Opinion
10852/05.
Decided March 24, 2008.
The defendants are represented by Michael A. Cardozo, Esq., Corporation Counsel of the City of New York, by David C. Cooperstein, Esq., of counsel.
The plaintiff is represented by the Law Offices of William Pager, Esq., James Benintendi, Esq. Of counsel.
In this action, plaintiff Jorge B. Pimentel ("Pimentel") seeks to recover damages for false arrest, malicious prosecution, assault, battery, and negligence against the New York City Police Department and the City of New York ("the City").
Defendant moves for Summary Judgement pursuant to CPLR § 3212 on the grounds that the police officer in arresting and detaining the plaintiff was justified because the officer had probable cause at the time of the arrest to place the plaintiff in custody.
The plaintiff on January 4, 2005 along with a co-worker, Mahaish Ramsawack, also known as, "Lala", left their place of work and went to a subway station located at Morgan Avenue and Vogart Street in Brooklyn, New York. The fact that both men, the plaintiff and Lala, went through the subway "high wheel" turnstile together after one of them swiped a metro card is undisputed. The plaintiff at his 50-h hearing testified that his co-worker snuck behind him. The Arresting officer Langbein testified to the two individuals being together while going through the high wheel.
In order to sustain a cause of action for false arrest, the plaintiff must prove that the defendant intended to confine the plaintiff, the plaintiff was conscious of the confinement, the plaintiff did not consent to the confinement and the confinement was not otherwise privileged. ( Broughton v State of New York, 37 NY2nd 451, cert. denied sub nom., Schanbarger v Kellogg, 423 US 929.) Probable cause existing at the time of confinement bars a cause of action for false arrest. ( Guzman v City of New York, 236 AD2nd 444 [2nd Dept 1997].)
The question to be considered is whether what the police officer observed was sufficient to establish probable cause as a matter of law, in this case that the two individuals were acting in concert to commit the crime of theft of services. Police Officer Langbein when questioned testified that;
Q: When you say "one individual paid his fare" which one was this?
A: I don't recall.
Q: The two individuals, specifically what did you observe them do?
A: I observed both the individuals, like I stated earlier, one gentleman paid his fare and the two of them acting in concert came through at the same time.
Q: When you say "acting in concert" what do you mean?
A: They were both in on it, it wasn't . . . they. . .
A: They came through together at the same time.
Q: Other than that, what did they do?
A: That's all it took.
Q: Specifically, though, when you say "they came through together," I want to know what physical actions each individual took.
A: One gentleman paid his fare, one gentleman stepped in before the wheel turned the other gentleman squeezed in on top of his back and they stepped through together on one fare.
Q: When you say one person squeezed on top of his back, is that the person who came in behind the person who paid his fare?
A: Yes.
Q: What was the first person doing, if anything?
A: He was waiting for the second person to come in with him.
Q: How do you know that?
A: I observed it.
Police Officer Langbein further testified;
Q: You testified that the first individual waited, is that your testimony?
A: Yes.
Q: How long did he wait?
A: For the second individual to snuggle behind him.
Q: What was he doing during that time, if anything?
A: Nothing.
Q: When you say nothing, what do you mean, was he standing, was he moving?
A: He was standing.
Q: What was the other individual doing during those two seconds you say the first individual was waiting?
A: He completed the swipe of the metrocard.
Q: You are talking about the first individual who paid his fare?
A: The first individual stepped into the high wheel.
Q: Is that before or after he swiped the metrocard?
A: The first individual didn't swipe the metrocard.
After the plaintiff and his co-worker were stopped by Police Officer Langbein, it was discovered that the plaintiff had three outstanding warrants. Plaintiff says he was unaware of the warrants. Both the plaintiff and the co-worker were charged with theft of services under Penal Law § 165.15 (3), which is a misdemeanor and constitutes a crime under New York Penal Law § 10. Additionally, Penal law § 20 allows one to be charged with the acts of another when, with the required mental culpability, he aids such person in the criminal act.
Addressing the issue of whether the police officer had probable cause to arrest the plaintiff for theft of services, it is well established that a warrentless arrest is presumptively unlawful and that the defendant has the burden of proving legal justification as an affirmative defense by showing that probable cause existed at the time of the arrest. ( Broughton v State of NewYork, 37 NY2nd 451, cert. denied sub nom., Schanbarger v Kellogg, 423 US 929.) Where facts giving rise to the arrest are undisputed, whether or not the arrest was based on probable cause, is for the court to decide as a matter of law. ( Parkin v Cornell Univ., 78 NY2nd 523, Fausto V City of New York, 17 AD3rd 520 [2nd dept, 2005], Veras v Truth Verification Corp., 87 AD2nd 381 [1st Dept 1982], aff'd 57 NY2d 947.) Where the defense is based upon conflicting evidence, from which a reasonable person might draw different inferences, it is a question for the jury. ( Smith v County of Nassau, 34 NY2nd 18, Clark v Nannery, 292 NY 105.) Here, the Court finds that the undisputed facts standing alone, were that both men moved through the high wheel at the subway station, while only one paid, was sufficient to give rise for the police officer to have probable cause to arrest the plaintiff. Probable cause arises when an ordinarily prudent and cautious person, under the circumstances, would believe a crime was being committed. ( Smith v County of Nassau, 34 NY2nd 18.)
In this case, there are some discrepancies in the facts which would tend to relate to the state of mind of the plaintiff in the swiping of the metrocard. Under Penal Law § 20, where someone is found to be acting in concert with another, the participant's state of mind would be at issue. The plaintiff testified that he swiped the metrocard first and the co-worker jumped behind him without permission;
Q: Was that on Morgan avenue?
A: Yes, it's the stop on Morgan and the station does not have a toll booth. It's those doors that you put the card. So I slip the card. I put the card and a friend, he is an Indian guy. He work with me. He always broke. So he sneak behind me this way he don't pay the fare. As soon as we get in, it was two cops behind the window, stop us
In contrast, the arresting officer testified that the swipe of the metrocard was made by the second person stepping through the high wheel (see testimony above). However, this discrepancy is minor, as discrepancies often arise at the investigation of a crime. Discrepancies may impair the ability to prove guilt beyond a reasonable doubt but generally they have little bearing at the preliminary stages where there is sufficient evidence to show that there was probable cause for the arrest. ( Gisondi v Harrison, 72 NY2nd 280, People v Hodge, 53 NY2nd 313.) Moreover, whether one accepts either version of what occurred, the police officer had probable cause as he observed two people going through the turnstile together. A prudent and cautious person observing that event would believe a crime was being committed.
This case is distinguishable from the recent case decided by the Appellate Division Second Department in, Diederich V Nyack Hospital, 2008 WL 607482, [2nd Dept 2008], where the plaintiffs deposition testimony gave an account of the occurrences preceding his arrest which was different from the account given by the defendants and which raised triable issues of fact as to whether the police officer had probable cause to make the arrest.
Furthermore, the standard for warrentless arrest as outlined in Boughten is inapplicable in this case. The Court need only consider whether the officer had an articulable reason to stop the plaintiff and ask for identity. When the officer learned of the existence of the outstanding warrant, he had probable cause to arrest. ( People v Hollman, 79 NY2nd 181, People v Fritz, 187 AD2nd 449 [2nd Dept 1992] lv denied, 81 NY2nd 839,. ( People v Weaver, 255 AD2nd 959 [4thd Dept 1988].) Accordingly the cause of action for false arrest must fail.
In order to recover damages for malicious prosecution, the plaintiff must prove four elements: that a criminal proceeding was commenced, that it was terminated in favor of the accused, that it lacked probable cause, and the proceeding was brought out of actual malice. ( Smith-Hunter v Harvey, 95 NY2nd 191, Broughton v State of NewYork, 37 NY2nd 451, cert. denied sub nom., Schanbarger v Kellogg, 423 US 929, Diederich V Nyack Hospital, 2008 WL 607482, [2nd Dept 2008]). Here the plaintiff has not established the lack of probable cause so the malicious prosecution claim also fails.
Finally, the plaintiff's claims that the defendants were negligent, careless, reckless and grossly negligent in the manner in which they came in contact with the plaintiff, causing plaintiff unjustifiable harm, are without merit in that the police officer was arresting plaintiff in the discharge of his official duties and the testimony of both the plaintiff and police officer show no cognizable claim stemming from the arrest.
Accordingly, the motion of the City for summary judgement is granted and the clerk of the court is directed to dismiss the complaint with prejudice.
The foregoing constitutes the decision and Order of the Court.