Boose v. City Of Rochester

71 A.D.2d 59 (1979)

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Nature of the Case

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Facts

Miguel was driving down Pennsylvania Avenue near the Boose home when someone in a group of children threw a rock at his car. He stopped and got out. Intending to find the child's parent, he followed the child as it ran to a nearby house. A 'fair number' of people came out of the house, including one woman with a hammer and another with a club, and they started to chase him. He tried to run to his car, but before he could safely reach it, he was assaulted and robbed. The next day, after reporting the incident to the police, he went to the house on Pennsylvania Avenue to investigate with Sergeant Scacchetti and Officer Zigarowicz of the Rochester police. A young lady came to the door, and he identified her as the one who had hit him. When she was asked, she answered that her name was 'Gloria Jean Boosey' but Officer Scacchetti testified that a confrontation soon began to develop and the men decided to leave rather than risk 'having a riot on [their] hands.' Officer Scacchetti returned to the house on several subsequent occasions to investigate, but no one answered the door. He described the person who gave her name as Gloria Jean Boose as 18 or 19 years of age. For the second case, Kasper was driving his car down Pennsylvania Avenue when a young child threw a rock at him. He also got out of his car to locate the child's parents, and when he did so, he was assaulted by two females, one heavy set and around 40 years of age, and the other between 14 and 17 years old. He identified one Ossie Boose as the older woman and as the individual who had hit him with a board causing his injuries. She was the mother of the child and, as it turns out, she is P's mother. A warrant was procured charging 'Jane Doe Booze' with assault, second degree. At the trial, Officer Scacchetti admitted that he was unsure at the time that he procured the warrants in October whether Gloria Jean Boose was the person he actually wanted or whether it was some other person in the Pennsylvania Avenue house. P appeared at the police station and was booked, photographed and fingerprinted and then held in a cell until released on her own recognizance at about 5:00 p.m. The lead officer was notified of her arrest, but he did not investigate further to determine whether the right person had been taken into custody. The Monroe County Grand Jury indicted her for assault second degree January 30, 1976, and she was arraigned in County Court on the indictment February 5, 1976. It subsequently appeared that there was no identification testimony before the Grand Jury, and the indictment was superseded by a no bill dated February 17. County Court dismissed the indictment on February 18, 1976, and this action followed. P sued for malicious prosecution alleging that D, acting through its police officers, wrongfully procured her indictment for assault, second degree. The trial court dismissed the cause of action for malicious prosecution but permitted the trial to proceed. At the close of the evidence, the court solicited a motion to conform the pleadings to the proof, and it then submitted the case to the jury for recovery based upon negligence and false imprisonment. The jury returned a verdict of $6,000 in P's favor, and D appealed.