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April 30, 2003


The opinion of the court was delivered by: David G. Larimer, United States District Judge


Plaintiff, Hiram Hernandez, Jr., commenced this action in New York State Supreme Court, Monroe County, on May 17, 2000. Defendants, the City of Rochester ("the City") and Edmond Bernabei, removed the action to this Court on June 9, 2000, pursuant to the Court's federal question jurisdiction under 28 U.S.C. § 1331. Defendants have moved for summary judgment.


On the evening of February 6, 1999, defendant Bernabei, an officer in the Rochester Police Department, was assigned to engage in covert surveillance of the intersection of Bay and Rohr Streets in Rochester for the purpose of detecting and interdicting drug activity. The area around that intersection was known to be the scene of frequent drug sales. Officer Bernabei and another officer, Sergeant Mark Beaudrault, both of whom were in uniform, were seated in an unmarked vehicle parked on Hebard Street, from which they had a clear view of the intersection.

Officer Bernabei states in an affidavit*fn1 that he saw a number of people standing and sitting in front of a grocery store at the intersection. One of those people was the plaintiff, who was standing with another man, later identified as Augustine Ocasio.

Officer Bernabei states that over a period of about twenty minutes, he observed several individuals walk up to plaintiff and Ocasio, and then walk with them around the corner to a driveway. When they reached the driveway, plaintiff and Ocasio would walk up the driveway (leaving the other individuals standing on the sidewalk), disappearing from Bernabei's view for a short time. When they reappeared at the end of the driveway, plaintiff and Ocasio would engage in what appeared to be a transaction of some sort with the person who had accompanied them, and then reposition themselves in front of the store. The officers saw several exchanges like this during that brief time frame.

Although the officers were too far away to observe precisely what was being exchanged during these encounters, Officer Bernabei states that based upon his training and experience, and his knowledge that the location was an area of frequent drug activity, he believed that plaintiff's and Ocasio's actions were consistent with the sale of drugs to individual customers.

At about 9:15 p.m., after watching another such exchange, the officers decided that plaintiff and Ocasio would be stopped. They radioed two other uniformed officers, Rene Cruz and Virgil Ross, who were in a marked police car nearby, directing them to intercept the two men.

At the same time, Bernabei and Beaudrault drove the short distance to where plaintiff and Ocasio had once again emerged from the driveway on the west side of Rohr Street. As the officers' vehicle approached the two men, plaintiff suddenly crossed to the opposite (east) side of the street, while Ocasio stayed on the west side of the street.

By this time, Officers Cruz and Ross had arrived on the scene. When all four officers had gotten out of their cars, Bernabei directed Cruz and Ross to stop plaintiff. Bernabei and Beaudrault walked over to Ocasio, who appeared to have something in his mouth. Sergeant Beaudrault instructed him to spit out whatever was in his mouth. Ocasio did so, spitting out six plastic bags containing what appeared to be, and was later determined to be, cocaine.

The officers placed Ocasio under arrest. Officer Bernabei then briefed Cruz and Ross on what they had observed, telling them "in sum and substance" that Ocasio and plaintiff "were involved in drug transactions." Bernabei Deposition Transcript*fn2 at 59. Officers Cruz and Ross then arrested plaintiff on a charge of Loitering in the First Degree, in violation of N.Y. Penal L. § 240.36.*fn3 No drugs were found on plaintiff.

Plaintiff tells a different story. He states in his affidavit (Docket #12) that on the evening in question, he had picked up his girlfriend and their children, and had taken them to his parents' house on Bay Street. Plaintiff's mother was going to babysit the children while plaintiff and his girlfriend went to the movies.

After dropping off the children and their mother in front of his parents' house, plaintiff parked his car on Rohr Street. He then saw Ocasio, whom he knew, and some other persons standing on the corner. Plaintiff walked over and began talking to Ocasio about a common friend of theirs who had been shot a day or two earlier.

As plaintiff and Ocasio talked, they began walking down the street. At some point, they turned around and began walking back, towards plaintiff's parents' house. As they did so, an unmarked police car pulled up, and Bernabei and Beaudrault got out and grabbed Ocasio. Plaintiff states that since the officers did not approach him or say anything to him, he continued walking toward his parents' house. At that point, a marked police car arrived, and the two officers in that car got out and asked plaintiff for identification. Plaintiff gave the officers his driver's license, and they told him to wait inside the police car. A short time later, the officers arrested plaintiff.

Plaintiff was taken to jail, where he remained for about seven hours before bail was posted for him. On May 17, 1999, the charges against him were dismissed, upon the motion of plaintiff's then-attorney, by Rochester City Court Judge Teresa D. Johnson. Although Judge Johnson neither issued a written decision nor stated her reasons for granting the motion to dismiss, the basis for the motion was that "[t]he allegations contained in the accusatory instrument do not support by non-hearsay allegations each and every element of the crime charged." Hernandez Aff. Ex. A, at 2. After noting that plaintiff was not found in possession of any drugs, and stating that Ocasio "apparently was not selling the drug . . ., but rather was in possession of it . . .,"*fn4 plaintiff stated in his motion to dismiss that "the fact a citizen happens to be on a street corner in the area of another individual who happens to possess cocaine does not form a probable cause or reasonable basis to charge loitering against each and every citizen who happens to be within ten to twenty feet of the individual in possession of drugs." Id. at 2-3. Plaintiff also asserted that "there [wa]s no lab report" or other evidence indicating that the substance that Ocasio possessed was in fact cocaine. Id. at 3.*fn5

As stated, plaintiff filed the complaint in this action in state court in May 2000. Although the complaint does not cite 42 U.S.C. § 1983, it does allege violations of plaintiff's rights under the Fourth, Fifth and Fourteenth Amendments to the United States Constitution. I therefore treat it as an action under § 1983, which provides a remedy for any person whose constitutional rights have been violated by anyone acting under color of state law. See Baker v. McCollan, 443 U.S. 137, 144 n. 3 (1979).

The first and second causes of action assert claims for false arrest against Officer Bernabei and the City, respectively. The third cause of action, which is brought against both defendants, asserts a malicious prosecution claim. The fourth cause of action seeks punitive damages against Bernabei on the malicious prosecution claim. Plaintiff seeks an unspecified amount of damages.


I. False Arrest Claims

To prove the elements of a false arrest claim under § 1983, plaintiff must show that: (1) defendant intended to confine plaintiff; (2) plaintiff was conscious of the confinement; (3) plaintiff did not consent to the confinement; and (4) the confinement was not otherwise privileged. Bernard v. United States, 25 F.3d 98, 102 (2d Cir. ...

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