TESTIMONY OF A DEFENSE WITNESS WHO IDENTIFIED PLAINTIFF AS THE PERSON FLEEING THE SCENE OF A CRIME SHOULD NOT HAVE BEEN PRECLUDED IN THIS FALSE ARREST AND MALICIOUS PROSECUTION ACTION; THE JURY WAS NOT INSTRUCTED ON THE CRITERIA FOR A TERRY STOP; PLAINTIFF’S JUDGMENT VACATED AND NEW TRIAL ORDERED (FIRST DEPT).

The First Department, vacating the plaintiff’s judgment and ordering a new trial in this false arrest and malicious prosecution action, determined that the testimony of the defense witness who identified plaintiff as fleeing the scene of a crime should not have been precluded. The name and address of the witness had been provided to plaintiff four years before the trial and the fact that she had since moved and did not want to disclose her new address to any party was not something the defense could control. In addition, the jury was given no guidance on the criteria for an alleged wrongful stop of the plaintiff by police (reasonable suspicion, not probable cause), despite the questions concerning the stop on the special verdict sheet:

The trial court improvidently exercised its discretion in precluding testimony from the witness who identified plaintiff to the police as an individual she had seen fleeing the scene of a crime. Defendants satisfied their discovery obligation by providing the witness’s last known address and telephone number during discovery, more than four years before trial. Thus, there could have been no surprise or prejudice warranting the preclusion … . While the witness subsequently moved, she declined to disclose her new address to any parties to the suit, a factor defendants could not control … . As defendants did not know her new address, they had no obligation under CPLR 3101(h). Nor should defendants have been sanctioned for the fact that the wtness did not wish to discuss the case with plaintiff’s counsel when counsel called her. Notably, plaintiff’s counsel did not attempt to contact the witness until two months before trial and did not attempt to obtain a nonparty deposition of the witness during discovery. Defendant offered to have the witness further confirm these facts, under oath and outside the presence of the jury. Under these circumstances, the trial court improvidently exercised its discretion in ordering a hearing at which defendants’ trial attorney would be subject to questioning by plaintiff’s trial attorney, and precluding the witness’s testimony when defense counsel declined to participate in such a hearing. Given that the witness would have offered highly relevant and non-cumulative trial testimony, the error was not harmless … .

It was error to include on the special verdict sheet a questions as to a wrongful stop (Terry v Ohio, 392 US 1 [1968]), because there was no charge given instructing the jury on the legal standard that must be applied in resolving those claims. The jury was never told that a stop is improper if the detaining officer does not have “reasonable suspicion” that the detainee committed a crime, which is less demanding than the “probable cause” standard applicable to the malicious prosecution claims … . That the jury sent a note requesting clarification on the question indicated its awareness of the lack of guidance …. .  Onilude v City of New York, 2019 NY Slip Op 08925, First Dept 12-12-19