Pennie v. State, 2022-50081

CourtNew York Court of Claims
Writing for the CourtHon. Walter Rivera, Judge of the Court of Claims.
PartiesDane Pennie, Claimant, v. The State of New York, Defendant.
Docket NumberClaim 131729,2022-50081
Decision Date13 January 2022

Dane Pennie, Claimant,

The State of New York, Defendant.

No. 2022-50081

Claim No. 131729

Court of Claims

January 13, 2022

Unpublished Opinion


For Claimant: LAW OFFICE OF STEPHEN B. KAUFMAN, P.C., By: John V. Decolator, Esq.

For Defendant: LETITIA JAMES, ATTORNEY GENERAL OF THE STATE OF NEW YORK, By: J. Gardner Ryan, Assistant Attorney General.


Hon. Walter Rivera, Judge of the Court of Claims.

The trial of this claim on liability only was heard on July 14 and 15, 2021 via video-conferencing technology. [1] The claim for false arrest and wrongful confinement arises from the seizure of drugs by State troopers from a vehicle that claimant was driving in the Town of Wallkill on July 30, 2017. The drugs were seized after the troopers stopped the vehicle for a traffic violation and then conducted a search.

Claimant testified on his own behalf from Houston, Texas. Claimant's Exhibits 1 through 5 were admitted into evidence on stipulation. Defendant presented the testimony of New York State Troopers Alfred Napolitano and Emily O'Connell. Trooper O'Connell's deposition transcript was admitted as Defendant's Exhibit C at trial in lieu of live testimony. [2] Defendant's Exhibits A and B were admitted into evidence on stipulation. Exhibits E through G were admitted into evidence at trial. The executed Virtual Trial Stipulation was admitted into evidence as Court Exhibit 1.

Claimant's Case

Claimant testified on direct examination to the following facts.

On July 30, 2017, at approximately 1:00 a.m. to 1:30 a.m., claimant borrowed a 2006 Mercury sedan from a friend to get food with another friend, Isaiah Caesar (Caesar). They were coming from the apartment where he was living in Middletown, New York. Claimant was on parole after his 2015 conviction for Criminal Possession of a Controlled Substance in the 5th Degree. As a condition of parole, he had an 8:00 p.m. curfew and was prohibited from driving unless authorized by his parole officer. Claimant, who was 23-years old at the time, had a learner's permit and had not received authorization to drive. Caesar did not have a license or a learner's permit (T:8-11, 13, 18-19). [3]

When they got into the car, claimant did not smell anything, he did not have any drugs on him and, to his knowledge, Caesar did not have any drugs and there were none in the car (T:17- 19). Two or three minutes after they left, they were pulled over. Claimant had just turned right onto State Route 211 after driving down the road leaving his housing complex. [4] Neither claimant nor Caesar had smoked anything or lit a match or lighter (T:19-21). The officer walked to the car and asked for claimant's license and registration. Claimant provided the registration and his learner's permit. The officer went to his squad car. Thereafter, he returned and told claimant to step out of the vehicle. Claimant got out and asked why he was stopped. The officer said claimant had failed to signal. The officer then asked to search claimant, who agreed. After the search, the officer asked whether there was anything illegal in the car and claimant said "no." The officer then stated, "[f]or procedure, I have to put you in handcuffs," and handcuffed claimant. The officer walked claimant to the squad car, had him sit on the hood, then returned to the car to speak with Caesar (T:22-26). The other officer got out of the squad car and stood by claimant. At no time was claimant told he was under arrest or read his rights. At no time did the first officer say he smelled anything coming from claimant's car (T:27, 31). [5]

The first officer did not ask for or receive permission to search claimant's car. To claimant's knowledge, Caesar did not give permission. The officer pulled Caesar out of the car, handcuffed him, had him step to the side and frisked him. The officer then proceeded to search the interior of the car, starting with the passenger area. Next, the officer popped open the trunk, searched inside it and went through the belongings it contained, consisting of suitcases and some garbage bags. The officer searched for five or ten minutes without indicating that he had found anything. After approximately ten additional officers arrived to help with the search, the officer screamed out that he had found something (T:31-38).

Claimant and Caesar were put into separate squad cars. Claimant was taken to the trooper barracks and placed in a holding cell while he waited to speak with an investigator, who asked about the drugs found in the car. Claimant said the drugs had to belong to the car owner. The investigator showed him pictures of people from the area. Claimant was not familiar with the people because he had just moved to the area. After being at the barracks for seven to eight hours, he was taken to Orange County Jail, then arraigned before Judge Peter Green on charges for criminal possession of marijuana and of a controlled substance. Claimant was appointed an attorney and he pled not guilty (T:39-44).

Claimant spent nine months at Orange County Jail, during which time he had several court appearances and approximately five parole hearings. He was offered a deal by the District Attorney's Office that was conditioned on becoming an informant. He declined the offer and instead he asked for a trial. After his second parole hearing, his understanding was that he would go home once the felony complaint was dismissed (T:44-55). Claimant's attorney filed a speedy trial motion and the case was dismissed in March 2018. Claimant was taken back to Orange County Jail and about two months later he had his next parole hearing. He was found guilty on the parole violation charge of violating curfew and not guilty on the remaining charges. At that point, he had to wait for Downstate Correctional Facility (Downstate) to pick him up and take him to State prison to serve time for the curfew violation. He spent about 45 days at Downstate, a maximum security prison, then completed a drug treatment program at Willard Drug Treatment Campus, and afterward was sent to Five Points Correctional Facility, also a maximum security prison (T:56-62).

On cross-examination, claimant said the owner of the car he was stopped in was named Chris. He could not provide the man's last name although when asked if it was Rubel, claimant agreed. Claimant testified that he was outside his apartment complex with Chris and others at 1:00 a.m. when he asked to borrow Chris' car to get food. He had "just met the guy" (T:88). Claimant denied having driven the car the day before to Brooklyn to get drugs and weapons, or at any other time (T:88-89). Claimant testified there was a stop sign at the intersection with State Route 211, and that he signaled and came to a full stop before turning right (T:100-101). [6] On being shown a Google Earth photograph of the intersection (Ex. F), he acknowledged there was a traffic signal there and not a stop sign. Claimant also testified, as he had on direct, that the second officer remained in the police car while he was being handcuffed by the first officer (T:109, 118-119). Caesar was not handcuffed until after the other officers arrived. The second officer, a young Caucasian female, asked claimant where he was going and he said "to get food down 211." He did not identify a specific destination, but he might have mentioned McDonald's, Wendy's or Denny's, which are along the way. He denied telling the officer they were going to Olive Garden, which is in the opposite direction (T:119-121, 123-124, 128).

Claimant acknowledged his arrest in 2015 for drug possession and failing to notify the Department of Motor Vehicles of a change of address (T:123-124). Claimant denied selling Caesar two packs of marijuana for $425. He did not know about the marijuana found in the car he was driving until later when he was informed of the charges against him (T:134). He had not been aware that a parole warrant was issued against him on August 1, 2017. He acknowledged that after the felony complaint was dismissed, the parole warrant was the only thing holding him at Orange County Jail (T:117, 146-147; Ex. B [warrant]).

Claimant finished testifying the next day, July 15, 2021, then rested his case. The State moved to dismiss the claim, arguing that it was claimant's burden to prove there was a lack of probable cause for the arrest, and that claimant failed to meet his burden because the drugs found in the vehicle provided probable cause. Claimant opposed the motion on the ground there was no probable cause for the search. Claimant argued that, based on claimant's testimony, there was nothing in the vehicle that could have provided the source for the marijuana odor that Napolitano claimed he smelled, which was the only possible justification for the search. The Court reserved decision on the motion (T:168-170).

Defendant's Case

The trial testimony of New York State Trooper Alfred D. Napolitano and the deposition testimony of Trooper Emily O'Connell (Ex. C) established the following facts.

During their training they learned how to detect the odor of fresh and burnt marijuana. On July 30, 2017, they were working the overnight shift in a marked state police patrol vehicle which Napolitano was driving. As they drove south on Scotchtown Road (Goshen Turnpike) in the Town of Wallkill, they saw a vehicle fail to come to a full stop before turning right at the red light onto State Route 211. Napolitano turned right and activated the lights with no sirens. They ran the license plate then stopped the vehicle on State Route 211 (T:171-175; Depo.:12-15). [7] After both troopers got out of the patrol vehicle, Napolitano approached the driver's side and O'Connell approached the passenger's side of the vehicle. Napolitano testified that the car's windows were open, while O'Connell recalled only the driver's window being open. Both troopers "detected" a "strong odor of...

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