By Chambers, J.P.; Cohen, Duffy and Connolly, JJ.Jonathan Gonzalez, ap, v. State of New York, res — (Claim No. 127132)In a claim to recover damages for false imprisonment, the claimant appeals from an order of the Court of Claims (Alan C. Marin, J.), dated November 21, 2016. The order denied the claimant’s motion for summary judgment on the issue of liability and granted the State of New York’s cross motion for summary judgment dismissing the claim.ORDERED that the order is affirmed, with costs.On July 25, 2014, the claimant, then a parolee under the supervision of the New York State Department of Corrections and Community Supervision (hereinafter DOCCS), was arrested and detained for a parole violation. He requested a preliminary hearing, which was scheduled for August 11, 2014, but the hearing officer adjourned the hearing on that date because DOCCS was not prepared to proceed due to the unavailability of the claimant’s parole officer. The hearing officer adjourned the hearing until August 13, 2014, which she stated was “the 15th day,” relying on an incorrect recording of the date the claimant’s warrant was executed. The hearing officer indicated on August 11 that the warrant would be vacated if DOCCS was not prepared to proceed on August 13. The claimant’s counsel did not object to the adjournment or dispute the hearing officer’s calculation that August 13 was “the 15th day.”Pursuant to Executive Law §259-i(3)(c)(i) and (iv), a parole revocation hearing must occur within 15 days from the execution of the parole warrant. There is no dispute that the preliminary hearing, which occurred on August 13, 2014, was not held within the 15-day period specified by Executive Law §259-i(3)(c). The claimant’s counsel objected that the proceeding was untimely, but the hearing officer did not rule on the objection, stating that she was without authority to vacate the warrant on that basis and that the claimant’s counsel could make her record for a writ of habeas corpus. Thereafter, the hearing officer found probable cause to hold the claimant for a final revocation hearing, and, at the final revocation hearing, the claimant entered a plea of guilty to violating a condition of his parole. The claimant was given a 12-month time assessment and ordered to participate in a substance abuse treatment program.The claimant thereafter petitioned for a writ of habeas corpus based on the untimeliness of the preliminary hearing. The State acknowledged the error and agreed that the claimant was entitled to an order vacating the parole warrant and restoring him to parole supervision. In an order dated December 12, 2014, the Supreme Court, Franklin County, granted the petition and directed the claimant’s release from incarceration to parole supervision. Thereafter, the claimant was released from custody.As is relevant to this appeal, the claimant alleges false imprisonment. Thereafter, the claimant moved for summary judgment on the issue of liability. The State opposed the claimant’s motion and cross-moved for summary judgment dismissing the claim, on the ground that its actions were privileged and thus cloaked with immunity. In an order dated November 21, 2016, the Court of Claims denied the claimant’s motion and granted the State’s cross motion. The claimant appeals.In order to prevail on a claim seeking to recover damages for false imprisonment, a claimant must prove that: (1) the defendant intended to confine the claimant; (2) the claimant was aware of the resulting confinement; (3) the claimant did not consent to the confinement; and (4) the confinement was not otherwise privileged (see Broughton v. State of New York, 37 NY2d 451, 456).Here, the State established its prima facie entitlement to judgment as a matter of law by submitting evidence that the confinement was privileged. The State demonstrated that the claimant was arrested pursuant to a facially valid parole warrant and that the short delay in holding the preliminary hearing was not due to misconduct or malfeasance (see Hudson v. State of New York, 115 AD3d 1020, 1022-1023; Washington-Herrera v. Town of Greenburgh, 101 AD3d 986, 988). In opposition, the claimant failed to raise a triable issue of fact (see Alvarez v. Prospect Hosp., 68 NY2d 320, 324).Accordingly, we agree with the Court of Claims’ determination to grant the State’s cross motion and deny the claimant’s motion.In light of our determination, we need not reach the claimant’s remaining contention.CHAMBERS, J.P., COHEN, DUFFY and CONNOLLY, JJ., concur.
By Rivera, J.P.; Austin, Cohen and Barros, JJ.PEOPLE, etc., res, v. Mayer Herskovic, ap — (Ind. No. 2883/14)Appeal by the defendant from a judgment of the Supreme Court, Kings County (Danny K. Chun, J.), rendered March 16, 2017, convicting him of gang assault in the second degree, unlawful imprisonment in the first degree, and menacing in the third degree, after a nonjury trial, and imposing sentence.ORDERED that the judgment is reversed, on the facts, the indictment is dismissed, and the matter is remitted to the Supreme Court, Kings County, for further proceedings consistent with CPL 160.50.The complainant testified that, on December 1, 2013, he was assaulted by approximately 20 Hasidic Jewish men in Williamsburg, Brooklyn. The defendant and others were charged, inter alia, with gang assault in the second degree, unlawful imprisonment in the first degree, and menacing in the third degree. Following a nonjury trial, the defendant was convicted of the aforementioned three charges.The defendant’s challenge to the legal sufficiency of the evidence is unpreserved for appellate review (see CPL 470.05[2]; People v. Hawkins, 11 NY3d 484, 492). In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 NY2d 620, 621), we find that it was legally sufficient to establish the defendant’s guilt beyond a reasonable doubt (see People v. Danielson, 9 NY3d 342, 349; People v. Bleakley, 69 NY2d 490, 495).However, upon the exercise of our independent factual review power (see CPL 470.15[5]), we conclude that the verdict of guilt was against the weight of the evidence. ”[W]eight of the evidence review requires a court first to determine whether an acquittal would not have been unreasonable. If so, the court must weigh conflicting testimony, review any rational inferences that may be drawn from the evidence and evaluate the strength of such conclusions. Based on the weight of the credible evidence, the court then decides whether the [factfinder] was justified in finding the defendant guilty beyond a reasonable doubt” (People v. Danielson, 9 NY3d at 348). ”Essentially, the court sits as a thirteenth juror and decides which facts were proven at trial” (id. at 348-349).At the trial, the complainant was not able to identify any of the persons who assaulted him. The complainant testified that one of the attackers shoved a thumb into his eye. Moreover, he testified that, during the assault, his sneaker was removed and thrown onto a nearby roof by one of the individuals who attacked him. Notably, the complainant and others who testified at the trial gave conflicting accounts of the assault. Among other things, the complainant testified that the person who pulled off his sneaker was the same person who shoved a thumb into his eye. He referred to this person as the “ringleader” and one of the three men who initially chased him. However, he also testified that the person he identified as the ringleader was not the defendant.The complainant’s sneaker was recovered six days after the incident. The DNA sample obtained from the sneaker contained only 97.9 picograms of DNA, which is less than the minimum amount of DNA material—100 picograms—needed for traditional DNA testing. Further, the DNA sample was a nondeducible mixture, meaning that it contained the DNA of two or more persons, but that the mixture could not be broken apart to determine which strings of DNA came from which person. Nevertheless, the New York City Office of the Chief Medical Examiner (hereinafter OCME) utilized “high-sensitivity” DNA analysis, a method of testing OCME developed to analyze DNA samples of less than 100 picograms. An OCME criminologist testifying at the trial admitted that in developing high-sensitivity testing, OCME “tweaked the protocols” of DNA testing. Based on the high-sensitivity testing, OCME found that the mixture was indicative of a two-person mixture. This OCME criminologist testified that the DNA profiles of the complainant and the defendant were then compared to the sample, and a forensic statistical tool (hereinafter FST) developed by OCME was used to determine the “likelihood ratio” that the defendant was one of the two contributors. The FST analysis concluded that it was 695,000 times more probable that the DNA sample originated from the defendant and an unknown unrelated person than from two unknown unrelated persons. The analysis also found that it was 133 times more likely that the DNA sample originated from the defendant and the complainant than from the complainant and an unknown unrelated person. The FST analysis of the DNA was based upon a Caucasian population, and failed to take into account the genetic history of the defendant, a member of the Hasidic population. Moreover, the likelihood ratio result was only 133, a relatively insubstantial number.Under the circumstances of this case, including the complainant’s inability to positively identify any of his attackers, the varying accounts regarding the incident, and the DNA evidence, which was less than convincing, we find that the evidence, when properly weighed, did not establish the defendant’s guilt beyond a reasonable doubt.In light of our determination, we do not address the defendant’s remaining contentions.RIVERA, J.P., AUSTIN, COHEN and BARROS, JJ., concur.
