88 A.D.2d 1093 | N.Y. App. Div. | 1982
Lead Opinion
— Appeal from a judgment in favor of claimant, entered June 15, 1981, upon a decision of the Court of Claims (McCabe, Jr., J.). On December 13, 1977, a woman hitchhiker reported being raped by two light-skinned black males in a four-door green car parked at the uptown SUNY Albany campus. Officer O’Conner of the university’s safety department investigated. With the victim’s assistance, a composite sketch of one of the assailants, described in
Dissenting Opinion
dissents and votes to reverse in the following memorandum. Casey, J. (dissenting). In order for claimant to succeed in this action for false arrest, the warrant, which is the basis of the arrest, has to be found facially invalid at the time of its issuance, for, if facially valid, the warrant would make the claimant’s arrest privileged and preclude his claim (Saunsen v State of New York, 81 AD2d 252). Even if the warrant was erroneously or improvidently issued (Nastasi v State of New York, 275 App Div 524, affd 300 NY 473) or is considered irregular thus requiring its vacatur before an action for false imprisonment could be maintained (Houghtaling v State of New York, 11 Misc 2d 1049), the arrest would be privileged and the claimant’s recovery for false arrest precluded (Boose v City of Rochester, 71 AD2d 59, 66). As the majority states, an arrest warrant is valid on its face when it follows the statutory form (Ford v State of New York, 21 AD2d 437). The statute provides that the warrant shall contain either “the name of the defendant to be arrested or, if such be unknown, any name or description by which he can be identified with reasonable certainty” (CPL 120.10, subd 2; Boose v City of Rochester, 71 AD2d 59, supra). This arrest warrant issued by the County Court did not name the defendant. It named John Doe. If the identity of the person named stopped there, the warrant might well be considered void for its failure to identify the arrestee by descriptive information from which he could be identified with reasonable certainty (Bozeman v.City of Buffalo, 62 Misc 2d 967, affd 34 AD2d 892). However, the warrant did not stop at naming John Doe. It additionally contained the following description: “Black Male, 18 years, 5'8", 160 lbs, short Afro Hairstyle, Med. black-tone skin, poor complex. Glasses, (Plastic Frame off-yellow color)”. Since claimant generally answered that description and was in fact the person whom the officer intended to arrest based upon identification information previously supplied to him by others, the police error was in determining the true identity of the party to be named in the warrant, not in determining that claimant was the person named, and hence an action for false