Hook v. State

• Decision Date: 01 July 1958
• Parties: Peter HOOK, Claimant, v. STATE of New York.
• Court: New York County Court

Page 621

181 N.Y.S.2d 621

15 Misc.2d 672

Peter HOOK, Claimant, v. STATE of New York.

Court of Claims of New York.

July 1, 1958.

Ball & Ball, by Ira M. Ball, Utica, for claimant.

Louis J. Lefkowitz, Atty. Gen., by David C. Quinn, Asst. Atty. Gen., of counsel, for State of New York. FRED A. YOUNG, Judge.

On April 13, 1955, Peter Hook, an assistant cook employed at Utica State Hospital, called the hospital and reported that he was ill and would not be able to report for work. At approximately 4:00 p. m. the same day, Hook's wife telephoned his superior, Keith A. Wheeler, food service manager at Utica State Hospital, and informed Mr. Wheeler that Hook was not ill but had taken the day off to dispose of certain property he had stolen from the hospital. At the time she mentioned butter, sugar, coffee and canned fruit as the articles purloined. Wheeler immediately reported Mrs. Hook's telephone call to his superior, Lawrence. J. Maxwell, business officer of the hospital. Maxwell in turn reported the call to Dr. Bascom B. Young, the director of the hospital. Maxwell informed Dr. Young that it was his thought if Hook was disposing of the articles, he should investigate, whereupon Dr. Young directed Maxwell to proceed and do what he thought was right.

Thereupon, Maxwell, accompanied by Wheeler, set out to visit the Hook household at Stittville, New York. However, neither of the parties knew exactly where Hook lived. After some time elapsed, they stopped at the Marcy Tavern in Marcy, New York, to call their, wives in order to explain their delay in returning home. At that point, the hospital investigators met Trooper Leo Bartkowiak of the New York State Police and solicited his assistance. The trooper knew Hook and took both Maxwell and Wheeler to the Hook residence where they met Mrs. Hook, who admitted making the call and informed the group that Hook was disposing of the property by dumping it into Nine Mile Creek. However, she said there was a motor on a pump in the cellar which had come from the state hospital. She invited the party into her house to look around. Maxwell went into the cellar with the trooper and took the serial number of the motor. At the time, Mrs. Hook said she was having marital troubles with her husband and expressed a fear that her husband would do her bodily harm. She also mentioned canned goods, coffee and other items that Hook had allegedly taken.

Finding nothing other than the motor, the two hospital employees and the trooper left and shortly thereafter, at approximately seven o'clock, encountered Hook upon the road in his automobile. The trooper stopped him, then informed him why he was stopped and asked him if he would mind the trooper checking his car trunk. Hook agreed to the checking of his trunk, but nothing was found. Trooper Bartkowiak contacted the State Police B.C.I. for assistance and asked Hook if he would consent to get into the state car and talk to the B.C.I. men. Hook agreed and the party took off to a rendezvous point in back of Marcy State Hospital where they met Corporal Cerino and Trooper Farron of the State Police B.C.I. At this point Hook was questioned by Cerino about the property and refused to tell anything about it. Meanwhile, an unsuccessful attempt was made to check the motor's serial number by telephoning Utica State Hospital. Cerino asked Hook if he would go with Trooper Bartkowiak to the home of Justice of the Peace Link and Hook agreed. Thereupon, the B.C.I. men and the two state hospital employees went back to the Hook home where Mrs. Hook insisted that they go through the building again. She told them if they could not find any state property, she would prefer charges for assault and failure to keep the peace. Nothing was found this time but the motor and an empty peach can bearing the label of a brand used at the hospital which could have been purchased in many stores. An old paint brush with 'State of New York' stamped on it was also found in a back hall to which other persons had access.

Before the investigating party left the Hook homestead, Corporal Cerino asked Mrs. Hook if she would prefer charges against her husband for assault of failure to keep the peace, but she refused at this time, again expressing fear of her husband.

In the meantime, Hook and Trooper Bartkowiak had proceeded to Judge Link's. Hook asked to use the phone and when given permission to do so, he called his wife, said 'Thanks a lot baby' and hung up. He then made a phone call to William Ribyat, an attorney in Utica, and told Ribyat that he was under arrest. The trooper and the judge both spoke to Ribyat. The trooper told Ribyat that Hook was not under arrest and that there was no warrant issued. Ribyat asked Link if Hook was arrested and Link informed the attorney that he didn't know if Hook was under arrest, but he knew no warrant had been issued. There is some conflict with respect to this latter telephone call.

The two B.C.I. men together with Maxwell and Wheeler arrived about a half-hour later and showed the justice of the peace the paint brush. They mentioned the motor, but admitted that they did not know if it was a state motor or not. The judge refused to issue a warrant, and at approximately 10:00 p. m. Trooper Bartkowiak returned Hook to his car and left him.

Subsequently, the troopers looked in several places for the stolen material and interviewed several farmers in the vicinity named by Mrs. Hook as having been receivers of the property. Parts of Nine Mile Creek were also investigated by the hospital employees. However, nothing was turned up nor was any motor reported missing from the hospital.

The next day upon reporting to work, Hook was instructed to see Wheeler who in turn took him to Maxwell. He was then taken to Dr. Young's office where certain conversations were held with Dr. Young and a record thereof transcribed. This record was received in evidence as claimant's Exhibit 6. Thereafter, Dr. Young directed Hook to report back to duty in the kitchen. No formal charges were subsequently preferred against him and at the time of the trial he was working as an assistant cook at the hospital, nor were any criminal charges preferred against Hook for stealing state property from the hospital up to the time of the trial.

On July 8, 1955, Hook filed a claim with the Clerk of the Court of Claims and served a copy thereof upon the Attorney General. The claim alleged that he was illegally arrested on April 13, 1955, by a state trooper, together with Maxwell and Wheeler, and detained several hours.

The claimant has failed to establish by a fair preponderance of the credible evidence facts sufficient to constitute a cause of action for false arrest and imprisonment. Concededly, no warrant, based upon a larceny of articles from Utica State Hospital, was ever issued for the arrest of Peter Hook on or before April 13, 1955. No crime was committed in the presence of any of the three troopers and two hospital employees nor is there sufficient proof in the record to establish that in fact Peter Hook had committed a felony or that in fact a felony had been committed. Code of Criminal Procedure, § 177.

Hook testified that he was arrested by Trooper Bartkowiak. On the other hand, Trooper Bartkowiak testified that he did not arrest Hook, but that Hook had consented to accompany him and go along in the state car to talk to the B.C.I. Corporal Cerino testified that he asked Hook if he would go along with Trooper Bartkowiak to Justice Link's office and Hook consented. William D. Ribyat, Jr., the attorney Hook called from Judge Link's, tended to corroborate Hook with respect to the arrest. However, the source of Ribyat's knowledge was the telephone call. Furthermore, he testified from a rather questionable recollection bolstered by some scratchy notes he had made. As we indicated upon the trial, after three days of observing Peter Hook, we place little credence in what he says. On the other hand, the three troopers were witnesses worthy of belief. They were experienced policemen aware of the fact they did not have a warrant for the arrest of Peter Hook or sufficient grounds to arrest him without one. At the time of the alleged arrest, they were merely investigating an alleged theft. So that upon this basis we make the finding that Peter Hook was not arrested by any state agent on April 13, 1955, but had accompanied the state agents voluntarily. On the other hand, even if we were to believe Peter Hook and hold that he was in fact arrested by the state police at the time in question, it is our opinion that he sustained nothing more than nominal damages. As indicated supra, there was not sufficient evidence produced upon the trial to...