United States District Court, W.D. New York
June 8, 2005.
MARY RIZZO, Individually and as Parent and Natural Guardian of Michaela Christine Rizzo and Noah Matthew Rizzo, Plaintiff,
EDISON INC., CHARTER SCHOOL OF SCIENCE AND TECHNOLOGY, JOSEPH ACCONGIO, Individually and in his capacity as Principal of the Charter School of Science and Technology, CITY OF ROCHESTER, NEW YORK, and ROCHESTER POLICE OFFICER CORIDDI, AND KNOWN OR UNKNOWN OFFICERS, AND OTHER SUPERVISORY PERSONNEL OF THE ROCHESTER POLICE DEPARTMENT, Defendants.
The opinion of the court was delivered by: MICHAEL TELESCA, Senior District Judge
By motion dated March 24, 2005, plaintiff Mary Rizzo,
("Rizzo"), moves for reconsideration of this court's Decision and
Order dated March 10, 2005 dismissing her Complaint. Familiarity
with that Decision and Order is presumed. Rizzo contends that
this court overlooked facts that, had they been properly
considered, would have altered this court's determination that
plaintiff is not entitled to relief for her claims of negligence,
false imprisonment, malicious prosecution, intentional infliction
of emotional distress, libel, violation of her civil rights, and
false arrest. Specifically, plaintiff objects to this court's
finding that her arrest was supported by probable cause, and
contends that the evidence supports her contention that there was no probable
cause to arrest her on charges of making a threatening phone call
to the school where she was formerly employed. Defendants oppose
Plaintiff contends in her motion for reconsideration that this court
overlooked evidence that secretary Rochelle Alston ("Alston"), who received
the threatening phone call, admitted at plaintiff's trial that she was not
completely sure that the voice of the caller belonged to Rizzo. Plaintiff
alleges that Alston's testimony vitiates any finding of probable cause,
because without a clear identification of Rizzo as the caller, there was no
basis to suspect her or arrest her on charges of making the threatening
For the reasons that follow, I deny plaintiff's motion for
reconsideration. First, this court did consider Alston's trial
testimony in determining whether or not there was probable cause
to arrest Rizzo. Even assuming arguendo that Alston testified
that she could not recognize the caller's voice, the evidence
demonstrates that on the day the call was made, Alston informed
officer Frank Coriddi ("Coriddi") that she received a threatening
phone call, and that she recognized the voice of the caller as
that of Mary Rizzo. This court's determination that probable
cause existed for the arrest was based largely in part on the
fact that Alston informed Coriddi that she received a threatening
phone call and that she recognized the voice as that of Mary Rizzo. Plaintiff has
provided no evidence, either testimonial or documentary, that Alston did not
make such a representation to Coriddi. Plaintiff can point to no portion of
Alston's trial testimony indicating that Alston did not inform Coriddi that
she recognized Rizzo's voice, and plaintiff declined to depose Alston on
that issue or any other subject. Moreover, Alston submitted a sworn
declaration affirming that at on the day the call came in, she informed
Coriddi that she received the call, and that she believed the call was made
by Rizzo based on Alston's recognition of her voice.
Because the determination of whether or not probable cause to
arrest is made on the basis of information known by the officer
at the time of the arrest, the fact that Alston may have
equivocated on the stand during trial does not vitiate the
evidence that at the time of the arrest, Alston told officer
Coriddi that she recognized the caller's voice as that of Mary
Rizzo. See Ricciuti v. N.Y.C. Transit Authority,
124 F.3d 123, 128 (2nd Cir. 1997) (in determining whether or not probable
cause to arrest exists, courts consider "the facts available to
the officer at the time of the arrest.") (emphasis mine); L.B.
v. Town of Chester, 232 F.Supp.2d 227,233 (S.D.N.Y. 2002) ("In
determining whether an arrest is valid, a court considers the
information available to the officer at the time of the arrest. . . .
Whether a suspect was acquitted later of the charges for
which he or she was arrested is irrelevant to the determination of probable cause.") (citing Michigan v.
DeFillippo, 443 U.S. 31, 36 (1979)). Additionally, there is no
evidence that Alston provided this information to Coriddi in bad
faith. Accordingly, as I held in my previous decision and Order,
the information available to Officer Coriddi at the time of the
arrest supported a finding of probable cause. Absent evidence
that Alston lied to Coriddi, or somehow acted in bad faith,
Alston's trial testimony has no bearing on the finding of
probable cause. For these reasons, plaintiff's motion for
reconsideration is denied.
ALL OF THE ABOVE IS SO ORDERED.
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