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Dane Pennie Claimant(s) v. The State of New York, Defendant(s) (2023)

Court of Claims of New York.

Dane Pennie Claimant(s) v. The State of New York, Defendant(s)

Claim No. 131729

Decided: March 16, 2023

Claimant's attorney: LAW OFFICE OF STEPHEN B. KAUFMAN, P.C. By: John V. Decolator, Esq. Defendant's attorney: HON. LETITIA JAMES Attorney General for the State of New York By: J. Gardner Ryan, Assistant Attorney General

After a trial on liability, by Decision filed February 9, 2022 (Pennie v State of New York, UID No. 2022-054-001 [Ct Cl, Rivera, J., Jan. 20, 2022]), the Court dismissed claimant's cause of action alleging a violation of his federal constitutional rights, based upon a lack of subject matter jurisdiction in the Court of Claims, and the Court dismissed the cause of action alleging malicious prosecution, based upon the Court's finding that claimant failed to meet his burden of proof by a preponderance of the credible evidence. As to claimant's allegations of false arrest and wrongful confinement, the Court found the State to be 100 percent liable.

A trial was held on the issue of damages based upon the Court's finding that on July 30, 2017, claimant had been falsely arrested and wrongfully confined. In that regard, the Court notes that the parties stipulated that claimant's award of damages, based upon the false arrest and wrongful confinement, shall be limited to the first 48 hours that claimant was detained (Court's Exs. 2, 3).

Claimant's proof at trial consisted solely of his of own testimony and one exhibit, which is summarized as follows. On July 30, 2017, claimant was on parole and living in an apartment in Wallkill, New York, pursuing employment opportunities through a parole program. Claimant was married and had a two-year-old daughter. Claimant's wife and daughter lived in New York City and they visited claimant on the weekends at his residence.

On July 30, 2017, claimant knew that he was violating his 8:00 p.m. to 8:00 a.m. parole curfew by leaving his apartment at approximately 1:00 a.m. to drive to get some fast food on Route 211 in Wallkill, NewYork. Claimant maintained, however, that he did not think that he would be jailed due to a violation of his parole curfew. Claimant also did not have a driver's license; he had a learner's permit.

Claimant's car was stopped by a State Trooper car that had its lights and sirens activated. Claimant was directed out of the car and was searched by the State Trooper. Additional State Troopers arrived at the scene and claimant was directed to sit on the hood of the State Trooper car while claimant's car was searched. Approximately one hour after being stopped, claimant was handcuffed and placed in the State Trooper's car and transported to the State Trooper barracks.

At the barracks, claimant was handcuffed and shackled to a bench for approximately one to two hours. He was then placed in a holding cell. According to claimant, he was not permitted to make a telephone call and was not given any food or drink for the two to three hours he remained in the holding cell waiting for the investigating officer to arrive. When the investigating officer arrived, claimant was taken to the investigator's office for questioning. After being questioned, claimant was fingerprinted and searched. Claimant described the search as a complete search of his naked body. He was then returned to the holding cell.

At approximately 7:00 a.m. to 8:00 a.m., claimant was taken from the holding cell to the Town Court in the Town of Wallkill. At the Town Court, claimant was handcuffed and his ankles were shackled. He was assigned an attorney and claimant pled not guilty. Claimant was then transported to Orange County jail and arrived there at approximately 10:00 a.m. According to claimant, he was not given anything to eat or drink prior to his arrival at the county jail.

On direct examination, claimant was asked , "How did you feel during this procedure, the arrest, being held at the barracks, being hauled in front of the judge, how did you feel during this episode?" (FTR:10:08:40).1 Claimant responded that it was "humiliating"(FTR:10:08:49). He conceded that, while he had been previously arrested a number of times, "it doesn't get easier every time" (FTR:10:09:05). Claimant further testified that it was his first parole violation and that he had never been falsely arrested. He testified that being falsely arrested made him feel "horrible" and "terrible" (FTR:10:09:16). Additionally, he could not see his family and this arrest process "was more humiliating" and different because it occurred at a time in his life when he was on track for getting his life together and he was accused of something that he had not done (FTR:10:13:05).

On cross-examination, defense counsel questioned claimant extensively about his parole records (Ex. A). Claimant conceded that his first arrest was as a youth in 2009, which resulted in a sentence of probation for second-degree robbery. Five months later, claimant was arrested for grand larceny and robbery and was placed in a Division For Youth facility where he remained until he was 18 years old. Six months later, claimant was arrested for assault and was incarcerated at Rikers Island Correctional Facility (Rikers) for 90 days. In May of 2011, claimant was arrested and convicted of attempted burglary and sentenced to one-year incarceration, which he served at Rikers. While at Rikers, claimant was arrested for criminal mischief for tampering with a fire safety sprinkler while he was in solitary confinement and he received an additional 90 days of incarceration at Rikers. After claimant was released from Rikers, he was arrested on October 18, 2012, for unauthorized use of a vehicle, grand larceny in the fourth degree, attempted criminal possession of stolen property, and possession of graffiti instruments. On December 15, 2014, claimant was found guilty and sentenced to one-year incarceration on the aforenoted charges. Claimant was released from Rikers due to time served at Rikers while awaiting trial. On October 27, 2015, claimant pled guilty to possession of more than 16 ounces of marijuana. On January 22, 2016, claimant was sentenced to a conditional discharge on the aforenoted charge and was released. Two days later, on January 24, 2016, claimant was arrested for criminal possession of a controlled substance of crack cocaine, possession of a firearm, and resisting arrest. Claimant testified that he was not in possession of a firearm and that he had been wrongly accused of that charge, which was eventually dismissed. With regard to the remaining charges, claimant was found guilty and sentenced to 11/212 to 3 years of incarceration and 11/212 years of post-release supervision. Claimant's sentence was reduced because he participated in a six-month shock program boot camp at Lakeview in Lake Erie. Claimant was released after he completed the program and was placed on parole.

Claimant's parole continued until the date of his arrest on July 30, 2017. A condition of claimant's parole was that claimant remain in his apartment at night as part of his curfew. Claimant testified on cross-examination that he knew that driving without a license and only a learner's permit was a violation of parole. However, claimant believed that a violation of his curfew or driving without a license would not result in his incarceration unless he committed a crime or multiple offenses.

Claimant maintains that when he was arrested on July 30, 2017, the State Troopers had planted the drugs in the car and that was very upsetting to him. Claimant conceded that each time that he was arrested prior to the incident in issue, he was handcuffed, fingerprinted and placed in a holding cell. Claimant testified, that while he had been through the arrest process previously, going through the process on July 30, 2017 was still upsetting to him and that it was especially upsetting because he was wrongfully accused of something that he had not done. Despite claimant's criminal history, his wife, mother and family were upset about the incident on July 30, 2017, just as they had been upset in the past about claimant's arrests and incarcerations.

On re-direct examination, claimant conceded that, when he was handcuffed and sitting on the hood of the patrol car, he was thinking that it was "not so bad" because he had been through it previously (FTR:11:12:29). However, when he was being strip searched at the State Trooper barracks he was not thinking that it was "no big deal" notwithstanding that he had been strip searched previously (FTR:11:12:14). Claimant explained that having been previously arrested, handcuffed and detained, did not make it any less upsetting to him. Claimant also testified that at the time of his arrest he was trying to change his life for the better.

The trial concluded after claimant's testimony and the parties submitted post-trial memoranda with references to damage awards.

Claimant seeks a total sum of $35,000.00 in damages based upon the first 48 hours of his detainment, which includes the circumstance of his false arrest and wrongful confinement. In support of claimant's position, claimant principally relies upon Lovitch v Lovitch, (2015 WL 1047807; unreported US Dist Ct [SDNY March 10, 2015]) and Mason v City of New York, 949 F Supp 1068 [SDNY 1996]. In Lovitch (US Dist Ct), the plaintiff was falsely arrested, subjected to the standard booking process, and released after several hours of detainment. The plaintiff did not allege that he was arrested in a public place or that he suffered from any public embarrassment. The Southern District court held that $10,000.00 was an appropriate award of damages. In Mason (949 F Supp), the Southern District found that the jury's award of $100,000 for false arrest and approximately two hours of detainment was excessive and a new trial on damages was ordered unless the plaintiff agreed to a reduced award of $10,000.00.

The State cites to Carter v State of NewYork (139 Misc 2d 423, 430 [Ct Cl 1988], affd 154 AD2d 642 [2d Dept 1989]), for the proposition that "given the variations within and between each individual's circumstances and course of imprisonment," damage awards made in other cases offer little guidance. In Carter (139 Misc 2d), claimant was awarded $200,000.00 for nearly 2 1/212 years of incarceration in a maximum security prison after being wrongly convicted of murdering his wife's foster mother and assaulting his wife. The Court of Claims noted, inter alia, that claimant "had never been arrested or involved with the law and was known in the community from being a high school basketball star" and that claimant's testimony indicated that even after his release from prison, his reputation in the community was not wholly restored (id. at 430).

The State proposes that the case at bar is most analogous to Johnson v State of New York, (155 Misc 2d 537 [Ct Cl 1992]), where the Court of Claims awarded claimant $53.00 per day for 747 days of incarceration for a total award of damages of $40,000.00. In reaching its determination of the amount of damages, the Court of Claims noted that claimant "knew before, during and after his conviction that he was guilty of something" and that "in light of his prior criminal record, numerous incarcerations, and that he was guilty of a crime this time as well," claimant's "loss of reputation, humiliation and pain were far less than a claimant with an unblemished record or an innocent mind would have suffered" (id. at 540-541). In this matter, the State argues that, a similar nominal award of damages in the amount of $53.00 per day is an appropriate measure of damages due to claimant's criminal history and that, prior to his arrest on July 30, 2017, claimant knew that he was violating the terms of his parole by leaving his apartment, without permission, after his 8:00 p.m. curfew and driving with only a learner's permit and not a driver's license.

The Court has analyzed the cases cited by the parties and notes that the awards of damages are inherently factual, based upon the evidence presented at trial, and the distinct circumstances of each case including, among other relevant factors, the claimant's reputation in the community and any prior encounters with law enforcement (see Apuzzo v Ferguson, 20 AD3d 647, 648 [3d Dept 2005][The inherently factual findings of damages is generally left to the common sense and judgment of the fact finder along with the fact finder's due regard to the evidence presented at trial, including the witness's demeanor and testimony]). It is noted that the Court of Appeals has held that damages are properly awarded for mental anguish and public humiliation stemming from an arrest (Broughton v State of New York, 37 NY2d 451, 460 [1975]). Accordingly, in reaching its determination of the appropriate amount of damages to be awarded to claimant based upon the false arrest and wrongful confinement, which the parties stipulated consisted of the first 48 hours of claimant's detainment, the Court has carefully considered the case law and the evidence presented at trial.

Upon consideration of claimant's trial testimony and observing his demeanor as he testified, the Court finds that, notwithstanding claimant's criminal history, claimant was upset and humiliated by being falsely arrested and wrongfully confined. Specifically, the Court finds that claimant was credible in his testimony that the incident was especially upsetting and humiliating to him because he had not been previously wrongly accused of a crime. Additionally, this incident occurred at a time when he was trying to change his life by actively participating in the State programs to facilitate his employment, addressing his drug addiction, and making efforts to reunite with his wife and his infant child. Accordingly, the Court finds that the evidence presented through claimant's testimony weighs against awarding claimant a nominal amount of damages of $53.00 per day, as argued by the State.

Claimant, however, did not offer any testimony as to the degree or duration to which he was upset and humiliated. Claimant did not offer any testimony as to the impact, if any, that the incident had on his functioning, his relationships, or his daily living. Nor did claimant present any independent evidence regarding the duration and impact that the incident had on him, such as testimony from another witness or records indicating that claimant underwent treatment, counseling or therapy resulting from the impact that the incident had on claimant. Additionally, aside from claimant's testimony that his family expressed that they were upset with claimant over the incident, the record is devoid of any evidence that claimant's reputation was adversely impacted by the incident. Accordingly, the Court finds that the aforenoted weighs against awarding claimant $35,000.00 in damages, as argued by claimant.

Upon the Court's careful assessment of claimant's trial testimony and his demeanor as he testified, and the Court's due consideration of the cases cited, as compared and contrasted to the particular facts and circumstances presented in the case at bar, the Court finds that an award of $6,000.00, with appropriate interest from the Court's determination of liability on February 9, 2022, to be an appropriate award of damages.

It is further ordered that, to the extent that claimant has paid a filing fee, it may be recovered pursuant to Court of Claims Act § 11-a (2).



1.   References to the audio record for the trial are preceded by "FTR."

Walter Rivera, J.

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Dane Pennie Claimant(s) v. The State of New York, Defendant(s) (2023)

Docket No: Claim No. 131729

Decided: March 16, 2023

Court: Court of Claims of New York.

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