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Shirley Turner Kinge v. State of New York

December 23, 2010

SHIRLEY TURNER KINGE, RESPONDENT-APPELLANT,
v.
STATE OF NEW YORK, APPELLANT-RESPONDENT.



The opinion of the court was delivered by: Peters, J.

MEMORANDUM AND ORDER

Calendar Date: October 19, 2010

Before: Mercure, J.P., Peters, Malone Jr., Stein and McCarthy, JJ.

Cross appeals from a judgment of the Court of Claims (Midey Jr., J.), entered July 24, 2009, upon a decision of the court in favor of claimant.

In the early morning hours of December 23, 1989, four members of the Harris family were shot to death in their Tompkins County home. Upon their arrival at the scene later that morning in response to an alarm that had been activated, State Police investigators discovered the bodies of the victims, which had been set on fire, and recovered several objects from the crime scene, including a metal gasoline can. Theorizing that, following the murders, the fire was set in an attempt to destroy any evidence, the can was inspected and tested in an effort to obtain fingerprints. Three days later, police received information that, within hours after the murders, attempts had been made to withdraw cash from various ATMs using bank cards belonging to the victims and credit cards in their names had been used to make purchases at various shopping malls. Based upon information provided by witnesses to the credit card transactions, police prepared composite sketches of a young adult black male and a middle-aged black woman. After receiving several calls identifying claimant as a person fitting the description, the State Police identified her as a potential suspect.

Thereafter, on February 3, 1990, Investigator David Harding advised Senior Investigators David McElligott and Herbert Karl Chandler, both of whom maintained a supervisory role over Harding, that he had found a pair of latent fingerprints on the gasoline can that matched claimant's fingerprints. Based upon this information, among other things, the police obtained a search warrant for the duplex apartments of claimant and her son. As law enforcement officials attempted to execute the warrant, claimant's son confronted them with a weapon and was killed. Upon a search of the son's apartment, a gun was found which later proved to be the murder weapon.

Claimant was taken into custody and interrogated for nearly seven hours, during which time she admitted that she had used a credit card belonging to one of the victims, but adamantly denied ever having been in their home. Claimant was ultimately indicted on numerous crimes and, following a jury trial, was convicted of burglary, arson, hindering prosecution, criminal possession of stolen property and forgery and sentenced to an aggregate term of 18 to 44 years in prison.

Shortly thereafter, Harding applied for employment with the Central Intelligence Agency. During a polygraph interview, Harding admitted that he had fabricated evidence and committed perjury during the course of a murder case, as well as other cases. This disclosure prompted the Federal Bureau of Investigation to examine fingerprint evidence in various cases in which Harding was involved. It was ultimately determined that Harding had lifted claimant's latent fingerprints during the investigation and planted them on the gasoline can and committed perjury during claimant's prosecution.*fn1 As a result, in August 1992, claimant's conviction was vacated and, upon the motion of the Tompkins County District Attorney, the indictment was dismissed.

Claimant thereafter commenced this action against defendant alleging negligence, unjust conviction and malicious prosecution. Following a nonjury trial, the Court of Claims, in a thorough and well-reasoned decision, found defendant liable for negligent supervision and malicious prosecution (20 Misc 3d 161 [2007]). After a trial on damages, claimant was awarded $250,000 in compensatory damages. These cross appeals ensued.

Defendant contends that the Court of Claims erred in finding it liable for negligent supervision and malicious prosecution. In reviewing a court's verdict following a nonjury trial, "we independently review the weight of the evidence and may grant the judgment warranted by the record, while according due deference to the trial judge's factual findings" (Martin v Fitzpatrick, 19 AD3d 954, 957 [2005]; accord Cotton v Beames, 74 AD3d 1620, 1621-1622 [2010]; Kallman v Krupnick, 67 AD3d 1093, 1094-1095 [2009], lv denied 14 NY3d 703 [2010]). First addressing claimant's cause of action for negligent supervision, such a claim "requires proof that defendant, as employer, knew or should have known of the employee's propensity for the conduct which caused the injury" (Brown v State of New York, 45 AD3d 15, 27 [2007], lv denied 9 NY3d 815 [2007] [internal quotation marks and citations omitted]; see Travis v United Health Servs. Hosps., Inc., 23 AD3d 884, 884-885 [2005]; Hahne v State of New York, 290 AD2d 858, 859 [2002]).

Here, following recovery of the gas can from the living room of the victims' home, it was immediately subject to extensive examination for possible fingerprint evidence. On December 26, 1989, three days into the investigation, Harding reported to McElligott that he was only able to locate three faint and poor quality latent fingerprints on the can. At this time, Harding also reported that these prints could not be lifted from the can because they would likely be destroyed. Throughout the next month of the investigation, McElligott continued to inquire about the fingerprints, but Harding could not provide him with any usable information. Other more sophisticated efforts to identify the prints likewise proved ineffective. A representative from Kodak was contacted to enhance and photograph the latent prints with oblique lighting, but this attempt was unsuccessful. The can was also taken to the State Automated Fingerprint Identification System for additional analysis and efforts to match the prints. Again, no usable prints could be obtained. McElligott recalled that, following these exhaustive efforts, he dismissed the can as evidence and ceased inquiring about the fingerprints because he was "beating a dead horse."

Then, on February 3, 1990 -- only after claimant had been identified as a suspect and a mere three days after Harding had gone undercover at claimant's place of employment and met with her -- Harding reported to McElligott and Chandler that he now had two sufficient quality latent fingerprints from the gas can that he was able to match to claimant's fingerprints. McElligott himself testified that his suspicions were aroused when Harding made this disclosure, particularly given his recollection that Harding had previously reported that he was only able to obtain three light, unusable fingerprints from the can. Moreover, from that point forward, the record reveals that McElligott grew increasingly uncomfortable with Harding and had ongoing concerns about the fingerprint "evidence" that had been discovered, yet exercised little, if any, oversight over his actions.

Robert Lishansky, a former State Trooper, testified that, during the course of the investigation, McElligott approached him to discuss his concerns about the legitimacy of the fingerprints that Harding had purportedly lifted from the gas can. Investigator Charles Porter similarly expressed concerns to McElligott regarding Harding's behavior, particularly his inappropriate handling of physical evidence. In this regard, immediately following a preliminary hearing at which Harding testified, McElligott confronted Harding regarding the fact that he had the fingerprint card in his pocket without an evidence tag or evidence bag. Despite this clear violation of State Police protocol with respect to the preservation of evidence, coupled with continued concerns about the legitimacy of the prints, McElligott did nothing. He neither made an official report of Harding's mishandling of the evidence nor took steps to ensure that the fingerprint evidence was properly handled and preserved from that point forward -- notwithstanding the critical importance of this evidence in the prosecution of claimant.

Additionally, prior to claimant's criminal trial, an investigator from a different State Police troop who was highly experienced in fingerprint identification had been asked to validate the prints. Although this investigator was expected to testify at claimant's trial, McElligott was informed by Lishansky that the investigator was not being called as a witness because he "d[id]n't like the prints." McElligott neither inquired as to why this investigator didn't like the prints nor otherwise pursued the matter. Telling evidence of McElligott's discomfort was revealed through the testimony of Chandler -- who had ...


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