Opinion
# 2019-015-123 Claim No. 127485 Claim No. 129244
03-22-2019
ROBERT L. HICKS v. THE STATE OF NEW YORK
Law Offices of Carolyn V. Minter By: Carolyn V. Minter, Esq. Honorable Letitia James, Attorney General By: Christina Calabrese, Esq., Assistant Attorney General
Synopsis
Claimant was arrested following a traffic stop for a violation of the Vehicle and Traffic Law and alleged that the search and seizure that followed were unconstitutional and that the dismissal of the criminal charges gave rise to a cause of action for malicious prosecution. Claimant failed to establish his causes if action for constitutional tort and malicious prosecution by a preponderance of the credible evidence adduced at trial.
Case information
| UID: | 2019-015-123 |
| Claimant(s): | ROBERT L. HICKS |
| Claimant short name: | HICKS |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 127485, 129244 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | FRANCIS T. COLLINS |
| Claimant's attorney: | Law Offices of Carolyn V. Minter By: Carolyn V. Minter, Esq. |
| Defendant's attorney: | Honorable Letitia James, Attorney General By: Christina Calabrese, Esq., Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | March 22, 2019 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The claims herein assert causes of action for malicious prosecution (claim No. 127485) and constitutional tort (claim No. 129244) arising when the claimant's vehicle was stopped by New York State Police officers on September 16, 2015. Trial of this matter was held on September 13, 2018.
Claimant's causes of action for false arrest and imprisonment, excessive force and constitutional tort were dismissed as untimely leaving only the malicious prosecution cause of action pending under claim number 127485. While late claim relief was granted with respect to the dismissed causes of action, claimant failed to serve the late claim within the time permitted by the Court and a subsequent motion to dismiss claim number 129244 was granted to the extent of dismissing those causes of action governed by the one-year statute of limitations set forth in CPLR 215 (3), to wit, the causes of action for false arrest/imprisonment and excessive force. Inasmuch as a constitutional tort claim is governed by the three-year statute of limitations set forth in CPLR 214 (5), the constitutional tort claim was timely filed under claim number 129244 and deemed timely served nunc pro tunc.
State Police Officer James Kittrell was the first witness to testify. Trooper Kittrell testified that at approximately 3:30 a.m. on the morning of September 16, 2015 he observed a vehicle northbound on Route 209 in the Village of Ellenville traveling at approximately 42 miles per hour in a 30-mile per hour zone. The trooper initiated a traffic stop and pulled behind the vehicle, observing the vehicle occupants while he ran the license plate. As he was observing the occupants he noticed that the passenger was "fumbling in the center console of the vehicle", which he considered unusual behavior justifying an increased level of awareness on his part (T16). He explained that in his experience such movements by vehicle occupants are uncommon during routine traffic stops. He informed his partner regarding his concerns and encouraged him to exercise increased caution as they approached the vehicle.
Parenthetical references are to the pages of the trial transcript.
Trooper Kittrell and his partner exited their State Police vehicle and the witness walked to the driver's side where he initiated contact with the female driver, Maria Velez-Phillips. As he introduced himself and explained the reason he had stopped her vehicle, Trooper Kittrell testified that he smelled the odor of marijuana. While he was speaking to Ms. Velez-Phillips, the claimant began interrupting him from the passenger seat. Trooper Kittrell described the claimant as belligerent, asking why they were stopped "and just being real loud" (T19). Given Mr. Hicks's disruptive behavior, the trooper asked Ms. Velez-Phillips to step out of the car. He described Ms. Velez-Phillips as cooperative despite claimant's continuing insistence that she did not have to exit the vehicle. The witness escorted Ms. Velez-Phillips to the rear of the vehicle where a pat-down was conducted and no drugs were found. He then informed Ms. Velez-Phillips that he intended to search her vehicle based upon his detection of the odor of fresh marijuana. Ms. Velez-Phillips consented to the search and Trooper Kittrell walked to the driver's side door and instructed Mr. Hicks, who was in the front passenger seat, to exit the vehicle. According to the witness, "[a]t that time, he did not cooperate" (T22). Instead, claimant informed the officer that he would not exit the vehicle despite several demands that he do so. The witness described the claimant at this time as "real loud and intimidating" (T23). In light of the claimant's refusal to exit the vehicle, the witness walked around the front to the passenger side intending to physically remove him. As he reached the passenger side the claimant exited and walked to the rear of the vehicle where Trooper Kittrell instructed him to place his hands on the vehicle and twice informed him that he intended to search him. Claimant stated that he would not consent to a search and, as he prepared to search him, the witness noticed the claimant held something in his left hand. Immediately thereafter the claimant began to run away proceeding northbound on State Route 209. Officer Kittrell began a foot pursuit during which he commanded the claimant three times to stop running. The witness testified that he was unable to identify the item the claimant held in his hand, which prompted a concern that it may have been a dangerous instrument such as a razor or pocket knife. As a result, Trooper Kittrell consciously determined to deploy his Taser. The witness estimated the claimant had run approximately 40 yards when the Taser was deployed. The claimant was then apprehended and Emergency Medical Services (EMS) and a State Police supervisor were notified. EMS arrived on the scene and removed the Taser prongs from the claimant, who refused further medical treatment. Claimant was thereafter transported to the State Police facility in Ellenville for processing.
The witness testified that he left the State Police facility following the conclusion of his shift at 7:00 a.m. As he was driving home he observed the claimant in an area of high grass on the side of Route 209 at the same location where the Velez-Phillips vehicle had previously been stopped. He called the State Police in Ellenville and advised them of his observation.
The claimant was ultimately charged with resisting arrest and obstructing governmental administration in the second degree (defendant's Exhibit I). The witness identified defendant's Exhibit G as an incident report he prepared following his interaction with the claimant. He further identified Exhibit F as an incident report prepared by State Police Investigator Vincenzo Iemma. The report by Iemma, dated September 18, 2015, first relates the substance of the interaction between the claimant and Trooper Kittrell on September 16, 2015. The document goes on, however, to relate that at 6:30 a.m. on September 16, 2015 Trooper Kenneth Zeigler observed the claimant in the area where the vehicle stop had occurred earlier that day. The report indicates Trooper Zeigler inquired why claimant was at that location "at which point he stated that he lost his [B]eats headphone[s] and was looking for them" (Exhibit F, ¶ 3). When at 8:34 a.m. Trooper Zeigler again observed the claimant in the same area of State Route 209, he contacted a State Police sergeant in Ellenville. That same date the sergeant, two state troopers and a canine officer responded to the area and conducted a line search during which one of the troopers observed a blue pouch hanging from bushes in the area of the original foot pursuit. Upon searching the pouch they found approximately 2.3 grams of marijuana and 1.4 grams of an unknown substance believed to be PCP. Trooper Kittrell testified that he had never met the claimant prior to September 16, 2015, and has had no interactions with him since that date.
On cross-examination, Trooper Kittrell testified that he was exposed to the odor of both burnt marijuana and fresh marijuana during a classroom demonstration at the State Police Academy, and that as a State Police Officer he has detected the odor of marijuana many times during the course of routine traffic stops. Trooper Kittrell testified, as he did on direct, that he was also subjected to being tased while at the State Police Academy. While neither he nor any of his academy classmates suffered scarring as a result of being tased, all suffered bruising from the Taser prongs which lasted "[m]aybe a few days" (T52). During his one-week instruction in the use and deployment of a Taser, he was instructed that the Taser should be used consistent with the New York State Police use-of-force curriculum, which authorizes deployment of a Taser when an individual exhibits aggressive behavior such as punching, kicking, or continuing non-compliance. The witness is certified in the use of a Taser and was so certified in September 2015. Certifications are renewed annually upon the completion of an eight-hour retraining course.
Trooper Kittrell first noticed the claimant "fumbling in the center console" when he initially came to a stop behind the Velez-Phillips vehicle. He stated that while it is not unusual for occupants stopped by a police vehicle to move within the vehicle, according to the witness "it just makes me more heightened, aware, you know" (T67). The majority of individuals stopped by police generally remain calm and do not move around inside the vehicle.
After stopping the Velez-Phillips vehicle, the witness spent approximately one minute running the vehicle's license plates. He then walked to the drivers's side door and, after detecting the odor of marijuana, asked Ms. Velez-Phillips to exit the vehicle. He walked with Ms. Velez-Phillips to the rear of the vehicle where he spoke to her for approximately three minutes. During their conversation he advised Ms. Velez-Phillips that he had detected the odor of marijuana in her vehicle and that he intended to conduct a search. Ms. Velez-Phillips consented to the search of her vehicle and Trooper Kittrell proceeded to the driver's side of the vehicle and "told Mr. Hicks to step out of the vehicle several times, at which he refused" (T86). The witness instructed the claimant to exit the vehicle approximately four times with the claimant refusing each time. When the claimant refused to exit the vehicle for the fourth time, Trooper Kittrell walked around the front of the vehicle towards the passenger side intending to physically remove him. At that time the claimant opened the passenger side door and stepped out of the vehicle. The claimant then walked to the rear of the vehicle as the witness instructed him to stop and put his hands on the vehicle, and informed him that he intended to conduct a pat-down frisk. Trooper Kittrell closed the open passenger side door and pursued the claimant toward the rear of the vehicle. The claimant then began running. The witness pursued him and observed at that time that the claimant was holding something in his hand as he was running. After approximately 40 yards, the officer deployed his Taser, concluding the pursuit. He informed the claimant that he was under arrest, placed him in handcuffs and read him his Miranda rights. With regard to the deployment of his Taser, Trooper Kittrell testified that he aimed at the claimant's lower back prior to firing. Once the Taser is activated the cartridge dispenses two prongs, one of which shoots high and the other lower.
Although the witness experienced some difficulty describing the distinction between feet and yards on cross-examination, he testified on redirect, as he had on cross-examination, that he was familiar with interpreting distances in yards as a result of having played football. He reiterated his prior testimony that he pursued the claimant approximately 40 yards prior to deploying his Taser, while running, at a distance of approximately five yards. Trooper Kittrell testified that he decided to deploy his Taser because the claimant had an unknown object in his hand as he was running.
The claimant, Robert Hicks, testified that on the evening of September 16, 2015 he was picked up at his residence in Ossining, New York, by a friend, Maria Velez-Phillips. The two then drove to Ellenville, New York where Ms. Velez-Phillips resided. Once in Ellenville, they stopped at a small store and then proceeded to drive to Ms. Velez-Phillips's house, their intended destination. While they were on their way the vehicle, which was being operated by Ms. Velez-Phillips, was pulled over by State Police. A State Police officer approached the car and requested that Ms. Velez-Phillips exit the vehicle. Claimant testified that he was seated in the front passenger seat and said nothing while Ms. Velez-Phillips complied with the officer's direction. The officer and Ms. Velez-Phillips walked to the rear of the vehicle and, a short time thereafter, the officer again approached and requested that the claimant exit the vehicle. The claimant responded to the officer "[y]es, sir" and proceeded to attempt to exit the vehicle (T124). He testified, however, that the Velez-Phillips vehicle was so close to the guardrail that he could not fully open the door and had to "squeeze out of the car" (T124). When the claimant extricated himself from the car he observed that the rear of the Velez-Phillips vehicle was so close to the guardrail he could not pass. Claimant attempted to explain to Officer Kittrell that he could not walk around the rear of the vehicle, and proceeded to walk toward the front. The claimant testified as follows:
"As I was proceeding to go to the front of the truck, I was walking -- the front of the truck was to the guardrail. I put my foot over the front; in other words, I stepped over between the guardrail and the truck, and as soon as I did that, I took another step over, and Officer Kittrell shot me with his Taser. He didn't say, freeze, he didn't tell me to -- give me no direct orders" (T126).
Claimant denied he had any interaction with Officer Kittrell while he was speaking with Ms. Velez-Phillips, testifying "I never said nothing at all, ma'am" (T127). Claimant also denied that he was fumbling with the console at any time while the vehicle was stopped. While he denied that he possessed anything in his hand after exiting the vehicle, he acknowledged that he and Ms. Velez-Phillips returned to the same area later to retrieve a Beats headphone speaker which fell out when he exited the vehicle. He described the area where the stop took place as "wooded, like, a lot of woods" (T131).
Claimant denied that he had a conversation with either of the State Police officers who stopped the vehicle and stated that the charges for resisting arrest and obstructing governmental administration arising from the incident were dismissed. Claimant testified that he did not possess a blue pouch on September 16, 2015 nor did he possess any form of drugs.
On cross-examination the claimant acknowledged that he is the plaintiff/claimant in two pending lawsuits alleging the use of excessive force by police agencies, and challenged as inaccurate a statement contained in the patient care record of the Ellenville First Aid and Rescue Squad which sets forth a primary impression of "No Complaints or Injury/Illness Noted" (defendant's Exhibit J). Although claimant testified that he received followup treatment at an emergency room in Kingston three days following the incident, he agreed that he was released without limitation by the physician who examined him.
While claimant testified at his examination before trial that when Ms. Velez-Phillips rolled down her window and asked the officers what the problem was "[t]hey told her that they smelled marijuana, that was their cause," at trial he denied making the statement, testifying "I never -- I didn't say that to you" (T154). He agreed that he described himself at the time of his deposition as five feet, six inches tall, 225 pounds and muscular. Claimant had difficulty estimating the distance between the passenger side of the Velez-Phillips vehicle and the guardrail. He first estimated the distance between the vehicle and the guardrail as one to two inches, and subsequently up to four inches. In any event, it was claimant's testimony that the vehicle was close enough to the guardrail that it required him to squeeze through the passenger-side door with difficulty. Claimant agreed that the first prong which stuck him following deployment of the Taser had minimal affect. He remained standing until the second prong struck and he was tackled by Officer Kittrell. Claimant reviewed Exhibit C and denied that he possessed the blue pouch and various drugs depicted therein. Claimant acknowledged that he has three prior felony convictions and 19 prior misdemeanor convictions. He has also pled guilty to a charge of resisting arrest on two separate occasions. His prior convictions include attempted criminal sale of controlled substance, unlawful possession of marijuana, criminal possession of a weapon, assault, criminal contempt and aggravated harassment.
In addition, after reviewing a page of the transcript of his examination before trial testimony, claimant conceded that he was convicted of obstructing governmental administration in 2006. He denied possessing a blue pouch on the night in question or that he disobeyed direct commands from Officer Kittrell, including the trooper's direction that he exit the vehicle. He again described the point at which he was struck by the Taser stating "I climbed over the front where the bumper was. As I climbed over the front, that's when he shot me" (T180).
On redirect examination claimant stated that he "was standing right by the guardrail in front of the car" at the time Officer Kittrell deployed his Taser (T189). He also testified that he was not charged with possession of marijuana or any other drug as a result of this incident. Other than his visit to an emergency room in Kingston, New York, claimant received no other treatment for any injuries resulting from contact with the Taser prongs. According to the claimant, the areas where the prongs contacted his body were swollen and painful for "about a couple weeks" (T190).
At the conclusion of claimant's direct case, the defendant moved to dismiss for failure to establish the defendant's liability by a preponderance of the credible evidence. The Court reserved on the motion.
The defendant called New York State Trooper Philip Shappy as a witness. Trooper Shappy testified that he oversees the Taser/conducted electrical weapon training program at the New York State Police Academy. He is also a senior defensive tactics instructor at the academy.
Trooper Shappy testified that he assisted in establishing the training regime by which New York State Police Officers are initially certified, and thereafter recertified, in the use and deployment of a Taser. As described by the witness, he trains individuals as Taser instructors who then return to their assigned areas and train individual officers in the field. In addition to his other responsibilities, he participated in the creation and subsequent revision of New York State Police policies regarding use and deployment of a Taser or conducted electrical weapon. As a result, he is familiar with article 31D of the New York State Police Training Manual which sets forth State Police policy regarding the use of conducted electrical weapon systems.
The witness identified the term "General 90" as referring to a Division of State Police use-of-force form detailing instances in which a conducted electrical weapon is deployed. Once the form is completed by the trooper who deployed the weapon, the form is circulated through the internal affairs section to the witness who reviews them for "statistical purposes" (T209). Trooper Shappy testified that he has reviewed the facts of this case as well as the General 90 form completed by Trooper Kittrell following deployment of his Taser on September 16, 2015. Based upon his review of depositions, the General 90 form and the provisions of article 31D, he stated his opinion that the use of force by Trooper Kittrell was consistent with State Police policies and reasonable under the circumstances presented.
Division of State Police policy regarding use of a Taser (article 31D) establishes two baseline justifications for use of a conducted electrical weapon, active resistance by a subject "and the other being a known crime at that time by the [o]fficer" (T213). In this regard, he stated that Trooper Kittrell's observation of movement within the passenger compartment of the Velez-Phillips vehicle created a potentially elevated threat, for example the possibility of a weapon. The claimant's aggressiveness and non-compliance as described by Trooper Kittrell also created "the potential for an immediate threat of safety" (T218). He explained that New York State police training with regard to conducted electrical weapons recognizes numerous factors which contribute to the determination that deployment of a weapon is appropriate. These factors include immediacy of the threat, a subject who is running or is actively resisting, the subject's size and weight and whether a known crime is taking place. He noted, in addition, Trooper Kittrell's observation that the claimant held something in his hand while running away. According to the witness, the possibility that the item in claimant's hand might be a weapon justified deployment of the Taser. Based upon his experience and training, Trooper Shappy testified that Trooper Kittrell was justified in deploying his Taser to subdue the claimant under New York State Police policies and procedures governing the use of such weapons.
On cross-examination the witness testified that the maximum range of Tasers used by the New York State Police is 25 feet. While most individuals who come in contact with the Taser prongs fall to the ground, that is not always the case. In the event the subject is not incapacitated following use of a Taser, it may be necessary for an officer to utilize additional physical force to subdue him. Such an act would constitute the use of force which would have to be justified by the officer. There is no maximum time period during which an individual can be actively tased; rather, the length of time electrical impulses are administered is dependent upon the particular facts and circumstances of each encounter. He explained that squeezing and releasing the trigger delivers a single five-second cycle. As was the case in the instant matter in which Trooper Kittrell administered a seven-second cycle, the normal five-second cycle may be extended by holding the trigger. According to the witness, the determination whether to extend a particular cycle is left to the discretion of the trooper on the scene and his judgment as to whether additional application of force is necessary to subdue and apprehend a particular subject. The witness testified "[i]t's a determination of the trooper on-scene, whether he needs to extend the cycle to assist himself in taking in the person that he is dealing with" (T241). State Police policies require that following deployment of a Taser a sergeant must be notified. The sergeant is then required to conduct an administrative investigation of the incident.
The defendant renewed its motion at the conclusion of trial. The Court reserved on the motion.
The Court will first address claimant's cause of action alleging a constitutional tort based upon a violation of the search and seizure clause of the New York State Constitution (Art 1, § 12) (claim number 129244). It is now well settled that "[I]n light of the heightened dangers faced by investigating police officers during traffic stops, a police officer may, as a precautionary measure and without particularized suspicion, direct the occupants of a lawfully stopped vehicle to step out of the car" (People v Garcia, 20 NY3d 317, 321 [2012]; see also People v Robinson, 74 NY2d 773 [1989], cert denied 493 US 966 [1989]; People v Martin, 156 AD3d 956 [3d Dept 2017], lv denied 31 NY3d 985 [2018]). A search of the person or vehicle is not permitted, however, every time a police officer stops a motorist for an ordinary traffic infraction (People v Solivan, 156 AD3d 1434, 1436 [4th Dept 2017]). A motorist stopped for a violation of the Vehicle and Traffic Law may be subjected to a warrantless search only where "there are reasonable grounds for suspecting that the officer is in danger or there is probable cause for believing that the offender is guilty of a crime rather than merely a simple traffic infraction" (People v Marsh, 20 NY2d 98, 101 [1967]; see also People v Howell, 49 NY2d 778 [1980]; People v Adams, 32 NY2d 451 [1973]; People v Coleman, 24 NY2d 1005 [1969]; People v Del Vecchio, 277 AD2d 927 [4th Dept 2000]). The legality of a warrantless search and seizure depends, therefore, upon the existence of probable cause or the applicability of exigent circumstances (People v Jimenez, 22 NY3d 717 [2014]; People v Torres, 74 NY2d 224 [1989]; People v Blasich, 73 NY2d 673 [1989]; People v Belton, 55 NY2d 49 [1982], rearg denied 56 NY2d 646 [1982]; People v Kreichman, 37 NY2d 693 [1975]; People v Cantor, 36 NY2d 106 [1975]; People v Brown, 28 NY2d 282 [1971]). Probable cause exists where the police have "information sufficient to support a reasonable belief that an offense has been or is being committed or that evidence of a crime may be found in a certain place" (People v Bigelow, 66 NY2d 417, 423 [1985]). Stated otherwise, "[p]robable 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], rearg denied 61 NY2d 670 [1983]). Exigent circumstances include the need to secure the safety of the public and the arresting officer or the protection of evidence from destruction or concealment (People v Jiminez, 22 NY3d at 722; People v Gokey, 60 NY2d 309, 312 [1983]). Where a motorist is lawfully stopped for a traffic infraction, and an officer smells the odor of marijuana emanating from the vehicle, probable cause exists for a search of the vehicle and its occupants so long as the officer is qualified by training or experience to recognize its distinctive odor (People v Chestnut, 43 AD2d 260 [3d Dept 1974], affd 36 NY2d 971 [1975]; People v Kaid, 163 AD3d 1151 [3d Dept 2018], lv denied 32 NY3d 1005 [2018]; People v Dolan, 165 AD3d 1499 [3d Dept 2018]; People v Clanton, 151 AD3d 1576 [4th Dept 2017]; People v Acevedo, 118 AD3d 1103 [3d Dept 2014], lv denied 26 NY3d 925 [2015]; People v Mack, 114 AD3d 1282 [4th Dept 2014], lv denied 22 NY3d 1200 [2014]; Matter of Darnell U., 108 AD3d 774 [2d Dept 2013]; People v Cuffie, 109 AD3d 1200 [4th Dept 2013], lv denied 22 NY3d 1087 [2014]; People v Valette, 88 AD3d 461 [1st Dept 2011], lv denied 18 NY3d 887 [2012]; People v Horge, 80 AD3d 1074 [3d Dept 2011]; People v Ventura-Almonte, 78 AD3d 524 [1st Dept 2010]; People v George, 78 AD3d 728 [2d Dept 2010], lv denied 16 NY3d 859 [2011]; People v Black, 59 AD3d 1050 [4th Dept 2009], lv denied 12 NY3d 851 [2009]; People v Badger, 52 AD3d 231 [1st Dept 2008], lv denied 10 NY3d 955 [2008]; People v Pierre, 8 AD3d 904 [3d Dept 2004], lv denied 3 NY3d 710 [2004]).
Article One, Section 12 of the New York State Constitution protects against "unreasonable searches and seizures" (U.S. Const, art IV; NY Const art I § 12). By Decision and Order dated November 29, 2016, the Court found that a cause of action alleging a constitutional tort based upon a violation of the search and seizure clause of the New York State Constitution was proper inasmuch as no alternative remedy was available to ensure realization of claimant's constitutional right to be free from an unreasonable search and seizure (citing Martinez v City of Schenectady, 97 NY2d 78 [2001]; Brown v State of New York, 89 NY2d 172, 188-189 [1996]). --------
Claimant does not question the legality of the initial stop of the vehicle in which he was riding. Once the vehicle was stopped, Officer Kittrell's request for claimant to step out of the car did not constitute a violation of the search and seizure clause of the New York State Constitution. No particularized suspicion is necessary before making such a request and claimant's initial refusal to exit the vehicle was improper (People v Garcia, 20 NY3d at 321). Moreover, the state troopers were permitted to search the claimant as the odor of marijuana emanating from the vehicle provided the requisite probable cause to do so.
Separate and apart from the odor of marijuana claimant's conduct, described by Officer Kittrell as loud and intimidating, together with his repeated refusals to exit the vehicle, provided probable cause for his arrest for obstructing governmental operations in the second degree in violation of Penal Law § 195.05. The Incident Report written by Officer Kittrell states that while he was interviewing the driver, "the passenger ROBERT L. HICKS . . . became very loud and belligerent and interfered with the investigation" (Exhibit G, last page). "A person is guilty of obstructing governmental administration when he intentionally obstructs, impairs or perverts the administration of law or other governmental function or prevents or attempts to prevent a public servant from performing an official function, by means of intimidation, physical force or interference . . ." (Penal Law 195.05). The Incident Report and Officer Kittrell's testimony, which the Court finds credible, provide reasonable cause to believe that claimant attempted to prevent a public servant from performing an official function (see People v Baltes, 75 AD3d 656 [3d Dept 2010], lv denied 15 NY3d 918 [2010]). Accordingly, probable cause existed for claimant's arrest for obstructing governmental administration in the second degree in violation of Penal Law § 195.05. That being the case, Officer Kittrell was entitled to search the claimant not only upon detecting the odor of marijuana emanating from the vehicle, but on the additional ground that the search was incidental to his arrest for obstructing governmental administration (see generally Matter of Jamal S., 28 NY3d 92 [2016]; People v Pate, 52 AD3d 1118, 1120 [3d Dept 2008], lv denied 11 NY3d 740 [2008]; People v Griffin, 151 AD2d 1027 [4th Dept 1989], lv denied 74 NY2d 847 [1989]; People v Reese, 126 AD2d 578 [2d Dept 1987]; cf. People v Adams, 32 NY2d 451 [1973]). Such searches are warranted to ensure the safety of the officers as well as the public (People v Jimenez, 22 NY3d at 722; People v Gokey, 60 NY2d 309, 312 [1983]).
Claimant's flight from the scene in an attempt to avoid arrest or a search of his person resulted in the use of a Taser to stop him. Inasmuch as there was probable cause to search the claimant based on the odor of marijuana emanating from the vehicle, and to arrest him for obstructing governmental administration, the use of a Taser at that point was proper (cf. People v Hightower, 136 AD3d 1396 [4th Dept 2016] [absent a founded suspicion of criminality, claimant could walk away from a police officer's questions focusing on possible criminality]). In addition, claimant's conduct in fleeing the scene after repeatedly being told to stop, constitutes the crime of resisting arrest in violation of Penal Law § 205.30, even without being convicted of the underlying obstruction of governmental administration charge (cf. People v Laltoo, 22 AD3d 230 [1st Dept 2005]; cf. People v Peacock, 68 NY2d 675 [1986] [Defendant's arrest was unauthorized, and thus she did not resist arrest or engage in harassment by striking arresting officer's arm in reaction to his attempt to detain her, where officer did not have any ground to believe that defendant was committing, had committed, or was about to commit an offense]). The existence of probable cause for the search and detention of the claimant having been established, his flight from the scene gave rise to probable cause for the additional charge of resisting arrest and justified the use of physical force to prevent his escape.
While claimant's version of the events is markedly different from Officer Kittrell's, the circumstances provide no basis to disbelieve Officer Kittrell's testimony. In fact, although claimant denied running from the scene, the woman driving the car, Maria Velez-Phillips, testified at an examination before trial that when claimant was shot by the Taser, he was "[m]uch" further away from the front of the vehicle than he represented (Exhibit B, p. 19). Moreover, Ms. Velez-Phillips testified "he's guilty. None of what he's claiming is true, okay? They did not harass him. They did not assault him. He -- he's in the wrong and I just wish I wasn't put in this. He's -- this lawsuit that he's claiming is false" (Exhibit B, p. 25). Inasmuch as Officer Kittrell's testimony was persuasive, the Court fully credits his testimony. Consequently, the Court finds that the claimant failed to establish a violation of the search and seizure clause of the New York State Constitution.
Unlike an action for false arrest, which protects the personal interest of freedom from restraint of movement, "[t]he tort of malicious prosecution protects the personal interest of freedom from unjustifiable litigation" (Broughton v State of New York, 37 NY2d 451, 457 [1975], cert denied sub nom., Schanbarger v Kellogg, 423 US 929 [1975]). " 'The elements of the tort of malicious prosecution are: (1) the commencement or continuation of a criminal proceeding by the defendant against the plaintiff, (2) the termination of the proceeding in favor of the accused, (3) the absence of probable cause for the criminal proceeding and (4) actual malice' " (De Lourdes Torres v Jones, 26 NY3d 742, 760 [2016]; quoting Broughton, 37 NY2d at 457; see also Martinez v City of Schenectady, 97 NY2d 78, 84 [2001]; Fink v Shawangunk Conservancy, Inc., 15 AD3d 754 [3d Dept 2005]; Perryman v Village of Saranac Lake, 41 AD3d 1080, 1081 [3d Dept 2007]). While the claimant established the first two elements, defendant demonstrated through the testimony of Officer Kittrell the existence of probable cause for his arrest for obstructing governmental administration in the second degree and for resisting arrest. Moreover, there is no reason to believe the claimant's arrest was the product of malice (cf. Kinge v State of New York, 79 AD3d 1473 [3d Dept 2010]).
Based on the foregoing, claimant failed to establish his causes of action for constitutional tort and malicious prosecution by a preponderance of the credible evidence.
Accordingly, claim numbers 129244 and 127485 are dismissed. All motions not otherwise addressed herein are denied.
Let judgments be entered accordingly.
March 22, 2019
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims