911 system. As claimant continued to refuse to provide identification - he would only provide his first name - other officers began to arrive at the scene. Trooper Moore advised claimant that he was not free to go and testified that claimant physically responded to attempts to detain him. He described the claimant as acting aggressive and assertive towards officers. According to Trooper Moore, the claimant met the description provided by Oneida County 911, he refused to provide identification and would not permit a pat frisk. Under such circumstances it was necessary that the claimant, a potential suspect in a murder investigation, be detained.
The Trooper testified that he was familiar with the New York State Police policies regarding use of force (Exhibit 22) and the provisions of Penal Law 35.30.
On cross-examination the witness testified that he had been employed by the New York State Police for approximately one year prior to March 28, 2013, and he had previously been involved in homicide investigations as a member of the Rome City Police Department. He testified that he encountered the claimant after overhearing the description of the murder suspect, provided by Oneida County 911. Trooper Moore requested that the claimant provide identification, which he refused to do and, in fact, informed the Trooper he was not required to do so. The witness described claimant as belligerent, swearing and yelling. He testified that the other officers who appeared at the scene were from the Rome City Police Department and the Oneida County Sheriff's Department and that he played no part in the arrest, tasering or transport of the claimant. He stated that in his view, at the time, claimant sufficiently matched the description of the potential murder suspect to justify a stop and request for identification. According to Trooper Moore, claimant's refusal to provide identification heightened his awareness of the need to protect his own safety and the safety of the general public.
Claimant called William Fischer, a self-employed forensic consultant and a member of the New York State Police from 1974 to 1980. Since 1980, Mr. Fischer has been employed as a consultant with regard to, inter alia, police procedures, protocols and incidents involving the use of force. The witness testified that he was asked to determine whether the actions of Trooper Moore were consistent with laws governing search and seizure and internal New York State Police procedures and protocols.
Referencing Exhibit 23, the witness testified that the New York State Police identify a level one approach to a criminal suspect as requiring an "articulable basis" for believing the subject has committed or is about to commit an offense. In order for an articulable basis to exist, there must be some specific conduct by the subject who is at all times free to go or to decline answering questions. A level two stop permits an officer to request the production of identification where there is some "founded basis" to believe the subject has or is about to commit a crime. During a level two stop the subject is free to leave at any time. A level three stop, during which a subject is not free to leave and may be detained, requires "reasonable suspicion" to believe the subject committed or is about to commit a crime.
In Mr. Fischer's opinion, Trooper Moore did not possess facts adequate to meet the articuable basis standard for a level one stop, let alone a reasonable suspicion to believe the claimant has or is about to commit a crime which is necessary to sustain a level three stop. Although presumably not known to Trooper Moore at the time, the witness testified that the witness who had provided the description upon which the officer was acting was, in fact, not a witness to the crime but an individual remote from the scene. Furthermore, the description provided was inadequate. The description stated only that the subject was a black male, 5' 10" tall wearing dark pants and a dark sweatshirt. No weight or age was provided for the subject, and the description of the clothing worn "could apply to anyone." The witness testified that the population of Rome, New York is 8% to 10% African American or approximately 3,000 individuals. Half of the total African American population is male and 65% of the average male population is between five feet eight inches and six feet tall. Mr. Fischer concluded that approximately 975 of the total 1500 African American males residing in Rome would fit the description of the subject provided by the Oneida County 911 System.
The witness testified that even though there was no "articulable basis" which would justify a level one stop, Trooper Moore made a level three stop in that he detained the claimant and prevented him from leaving the scene. During a level one or level two stop the subject is always free to leave and may not be detained. Furthermore, he stated that CPL 140.50 does not permit the use of force in detaining a suspect, only to arrest.
Mr. Fischer provided his opinion that the arrest of claimant was unauthorized in that the force used was excessive and there were no exceptional circumstances which would justify tasering and/or handcuffing the claimant. He further opined that Trooper Moore was complicit in the use of force by the other officers at the scene in that he grabbed the claimant and physically restrained him from protecting himself from being tasered. Trooper Moore also assisted in handcuffing the claimant's left arm. Finally, the witness testified that Trooper Moore had an absolute duty to protect the claimant's constitutional right to be free from unauthorized arrest and the use of excessive force.
On cross-examination Mr. Fischer testified that there was not reasonable suspicion to support a level three stop of the claimant, even if he was mistaken or deceptive with regard to whether or not he possessed identification. He was familiar with the police report regarding the incident and was aware that the claimant was described in the report as yelling, swearing and flailing with his arms. This concluded the trial testimony.
The Court of Appeals recognized a tort cause of action for a violation of the equal protection and search and seizure clauses of the State Constitution in Brown v State of New York (89 NY2d 172 [1996]). Inasmuch as claimant alleges only a violation of the search and seizure clause (N.Y. Const., art. I, § 12) to support his constitutional tort claim, the Court has limited its analysis accordingly.
The propriety of police-citizen encounters is governed by the standards set forth by the Court of Appeals in People v De Bour (40 NY2d 210 [1976]) and its progeny. Citing its previous decision in People v Cantor, 36 NY2d 106 [1975], the Court in De Bour established a framework for determining the propriety of police interaction with citizens in the performance of their criminal law enforcement function. In this regard the Court stated "[a]s noted in Cantor, whether or not a particular search or seizure is to be considered reasonable requires a weighing of the government's interest against the encroachment involved with respect to an individual's right to privacy and personal security. Thus, we must consider first whether or not the police action was justified in its inception and secondly whether or not that action was reasonably related in scope to the circumstances which rendered its initiation permissible" (People v De Bour, 40 NY2d at 215).
The Court in De Bour set forth a progressive or sliding scale standard for weighing the level of police intrusion against "the precipitating and attending conditions" (id. at 223). A level one intrusion is a request for information, which is permissible when "there is some objective credible reason for that interference not necessarily indicative of criminality" (id. at 223). Such a request "is a general, nonthreatening encounter in which an individual is approached for an articulable reason and asked briefly about his or her identity, destination, or reason for being in the area" (People v Hollman, 79 NY2d 181, 191 [1992]). The next level of intrusion, the common-law right to inquire, "is activated by a founded suspicion that criminal activity is afoot" (People v De Bour, 40 NY2d at 223). At this level, a police officer "is entitled to interfere with a citizen to the extent necessary to gain explanatory information, but short of a forcible seizure" (id.). The third level permits a forcible stop and temporary detention of an individual where there is "a reasonable suspicion that a particular person has committed, is committing or is about to commit a felony or misdemeanor" (People v De Bour, 40 NY2d at 223; see also CPL 140.50 [1]). "Reasonable suspicion represents that 'quantum of knowledge sufficient to induce an ordinarily prudent and cautious [person] under the circumstances to believe criminal activity is at hand' " (People v Martinez, 80 NY2d 444, 448 [1992], quoting People v Cantor, 36 NY2d 106, 112-113 [1975]). Lastly, probable cause is necessary to arrest and take a person into custody (People v De Bour, 40 NY2d at 223; see also CPL 140.10 [1]; CPL § 70.10 [2]). "Probable cause consists of such facts and circumstances as would lead a reasonably prudent person in like circumstances to believe plaintiff guilty" (Colon v City of New York, 60 NY2d 78, 82 [1983]; Hyman v New York Cent. R. R. Co., 240 NY 137, 143 [1925]; Boose v City of Rochester, 71 AD2d 59, 67 [4th Dept 1979]).
In this case, Trooper Moore received a radio dispatch of a possible homicide less than a half hour before he encountered the claimant who generally matched the description of the suspect and was first observed at a location approximately one mile from the scene of the crime. Given the temporal and spatial proximity between the stop of the claimant and precipitating event Trooper Moore had at least the common-law right to inquire, if not reasonable suspicion to stop and temporarily detain claimant for questioning (see People v Edwards, 55 AD3d 1337 [4th Dept 2008], lv denied 11 NY3d 924 [2009] [police had reasonable suspicion to stop and temporarily detain the defendant for questioning inasmuch as he matched the description of the suspect and was found in proximity to the location of the crime]; People v Johnson, 22 AD3d 371 [2005], lv denied 6 NY3d 754 [2005] [reasonable suspicion existed based upon description of suspect and temporal and spatial factors]; People v Thompson, 298 AD2d 869 [4th Dept 2002] [probable cause for arrest existed based on sufficiently specific description of the defendant and temporal and spatial proximity]; People v Rampersant, 272 AD2d 202 [1st Dept 2000], lv denied 95 NY2d 870 [2000] [description was sufficiently specific to establish probable cause for arrest given defendant's location shortly after the crime]; People v Samuel, 247 AD2d 244 [1st Dept 1998], lv denied 91 NY2d 977 [1998] [description was sufficiently specific to justify investigative detention]; People v McGriff, 232 AD2d 326 [1st Dept 1996], lv denied 89 NY2d 926 [1996]; People v Acevedo, 181 AD2d 596 [1st Dept 1992], lv denied 79 NY2d 1045 [1992] [description of suspect was sufficiently detailed although he was found a few blocks away from the crime]). Trooper Moore explained to the claimant that he was investigating a possible homicide and informed him that he was free to leave once he produced his identification. While the claimant testified that he provided his first and last name to Trooper Moore, and mistakenly believed he was not in possession of his wallet containing his identification, the Court finds Trooper Moore's testimony that claimant repeatedly refused to provide identification and attempted to leave the scene more credible. Claimant's testimony that he believed he left his identification at home and then at some unspecified point recalled that it was in his back pocket is not credible under the circumstances. While an individual's refusal to provide identification or his or her "flight" from apprehension may not, standing alone, create a reasonable suspicion of criminal activity, it may be considered in conjunction with other circumstances to establish the reasonable suspicion necessary to support a temporary detention (see People v Martinez, 80 NY2d 444 [1992] [defendant's flight may be considered in conjunction with other attendant circumstances in determining whether reasonable suspicion of criminal activity existed to justify a pursuit]; People v Madera, 189 AD2d 462 [1st Dept 1993], affd 82 NY2d 775 [1993] [flight alone may not justify a detention absent other indicia of criminal activity]; People v Howard, 50 NY2d 583 [1980] [a citizen's failure to stop and identify himself when requested by police cannot be the predicate for a seizure absent other circumstances]; People v Major, 115 AD3d 1 [1st Dept 2014] [defendant's walking away at a fast pace upon being approached by a police officer did not provide the requisite reasonable suspicion to justify a seizure absent other indicia of a crime]).
The Incident Report from the Oneida County Sheriffs Office (Exhibit 30) indicates that Deputy Aaron Avard heard a dispatch for shots fired near the Rome YMCA at approximately 10:51 p.m. and that he arrived at that location at 10:55 p.m. to find a black man on the pavement unresponsive. He then arrived at the location of the "citizen stop" involving the claimant simultaneously with Deputy Chrysler at 11:16 p.m. At that time, Deputy Avard observed a black male wearing "a dark colored hooded sweatshirt and jeans" moving his arms as he spoke and refusing to provide identification. Trooper Moore's memorandum regarding the incident (Exhibit 16) indicates that at 11:00 p.m. he received an Oneida County 911 dispatch to complete an area check for a suspect involved in a homicide and a "BOLO" (be-on-look-out) for a suspect described as "a black male, wearing a dark color sweatshirt, dark jeans, short hair and approximately 5'10" ". Trooper Moore indicates further in his report that while completing an area check in the 600 block of W. Dominick Street, he located a black male who fit the description of the suspect and at 11:14 p.m. advised Oneida County 911 that he would be out with this individual.
Unlike the facts in People v Howard (50 NY2d 583 [1980]), the claimant here matched the (albeit) general description of a murder suspect broadcast by the Oneida County 911 System and the initial interaction between Trooper Moore and the claimant occurred within one-half hour of the broadcast and approximately one mile from the crime scene. The Court accepts Trooper Moore's testimony that the claimant repeatedly refused to provide identification and continued to walk away as the Trooper attempted to secure the same. Given the seriousness of the crime and the spatial and temporal proximity between the crime, the 911 broadcast and the place of the encounter, the Court finds that the claimant's conduct, when considered in conjunction with the attendant circumstances, provided the reasonable suspicion necessary for claimant's temporary detention by Trooper Moore (see People v Martinez, supra). As a result, claimant failed to establish, by a preponderance of the credible evidence, that the State violated the search and seizure clause of the New York State Constitution (N.Y. Const., art. I, § 12).
Turning to the propriety of claimant's arrest for disorderly conduct and resisting arrest, it is clear that the State is generally not liable for the conduct of local officials (see Fisher v State of New York, 10 NY2d 60 [1961]; Williams v State of New York, 90 AD2d 861 [1982]). Both the claimant and Trooper Moore testified that the arrest was undertaken by Deputy Chrysler of the Oneida County Sheriffs Office, and Trooper Moore testified at an examination before trial that he gave no orders to the Oneida County deputies (Exhibit 41, p. 60). Absent any evidence that the arrest was undertaken by or at the direction of Trooper Moore or that Trooper Moore directed the manner, details, or ultimate result of all law enforcement efforts to find the assailant, the State may not be held vicariously liable for the conduct of the local police officers who initiated and effected claimant's arrest (see Brown v State of New York, 45 AD3d 15, 27 [3d Dept 2007], citing Thompson v Grumman Aerospace Corp., 78 NY2d 553, 557 [1991]). Nor is there sufficient evidence to conclude that Trooper Moore "took an active role in the [arrest] of the [claimant], such as giving advice and encouragement or importuning the authorities to act" ( id. Washington v Town of Greece, 126 AD3d 1552, 1553 [4th Dept 2015] [inner quotation marks and citations omitted]).
Merely assisting the other law enforcement officers present at the scene in handcuffing the claimant after their independent action to subdue the claimant is insufficient.
This same reasoning compels dismissal of claimant's causes of action for excessive force and malicious prosecution. It is undisputed that it was Deputy Chrysler of the Oneida County Sheriffs Office, not Trooper Moore, who utilized the taser to gain control of the claimant and effect his arrest. The State, having played no role in the arrest or the decision to arrest the claimant, and there being no evidence that it supervised or controlled the investigation, may not be held liable for excessive force or malicious prosecution (Washington v Town of Greece, 126 AD3d at 1553-1554; Brown v State of New York, 45 AD3d at 27).
Inasmuch as a cause of action for negligence may not supplant the traditional tort remedies of false arrest and imprisonment, this cause of action must be dismissed (Simon v State of New York, 12 AD3d 171 [1st Dept 2004]; Boose v City of Rochester, 71 AD2d at 62).
Lastly, to the extent the claim may be read to include a cause of action for a violation of the claimant's federal constitutional rights, it lacks merit. It is well settled that no claim for a violation of the claimant's federal constitutional rights is cognizable against the State in the Court of Claims (Brown v State of New York, 89 NY2d at 184-185 [1996]; Will v Michigan Dept. of State Police, 491 US 58, 71 [1989]; Matter of Gable Transp., Inc. v State of New York, 29 AD3d 1125 [3d Dept 2006]; Welch v State of New York, 286 AD2d 496 [2d Dept 2001]).
Based on the foregoing, the claim is dismissed. All motions not heretofore ruled upon are denied.
Let judgment be entered accordingly.
October 19, 2015
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims