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February 23, 1998


The opinion of the court was delivered by: SEYBERT

 SEYBERT, District Judge:

 On May 30, 1994, plaintiffs Charles Peterson and Leonard Weston had what can only be described as a less than memorable Memorial Day. Their chance visit to a local Genovese store to purchase medication for Mr. Peterson's sore gums resulted in their unfortunate misidentification and arrest as robbery suspects.

 The plaintiffs initiated this action against the police officers involved and Nassau County ("County") under 42 U.S.C. ยง 1983 and state law claims of false arrest, false imprisonment and malicious prosecution. Only the false arrest claims against the County survived the defendants' motions and were presented to the jury. After deliberating for approximately one hour, the jury returned substantial verdicts of $ 160,000 for each plaintiff as against the County.

 Presently before the Court are the defendant's post-verdict motions for judgment as a matter of law pursuant to Fed. R. Civ. P. 50(b) and for a new trial pursuant to Fed. R. Civ. P. 59. The defendant asserts the following grounds in support:

1) Under the totality of the circumstances, defendant's police officers had probable cause to arrest the plaintiffs and therefore the defendant is entitled to judgment as a matter of law.
2) Defendant's police officers are entitled to qualified immunity and the defendant is entitled to state law governmental immunity and therefore judgment as a matter of law for the defendant should be granted.
3) Plaintiffs' counsel's summation was highly prejudicial and grossly improper, warranting a new trial.
4) The jury's verdict was excessive and unsupported by the weight of the evidence.


 Plaintiffs Charles Peterson and Leonard Weston were both employed as Greyhound bus drivers. Tr. 187. *fn1" Mr. Weston, a Nassau County resident, drove a round trip route from New York to Baltimore, Maryland. Tr. 138. Mr. Peterson, a Virginia resident at the time of the incident, drove a triangular route from Washington, D.C., to Cleveland, Ohio, then on to New York and back to Washington. Tr. 186. The two men met in the summer of 1990, and their friendship developed thereafter. Tr. 187. When Peterson was in New York, he would periodically contact and get together with Weston. Tr. 187. On the particular day in question, Peterson arrived in New York at 7:00 A.M., after driving in from Cleveland. Tr. 189. He was not scheduled to depart to Washington until 9:00 P.M., and he arranged with Weston to join Weston and Weston's family for a cookout. Tr. 190. Peterson took the Long Island Railroad to the Mineola station where he was met by Weston. Tr. 191. Peterson was bothered by sore gums and after Weston stopped at a florist, they proceeded in Weston's black Eagle Tallon to the Genovese store located at the intersection of Hillside Avenue and Herricks Road in Williston Park. Tr. 192-93. They entered the store at approximately 11:00 A.M. and it is from this point forward that the witnesses' descriptions of their actions begin to vary.

 Lucia Viegas, a vigilant, security conscious store manager was supervising five employees at the Genovese store that morning. Tr. 329. Posted in three locations within the store and accessible only to store employees were police composite drawings -- wanted posters -- distributed by the corporate headquarters. Tr. 331. During the year leading up to this incident, three Genovese stores were robbed. Tr. 333. An employee of a neighboring Genovese reported spotting in his store one of the individuals wanted for robbery as depicted in the police composite drawing. Tr. 333. Ms. Viegas made sure that all the employees working for her were familiar with the composites and were trained in the store security procedures, in the event of a robbery, or the presence of a suspected robber. Tr. 333. Additionally, the store is equipped with surveillance cameras throughout, feeding six separate monitors, and a silent alarm that can be activated in two different ways. Tr. 334-35. On the date in question, Ms. Viegas was in the manager's booth in the front of the store and she observed Mr. Peterson and Mr. Weston in the cosmetics aisle. Tr. 335. She proceeded toward that aisle to offer assistance and as she approached she noticed their resemblance to the composite drawings. Tr. 336. She walked past them and then returned to glance at them again. Tr. 336. From her vantage, she was able to directly observe them for at least 30 seconds. Tr. 349. Returning to the manager's booth she took a second look at the composites and feeling confident that the plaintiffs were the individuals depicted, Viegas signaled an employee to activate the silent alarm. Tr. 338, 349. Ms. Viegas again walked past the two plaintiffs and confirmed her identification, this time observing the two men looking at the overhead surveillance cameras. Tr. 342. Additionally, Ms. Viegas noticed a small red vehicle parked directly in front of the store doors, matching the color and size of the car described in the composite. Tr. 340-41. At that juncture, she called 911 directly and reported that the men holding up Genovese drugstores could be in the store and that they matched the composites. Tr. 341-42. Immediately thereafter, the police arrived and she personally informed the first officer that the two men in the store matched the composites. Tr. 343. Ms. Viegas then observed the bigger man run from the front of the store towards the rear. Tr. 343. While Ms. Viegas was taking these actions, the plaintiffs were apparently oblivious to it all.



 Mr. Peterson was suffering from sore gums and was looking for an employee to direct him to the proper location of the appropriate medication. Tr. 194. Peterson carried a variety of curatives to the pharmacy section in search of an educated recommendation. Tr. 194. After the counterperson suggested two products, Peterson sought out Mr. Weston. Tr. 196. Weston was at the check out counter and Peterson joined him. Tr. 197. As Peterson was paying for his items at the cash register, a police officer approached and told him to just stand still. Tr. 198.

 Mr. Peterson recalled the officer patting down his clothes immediately after he was stopped, and inquiring as to whether he was with Weston. Tr. 199. The officer asked him to sit down at a picnic table on display in the store, and requested identification. Tr. 200. Peterson produced his Virginia driver's license and his Greyhound photo identification and the officer asked him what he was doing in Nassau County. Tr. 201, 202. After he explained his visit, he was not asked any other questions while at the store. Tr. 203. He was informed by the officer that he was being taken to the precinct for questioning, but was not told why, and handcuffs were applied. Tr. 204, 213.

 When the police escorted Peterson and Weston out of the store, a crowd had gathered and started clapping and screaming -- "Give them the chair." Tr. 212. He was brought to the precinct where he was placed inside a cell for approximately five to ten minutes before being brought upstairs for questioning. Tr. 206, 214. During questioning, he was told why he was being investigated and was shown the police composite sketch. Tr. 206. Afterward, he was brought into a separate room for further questioning by different detectives, and was handcuffed to a chair where he remained for the duration of his detention. Tr. 216, 219, 220. Additionally, the police took a instant Polaroid photograph of Mr. Peterson. Tr. 217. Approximately 20 minutes before he was released, the handcuffs were removed. Tr. 221. When the plaintiffs were released, Weston's car was at the precinct and it was obvious to Peterson that his bag had been opened and the contents gone through. Tr. 224. After the ordeal, Peterson was unable to drive back to Washington, D.C., and was not paid for the scheduled evening's trip. Tr. 226.


 Meanwhile, Mr. Weston's account of his action's is equally innocuous. Mr. Weston testified that he was browsing the aisles and that he picked up some Gardenia bath gel and some paper plates. Tr. 145. Spotting his favorite stain remover, Spray and Wash, he gathered two bottles and proceeded to the cashier. Tr. 145. While his purchases were being tallied, Weston realized that the Spray and Wash was on sale. Tr. 150. He scampered back to the aisle to buy an additional bottle. Tr. 150. As he began to return to the register, he was stopped by a police officer. Tr. 151.

 The officer motioned for him to put his hands up, and then patted him down. Tr. 151, 152. He was then handcuffed. Tr. 153. He was asked for identification and he told the officer that his wallet and keys were in the console of his car. Tr. 155. The officer took his keys out of his pocket and went outside the store with another officer. Tr. 155. When the police escorted him from the Genovese store, there was a large group of people gathered for the Memorial Day Parade, and they were shouting at them. Tr. 157, 163. In the police vehicle, Weston asked why he was being arrested, and he was shown the wanted poster. Tr. 158. At the precinct, he was taken upstairs and handcuffed to a railing. Tr. 167. He was questioned by a detective and a Polaroid photograph was taken, Tr. 169, Weston asked for the photograph, Tr. 171, but it was never returned up until the time of trial. Tr. 171. When he was released, his vehicle had apparently been searched. Tr. 175.



 Officer Gary Ruggiero testified that he responded to Genovese based on a radio call of a possible robbery in progress. Tr. 254. When he arrived, he initially instructed people outside the store not to enter. Tr. 255. Ruggiero entered the store and proceeded to the manager's booth, located at the front door. Tr. 255. He directly observed people in the store and via the video monitor prior to the manager joining him in the booth. Tr. 255. The manager then instructed him that one of the subjects was in the front of the store, pointing out Mr. Weston on line, and the other was in the back. Tr. 256. He asked Ms. Viegas whether she saw any weapons on the suspects and she indicated no. Tr. 257. Officer Ruggiero also testified that Ms. Viegas informed him that the suspects resembled the police composites, Tr. 257, however, this testimony was inconsistent with and not included in Ruggiero's deposition testimony. Tr. 259. As another officer entered the foyer, Mr. Weston abruptly left the checkout line and went towards the back of the store. Tr. 260, 293. Ruggiero signaled the other officer to enter the store and informed him that the two suspects were in the store toward the rear, and Ruggiero set out to find Mr. Weston. Tr. 265, 293. When Ruggiero spotted Weston, the plaintiff had items in his hand and had turned back in the direction of the cash register. Tr. 266. At that time, Ruggiero directed Weston to stand still, and he frisked him. Tr. 267. Subsequently, he asked Weston for identification and a bus driver's identification and driver's license was produced. Tr. 271. Officer Ruggiero further testified that a copy of the wanted poster was never produced while he was in the store, Tr. 273, however, he believed that Weston resembled one of the suspects in the composite drawing. Tr. 295. At the direction of Sergeant Schoepp, Ruggiero placed Mr. Weston in handcuffs, Tr. 282, and transported and escorted him to the Third Precinct, Tr. 285. Ruggiero handcuffed Weston to the wall in the precinct to await questioning by detectives. Tr. 286. Officer Ruggiero was aware that Mr. Weston's vehicle was searched by other police officers. Tr. 286.


 Officer Steven Markakis testified that when he arrived at Genovese, Officer Ruggiero was already in the store and had signaled to him to stay in the vestibule. Tr. 77. When Markakis was motioned into the store, Ruggiero informed him that there were two robbery suspects in the store. Tr. 79. Officer Markakis walked up and down the aisles in search of the suspects, and spotted Peterson who looked like one of the individuals in the wanted poster and as described in the radio transmission he heard while responding to the store. Tr. 120, 121, 127. He then approached Charles Peterson who was on line waiting to pay for merchandise. Tr. 81. At that time Markakis asked him to step away from the register and effectively placed him in custody. Tr. 81, 82. Markakis patted-down Peterson, but did not find any weapons. Tr. 121. At the time, Peterson was wearing a black leather hat. Tr. 122. Mr. Peterson was held at the Genovese for approximately 15 to 20 minutes, Tr. 98, and during that time Officer Markakis never saw or asked to see a copy of the wanted poster. Tr. 130. At the direction of Sergeant Schoepp, Markakis and another officer escorted Peterson in handcuffs to the Third Precinct, a distance of approximately half a mile. Tr. 123. Peterson was logged in at the precinct at 11:40 A.M. and was taken to the detective's squad room, where he was seated and handcuffed to the chair. Tr. 125, 127.


 In addition to the defendant's motions for judgment as a matter of law and for a new trial, the Court will review the size of the jury award for excessiveness. Although the defendant did not formally move for remittitur, one of the grounds asserted by the defendant in support of a new trial was that the jury verdict was excessive and unsupported by the weight of the evidence. A court may, sua sponte, offer a remittitur as an alternative to a new trial. See Bender v. City of New York, 78 F.3d 787, 795 (2d Cir. 1996); Williams v. City of New York, 1989 U.S. Dist. LEXIS 7553, 81-C V-7505, 1989 WL 76208 at *1 (S.D.N.Y. July 6, 1989).

 A trial court's review of the size of the jury verdict is not antithetical to the Seventh Amendment's proscriptive language that "no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law." U.S. Const. amend. VII. See Gasperini v. Center for Humanities, Inc., 518 U.S. 415, 116 S. Ct. 2211, 2222, 135 L. Ed. 2d 659 (1996). "'The trial judge in the federal system has . . . discretion to grant a new trial if the verdict appears to [the judge] to be against the weight of the evidence.'" Id. (citing Byrd v. Blue Ridge Rural Elec. Cooperative, Inc., 356 U.S. 525, 540, 78 S. Ct. 893, 902, 2 L. Ed. 2d 953 (1958)). Additionally, "this discretion includes overturning verdicts for excessiveness and ordering a new trial without qualification, or conditioned on the verdict winner's refusal to agree to a reduction (remittitur)." Id.


 Federal Rule of Civil Procedure 50(a) permits a party to move for judgment as a matter of law prior to the submission of the case to the jury and requires that such a motion "specify the judgment sought and the law and the facts on which the moving party is entitled to judgment." Rule 50(b) provides that if the Court does not grant the 50(a) motion, the case is deemed submitted to the jury subject to the Court's later deciding the legal questions raised by the motion and permits renewal of the request for judgment by motion within ten days after the entry of judgment. Thus, the post-judgment Rule 50 motion is merely a renewal of the motion made prior to the submission of the case to the jury, and therefore, is limited to the grounds raised by the losing party in that motion. Lambert v. Genesee Hospital, 10 F.3d 46, 53-54 (2d Cir. 1993).

 At the conclusion of all the evidence, the defendant made a motion for judgment as a matter of law on the issue of probable cause, Tr. 381, and therefore, that issue is properly before the Court. The defendant, however, did not raise qualified immunity, nor governmental immunity, when he proffered the Rule 50 motion. As will be discussed infra, qualified immunity does not lie when federal claims are not present, and governmental immunity is inapplicable in police arrest situations, accordingly, this procedural infirmity is inconsequential.

 A judgment as a matter of law is "reserved for those rare occasions when there is 'such complete absence of evidence supporting the verdict that the jury's finding could only have been the result of sheer surmise and conjecture' or the evidence must be so overwhelming that reasonable and fair minded persons could only have reached the opposite result." King v. Macri, 800 F. Supp. 1157, 1160 (S.D.N.Y. 1992)(quoting Sorlucco v. New York City Police Dep't, 971 F.2d 864, 871 (2d Cir. 1992)). The court must view the evidence most favorably to the nonmovant, and then only if one conclusion as to the verdict could have been reached by reasonable persons, in favor of the movant, should the court grant judgment as a matter of law. See, Weldy v. Piedmont Airlines, Inc., 985 F.2d 57, 59-60 (2d Cir. 1993). The court should not substitute its own factual assessment of the evidence for the jury's, rather, it should decide whether reasonable persons could not draw the same conclusion as the jury.


 The right to be free from arrest or prosecution in the absence of probable cause is a long established constitutional right. See Golino v. City of New Haven, 950 F.2d 864, 870 (2d Cir. 1991). Under New York law, a plaintiff claiming false arrest must show: (1) the defendants intended to confine the plaintiff; (2) the plaintiff was conscious of the confinement and did not consent to it; and (3) the confinement was not otherwise privileged. Lowth v. Town of Cheektowaga, 82 F.3d 563, 569 (2d Cir. 1996) (citing Broughton v. State, 37 N.Y.2d 451, 456, 373 N.Y.S.2d 87, 93, 335 N.E.2d 310, cert. denied, 423 U.S. 929, 96 S. Ct. 277 (1975)).

 The existence of probable cause gives an officer the privilege to arrest and "is a complete defense to an action for false arrest." Bernard v. United States, 25 F.3d 98, 102 (2d Cir. 1994). "Whenever there has been an arrest and imprisonment without a warrant, the officer has acted extrajudicially and the presumption arises that such an ...

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