Opinion
# 2011-030-020 Claim No. 112891
08-31-2011
JEFFREY STERNISHA v. THE STATE OF NEW YORK
Synopsis
Malicious prosecution claim dismissed after bifurcated trial. Claimant did not establish lack of probable cause or actual malice. Case information
UID: 2011-030-020 Claimant(s): JEFFREY STERNISHA Claimant short name: STERNISHA Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 112891 Motion number(s): Cross-motion number(s): Judge: THOMAS H. SCUCCIMARRA Claimant's attorney: DANIEL F. LYNCH, ESQ. HON. ERIC T. SCHNEIDERMAN ATTORNEY GENERAL OF THE STATE OF NEW YORK Defendant's attorney: BY: DIAN KERR McCULLOUGH ASSISTANT ATTORNEY GENERAL Third-party defendant's attorney: Signature date: August 31, 2011 City: White Plains Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Jeffrey Sternisha alleges that the State of New York is liable for malicious prosecution and negligent hiring, training and supervision based on an incident commencing at approximately 9:30 a.m. on July 20, 2005 when New York State Trooper Shawn Finn wrongfully charged Mr. Sternisha with obstructing governmental administration and disorderly conduct, placed handcuffs on him in too tight a fashion, left him handcuffed in the police vehicle for several hours, transported him to New York State Police Barracks in Tarrytown, New York where he remained from approximately 1:00 p.m. to 4:30 p.m., and where he was given appearance tickets directing his appearance in Yonkers City Court in September, 2005. Thereafter, Mr. Sternisha appeared in court as directed at least six (6) times, until charges were dismissed on May 10, 2006.
Mr. Sternisha testified that on the morning of July 20, 2005 he was driving from the Dunkirk, New York office of his employer, Stericycle Inc., "[t]he world's largest medical waste company", to his ultimate destination in the Bronx. [T-24].He had left his own home in upstate New York at approximately midnight. Regulations prohibit tandem tractor trailers such as the one operated by Mr. Sternisha that day, which pull two, forty-eight foot trailers and are 118 feet long, to enter New York City. Accordingly, Mr. Sternisha was required to stop at restricted tandem lots operated by the New York State Thruway Authority to leave the second trailer behind. The Yonkers tandem lot off the southbound New York State Thruway, between the toll booths and Exit 6, was the last of such lots before the New York City border. [See Exhibit A]. His practice over the 16 years he had been making the trip of approximately 450 miles one way, three times per week, had been to stop at the Yonkers lot "release [the] second trailer and dolly," leave the second trailer in the lot while he would go to his employer's waste collection station in the Bronx, load up the empty trailer with the collected waste, return to the Yonkers tandem lot to drop off the now filled trailer, and, after dropping the first trailer off in the tandem lot, repeat the trip to the Bronx to fill the second trailer.
All quotations are to the trial transcript unless otherwise indicated.
When Mr. Sternisha arrived at the Yonkers lot that morning, having left his employer's office in Dunkirk, New York at 1:00 a.m., he observed orange highway safety cones lined up out to the edge of the highway fog line, preventing him from pulling his tandem truck all the way in and off the highway to the parking lot area. He claimed that both of his trailers were in the road. He saw a State trooper in the process of inspecting a truck, and indicated to the trooper by "pointing", that he "wanted to go get in off the road." [T-47]. Thereafter, Mr. Sternisha "pulled up" turned his "four ways on, set [his] parking brake, and . . . exited the cab . . . pick[ing] up two cones." [Ibid.]. Mr. Sternisha said that the trooper then came "around the corner of the truck and said, drop those f'ing cones." [Ibid.].
The trooper told Mr. Sternisha that he was not supposed to touch the cones, and that this was the trooper's "safe work area" while claimant said he "tried to explain to him that all [he] was doing was trying to move the cones so [he] could pull the truck far enough out of the road so it wouldn't be in the highway." [T-48]. He claimed Trooper Finn would neither allow him to move the cones or to move his vehicle, and they
"argued about who was supposed to be in the compound and who wasn't. As far as I know, the tandem lots are for tandems. If the Troopers are in there, they're not supposed to be blocking the entrances, and we argued about that, and then . . . he wanted my license, so I started back to the truck to get my driver's license . . . And when I started up the steps into the cab, I said, I'm going to get my license, and I'm going to call your . . . supervisor . . . Then I - - all of a sudden I was under arrest . . . He called up onto the step . . . I had my cell phone. I was reaching for my wallet, and he grabbed my arm, and I said, well, you can arrest me, but I'm going to make a phone call first, and I made the phone call, and he disappeared. I don't know where he went." [T-48-49].
He then made a phone call at 9:44 a.m. from the cell phone registered to his wife to what he thought was the "Tech Sergeant's" telephone number from the "New York State Troopers" [T-55-56], taken from a piece of paper he kept in his truck cab containing emergency numbers. [See Exhibit 7]. He spoke to someone at "the Thruway Authority in Tarrytown" for "maybe a minute", and was advised to "just do what the Trooper asks you to do." [T-56-57]. While Mr. Sternisha was making the telephone call, he said he did not know where Trooper Finn had gone. After hanging up the phone, claimant said he "exited the truck, and Finn came over and handcuffed me . . . [a]t the bottom of the steps of my tractor." [T-57]. Trooper Finn then put Mr. Sternisha in the back of the State vehicle, where he remained handcuffed in the back seat of the vehicle in the tandem compound until "probably around one o'clock." [T-59].
Mr. Sternisha was transported to the State Police Barracks in Tarrytown, where he was handcuffed to a wall, and then asked for personal information by Trooper Finn. He was given appearance tickets "printed off from a computer" for the charges of disorderly conduct and obstructing governmental administration. [T-62]. Shown a yellow, uniform traffic ticket dated July 20, 2005 charging him with Failure to Obey a Traffic Control Device, in violation of §1111-a(a) Vehicle and Traffic Law [Exhibit 3], Mr. Sternisha said he had never seen the document before the day of trial (although in later testimony he appeared to exhibit knowledge of the violation, and indeed made reference to all of the charges being disposed of, including this one). He said he remained at the State Police Barracks in Tarrytown until "around 4:30 p.m.," when he was picked up by a Stericycle employee he had telephoned and returned to the tandem lot.
The criminal information charging Mr. Sternisha with disorderly conduct, in violation of Penal Law §240.20(3), recites the provision of the statute purportedly violated, and provides as factual allegations that on July 20, 2005 at about 9:50 a.m., the "defendant did Knowingly call the complainant use obscene language and make unreasonable noise on Interstate 87 truck tandem lot which is a public place (sic.)." [Exhibit 2]. With regard to that allegation, Mr. Sternisha acknowledged that before Trooper Finn told him he was under arrest, he said to the trooper "this is bullshit" and further remarked "we either get along here and we come up with . . . a reasonable decision of what we're going to do, or [you] can continue acting like a dick." [T-69].
The criminal information charging obstruction of governmental administration in the second degree, a misdemeanor, in violation of Penal Law §195.05, recites the statute in its entirety, and provides that "defendant did after being given a lawful command by the complainant that he was under arrest did enter his vehicle and remained there in after being told to exit such vehicle and refused to be handcuffed (sic.)." [Exhibit 1]. Mr. Sternisha said he "never refused to be handcuffed" [T-67] or to be arrested, yet the initial narrative he had testified to included a description that he had pulled his arm away and gone back up into the truck cab to make the phone call to the supervisor.
After appearing approximately six times in Yonkers City Court in answer to the charges - including the alleged failure to obey a traffic device which he said "was supposed to go through Traffic Court" [T-75] - all charges were dismissed on May 10, 2006.
On cross-examination Mr. Sternisha confirmed that in addition to Trooper Finn, he saw another person who he presumed was from the New York State DOT conducting an inspection. Claimant insisted that he made eye contact with the trooper, and that he had indicated to the trooper by pointing that he wanted to pull in off the road, but acknowledged that he never said during his deposition that he had pointed meaningfully after making eye contact. [See Exhibit D]. He further acknowledged that he never specifically asked the trooper if he could move the cones, but said that was because when he got out of the cab (to remove the cones) he could not see him, nor would the trooper have been able to hear him, he assumed, had he asked verbally. He also conceded that he was aware that traffic cones designate that "you're not supposed to enter that area" [T-82], however he also insisted that he had a right to move the cones because he claimed the trooper had blocked the entrance to the tandem area. He readily acknowledged that he and the trooper had an argument "about who was supposed to be in the tandem yard and who wasn't," and that the trooper had a right to be there but only "if he's out of the way." [T-83]. Mr. Sternisha said he had moved traffic cones on previous occasions when he needed to safely get off the highway, but admitted that on those occasions nobody had been present.
With regard to presenting his license to the trooper, Mr. Sternisha said he told the trooper that the license was in the cab of the truck, went to the truck, tried to make the phone call to Trooper Finn's sergeant, and, upon exiting the cab was handcuffed. The license was still sitting in the cab.
State Trooper Shawn Finn gave a different version of the events that transpired on July 20, 2005. A twelve year employee of the New York State Police at the time of trial, he had been permanently assigned to the Commercial Vehicle Enforcement Unit and authorized to do inspections on his own starting in January 2005, after training and work in the unit under the supervision of another trooper since August 2004.
When he first arrived at the Yonkers tandem lot at approximately 7:30 a.m. the morning of July 20, 2005, he waited for his counterpart from the New York State Department of Transportation, John Havener. After Mr. Havener arrived, they set up the traffic cones in the area they planned on using for the truck inspections. He estimated that he had been in the Yonkers tandem lot once per week in the year prior to July 20, 2005, totaling "maybe 40 times, maybe 50 times." [T-104]. He said that he did not always set up the inspection area in the same way - adding that "some days we didn't set up cones" at all - but he had previously set up the inspection area the way it was set up on July 20, 2005 without complaints from drivers about entry into the tandem lot.
He said he would stand at the fog line just after the tollbooths, and wave over those trucks he wished to inspect. He said it was a fairly random process, except for those trucks displaying obvious violations that would be singled out for inspection as they came through the toll plaza. He indicated that he was effectively the supervisor for any DOT employee assigned with him to perform inspections.
Trooper Finn made a rough drawing of the layout of the lot and where the cones were placed as he recalled it, allowing for two trucks to be inspected at a time. [Exhibit B]. Three lines of cones were set out, and four lanes were created by the placement, allowing the DOT van and the State Trooper vehicle to be parked on the outer lanes, and the trucks designated for inspection to be guided through the center two lanes. The line of cones closest to his vehicle (and furthest away from the tollbooths) was longer than the other two lines of cones to guide the trucks selected for inspection into the inspection area lanes, rather than beyond.
Both Mr. Havener and Trooper Finn were inspecting trucks, when Trooper Finn noticed a white tandem truck behind the truck Mr. Havener was inspecting. He thought Mr. Havener had perhaps pulled another truck in, when he first turned and saw the claimant's truck. When he turned from speaking to the driver of the truck he had been inspecting again, however, he "saw the driver of the truck walk up to the traffic cones and take the traffic cones and started throwing them out of the way." [T-109]. Trooper Finn said
"I was standing about maybe 20 feet away. I called over to him, I said, what are you doing, said that he had to park there. I said, well, you know, you just can't throw the traffic cones out of the way, they're there for a reason. I asked him, well, what's wrong with this spot, because there was an opening closer to the - - where the light pole and phone booth, there was another spot there, and I said, well, why can't you park there, why are you coming over here and throwing the traffic cones out of the way. . . " [T-110].
Trooper Finn said that Mr. Sternisha then "said something about making a phone call, I'm calling a supervisor" to which the trooper responded "okay, that's fine . . . go back to your truck, you need to move your truck." [T-111]. Trooper Finn walked back to the truck he had been inspecting, spoke to the driver, and turned around to see that Mr. Sternisha's truck was still there. He instructed the truck driver to "go", because he did not want to "hold up the other driver" and needed to get Mr. Sternisha's truck "out of the way because it's blocking - - the inspection area." [T-111].
Returning to Mr. Sternisha's truck, Trooper Finn said that he
"asked him for all his documents, his license, registration, logbook, medical certificate. He had a phone in his hand and a piece of paper. [H]e said something about calling a supervisor, and I said, okay, that's fine, I said, but I still need your documents. Refused to give me any of the documents I asked for, wouldn't move the truck, and I kept on asking him for his documents, wouldn't give me anything." [T-111].
At this point, although he had not originally intended an inspection of the truck, Trooper Finn said that as an officer assigned to the Commercial Vehicle Enforcement Unit he essentially always inspects any truck he stops, if only to verify that the truck is properly documented. He said that claimant had already violated the Vehicle and Traffic Law by removing the traffic cones he had placed, and driving through them, so now he determined that he would assure that the truck was in compliance with the rules. The Trooper testified:
"After asking him several times for all his documents . . . he said, why are you being a dick, and I said, I'm not. I said, you are blocking my inspection area. You're refusing to move your truck. You're refusing to give me any of your documents that I've asked for, and that's what he said." [T-112-113].
After this, Trooper Finn said he went back to his patrol car and contacted "Thruway dispatch" asking them to send a supervisor to the tandem lot, "because [Mr. Sternisha] was talking about a supervisor." [T-113]. The trooper returned to claimant's vehicle, saying that claimant still had not produced any requested documents, and refused to move his truck. The trooper testified:
"I told him several times, I said, you know, you're already cursing at me, I said, you're refusing any of my commands. I said, you're going to be under arrest if you continue to refuse, and finally, I told him he was going to be under arrest, and I told him to get out of the truck, said that a couple of times. Finally got him out of the truck. I told him to put his hands behind his back, he didn't put his hands behind his back. I took his left arm, wouldn't put his left arm behind his back he refused to do that, went to go grab it, he had his cell phone in his hand. He's like, I want to put my cell phone away. I said - - told him to put his hand behind his back, so he put - - first he put his cell phone in his pocket of his shirt, and then I said, put your hand behind your back. He still didn't do that, so I grabbed his other arm and then handcuffed him . . . I placed him in the back seat of my . . . police car . . . I got back on the radio, asked if there was . . . a supervisor en route, Thruway dispatcher said there was one. I read Mr. Sternisha his Miranda Rights, and waited for a supervisor to arrive." [T-113-114].
The trooper said that when the supervisor showed up, he explained to him what had happened, again asked Mr. Sternisha for his documents, but claimant remained silent. Trooper Finn then said that he advised the Sergeant that he was going to bring Mr. Sternisha back to the State Police Barracks in Tarrytown "to find out who he was. I didn't know who he was or didn't have registration, license, I didn't have anything. So I was going to - - I was bringing him back to the station at that point." [T-116]. Before the Sergeant arrived, another trooper arrived to serve as his replacement within ten minutes.
At the Tarrytown barracks, he prepared two criminal informations, one for disorderly conduct and one for obstructing governmental administration. [Exhibits 1 and 2].
The yellow, uniform traffic ticket he issued [Exhibit 3] reflected the "failure to obey a traffic control device" namely, "the traffic cones." [T-120].
Trooper Finn acknowledged that thereafter, he did not appear in Yonkers City Court or in traffic court with regard to these charges, but explained it had been his experience that it could take as long as a year for his appearance to be requested with regard to prosecuting an information or ticket he might issue. He said that the only trial notice he finally did receive appeared in the form of a subpoena in his mail envelope at the barracks in Newburgh, New York - where he had transferred in October or November, 2005 - in May, 2006. He said he reviewed his mail folder and found an envelope from the Westchester County District Attorney's Office, containing a subpoena directing his appearance at trial a week earlier. When he spoke to the secretary in the Westchester County District Attorney's Office to find out who the Assistant District Attorney was for the case, "she didn't have any information" and could not tell him how to obtain any information. [T-121]. He said he left his name and telephone number but never heard anything.
Asked whether Mr. Sternisha's truck was sticking out onto the Thruway, Trooper Finn said that because Mr. Sternisha had claimed that it was, the trooper checked, and found that it was not protruding. Moreover, Trooper Finn said that at least one other double trailer had come through to the tandem lot before this incident occurred, and had no problem maneuvering around the cones.
In terms of the information he was seeking from Mr. Sternisha, Trooper Finn did not recall Mr. Sternisha ever telling him that his license was kept in the cab of the vehicle, and said that he only obtained information from Mr. Sternisha concerning his name, his date of birth and his address at the station, which he then utilized to issue the criminal informations and the uniform traffic ticket.
Photographs taken show the area generally, but do not show the configuration Trooper Finn had set up for the truck inspection. [See Exhibits 4, 5 and 6]. What can be seen are the tollbooths, the fog line separating the highway from a one and one-half, to two car width lane on one side of the telephone booths and light pole, and space of an uncertain but very wide dimension on the other side of the telephone booths and light pole. [Exhibit 5-A].
On cross-examination, Trooper Finn gave his understanding of how maneuverable a tandem trailer is, saying that there was an open spot immediately adjacent to the phone booths and light pole which claimant could have utilized. There were some minor discrepancies between factual allegations written in the criminal information, and the testimony at trial. For example, with regard to the obstruction of governmental administration charge, Trooper Finn acknowledged that Mr. Sternisha did not, in fact, go into the cab of his truck after being told that he was under arrest, but rather after the trooper warned him that he would be under arrest if he continued to refuse to cooperate. Trooper Finn also repeated that claimant refused to be handcuffed.
With regard to the disorderly conduct charge, Trooper Finn would not agree that the area in which the conduct occurred was not a public area within the meaning of the statute, although he acknowledged that it was restricted - at least in the tandem area. He agreed he did not include the actual expletives Mr. Sternisha utilized in the written factual allegations, and said that the "unreasonable noise" asserted in the information [Exhibit 2] was that when he asked claimant what he was doing with the traffic cones, Mr. Sternisha started yelling at him, declaring "I've got to park here, I want to park here, I'm blocking the roadway." [T- 160-161]. Asked if there was "anybody near you or next to you" the trooper said that there were other vehicles around, and people near the telephone booths. While he acknowledged there was conversation while claimant was still in the cab, he said it was not conversation per se, rather "it was more yelling . . . at me than it was a conversation . . . " [T-162].
Trooper Finn said - when asked if he believed that Mr. Sternisha's intent when he moved the cones and called the trooper a "dick" was as provided in the disorderly conduct statute - that he did not know what to think about what was intended, all he knew was that a disturbance with the potential risk for public involvement was occurring.
John Havener, a motor vehicle inspector employed by the DOT, testified concerning his recollection of the events of July 20, 2005. He recalled that although he had worked with Trooper Finn on three to four occasions, they had not worked together at the Yonkers tandem lot before. He, too, made a rough drawing of the configuration of the inspection area as they set it out, utilizing the traffic cones he kept in his own truck. [Exhibit C].
He testified that as trucks came in, the cones would be moved to allow them in the inspection area, and then replaced as they parked for inspection as designated by he and Trooper Finn. In his drawing, the inspection area for Trooper Finn is immediately adjacent to the telephones, and the tandem lot is behind the inspection area, accessed by the lane between the telephones and the fog line, that is between the inspection areas attended to by Mr. Havener (closer to the Jersey barrier) and Trooper Finn. [See Exhibit C].
While he was inspecting a truck, he noticed the claimant's tandem truck pull up and park, but continued with his inspection as "nothing transpired at that point." [T-203]. Mr. Havener observed that it was parked just south of the toll plaza, parallel to the roadway. He said that at the time Mr. Sternisha pulled in, there were spaces available in the tandem lot, indeed, when he later moved the truck at another State trooper's request, he said, "I got it into the spot, and that spot was there at the point when [Mr. Sternisha] pulled up." [T-205]. Mr. Havener did not observe anything more until he was drawn to "a scene at Trooper Finn's vehicle" namely, Mr. Sternisha being handcuffed and placed in the back seat of the police car. [T-206]. Mr. Havener said that when he parked the claimant's truck he observed that the vehicle was not in imminent danger because it was off the roadway.
Mr. Sternisha was recalled to testify in rebuttal concerning the drawings made by Trooper Finn and Mr. Havener. With regard to Trooper Finn's drawing [Exhibit B], Mr. Sternisha said that the area where the trooper placed claimant's truck between the fog line and the Jersey barrier is where the tollbooth attendants park their cars, and is only two car lengths wide - essentially a parking space designed for cars, not tandem trucks over 100 feet long. He explained that once he pulls his truck past the Jersey barrier, he must make "a sweeping right-hand turn" [T-250] approximating a 45-degree angle (not a sharp, 90-degree turn) to get the truck into the lot past the parked employee cars. On July 20, 2005 he maintained he could not make a complete turn off the highway because the cones were in the way. The way his truck is depicted in Trooper Finn's drawing, he said, is not possible. The back trailer was not within the fog line as Trooper Finn shows, and the truck could not have been pulled all the way in at the angle depicted in any event because there is not enough room. Mr. Sternisha also repeated that the cones were almost all the way to the fog line, "all the way to the road." [T-252].
With regard to Mr. Havener's drawing [Exhibit C], the depiction of the cones coming around the Jersey barrier is inaccurate, because of the employee cars parked almost all the way up to the corner of the barrier. The distance from the tollbooth to the Jersey barrier corner is about the length of his tractor, or "about 120 feet." [T-253]. The truck could not be parked parallel to the fog line as shown in Mr. Havener's drawing, again because of the Jersey barrier "com[ing] out." [T-253]. He said in order to maneuver the truck,
"it takes at least half the length for the other trailer to respond . . . [W]henever you make a turn with a set of tandems, you have to allow at least one length of trailer for . . . room to maneuver, and for me to make this maneuver, I would have had to back up, and you can't back up. You can't back that unit up like that . . . I have to go on an angle." [T-254].
No other witnesses testified.
DISCUSSION AND CONCLUSION
As an initial matter, absolutely no evidence was presented by claimant with regard to a cause of action for negligent hiring, training and supervision, thus this cause of action asserted in the claim is dismissed.
In order to establish a cause of action for malicious prosecution, the claimant must establish "(1) the commencement or continuation of a criminal proceeding by the defendant against the [claimant], (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 . . . " See Broughton v State of New York, 37 NY2d 451, 457 (1975) cert denied sub nom. Schanbarger v Kellogg, 423 US 929 (1975).
Here, what is contested by defendant with regard to the elements for establishing a cause of action for malicious prosecution is the lack of probable cause for commencing or continuing the criminal proceeding, and the proof of actual malice.
Although it is not contested, the Court finds that it was not established on this record that the criminal proceeding was terminated in favor of the accused. See Cantalino v Danner, 96 NY2d 391 (2001). The dismissal - at least as referred to during this trial - was premised upon a failure to appear by the arresting trooper. It is not established whether such dismissal - even if denominated as one "in the interests of justice" - was "consistent with innocence", within the meaning of those terms as expressed in Cantalino v Danner, supra, since no other evidence concerning the basis for dismissal was presented.
Probable cause is a complete defense to an action to recover for malicious prosecution. Rivera v City of New York, 40 AD3d 334, 337 (1st Dept 2007) lv dismissed 16 NY3d 782 (2011). Unlike a situation where a grand jury indictment further buffers the actions of police and prosecutors to create a presumption of probable cause, which may then only be "overcome by a showing 'that the conduct of the police deviated so egregiously from acceptable police activity as to demonstrate an intentional or reckless disregard for proper procedures' . . . (citations omitted)" [Haynes v City of New York, 29 AD3d 521, 523 (2d Dept 2006)], here the somewhat less daunting analysis of whether there was probable cause to arrest claimant is presented first, together with consideration of whether actual malice is shown. "Probable cause consists of such facts and circumstances as would lead a reasonably prudent person in like circumstances to believe [claimant] guilty." Colon v City of New York, 60 NY2d 78, 82 (1983). "Malice may be shown by proof that probable cause was lacking or that the conduct was reckless or grossly negligent (see Hernandez v State of New York, . . . [228 AD2d 902 (3d Dept 1996)])." Haynes v City of New York, supra.
Malice, however, is an allowable inference, but not a conclusion, even where an arrest lacks probable cause, since an officer may have genuinely believed that the way to control an escalating situation was to effectuate an arrest, even if in hindsight such arrest may be founded on something less than reasonable suspicion that a crime was being committed. Martin v City of Albany, 42 NY2d 13 (1977).
Thus in Martin v City of Albany, supra, the jury verdict in favor of one plaintiff - the wife - was supported by legally sufficient evidence, where the plaintiffs - husband and wife bystanders who offered to drive home a car operated by an intoxicated acquaintance they saw stopped by police officers on the street as they drove by - gave testimony that was mostly credited by the jury.The Court of Appeals said:
Notably, although both were acquitted of all charges, the wife alone recovered on a malicious prosecution theory, but the husband did not. The factual scenario described by the Court of Appeals provides: "The policeman at first granted permission [to drive the car home], but then suggested that they await the arrival of another officer. When this second officer, subsequently identified as Patsy J. Deso, appeared on the scene, he assertedly approached Mrs. Martin, put his finger under her nose, and demanded to know whether she was involved in the incident. Mrs. Martin said no, but before she could explain her presence at the scene, Officer Deso allegedly pushed her backwards. The officer declined a request to identify himself and, instead, remarked 'I told you to get on the sidewalk.' He twisted Mrs. Martin's hand behind her back, forced her onto the sidewalk, pushed her, and then placed her under arrest. Mr. Martin then intervened to protect his wife; he told the officer not to 'manhandle' his wife and put his hands out against the officer. Officer Deso released Mrs. Martin momentarily, grabbed the husband and placed him under arrest also. Mrs. Martin and her acquaintance were put in a paddywagon and driven to the police station. Mr. Martin was first frisked and then placed in a second police car for the trip to the station house.
The Martins were charged, by an information filed by Officer Deso, with violating section 195.05 of the Penal Law, in that they obstructed the administration of law by interfering with an arrest. Officer Deso, in his version of the incident, contended that Mrs. Martin had several times refused his request to stand on the sidewalk and that Mr. Martin had endeavored to block the arrest of his wife. The Martins were released on cash bail and arraigned the following morning. After a two-day jury trial in the Police Court of the City of Albany, the Martins were acquitted of the criminal charges." Martin v City of Albany, supra, at 15.
"While lack of probable cause to institute a criminal proceeding and proof of actual malice are independent and indispensable elements of a malicious prosecution action, the absence of probable cause does bear on the malice issue. Actual malice is seldom established by direct evidence of an ulterior motive on the part of the prosecutor . . . (citation omitted). This is particularly true where the prosecutor and the accused are strangers to each other at the time the criminal proceeding is initiated. In such cases, a finding of actual malice depends largely upon inferences to be reasonably drawn from the surrounding facts and circumstances. As put by the Restatement of Torts (§ 669), '(l)ack of probable cause for the initiation of criminal proceedings, in so far as it tends to show that the accuser did not believe in the guilt of the accused, is evidence that he did not initiate the proceedings for a proper purpose.' The circumstances 'may show so slight a basis for the defendant's belief in the guilt of the accused as to justify the jury in finding that he did not have that belief in the guilt of the accused which is necessary to justify the initiation of criminal proceedings, and, therefore, did not initiate them for their only proper purpose. On the other hand, the absence of reasonable grounds for belief in the guilt of the accused has little tendency to prove that the proceedings were initiated through ill will or personal hostility to the accused, and no tendency to prove that the purpose of their institution was to obtain a personal advantage.' (Restatement, Torts, Comment a, § 669.) In other words, probable cause to initiate a criminal proceeding may be so totally lacking as to reasonably permit an inference that the proceeding was maliciously instituted." Martin v City of Albany, supra at 17.
Upon consideration of all the evidence, including listening to the witnesses testify and observing their demeanor as they did so, while the Court credits Mr. Sternisha's testimony in part, the testimony of the arresting State Trooper where pertinent is also credited, and finds that Mr. Sternisha has not met his burden of establishing by a preponderance of the evidence a basis for the State's liability for the tort of malicious prosecution.
Under Penal Law §240.20(3) , the subsection of disorderly conduct Trooper Finn charged, a reasonably prudent person in the trooper's position could have believed in good faith that the claimant intended to cause a public inconvenience or disturbance by the yelling argument and the use of obscene language, or recklessly created a risk of such disturbance. It is a given that the "disruptive behavior proscribed by our disorderly conduct statute be of public rather than individual dimension." People v Munafo, 50 NY2d 326, 331 (1980), c.f.; People v Weaver, 16 NY3d 123 (2011). The Court of Appeals has said:
This section of the penal law violation provides: "A person is guilty of disorderly conduct when, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof: . . . 3. In a public place, he uses abusive or obscene language, or makes an obscene gesture." Penal Law §240.20 (3).
"[T]he disorderly conduct statute [is reserved] for situations that carried beyond the concern of the individual disputants to a point where they had become a potential or immediate public problem. In deciding whether an act carries public ramifications, courts are constrained to assess the nature and number of those attracted, taking into account the surrounding circumstances, including, of course, the time and the place of the episode under scrutiny . . . (citations omitted)." People v Munafo, supra, at 331.
Here, where a frustrated claimant asked why the trooper was "acting like a dick", in an admittedly heated exchange in which both parties were raising their voices, and even claimant attests to some physical gesturing and verbal posturing ("I am calling your supervisor" "I pulled my arm away to use my phone") while it might have started as a conversation not heard by anyone else, it is not difficult to see how the scenario would escalate, to the kind of public display in an area accessed by members of the public, including authorized truck drivers, or drivers of other vehicles milling about, envisioned by the disorderly conduct statute. This trooper, or a reasonably prudent person in like circumstances, could have perceived that claimant had moved beyond simply wanting to park in the spot he wanted to park in, and was making a scene to engage the attention of any other truckers who might pull in. Additionally, regardless of that specific intent, the behavior could be perceived as "recklessly creating a risk" of "public inconvenience, annoyance or alarm as provided in the statute."
Arresting the claimant, after claimant admittedly committed a violation of the Vehicle and Traffic Law by moving the traffic cones placed there by Trooper Finn, and used obscenity in clear frustration to refer to the situation and to the trooper, would reasonably assure that a public disturbance was avoided, or the risk of a public disturbance was avoided. This is similar to an attempt to keep order in a crowded courtroom, [see DePaula v State of New York, 82 AD3d 827 (2d Dept 2011)], or the situation presented to the police officer who - while passing a bar in a public street - was assailed by the defendant's shouted obscenity, which a jury could have found was uttered (along with other actions) with an intent to cause a " 'public inconvenience, annoyance or alarm' ", the requisite culpable mental state [see e.g. People v Tichenor, 89 NY2d 769, 777 (1997)], or the alternative reckless creation of the risk of such public disturbance.
"The claimant was arrested after he admittedly called a uniformed court officer a derogatory name in a crowded courtroom, and the evidence presented at trial supports the conclusion that the court officer acted in a good faith belief that arresting the claimant was necessary to preserve order and decorum in the courtroom and that the court officer did not act with actual malice or a wrong or improper motive . . . (citation omitted)." DePaula v State of New York, supra, at 827-828.
With regard to the misdemeanor charge of obstructing governmental administration in the second degree, a reasonably prudent person in Trooper Finn's position acting in good faith would have cause to believe that Mr. Sternisha was committing such crime. The elements of such charge require the "obstruction" of an officer's "official function" by "intimidation, physical force or interference, or by means of any independently unlawful act." Penal Law §195.05.Claimant indicated that he complied with the trooper's directions, but also gave testimony that he removed safety cones that he knew designated that one should not pass, entered the cab and stayed there after being warned that he would be arrested - including pulling his arm away - and then, according to Trooper Finn's testimony, resisted being handcuffed.
"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, or by means of any independently unlawful act." Penal Law §195.05.
Finally, there was probable cause to ticket claimant for moving the traffic cones in the first instance.
The Court sympathizes with Mr. Sternisha's frustration, who was on the final leg of what must have been an exhausting drive, and was accustomed to accessing the lot in a particular manner. Nonetheless, both Mr. Havener and Trooper Finn are responsible for consideration of overall safety as State officers, and were familiar with the maneuverability of tandem trucks, and had assessed the method by which they were going to perform inspections designed for the safety of all highway users, and allowed for entry into the tandem lot. The entry chosen was not the one preferred by Mr. Sternisha but, based upon the descriptions all gave which did not (ultimately) vary significantly, allowed for access.
Accordingly, claimant did not establish that the State trooper lacked probable cause, or, more significantly, acted with actual malice, where the trooper, charged with the duty of securing the safety of trucks traveling on New York State highways, and the traveling public generally, and having arranged for such inspection area, was interfered with first by removal of traffic control devices, and later by disorderly and obstructive conduct. Were there manifestations of temper exhibited by all concerned? Probably. But there were no injuries to this claimant proximately caused, when an officer performing a vital job function has probable cause to arrest, and did not act out of actual malice.
Based on the foregoing, claim number 112891 is in all respects dismissed.
Let Judgment be entered accordingly
August 31, 2011
White Plains, New York
THOMAS H. SCUCCIMARRA
Judge of the Court of Claims