MARRERO v. CITY OF NEW YORK (2006)

Order, Supreme Court, New York County (Faviola Soto, J.), entered on or about January 6, 2005, which, to the extent appealed from as limited by the briefs, denied defendant City of New York's motion for summary judgment dismissing plaintiffs' remaining causes of action for false arrest and unlawful imprisonment, and assault and battery, unanimously reversed, on the law, without costs, the motion granted and the complaint dismissed.   The Clerk is directed to enter judgment accordingly.

 It is settled that a plaintiff asserting a common-law claim for false arrest must demonstrate that:  the defendant intended to confine the plaintiff;  the plaintiff was conscious of the confinement;  the plaintiff did not consent to the confinement;  and the confinement was not otherwise privileged (Martinez v. City of Schenectady, 97 N.Y.2d 78, 85, 735 N.Y.S.2d 868, 761 N.E.2d 560 [2001];  Broughton v. State of New York, 37 N.Y.2d 451, 458, 373 N.Y.S.2d 87, 335 N.E.2d 310 [1975], cert. denied sub nom. Schanbarger v. Kellogg, 423 U.S. 929, 96 S.Ct. 277, 46 L.Ed.2d 257 [1975] ).   Moreover, the existence of probable cause to arrest, which is the dispositive issue herein, constitutes a complete defense to the claims of false arrest and unlawful imprisonment (Strange v. County of Westchester, 29 A.D.3d 676, 815 N.Y.S.2d 155 [2006];  Molina v. City of New York, 28 A.D.3d 372, 814 N.Y.S.2d 120 [2006] ).

 In order to establish probable cause to arrest, proof beyond a reasonable doubt is not required (People v. Steele, 23 A.D.3d 158, 159, 802 N.Y.S.2d 690 [2005], lv. denied 6 N.Y.3d 781, 811 N.Y.S.2d 348, 844 N.E.2d 803 [2006];  People v. Chatman, 22 A.D.3d 255, 802 N.Y.S.2d 122 [2005], lv. denied 6 N.Y.3d 753, 810 N.Y.S.2d 421, 843 N.E.2d 1161 [2005] ), “but merely information sufficient to support a reasonable belief that an offense has been ․ committed” (People v. Bigelow, 66 N.Y.2d 417, 423, 497 N.Y.S.2d 630, 488 N.E.2d 451 [1985];  see also People v. Dickerson, 20 A.D.3d 359, 799 N.Y.S.2d 50 [2005], lv. denied 5 N.Y.3d 852, 806 N.Y.S.2d 172, 840 N.E.2d 141 [2005] ).   Further, in determining whether a police officer had probable cause to effect an arrest, the emphasis should not be narrowly focused, but rather should consider “all of the facts and circumstances together” (People v. Bigelow, 66 N.Y.2d at 423, 497 N.Y.S.2d 630, 488 N.E.2d 451);  such a “synoptic evaluation is essential because ‘[v]iewed singly, these [facts and circumstances] may not be persuasive, yet when viewed together the puzzle may fit and probable cause found’ ” (People v. Shulman, 6 N.Y.3d 1, 26, 809 N.Y.S.2d 485, 843 N.E.2d 125 [2005], cert. denied 547 U.S. 1043, 126 S.Ct. 1623, 164 L.Ed.2d 339 [2006], quoting People v. Bigelow, 66 N.Y.2d at 423, 497 N.Y.S.2d 630, 488 N.E.2d 451).

 In this matter, the record discloses that the New York City police officers possessed probable cause to arrest plaintiffs based upon information they obtained from the National Guard Military Police that plaintiffs' passes to enter the restricted World Trade Center area were no longer valid, coupled with their observations that plaintiffs were wandering in and around the restricted area for almost two hours at a time without being engaged in any rescue activity;  that they were filling their bags with supplies intended for those engaged in rescue and recovery efforts;  and that their clothes were clean, unlike the clothing of the volunteers who were working.   Accordingly, we disagree with the finding of the motion court that some unidentified issue of fact concerning probable cause exists to preclude the dismissal of plaintiffs' claims for false arrest and unlawful imprisonment.

 Finally, with regard to plaintiffs' claim for assault and battery, since the record is devoid of any evidence that the force used to make the arrests was excessive, that claim should also be dismissed (see Akande v. City of New York, 275 A.D.2d 671, 672, 713 N.Y.S.2d 341 [2000] ).