Lewis v. Caputo

95 A.D.3d 262, 944 N.Y.S.2d 1

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 10, 2012
• Status: Published

Opinions

OPINION OF THE COURT

Renwick, J.

Defendant Caputo, an investigator for the New York City Department of Investigation (DOI), appeals from a jury verdict in favor of plaintiff in an action for false arrest. The jury found defendant liable for an unlawful arrest stemming from plaintiffs possession of a stolen laptop computer. Defendant arrested plaintiff despite plaintiffs denial that he knew that the laptop he had bought from his coemployee — who turned out to be the computer thief — was stolen, and the inability of the thief — who was also plaintiffs accuser — to remember whether he had informed plaintiff before the sale that the laptop was stolen. At the conclusion of trial, defendant moved for judgment notwithstanding the verdict or, in the alternative, to set aside the verdict on the ground that the trial court had made prejudicial comments. The principal issue in this appeal is whether the trial evidence, viewed in a light most favorable to plaintiff, established as a matter of law the affirmative defense of probable cause to arrest.

In August 1999, the New York City Administration for Children’s Services (ACS) received a donation of 124 laptop computers to be delivered to indigent high school students who intended to pursue higher education. The laptops were stored at ACS’s headquarters at 150 William Street, in Manhattan. Upon receipt of the computers, ACS immediately began to distribute them. But not fast enough. In September, ACS discovered that some of the laptops were missing. At the time, plaintiff and his accuser, Elias Polanco, were both employed by a private firm, as computer tech assistants for ACS at 150 Williams Street.

Plaintiff testified that Polanco had told him in early September that he was seeking to sell his laptop. One day, after work, plaintiff and Polanco took the subway together and exited at Polanco’s station, where plaintiff waited while Polanco went to get the laptop. Shortly thereafter, Polanco returned and handed the laptop to plaintiff, who looked at it for about 10 minutes and then brought it to his girlfriend; plaintiff had the laptop in his possession for about an hour. According to plaintiff, he was unaware at the time that ACS had received laptops or that any had been stolen. Nothing about the laptop led him to believe it was stolen or that Polanco was not its owner; it had a faulty battery, was missing a removable CD drive, and needed parts replaced.

In November, ACS notified DOI about the missing computers. Defendant Caputo (defendant), a deputy inspector general for DOI, was assigned to investigate the complaint. According to defendant, Polanco became a suspect primarily because he had access to the keys to the room where the computers were stored and because of the presence of his fingerprints on empty computer boxes in the storage room.

Defendant interviewed Polanco on January 26 and 27, 2000. During the first interview, Polanco told defendant that he had heard rumors that 16 or 17 computers were missing; defendant heard about the rumors from others, too. According to defendant, during the first interview, Polanco tried to provide an innocent explanation for the presence of his fingerprints on empty computer boxes at ACS. During the second interview, defendant concluded that Polanco had not been truthful during the first, minimizing his involvement and blaming the theft on others. Defendant testified that Polanco had described a conversation in which he told plaintiff that the laptop he had sold him was stolen; however, defendant conceded that Polanco had never said when that conversation took place. In other words, Polanco could not tell defendant whether he had told plaintiff the laptop was stolen before selling it to him.

On January 28, 2000, upon defendant’s instructions, Polanco wore a wire and conducted a conversation with plaintiff during which he tried to get plaintiff to state how much he had paid for the laptop and to admit that he knew it was stolen at the time he had taken possession of it. The transcript of the conversation between plaintiff (BL) and Polanco (EP), which was placed in evidence at trial is, in pertinent part, as follows:

“EP: You still have that computer that I sold you?

Your girlfriend has it?

“BL: Yeah.

“EP: Can you give it to me, can you get it back?

“BL: Why what happened?

“EP: Somebody told.

“BL: Somebody snitched?

“EP: Somebody snitched. You remember, you remember I told you how we got [‘Jem?

“BL: Yeah.

“EP: From upstairs, how we took them from upstairs. You remember that?

“BL: Yeah.

“EP: Somebody said something and they giving me time to, like, collect them all back.

“BL: Fucking snitches, who the fuck did that?

“EP: You think I[’]d be smiling if I knew who did

itm

“BL: But you know what, you know what. O.K., where did you get them from?

“EP: From upstairs, remember I told you I got them from upstairs.

“BL: You took them out of [unintelligible] desk, some shit? So how could they blame, how could they f. . . [sic], how can they pinpoint you? They can[‘]t pinpoint you. They have no evidence.

“EP: Cause somebody said, and they tracked it down, and they said he[’]s the one who did it ... .

“BL: Like I don[’]t want nobody, you know how nosy people is [unintelligible].

“EP: Don[’]t worry about that, we cool.

“BL: Alright, word [sic] ....

“BL: You told them that you took them?

“EP: That I took them?

“BL: Yeah.

“EP: I didn[’]t tell them nothing, they already knew everything. They . . . knew the date, the hour, everything, everything.

“BL: Get the fuck out of here, the hour, get the fuck out of here.

“EP: Who must have said something, it must have been Robert.

“BL: Huh?

“EP: Rob . . . you asked me . . . maybe Robert said something

“BL: Who? The guy that was with you [unintelligible]. Stupid motherfucker.”

Nowhere in this conversation did plaintiff state that he knew the computer was stolen before he purchased it. Indeed, defendant, who recorded this interview, admitted at trial that plaintiff did not state during the conversation that he knew before he bought the laptop that Polanco had stolen it from ACS.

In February 2000, defendant interviewed plaintiff, who said he would try to retrieve the computer. Four months later, on May 18, 2000, defendant placed plaintiff under arrest, and the New York County District Attorney charged him with criminal possession of stolen property in the fourth degree. However, more than a year later, on June 4, 2001, the District Attorney discontinued the action. In December 2002, plaintiff commenced this action seeking damages for unlawful arrest.

During his testimony, defendant stated that he was a peace officer, and that the Criminal Procedure Law (CPL) required him to obtain authority before making an arrest. When he sought to show that he had probable cause based on a conversation in which an assistant district attorney directed him to arrest defendant, the court precluded this evidence because during discovery defense counsel had prohibited plaintiff from inquiring into that conversation. In light of defendant’s inability to prove probable cause, the court initially directed a verdict against him. However, after defense counsel asked the court to take judicial notice of a peace officer’s authority to arrest as set forth in the statute in CPL 140.25 (3) (b), defendant was allowed to submit further evidence of probable cause.

In charging the jury regarding a peace officer’s statutory authority to arrest, the court summarized defendant’s view that he could not effect an arrest without obtaining actual authority, and stated that “that testimony appears to have not been true.” Defense counsel did not, at that juncture, object or move for a mistrial based on the court’s comment. It was not until the next morning that defense counsel moved for a mistrial on the ground that the court had commented prejudicially on defendant’s credibility. Although counsel stated her belief that the court did not mean it in that sense, she felt that “the bell was already rung” and that it was “very prejudicial.”

The court denied the motion for a mistrial, and counsel sought a curative instruction. The court declined to give a curative instruction. However, the court proposed to clarify that when it said “not true,” that was not a reflection on defendant’s credibility but, rather, an indication that his view was incorrect. The court ultimately gave that instruction, and no exceptions were taken.

The jury found that defendant failed to show probable cause, and awarded plaintiff $50,000 for false arrest. Defendant then moved for judgment notwithstanding the verdict on the ground that the evidence showed probable cause as a matter of law or, in the alternative, to set aside the verdict on the ground that the trial court’s “not true” comment was prejudicial. The court denied the motion.

We first address defendant’s argument that the trial court erred by denying the motion for a directed verdict on the claim of false arrest because the trial evidence established as a matter of law that there was probable cause for plaintiffs arrest. Before a court can conclude that a jury verdict is not. supported by legally sufficient evidence, it must first find that there is “simply no valid line of reasoning and permissible inferences which could possibly lead rational [people] to the conclusion reached by the jury on the basis of the evidence presented” (Cohen v Hallmark Cards, 45 NY2d 493, 499 [1978]). The evidence must be viewed in the light most favorable to the prevailing party (see Szczerbiak v Pilat, 90 NY2d 553, 556 [1997]; Dublis v Bosco, 71 AD3d 817 [2010]).

A showing of probable cause is a complete defense to an action alleging false arrest or false imprisonment (see Marrero v City of New York, 33 AD3d 556 [2006]; Strange v County of Westchester, 29 AD3d 676 [2006]; Molina v City of New York, 28 AD3d 372 [2006]). However, where, as here, an arrest is made without a warrant, it is presumed that the arrest was unlawful and defendant is required to establish the affirmative defense of probable cause (see Lynn v State of New York, 33 AD3d 673 [2006]; Wallace v City of Albany, 283 AD2d 872, 873 [2001]).

“[T]he issue of probable cause is a question of law to be decided by the court only where there is no real dispute as to the facts or the proper inferences to be drawn [therefrom]” (Wyllie v District Attorney of County of Kings, 2 AD3d 714, 718 [2003] [internal quotation marks omitted]; Orminski v Village of Lake Placid, 268 AD2d 780, 781 [2000]). Conversely, if the facts are disputed or there are varying inferences to be drawn therefrom regarding the question of probable cause, the issue is one to be determined by the jury (Parkin v Cornell Univ., 78 NY2d 523, 529 [1991], citing Veras v Truth Verification Corp., 87 AD2d 381, 384 [1982], affd 57 NY2d 947 [1982]).

In the present case, the evidence at trial gave rise to a number of factual disputes bearing on the issue of probable cause. As indicated, the basis for plaintiffs arrest was twofold: information provided by the computer thief, Polanco, and plaintiffs allegedly incriminating statements to Polanco. Initially, we note that this case presents the exception to the general rule that an accusation by an identified citizen is sufficient to provide probable cause to arrest where the witness’s credibility is not at issue. Burgio v Ince (79 AD3d 1733 [2010]) and Sital v City of New York (60 AD3d 465, 466 [2009], lv dismissed 13 NY3d 903 [2009]), illustrate this exception. In Burgio, the Fourth Department upheld the trial court’s denial of the defendant’s motion for summary judgment on the issue of probable cause because the testimony of various witnesses contradicted the version provided by the defendant of his investigation preceding the arrest, raising issues of credibility (79 AD3d at 1735).

In Sital, this Court held that the defendant failed to establish the affirmative defense of probable cause as a matter of law. Specifically, this Court held that a rational jury could have found that there was no probable cause for the plaintiff’s arrest because the accusation by an identified citizen, which was the sole basis for the arrest, was not sufficiently reliable, given the investigating officer’s doubts about the witness’s credibility (60 AD3d at 466).

Here, the information defendant obtained from his two interviews of Polanco raised doubts about the accuser’s credibility. For instance, during the first interview, Polanco tried to provide an innocent explanation for the presence of his fingerprints on empty computer boxes at ACS. During the second interview, defendant concluded that Polanco had not been truthful during the first, minimizing his involvement and blaming the thefts on others. Under these circumstances, a reasonable jury could have found that defendant did not, in good faith, believe that Polanco’s accusatory statements against plaintiff were credible, or that his belief did not rest on grounds that would induce an ordinarily prudent officer to believe he had probable cause to arrest plaintiff for knowing possession of stolen property.

Significantly, there is no evidence in the record indicating that plaintiff knew the computer was stolen when he purchased it. In fact, Polanco never stated that he revealed to plaintiff that the laptop was stolen before selling it to him. Indeed, defendant’s use of Polanco to attempt to obtain incriminating statements from plaintiff indicated defendant’s unwillingness to proceed solely on Polanco’s statements that he had sold the computer to plaintiff.

Moreover, the taped conversation between Polanco and plaintiff, as summarized above, suggests, at most, that plaintiff knew as of January 28, 2000, the date of the taped conversation, that the laptop was stolen. Nowhere in the recording did plaintiff admit that he knew it was stolen several months earlier, either in late August or early September 1999, before obtaining possession of it. Absent any direct incriminating statement on the issue, defendant, at best, could infer from the recorded conversation that plaintiff knew at some point that he had purchased stolen property. However, given the competing inferences that could have been drawn from plaintiffs conversation with Polanco, the jury could well have concluded that plaintiff learned, in the months following his purchase of the laptop, from the rumor mill at ACS, that laptops had been stolen. Apart from this inference, there was no evidence offered by defendant to show that plaintiff had knowledge that the computer was stolen at the time he purchased it.

Nor was the circumstantial evidence at trial necessarily indicative of plaintiffs knowledge that the laptop was stolen property. For instance, while the low price of the laptop — it had a market value of $2,000 and was sold to plaintiff for $400— could be understood as a circumstantial indicator that it was stolen, plaintiff had denied knowing of the thefts and had testified that Polanco told him it was his own laptop. Since it was a used computer needing replacement parts, purchased from a fellow computer tech working for the same employer, there was a rational basis for a reasonable juror to justify the price. Likewise, contrary to defendant’s contention, adopted by the dissent, the fact that the transfer of possession took place in the subway does not necessarily suggest furtiveness or that it was obviously stolen property. Indeed, since it was supposed to be Polanco’s own laptop that he was selling from his home, it would have been more difficult for him to bring it to work and transfer it to plaintiff there.

Finally, the dissent makes much of the fact that plaintiff expressed outrage that a snitch was responsible for Polanco’s getting caught. However, the dissent ignores the fact that people, law abiding citizens included, have different attitudes about snitches, and life experiences contribute to those attitudes. Indeed, it is an undeniable fact that police work with informants has a checkered histoiy in some communities. Thus, the inference to be drawn from plaintiff’s derogatory remarks toward the unknown snitch was an issue within the province of the jury, not the exclusive domain of the court, under the particular circumstances of this case.

The dissent’s attack on the majority’s position is relentless but misguided. Contrary to the dissent’s contention, the majority’s position is not “that a jury question was presented because the information on which defendant relied was theoretically consistent with the hypothesis that plaintiff did not learn that the computer in question had been stolen until after he conveyed it to someone else.” Rather, as the majority’s analysis makes clear, in determining whether the jury verdict should stand, our analysis focuses on whether the evidence adduced at trial supports a jury finding that it was not reasonable for defendant to conclude that plaintiff had committed a crime. Thus, the dissent’s assertion that the majority is “[l]aboring under a misconception of the central issue in the case” does not ring true.

On the contrary, viewing the facts in the light most favorable to plaintiff and drawing every inference in his favor (see Szczerbiak v Pilat, 90 NY2d 553, 556 [1997]), a rational jury could have found that there was no probable cause for plaintiffs arrest because the accusation from the criminal suspect, made four months before plaintiffs arrest, was not sufficiently reliable, particularly given that the investigating officer had doubts about the accuser’s credibility and the accuser did not tell defendant that he had revealed to plaintiff that the laptop was stolen before selling it to him. A rational jury could have found lack of probable cause for plaintiffs arrest because the evidence upon which defendant relied to conclude that plaintiff knew at the time of purchase that the laptop was stolen property was highly equivocal. Under the circumstances, it simply cannot be said that there is no valid line of reasoning and permissible inferences that could possibly have led rational people to the conclusion reached by the jury on the basis of the evidence presented here (Cohen v Hallmark Cards, 45 NY2d 493, 499 [1978]).

The trial court also correctly denied defendant’s motion to set aside the verdict on the ground of prejudicial comments by the court. Contrary to defendant’s contention, the court’s comment that defendant’s testimony regarding his authority as a peace officer was “not true” was directed, as defense counsel conceded at trial, not at defendant’s veracity but at the accuracy of his legal opinion; it was not prejudicial. In any event, defendant’s objection and motion for a mistrial were untimely. Moreover, the court gave an appropriate curative instruction that was not objected to and is presumed to have been followed by the jury (see Askin v City of New York, 56 AD3d 394, 395-396 [2008], lv dismissed 12 NY3d 769 [2009]).

Accordingly, the judgment of the Supreme Court, New York County (Milton A. Tingling, J.), entered May 5, 2009, after a jury trial, awarding plaintiff the principal sum of $50,000 as against defendant Joseph Caputo, and bringing up for review the order of the same court and Justice, entered June 30, 2008, which denied defendant Caputo’s motion for judgment notwithstanding the verdict, or, in the alternative, to set aside the verdict, should be affirmed, without costs.