49 N.Y.2d at 1043 Determining when police omissions are improper or egregious8 citing cases“that not all procedures that could have been followed were followed in fact . . . does not establish that the omissions were improper, much less egregious”
- Gagnon v. Vill. of Cooperstown, N.Y., 137 N.Y.S.3d 193 (N.Y. App. Div. 3d Dep't 2020).publishedTo succeed on this theory and overcome the presumption of probable cause arising from the valid arrest warrant, plaintiff has to demonstrate that the CPD's conduct deviated so egregiously from acceptable police activity as to demonstrate a…
- Maria De Lourdes Torres v. Police Officer Jones, 47 N.E.3d 747 (N.Y. 2016).publishedJust as in the false arrest context, the plaintiff in a malicious prosecution action must also establish at trial the absence of probable cause to believe that he or she committed the charged crimes, but this element operates differently i…
- Batten v. City of New York, 133 A.D.3d 803 (N.Y. App. Div. 2d Dep't 2015).publishedHowever, the presumption may be rebutted by showing that the conduct of the police “deviated so egregiously from proper police activity as to indicate intentional or reckless” disregard for proper procedures (Lee v City of Mount Vernon, 49…
- Medina v. City of New York, 102 A.D.3d 101 (N.Y. App. Div. 2012).published Here, where there was no reason for the police to doubt the complainant’s credibility, the mere possibility “that not all procedures that could have been followed were followed in fact . . . does not establish that the omissions were impro…
- Gisondi v. Town of Harrison, 528 N.E.2d 157 (N.Y. 1988).publishedWhat is required is proof that the police conduct deviated egregiously from statutory requirements or accepted practices applicable in criminal cases (Lee v City of Mount Vernon, supra, at 1043).
- Haynes v. City of New York, 29 A.D.3d 521 (N.Y. App. Div. 2d Dep't 2006).publishedThat presumption can be overcome by a showing “that the conduct of the police deviated so egregiously from acceptable police activity as to demonstrate an intentional or reckless disregard for proper procedures” (Hernandez v State of New Y…
- Carthens v. City of New York, 168 A.D.2d 408 (N.Y. App. Div. 2d Dep't 1990).publishedThat presumption may be overcome only by evidence establishing that the police conduct "deviated egregiously from statutory requirements or accepted practices applicable in criminal cases” (Gisondi v Town of Harrison, 72 NY2d 280, 285 ; se…
407 N.E.2d at 405 cited at this page1 citing case
- Scheiner v. Wallace, 955 F. Supp. 232 (S.D.N.Y. 1997).publishedVernon, 49 N.Y.2d 1041, 1043 , 429 N.Y.S.2d 557, 558 , 407 N.E.2d 404, 405 (1980).
49 N.Y.2d at 1042 cited at this page1 citing case
- Williams v. City of New York, 114 A.D.3d 852 (N.Y. App. Div. 2d Dep't 2014).published The plaintiffs further contention that the lead detective withheld the report from the grand jury and the Kings County District Attorney’s office (hereinafter the DA’s office) is purely speculative (see Strange v County of Westchester, 29…
Other citing cases
- Rivas v. Suffolk Cnty., 326 F. Supp. 2d 355 (E.D.N.Y 2004).published
- Harris v. State, 302 A.D.2d 716 (N.Y. App. Div. 3d Dep't 2003).published
- Jean-Mary v. City of New York, 234 A.D.2d 515 (N.Y. App. Div. 2d Dep't 1996).published
- Kalika v. Stern, 911 F. Supp. 594 (E.D.N.Y 1995).published
- Jerome Singleton v. City of New York, Ronald Salzer & Anthony Dellaventura, 632 F.2d 185 (2d Cir. 1980).published
v.
City of Mount Vernon
OPINION OF THE COURT
Memorandum.
The order of the Appellate Division should be affirmed, with costs. The victim’s identification of plaintiff as the robber and the Grand Jury’s indictment established probable cause for his prosecution. In the face of those two elements plaintiff must establish that the identification was the result of a conspiracy between the officials and the victim and that the indictment was the result of fraud, perjury or the suppression of evidence (see Anns., 28 ALR3d 748, 66 ALR3d 10).
The evidence presented did not make out prima facie such a[*1043] case. Not to be lost sight of is the fact that the decision to present the matter to the Grand Jury was that of the District Attorney, for whose acts the city is not responsible, and that Barbagallo, the city detective, did not testify before the Grand Jury, nor has it been shown that he withheld information in his possession from the Grand Jury.
In final analysis plaintiffs claim is that Barbagallo should have investigated further why plaintiff was in the area and to ascertain whether there were fingerprints on the gun that was retrieved near the scene. In the face of the fact that plaintiff matched the complaining witness’ description of the robber in height, weight, age and clothing, of the positive identification by the complaining witness when plaintiff was returned to the scene soon after the crime, of her identification of some of the money found in plaintiff’s possession as having been marked by her, and of the indictment of plaintiff by the Grand Jury, plaintiff was required to show that Barbagallo’s procedure deviated so egregiously from proper police activity as to indicate intentional or reckless action on his part. While the evidence suggests that not all procedures that could have been followed were followed in fact, it does not establish that the omissions were improper, much less egregious, given the positive identifications and exact description referred to above (compare Restatement 2d, Torts, § 664, subd [2], and Comment b; § 663, subd [1], par [c], and Comment h, with § 662, and Comment j).
Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur in memorandum.
Order affirmed.