The opinion of the court was delivered by: Renwick, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on April 10, 2012
SUPREME COURT, APPELLATE DIVISIONFirst Judicial Department
Peter Tom,J.P. David Friedman James M. Catterson Dianne T. Renwick Sheila Abdus-Salaam, JJ. 121119/02
Defendant Joseph Caputo appeals from the judgment of the Supreme Court, New York County (Milton A. Tingling, J.), entered May 5, 2009, which, after a jury trial, awarded plaintiff the principal sum of $50,000 as against him, and bringing up for review an order, same court and Justice, entered June 30, 2008, which, denied his motion for judgment notwithstanding the verdict, or, in the alternative, to set aside the verdict.
Defendant Caputo, an investigator for the New York City Department of Investigation (DOI), appeals from a jury verdict in favor of plaintiff in an action for false arrest. The jury found defendant liable for an unlawful arrest stemming from plaintiff's possession of a stolen laptop computer. Defendant arrested plaintiff despite plaintiff's denial that he knew that the laptop he had bought from his co-employee -- who turned out to be the computer thief -- was stolen, and the inability of the thief -- who was also plaintiff's accuser -- to remember whether he had informed plaintiff before the sale that the laptop was stolen. At the conclusion of trial, defendant moved for judgment notwithstanding the verdict or, in the alternative, to set aside the verdict on the ground that the trial court had made prejudicial comments. The principal issue in this appeal is whether the trial evidence, viewed in a light most favorable to plaintiff, established as a matter of law the affirmative defense of probable cause to arrest.
In August 1999, the New York City Administration for Children's Services (ACS) received a donation of 124 laptop computers to be delivered to indigent high school students who intended to pursue higher education. The laptops were stored at ACS's headquarters at 150 William Street, in Manhattan. Upon receipt of the computers, ACS immediately began to distribute them. But not fast enough. In September, ACS discovered that some of the laptops were missing. At the time, plaintiff and his accuser, Elias Polanco, were both employed by a private firm, as computer tech assistants for ACS at 150 Williams Street.
Plaintiff testified that Polanco had told him in early September that he was seeking to sell his laptop. One day, after work, plaintiff and Polanco took the subway together and exited at Polanco's station, where plaintiff waited while Polanco went to get the laptop. Shortly thereafter, Polanco returned and handed the laptop to plaintiff, who looked at it for about 10 minutes and then brought it to his girlfriend; plaintiff had the laptop in his possession for about an hour. According to plaintiff, he was unaware at the time that ACS had received laptops or that any had been stolen. Nothing about the laptop led him to believe it was stolen or that Polanco was not its owner; it had a faulty battery, was missing a removable CD drive, and needed parts replaced.
In November, ACS notified DOI about the missing computers. Defendant Caputo (defendant), a deputy inspector general for DOI, was assigned to investigate the complaint. According to defendant, Polanco became a suspect primarily because he had access to the keys to the room where the computers were stored and because of the presence of his fingerprints on empty computer boxes in the storage room.
Defendant interviewed Polanco on January 26 and 27, 2000. During the first interview, Polanco told defendant that he had heard rumors that 16 or 17 computers were missing; defendant heard about the rumors from others, too. According to defendant, during the first interview, Polanco tried to provide an innocent explanation for the presence of his fingerprints on empty computer boxes at ACS. During the second interview, defendant concluded that Polanco had not been truthful during the first, minimizing his involvement and blaming the theft on others. Defendant testified that Polanco had described a conversation in which he told plaintiff that the laptop he had sold him was stolen; however, defendant conceded that Polanco had never said when that conversation took place. In other words, Polanco could not tell defendant whether he had told plaintiff the laptop was stolen before selling it to him.
On January 28, 2000, upon defendant's instructions, Polanco wore a wire and conducted a conversation with plaintiff during which he tried to get plaintiff to state how much he had paid for the laptop and to admit that he knew it was stolen at the time he had taken possession of it. The transcript of the conversation between plaintiff (BL) and Polanco (EP), which was placed in evidence at trial is, in pertinent part, as follows: "EP:You still have that computer that I sold you? Your girlfriend has it? BL:Yeah. EP:Can you give it to me, can you get it back? . . . BL:Why what happened? EP:Somebody told. BL:Somebody snitched? EP: Somebody snitched. You remember, you remember I told you how we got ['] them? BL: Yeah. EP:From upstairs, how we took them from upstairs. You remember that? BL:Yeah. EP:Somebody said something and they giving me time to, like, collect them all back. BL:Fucking snitches, who the fuck did that? EP:You think I[']d be smiling if I knew who did it[?] BL:But you know what, you know what. O.K., where did you get them from? EP:From upstairs, remember I told you I got them from upstairs. BL:You took them out of [unintelligible] desk, some shit? So how could they blame, how could they f... [sic], how can they pinpoint you? They can[']t pinpoint you. They have no evidence. EP:Cause somebody said, and they tracked it down, and they said he[']s the one who did it . . . BL:Like I don[']t want nobody, you know how nosy people is [unintelligible]. EP:Don[']t worry about that, we cool. BL:Alright, word [sic]. . . . BL:You told them that you took them? EP:That I took them? BL:Yeah. EP:I didn[']t tell them nothing, they already knew everything. They . . . knew the date, the hour, everything, everything. BL:Get the fuck out of here, the hour, get the fuck out of here. EP:Who must have said something, it must have been Robert. BL: Huh? EP:Rob . . . you asked me ... maybe Robert said something BL:Who? The guy that was with you [unintelligible]. Stupid motherfucker."
Nowhere in this conversation did plaintiff state that he knew the computer was stolen before he purchased it. Indeed, defendant, who recorded this interview, admitted at trial that plaintiff did not state during the conversation that he knew before he bought the laptop that Polanco had stolen it from ACS.
In February 2000, defendant interviewed plaintiff, who said he would try to retrieve the computer. Four months later, on May 18, 2000, defendant placed plaintiff under arrest, and the New York County District Attorney charged him with criminal possession of stolen property in the fourth degree. However, more than a year later, on June 4, 2001, the District Attorney discontinued the action. In December 2002, plaintiff commenced this action seeking damages for unlawful arrest.
During his testimony, defendant stated that he was a peace officer, and that the Criminal Procedure Law (CPL) required him to obtain authority before making an arrest. When he sought to show that he had probable cause based on a conversation in which an assistant district attorney directed him to arrest defendant, the court precluded this evidence because during discovery defense counsel had prohibited plaintiff from inquiring into that conversation. In light of defendant's inability to prove probable cause, the court initially directed a verdict against him. However, after defense counsel asked the court to take judicial notice of a peace officer's authority to arrest as set forth in the statute in CPL 140.25(3)(b), defendant was allowed to submit further evidence of probable cause.
In charging the jury regarding a peace officer's statutory authority to arrest, the court summarized defendant's view that he could not effect an arrest without obtaining actual authority, and stated that "that testimony appears to have not been true." Defense counsel did not, at that juncture, object or move for a mistrial based on the court's comment. It was not until the next morning that defense counsel moved for a mistrial on the ground that the court had commented prejudicially on defendant's credibility. Although counsel ...