The threshold issue in any claim of false arrest, is whether the arresting officers had probable cause to arrest the Plaintiff.  That is, a person’s confinement is otherwise “privileged” when probable cause exists to arrest him. Covington v. City of New York, 171 F.3d 117, 122 (2d Cir. 1999).  The defendant bears the burden of demonstrating that the arrest was justified based upon probable cause.  Raysor v. Port Authority of New York & New Jersey, 768 F.2d 34 (2d Cir. 1985).  To meet this burden, however, the defendant must demonstrate evidence which amounts to “more than a rumor, suspicion, or even a strong reason to suspect.”  United States v. Fisher, 702 F.2d 372, 375 (2d Cir. 1983) [emphasis added].  Moreover, the evidence of guilt must be particularized to the individual being arrested.  See, e.g., Ybarra v. Illinois, 444 U.S. 85, 91 (1979).

 The fact that a client was arrested pursuant to the execution of a search warrant is not determinative on the issue of probable cause.  Barr v. County of Albany, 50 N.Y.2d 247, 255 (1980) (“while it can be said that a search warrant sanctions the entrance by law enforcement officers upon private property to conduct a search within the confines of the warrant, it by no means lends judicial approval to the arrests of those persons found thereon”).  That is, a search warrant does not authorize an arrest.  Id.  In Barr, the police executed a search warrant of a premise and arrested virtually all fifty persons present for marijuana possession.  The charges were dismissed against plaintiffs and they brought  subsequent claims for false arrest.  The court denied defendant’s motions for summary judgment holding that the search warrant did not immunize the officers for liability for false arrest.  Id.

 In Ybarra v Illinois, 444 U.S. at 85, the police obtained a warrant to search a tavern where the bartender was suspected of drug activity.  While executing the warrant, the police conducted pat-down searches of the tavern patrons, including Ybarra.  The police found drugs on Ybarra and arrested him.  The Court held that a “person’s mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person.” Id. at 91; citing, Sibron v. New York, 392 U.S. 40, 62-63 (1968) [emphasis added]. 

 Likewise, in Flores v. City of Mount Vernon, the police officers executed a search warrant at a bar where the tavern owner was reportedly selling drugs.  41 F. Supp 439 (S.D.N.Y. 1999).  The police found certain patrons in possession of cocaine at the tavern.  One of these patrons was seen picking up a packet of what appeared to be cocaine from the bar.  The officers observed another patron dropping a packet of cocaine on the floor.  More cocaine and marijuana was found hidden in the basement of the establishment.  In addition to the patrons, the police arrested the bartender, Flores, who was present and working at the time the warrant was executed.  Ultimately, Ms. Flores was not charged and brought a claim of false arrest against the officers and municipality.  The Court found that the fact that half the patrons in the bar possessed cocaine did “not give rise to a reasonable suspicion that [Flores] was involved in drug activity, let alone rise to the level of probable cause”.  Id. at 443 [emphasis added].  Further, the fact that patrons dropped narcotics to the floor in plain view did “not admit the inference” that they obtained them from plaintiff. Id. at 444. 

 In Flores, the arrest occurred in a public forum.  What if your client was arrested in a private residence?  Assume your client was an invited guest watching television when the police executed a search warrant targeting the owner of the apartment.  The drugs found in the apartment were not in plain view and were not in proximity to your client.  Your client was not a resident of the apartment and there was nothing connecting him to the apartment.  Nor was there anything about his conduct which indicated a common scheme with the other occupants of the apartment. There is an argument to be made that the circumstances of Flores (cocaine literally flying in the air in the proximity of claimant) were far more egregious than those described above.      

 Pursuant to applicable New York search and seizure law, one may argue there was no probable cause for the police officers to arrest your client.  It is not alleged that your client directly possessed drugs.  The only remaining means to assert his “possession” are (i) the application of a “room presumption”; or (ii) the theory that he “constructively” possessed the drugs.  Since the alleged contraband was not in “plain view” the police were not permitted to arrest all the occupants based upon a permissive “room presumption”.  See, N.Y. Pen. L. 220.25(2) (the presence of a narcotic drug in “open view in a room other than a public place . . . is presumptive evidence of knowing possession thereof by each and every person in close proximity” to the drugs) [emphasis added]; see, e.g., People v. Martinez, 83 N.Y.2d 26 (1993) (drugs concealed between a couch and a wall are not in plain view).  Furthermore, it can not reasonably be argued that your client “constructively possessed” the drugs hidden in the apartment.  To demonstrate constructive possession it must be shown that a person exercised “dominion or control” over the property by a sufficient level of control over the area in which the contraband is found.  See, e.g., People v. Manini, 79 N.Y.2d 561 (1992).  There is no evidence that your client resided in the location; had keys to the location; or had any personal property in the location.  Further, since the evidence will likely show that other persons had access to the location and the drugs were hidden, a viable theory of constructive possession will not stand.  People v. Vasquez, 160 A.D.2d 751 (2d Dept. 1990) (constructive possession not established where defendant was watching television in the living room of an apartment where 4 ounces of cocaine and $150,000 in cash were discovered in a bedroom pursuant to a search warrant, despite the defendant having a loose key to the apartment in her possession); People v. Webb, 179 A.D.2d 707 (2d Dept. 1992); People v. Bailey, 159 A.D.2d 1009 (4^th Dept. 1990). 

 Based upon the foregoing, one can certainly make a viable argument that the search warrant and discovery of contraband does not confer probable cause to arrest a visitor on the circumstances described.  Still, it may not be a winning argument and one will find far stronger footing in a False Arrest claim if the “unlawful” arrest took place in a public, rather than private, forum.

QUEENS, NY (WABC News) — A Queens teacher is under arrest Wednesday, accused of sexually abusing a student.

Queens District Attorney Richard Brown says a 48-year-old teacher at a Springfield Gardens middle school, abused a 14-year-old boy in a classroom after school hours.

“The charges are very disturbing,” Brown said. “A classroom should always be a safe place for a child. If true, this teacher destroyed his student’s trust.”

The teacher, of the Hollis section of Queens, was employed as a teacher at Intermediate School. He was suspended during the pendency of the criminal case.

MSG Result: On June 23, 2009, after a two week trial, the teacher was acquitted of all criminal charges.

Attorney for the defense: Matthew D. Myers

DISTRICT ATTORNEY
QUEENS COUNTY
125-01 QUEENS BOULEVARD
KEW GARDENS, NEW YORK 11415-1568
718-286-6000

Queens District Attorney Richard A. Brown announced today that a former mortgage company employee whose civil lawsuit against the New York City Transit Authority was placed on hold earlier this year after the judge declared a mistrial and referred the matter to the District Attorney’s office for possible prosecution for fraud has, in fact, been charged with submitting false claims to the Transit Authority for which he received more than $16,000 in lost wages following a bus accident. In addition, while being processed prior to his arraignment, it was revealed that the defendant is wanted on a Pennsylvania warrant for an alleged 2004 rape.

District Attorney Brown said, “The defendant is accused of filing a false claim with the New York City Transit Authority for wages he said he lost after being unable to work in the aftermath of a bus accident. Claims like those allegedly filed in this case take money out of the pockets of all New Yorkers. While allegedly stealing from this agency is bad enough, it turns out that a warrant had been issued for the defendant who is wanted for the alleged rape of a minor in Pennsylvania.”

The District Attorney identified the defendant as Paul Hightower, 37, of 139-06 232nd Street in Laurelton, Queens. The defendant has been charged with third-degree grand larceny, third-degree insurance fraud, first-degree perjury and first-degree falsifying business records. He was arraigned last night before Queens Criminal Court Judge Suzanne Melendez and ordered held without bail because of his fugitive status. He refused to waive extradition to Pennsylvania. If convicted in the Queens case he faces up to four years in prison. His next court date is March 24, 2009.

District Attorney Brown said that, according to the charges, the defendant claimed to have been injured in a bus accident on September 11, 2006, at the intersection of Baisley Avenue and Bedell Boulevard. As a result of the alleged accident, he filed a no-fault insurance claim for lost wages with the New York City Transit Authority. The defendant later testified under oath about the lost wage claim in connection with a lawsuit he filed against the NYCTA. The defendant testified that his earnings were approximately $5,000 a month, and that he had earned $4,000 during the month of July 2006 and $5,000 during the month of August 2006, according to a transcript of the proceeding, while working at Discount Home Mortgage, which is located at One Cross Island Plaza, Rosedale, Queens.

Furthermore, the District Attorney said, a New York motor vehicle no-fault insurance employer’s wage verification request allegedly submitted to the NYCTA by the defendant in support of his lost wage claim indicated that the defendant earned $3,000 a month at Discount Home Mortgage. Investigators from the District Attorney’s Detective Squad, however, spoke to the defendant’s former employer – the president of Discount Home Mortgage – and learned that he never signed the wage verification form and that the defendant did not earn $4,000 during July 2006 and $5,000 during August 2006, but in fact earned $1,100 during that period.

In addition, the District Attorney said, the defendant was fingerprinted following his arrest and as the prints were processed a warrant for the defendant issued in Pennsylvania was revealed indicating that the defendant was charged in Harrisburg, in Dauphin County, on June 14, 2005, for the alleged rape by forcible compulsion of a person under the age of 14 on December 20, 2004.

According to District Attorney Brown, the investigation of the grand larceny case began after it was referred to the District Attorney’s office for investigation by Queens Supreme Court Justice Duane Hart, who was overseeing the civil lawsuit brought by the defendant.

The investigation was conducted by Detective Joseph Brancaccio and Detective Patrick F. Dolan of the District Attorney’s Detective Bureau under the supervision of Sergeant Evelyn Alegre and Lieutenant Robert J. Burke, and the overall supervision of Chief Lawrence J. Festa and Deputy Chief Albert D. Velardi.

Assistant District Attorney Mary M. Lowenburg, chief of the District Attorney’s Auto Crime and Insurance Fraud Unit, of the Organized Crime and Rackets Bureau, is prosecuting the case under the supervision of Gerard A. Brave, Bureau Chief, and Marc P. Resnick, Deputy Bureau Chief, and the overall supervision of Peter A. Crusco, Executive Assistant District Attorney of the Investigations Division, and Linda M. Cantoni, Deputy Executive Assistant District Attorney.

It should be noted that a criminal complaint is merely an accusation and that a defendant is presumed innocent until proven guilty.

NEW YORK – A federal immigration official who was recorded demanding sex from a young Colombian woman in exchange for a green card was arrested on corruption charges, prosecutors said Friday.

The woman, who is married to an American citizen, said she gave in to one demand for oral sex because she was afraid, but she also used a mobile phone hidden in her purse to record the December encounter and the conversation that preceded it.

Days later she went to a The New York Times to tell her story. She also called the district attorney’s office.

“I want sex,” he said on the recording, according to the Times. “One or two times. That’s all. You get your green card. You won’t have to see me anymore.”

Queens prosecutors said Isaac R. Baichu, an adjudication officer at the U.S. Citizenship and Immigration Services office in Garden City, threatened to hold up the woman’s application and even deport her relatives if she didn’t acquiesce.

Baichu was arrested March 11 after meeting with the woman again, this time with prosecutors listening in.

His attorney did not immediately return phone messages Friday.

Baichu faces misdemeanor charges of coercion and sexual misconduct and a felony charge of receiving a reward for official misconduct. A judge released him on a $15,000 bond.

Baichu was suspended immediately after his arrest, and his pay will be halted, Citizenship and Immigration spokesman Shawn Saucier said. Baichu was hired three years ago and made about $50,000 annually.

An alleged cyber-sicko accused of posing online as a co-ed to trick college women into sending him their nude photos has hired a top forensic shrink to prove he’s just a harmless nerd.

Chubby Hunter College student Elvin Chuang, 20, of Brooklyn, is trying to avoid a possible 16-month prison sentence on charges of identity theft, coercion, fraud and general larceny.

He’s hoping an examination by forensic psychologist N.G. Berill, scheduled for Monday, will convince a Manhattan judge that he isn’t really dangerous and shouldn’t be jailed at all.

Berill has consulted on numerous high-profile criminals, including serial killer Joel Rifkin, LIRR mass murderer Colin Ferguson and Abner Louima torture cop Justin Volpe.

“We’re hoping he’ll find my client is not a predator, but is more or less doing this as a college prank” said his lawyer Matthew Myers.

But Manhattan prosecutors want Chuang sent up the river, noting that he admits he succeeded in tricking and bullying some 50 women into sending him pictures.

Chuang allegedly worked his scheme by going online at the web site facebook.com while assuming the identity of a female friend of the would-be victim.

He’d plead for nudie pictures under the guise of needing them for an art project – then extort still more pictures by threatening to post the first ones online.

Source: New York Post  – Friday, September 15 2006

Attorney for the defense: Matthew D. Myers

Fotog Was Louse Who Got The Cheese

By Barbara Ross
Friday, August 18th 2006, 7:20AM

A FRENCH photographer admitted in a Manhattan courtroom yesterday that he ripped off his former roommate of thousands of dollars by pretending to be in financial deals with celebrities like Madonna.

As part of a plea deal, Alexis Quinlin, 46, will be sentenced next month to serve 2 1/2 to 7 1/2 years in prison, and he will have to pay an undetermined amount of money back to two dozen other friends he also swindled.

Although Manhattan prosecutors said in May that Quinlin stole $3.9 million, his lawyer, Matthew Myers, said yesterday that the amount was closer to $325,000.

Myers said Quinlin spent much of the money instead of investing it: “He enjoyed that lifestyle and wanted to run in those circles.”

Quinlin will be deported to France when he gets out of prison.

Although he was accused of stealing money from almost two dozen people, Quinlin was allowed to settle all criminal charges yesterday by pleading guilty to one count of grand larceny relating to the $50,000 he took from his roommate.

Myers said Quinlin already had paid back $40,000 of that.

Source: New York Daily News

Attorney for the defense: Matthew D. Myers

A small independent film distributor has been indicted for defrauding at least 22 people  of $3.9 million over seven year, the Manhattan District Attorney said yesterday. The film distributor, Alexis Quinlan, 46, President of Offline Releasing told investors he needed money to export televisions to Europe, prosecutors said, but instead used the money to pay off debts incurred by his film company and to patronize luxury establishments. Mr. Quinlan’s lawyer Matthew Myers did not return a call for comment yesterday.

Source: New York Times – Friday May 12, 2006

Attorney for the defense: Matthew D. Myers

Says rapper owes him 32G

By HELEN PETERSON DAILY NEWS STAFF WRITER
Wednesday, May 7th 2003, 7:02AM

Hip-hop sensation 50 Cent rapped about getting shot up on his best-selling CD but never mentions he forgot to pay the doctor who patched him up.

The 27-year-old rap star, who survived nine gunshot wounds in an attack three years ago, is being sued by the doctor who treated him at Jamaica Hospital in Queens.

Dr. Nader Paksima, an orthopedic surgeon, says the chart-topper owes him $32,511.87, which has gone unpaid despite repeated requests, according to a lawsuit filed in Manhattan Supreme Court.

Paksima operated on 50 Cent, whose real name is Curtis Jackson, when he showed up at the hospital May 24, 2000, after being shot in the face and body near his grandmother’s house in South Jamaica.

The suit also charges Paksima treated Jackson in followup visits.

“The gunshot wounds have become part of his folklore. Ironically, he never paid the physician who helped him get on his feet,” said Paksima’s lawyer Christopher Galiardo.

Once the protege of slain rap icon Jam Master Jay, 50 Cent’s debut CD, “Get Rich or Die Tryin’ ” was No. 1 for eight weeks when it was released this year and is already platinum.

On it, he raps about the shooting, saying: “Shell hit my jaw, I ain’t wait for doctor to get it out/Hit my wisdom tooth – hock too! – I spit it out/I don’t smile a lot, cause ain’t nothing pretty/Got a purple heart for war, and I ain’t never left the city.”

Mean streets

In interviews, Jackson has said he peddled crack while growing up in Jamaica and that his mother, who also was a drug dealer, was shot to death in front of him when he was 8 years old.

Galiardo said Paksima has nothing personal against the rapper. In fact, he said he found him “quite likable” but thinks he ought to pay his bill.

Yesterday, Jackson’s lawyer, Mark Gann, did not return a call for comment.

No one was charged in the shooting, but federal investigators recently filed court papers linking a convicted drug dealer to the attack.

The papers claim Kenneth (Supreme) McGriff was angry about a song 50 Cent wrote about him and arranged the shooting as revenge.

Source: New York Daily News