Veras v. Truth Verification Corp.

• Citation: 451 N.Y.S.2d 761,87 A.D.2d 381
• Parties: Nelson Francisco VERAS, Plaintiff-Respondent, v. TRUTH VERIFICATION CORPORATION, Paul Reed, Inc., Mike Turnabine and Bernard Levy, Defendants, and The City of New York, Defendant-Appellant.
• Decision Date: 24 June 1982
• Court: New York Supreme Court Appellate Division

Page 761

451 N.Y.S.2d 761

87 A.D.2d 381

Nelson Francisco VERAS, Plaintiff-Respondent, v. TRUTH VERIFICATION CORPORATION, Paul Reed, Inc., Mike Turnabine and Bernard Levy, Defendants and The City of New York, Defendant-Appellant.

Supreme Court, Appellate Division First Department.

June 24, 1982.

Charles E. Dropkin, New York City, of counsel (Richard P. Swanson, New York City, with him on the brief; Frederick A. O. Schwarz, Jr., Corp. Counsel, New York City, attorney), for defendant-appellant.

Wilson G. Graves, New York City, of counsel (Lawrence M. Saiewitz, attorney), for plaintiff-respondent.

Before SULLIVAN, J. P., and MARKEWICH, BLOOM, FEIN and ASCH, JJ.

FEIN, Justice.

In this action for false imprisonment arising out of the arrest of the plaintiff on August 27, 1976 for criminal possession of merchandise allegedly stolen from his employer, defendant Paul Reed, Inc. (Reed), the jury reported a verdict in favor of plaintiff against the City of New York only, in the sum of $8,000. The City's motion for judgment notwithstanding the verdict was denied. The facts leading up to the arrest stand undisputed. Because of thefts of its merchandise, Reed, a clothing manufacturer, hired defendant Truth Verification Corp. (Truth) to investigate. Truth hired one Rafael Cosme and placed him in the employ of Reed as an undercover agent. Cosme made several reports to Truth that people working for Reed were offering for sale items of merchandise stolen from Reed and other manufacturers.

On July 10, 1976, Cosme made an undercover purchase of 11 pairs of ladies pants bearing the Reed label from plaintiff at the latter's apartment. Cosme brought the pants to a principal of Reed who examined them and the style number they bore. He checked the style number. Since none of that number had been shipped, he concluded that plaintiff had illegally possessed the pants.

Some time later, while Cosme was continuing to investigate and make purchases of stolen goods from other individuals, Jessiah Jacobson of Truth spoke to Detective Gordon McEwan of the New York City Police Department's Safe, Loft and Truck Squad, which is responsible for combatting crime in the garment district, and advised him of the investigation. After some discussion with Jacobson and another employee of Truth, McEwan spoke to Cosme and learned of the details of the private investigation including the purchase from plaintiff. Cosme also showed McEwan items he had purchased from two other employees of Reed. That evening Cosme made additional purchases from two employees of Reed at their apartments while McEwan waited outside. These two employees were arrested, and both agreed to turn state's evidence.

On August 27, after being advised by Truth that its investigation was being completed, McEwan met in Truth's office with Cosme, Jacobson and another employee of Truth. Cosme reviewed his investigation, confirmed the purchase from plaintiff and turned over 11 pairs of pants to Detective Edgar Jones. The detectives then took the pants to Reed for identification. After advising plaintiff of his rights, Jones placed him under arrest. This arrest concluded Cosme's investigation.

Plaintiff was taken to the police precinct, booked and released on his own recognizance. He was given a desk appearance ticket returnable September 13, 1976, charging him with possession of stolen property, a misdemeanor. On September 13 Cosme, Detective Jones and Bernard Levy (a principal of Reed) appeared at Criminal Court, where Cosme signed an affidavit swearing he had purchased pants from plaintiff on July 10, 1976. Levy signed an affidavit that plaintiff had no right to possess the pants at the time of that sale.

The prosecution was ready to proceed. However, the case was adjourned a total of four times and was finally dismissed on October 19, 1976 for failure to prosecute when Cosme failed to appear.

This action followed the dismissal. The trial judge dismissed the malicious prosecution aspect of plaintiff's complaint for failure of proof. He submitted the false arrest claim to the jury, after denying the City's motion for a directed verdict. The jury found for defendants Reed and its employees but returned a verdict for $8,000 against the City.

The City's motion for judgment notwithstanding the verdict, on the ground that members of the police department were justified in arresting plaintiff as a matter of law, was denied. In denying the motion, the trial judge ruled that there were questions of fact, which he did not delineate, concerning the arrest which required that the issue of probable cause or reasonable ground for suspicion be submitted to the jury.

We disagree. On the facts which are not in dispute, the police had probable cause to arrest plaintiff as a matter of law. Plaintiff points to no relevant factual dispute. However, he asserts that there is a factual issue because the police officers did not witness the commission of the crime and because of Cosme's failure to testify. He contends that the testimony by the police detectives concerning their conversations with Cosme was hearsay which should have been excluded, and that in the absence of Cosme's testimony there was no reasonable ground or probable cause for the arrest.

Whenever there has been an arrest and imprisonment without a warrant, the presumption is that such arrest and imprisonment are unlawful (Smith v. County of Nassau, 34 N.Y.2d 18, 23, 355 N.Y.S.2d 349, 311 N.E.2d 489). The defendant has the burden of proving legal justification as an affirmative defense (Broughton v. State of New York, 37 N.Y.2d 451, 373 N.Y.S.2d 87, 335 N.E.2d 310, cert. den. sub nom. Schanbarger v. Kellogg, 423 U.S. 929, 96 S.Ct. 277, 46 L.Ed.2d 257). As that case holds, justification is established by showing that the arrest was based on probable cause. In this context the terms "reasonable cause", "reasonable grounds" and "probable cause" are properly used interchangeably.

Where the facts leading up to the arrest are undisputed, the existence of probable or reasonable cause to make the arrest is for the court as a matter of law (Burns v. Erben, 40 N.Y. 463; Toenis v. Hommel, 59 A.D.2d 1000, 399 N.Y.S.2d 723; Freedman v. N. Y. Society for the Suppression of Vice, 248 App.Div. 517, 290 N.Y.S. 753, aff'd 274 N.Y. 559, 10 N.E.2d 550; Day v. Levine, 181 App.Div. 261, 168 N.Y.S. 334, aff'd 228 N.Y. 588, 127 N.E. 911). Day, supra, is on all fours with this case. There the plaintiff, an elevator operator, was arrested at the place of his employment for stealing 7 suits from his employer's clothing factory, based on information furnished to the police by a fellow employee who stated he had actually seen the plaintiff remove the clothes from the employer's premises. This court reversed a jury verdict in favor of the plaintiff and dismissed the false arrest claim, stating:

"It is the settled law applicable to this class of cases 'that where there is no dispute about the facts, the question of the existence of probable cause, or, as generally stated, the absence or want of probable cause, is a question for the court and not the jury.' " (181 App.Div. at p. 262, 168 N.Y.S. 334.)

Only when the defense of probable cause is based upon conflicting evidence, from which reasonable persons might draw different inferences, is the question for the jury (Smith v. County of Nassau, supra; Clark v. Nannery, 292 N.Y. 105, 54 N.E.2d 31).

Reasonable or probable cause varies depending upon the vagaries of each...