Bellows v. State

• Decision Date: 30 October 1968
• Docket Number: No. 45126,45126
• Citation: 30 A.D.2d 1019,294 N.Y.S.2d 282
• Parties: Vincent J. BELLOWS, an Infant, by His Father, Vincent C. Bellows, et al., Appellants, v. STATE of New York, Respondent. Claim
• Court: New York Supreme Court — Appellate Division

Page 282

294 N.Y.S.2d 282

30 A.D.2d 1019

Vincent J. BELLOWS, an Infant, by His Father, Vincent C.

Bellows, et al., Appellants, v. STATE of New York, Respondent.

Claim No. 45126.

Supreme Court, Appellate Division, Third Department.

Oct. 30, 1968.

Rosen & Rosen, William C. Rosen, Monticello, for appellants.

Louis J. Lefkowitz, Atty. Gen., Alan W. Rubenstein, Albany, for respondent.

Before HERLIHY, J.P., and REYNOLDS, AULISI, STALEY and GABRIELLI, JJ.

STALEY, Justice.

Appeal from a judgment entered June 28, 1967, upon a decision of the Court of Claims granting a motion to dismiss the claims.

The infant claimant and his father filed claims against the State for false arrest, false imprisonment, and malicious prosecution arising out of the arrest of the infant claimant by the State Police on January 24, 1965.

On January 16, 1965, a garage in Livingston Manor, New York, was broken into and an automobile stolen. On January 23, 1965, the police arrested one Porter for the theft of the automobile. During the course of his interrogation by the police, he gave a statement implicating the infant claimant in the burglary, which statement was reduced to writing and sworn to before a notary public. Porter stated that he was with the infant claimant on the night of January 16 when the latter broke a window in the garage and climbed through the window, and was later seen driving an automobile. Porter was thereafter arraigned before Justice of the Peace Fisk at which time, in the presence of two troopers and Porter, the statement was submitted to the Justice in support of an information, which was executed by one of the troopers investigating the crime and sworn to by the informant before the Justice. The information accused the infant claimant of committing the crime of burglary in the third degree, and stated that the informant's grounds for his belief were 'the result of an investigation conducted and a signed and sworn statement by Eugene Fay Porter.' A warrant charging burglary in the third degree was thereupon issued for the infant claimant's arrest. The warrant was thereafter placed in the warrant file at State Troopers' Barracks at Ferndale, New York, and a 'File 5' teletype message was sent to all barracks, and particularly to the Buchanan Barracks by reason of the fact that the infant claimant was reportedly in the vicinity of that barracks. The teletype read in part 'arrest the subject for burglary, third degree, warrant issued.'

At 3:45 o'clock on the afternoon of January 24, 1965, the infant claimant was arrested by a State Trooper at Camp Madison-Felicia, Putnam Valley, New York, where he was employed as a cook. He was transported by the trooper to Bear Mountain Bridge where the warrant of arrest was exhibited to the claimant, and he was taken by troopers from the Ferndale Barracks to that station for finger printing and photographs. Because of a cut on his finger, he was then treated at a hospital in Liberty, New York, and then taken to the residence of Justice Fisk where he was arraigned at about 9:30 P.M. After the arraignment, he was released in the custody of his parents.

On February 13, 1965, Porter executed a second sworn statement in which he asserted that his prior statement incriminating the infant claimant was false and thereafter on February 27, 1965, the charge against the infant claimant was dismissed.

The first issue to be determined is whether the warrant for the infant claimant's arrest was properly issued. The Justice of the Peace issued the warrant after the informant appeared before him and executed the information under oath. Attached to the information was the sworn statement of Porter implicating the infant claimant, which statement contained facts that would support a charge of burglary in the third degree, and from the informant's knowledge of the infant claimant's reputation and from his investigation of the crime, he had reason to believe that the statement was true.

Before issuing a warrant of arrest, the magistrate, when a written information is laid before him of the commission of a crime, must examine on oath the informant, and may examine witnesses and take depositions...