New York Criminal Lawyer Blog
The complainant was formerly employed as a sales associate in the computer department of the offender’s store. At some point, the complainant entered a transaction into the cash register for the sale of a computer, charging it to a credit card. The complainant’s employee number appears on the store’s computer detail display of the receipt and he readily admits that he is the person who conducted the sale. The complainant claims that he received a telephone order from a woman. The computer receipt includes a notation that includes the customer’s name. But, the complainant denies having made the notation. Later, the aforementioned customer complained to the store that she had not purchased the computer and had not authorized anyone else to purchase a computer using her credit card.
Around the same time, the loss prevention manager of the store was investigating the conduct of another store’s employee, with regards to the merchandise returned without original receipts and the unauthorized use of a credit card belonging to another customer. After the manager reviewed the relevant documentation with his supervisors, the store determined to have the matter reviewed by the police.
The manager met with a detective and provided him with documentation concerning the matter. During the meeting, the detective inquired about an employee number on one of the receipts, and when advised that it was the complainant’s, the detective said he would need to speak to the person and requested further information concerning the transaction, including a statement from the customer. According to the detective, the manager also told him that the complainant and another employee were working together, and that the manager had seen the complainant pick up the computer. But, the manager denies making the two statements. The detective then turned over the documentation provided by the manager to his colleague.
Subsequently, the detective came to the store and arrested the other employee, charging him with multiple counts of larceny, possession of stolen property, and unlawful use of a credit card in a complaint signed by the manager. The employee then pleaded guilty to the charges.
Afterward, two officers went to the store to speak with the complainant. The complainant agreed to accompany the officers to the precinct, where they interviewed him. At the interview, the complainant initially denied knowing the customer, after which the officer told him he was under arrest. Then, after hearing the customer’s full name, he remembered some things and told the officer that he had taken a telephone order from the customer and security was investigating the situation. The officer’s notes reveal that the complainant stated that he took a telephone order from the customer and that he intended to deliver the computer via shuttle service. Consequently, the complainant was then arrested.
The manager signed a criminal complaint charging the complainant with the crimes of grand larceny in the fourth degree and two counts of criminal possession of stolen property in the fourth degree. The factual allegations of the complaint alleged, that the complainant typed the credit card number of the customer to purchase a computer for $2,865.36 and that according to the customer, she did not purchase the said computer nor authorize anyone to use her credit card number to make such purchase. Eventually, the charges against the complainant were dismissed at the request of the county’s district attorney’s office.
The complainant then commenced an action against the store and the city, asserting causes of action for false arrest, false imprisonment, malicious prosecution, wrongful termination, negligent investigation and intentional infliction of emotional distress. Later, the city’s motion for immediate decision was granted.
The court also found that probable cause for the complainant’s arrest existed based on the information contained in the criminal complaint, which the complainant never disputed, as well as the additional suspicion arising from the notation on the receipt that someone would pick up the computer and the coincidence that the complainant’s coworker had recently been arrested for the fraudulent use of other’s credit card.
After the city’s successful motion, the store also moved for immediate decision arguing that the justice’s findings on the city’s motion that probable cause existed was the law of the case and required dismissal of the claims against the store. In the order, the justice granted the store’s motion in part, dismissing the claims for false arrest and false imprisonment based on the prior finding. The court, however, denied dismissal of the malicious prosecution claim on the ground that an issue of fact existed as to whether or not the store gave false information to the officers.
On appeal, the store argues that the court should have dismissed the malicious prosecution claim against it based on the prior legal finding, affirmed by the court, that probable cause existed for the complainant’s arrest. The store further contends that the complainant has failed to make a sufficient showing as to the other required elements of a malicious prosecution cause of action.
However, upon the court’s independent review of the merits of the store’s motion, the court conclude that the complainant has failed to raise a material issue of fact as to three of the four required elements of a malicious prosecution claims. The complainant argues that the allegedly false information provided by the manager that he saw him pick up the computer created an issue of fact as to whether the store initiated a criminal proceeding against him. However, it is well settled that the simple reporting of a crime to police and giving testimony are insufficient.
Based on records, there is no evidence in the case that the manager did anything other than provide the police with information and sign the criminal complaint at the request of the police. However, there is no evidence in the record to support the complainant’s assertion that the officer relied upon, or was even aware of, the allegedly false information given by the manager to the detective when he decided to arrest the complainant.
The officer testified that his conclusion to arrest was based on the information in the complaint, and neither he nor the detective testified that the detective relayed with the manager’s statement about seeing the complainant in possession of the computer.
The court further concludes that the proceeding against the complainant was not terminated in his favor. Consequently, the case was dismissed at the request of the district attorney’s office, although the record is silent as to the reason. Appropriately, since the record discloses only that the district attorney voluntarily discontinued the action without any determination on the merits and there is no evidence that the action formally abandoned charges against the complainant, the complainant has failed to raise an issue of fact as to termination of the proceeding in his favor.
Sources revealed that even if the court failed to decide on the complainant’s cause of action for intentional infliction of emotional distress in its motion for immediate decision, the claim should also have been dismissed. The complainant’s allegation that the manager gave false information to the police, even if true, did not describe conduct that is so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of modesty, and to be regarded as vicious, and entirely intolerable in a civilized community.
Sometimes, individuals assume or conclude on some matter base on previous happenings without asking or finding out the truth. If you’ve been accuse of allegations that is not true, you can ask help from the Bronx County Grand Larceny Attorney. You can also seek legal representation from the Bronx County Criminal Lawyer at Stephen Bilkis and Associates.