Opinion
8876 Index 306807/13
04-02-2019
Orville ROGERS, Plaintiff–Appellant, v. The CITY OF NEW YORK, et al., Defendants–Respondents.
Sim & Record, LLP, Bayside (Sang J. Sim of counsel), for appellant. Zachary W. Carter, Corporation Counsel, New York (Elizabeth I. Freedman of counsel), for respondents.
Sim & Record, LLP, Bayside (Sang J. Sim of counsel), for appellant.
Zachary W. Carter, Corporation Counsel, New York (Elizabeth I. Freedman of counsel), for respondents.
Friedman, J.P., Gische, Tom, Gesmer, Moulton, JJ.
Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered on or about February 14, 2018, which granted defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
The false arrest and imprisonment claims were correctly dismissed because the police had probable cause to arrest plaintiff for constructive possession of illegal drugs (see De Lourdes Torres v. Jones, 26 N.Y.3d 742, 759, 27 N.Y.S.3d 468, 47 N.E.3d 747 [2016] ; Marrero v. City of New York, 33 A.D.3d 556, 557, 824 N.Y.S.2d 228 [1st Dept. 2006] ; Weyant v. Okst, 101 F.3d 845, 852 [2d Cir.1996] ). The police entered an apartment at which plaintiff was a frequent overnight guest pursuant to a valid search warrant based on three confirmed drug buys from the apartment by a reliable informant. Plaintiff was inside the apartment at the time of the search, asleep in his pajamas. The police recovered multiple items of contraband during the search, including a glass pipe containing crack cocaine residue, which was discovered in the room in which plaintiff was sleeping, within his "lungeable" area, i.e., "next to him." In addition, the evidence showed that plaintiff was more than merely present at the apartment when the police arrived, as he had stayed there "on and off" for five or six years, for days or a week at a time, stored clothing there, and used the apartment as his official and mailing address (see Walker v. City of New York, 148 A.D.3d 469, 50 N.Y.S.3d 320 [1st Dept. 2017] ; People v. Shoga, 89 A.D.3d 1225, 1227, 933 N.Y.S.2d 126 [3d Dept. 2011], lv denied 18 N.Y.3d 886, 939 N.Y.S.2d 756, 963 N.E.2d 133 [2012] ; Lawson v. City of New York, 83 A.D.3d 609, 922 N.Y.S.2d 54 [1st Dept. 2011], lv dismissed 19 N.Y.3d 952, 950 N.Y.S.2d 99, 973 N.E.2d 197 [2012] ). The minor inconsistencies in the record regarding the precise location of the pipe within the room are immaterial. Contrary to plaintiff's contention, there is no separate "plain view" requirement for constructive possession.The malicious prosecution claim was correctly dismissed because there is no evidence in the record from which a fact-finder could reasonably infer that the probable cause at the time of plaintiff's arrest had dissipated by the time of his arraignment (see Brown v. City of New York, 60 N.Y.2d 893, 894–895, 470 N.Y.S.2d 571, 458 N.E.2d 1248 [1983] ; Thomas v. City of New York, 562 Fed. Appx. 58, 60 [2d Cir.2014] ; Lowth v. Town of Cheektowaga, 82 F.3d 563, 571 [2d Cir.1996] ). There is also no evidence of actual malice (see De Lourdes, 26 N.Y.3d at 760–61, 27 N.Y.S.3d 468, 47 N.E.3d 747 ).
The excessive force, assault, and battery claims were correctly dismissed because the act of handcuffing plaintiff in connection with the execution of a valid search warrant and pursuant to a lawful arrest was objectively reasonable (see Fowler v. City of New York, 156 A.D.3d 512, 513, 67 N.Y.S.3d 171 [1st Dept. 2017], lv dismissed 31 N.Y.3d 1042, 76 N.Y.S.3d 504, 100 N.E.3d 843 [2018] ; Harris v. City of New York, 153 A.D.3d 1333, 1335, 62 N.Y.S.3d 411 [2d Dept. 2017] ; Akande v. City of New York, 275 A.D.2d 671, 672, 713 N.Y.S.2d 341 [1st Dept. 2000] ).
In view of the foregoing, we do not the reach the issue of qualified immunity for the individual police officers.
We have considered plaintiff's remaining arguments and find them unavailing.