Cite as: Partridge v. NYS, 2013-032-004, NYLJ 1202638216331, at *1 (Ct. of Clms., NY, Decided October 4, 2013)

2013-032-004

Judge Judith A. Hard

Decided: October 4, 2013

ATTORNEYS

Claimant's attorney By: Paul H. Wein, Esq., LaFave, Wein & Frament, PLLC

Defendant's attorney By: Douglas R. Kemp, Assistant Attorney General, Of Counsel, Hon. Eric T. Schneiderman, NYS Attorney General

Third-party defendant's attorney:

Decision

 

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Claimant filed this claim seeking damages for defamation arising out of defendant's implementation, organization, publication, portrayal and dissemination of photographs and materials which depicted claimant to third persons as a sexual offender/predator even though claimant was never charged with a sexual offense or convicted as a sexual offender/predator. For the reasons stated below the Court finds, after a bifurcated trial on liability, that claimant proved liability by a preponderance of the credible evidence.

FACTS

In June 2008, Pedro J. Perez was First Deputy Superintendent of the New York State Police. He was the overall commander of the Bureau of Criminal Investigation (BCI) and he managed all of the commissioned officers in the various BCI Units across the State. Speaking on behalf of the State Police was part of his duties (T: 57).

On June 17, 2008, Mr. Perez presided over a State Police press conference regarding Operation Safe Internet, a program of the Internet Crimes Against Children's Task Force (ICAC), which is part of the Computer Crimes Unit of the State Police. On the day of the press conference, as he gave the introduction to the press, there was a sign behind him that read, "ICAC Internet Crimes Against Children" (T: 18). The purpose of the press conference was to "talk about crimes via the computer and the internet, crimes of identity theft, of child pornography, of computer trespassing, computer tampering and other crimes that the internet allow [sic] people to commit" (T: 35-36). At the time of the press conference, the State Police had a manual setting forth the policies and procedures regarding relations with the press. Section 18C1 of the Manual outlines the policies of the public information program. Part of the policy was, "The media and the public have the right to be fully informed. The Division also has an obligation to protect the rights of accused citizens. This is accomplished by keeping the public accurately informed of the Division's activities via all types of media." (emphasis added) (Exhibit 19, p 18-5).

Exhibit 1, a DVD of the press conference, was played at trial. Five television news stations covered the press conference. Exhibits 12-18, 40" x 32" poster boards, created by the Computer Crimes Unit with 61 mug shots displayed thereon, were received into evidence. The mug shots were 8" X 10" photographs. Claimant's photograph appears on the bottom row of Exhibit 12. It was located directly below a mug shot of a locally known criminal arrested for child pornography. Two of the five television news programs showed claimant's mug shot during its broadcast. All five broadcasts talked about Operation Safe Internet, and then specifically mentioned online predators regarding child pornography, identity theft and fraud, protecting children from internet crimes, or internet predators. Mr. Perez admitted that a label, located on the lowest point of claimant's photograph, which read in one-half inch print "CPCS 7th1 (steroids)", was not visible during the televised programming (T: 62, 74).

Mr. Perez's speech at the press conference defined Operation Safe Internet as "a federally funded initiative targeting internet crime…[C]harges include: possession and promotion of a sexual performance by a child; disseminating indecent material to a minor; computer tampering; computer trespass, unauthorized use of a computer; identity theft, and grand larceny…Operation Safe Internet has shown that there is an ever increasing need for further law enforcement training for cyber related crime first responders…" (Exhibit 5). The speech highlighted the poster boards with the mug shots (Exhibits 12-18). Mr. Perez said in his statement, "These are the photos of some of the many suspects arrested during the course of Operation Safe Internet…" (Exhibit 5). Mr. Perez believed that it was acceptable to place the photograph of anyone arrested for any crime on the poster board "if it was as a result of this specific investigation, as a result of the specific search warrant, and function of the police

 

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investigating that particular case, at that particular house, having seen in plain view the evidence that led to the charges…" (T: 78).

The press release for the press conference, dated June 17, 2008, entitled " 'Operation Safe Internet' Conducted by the Internet Crimes Against Children (ICAC) Task Force," speaks about preventing children from encountering online predators, internet safety for children, results from the ICAC's investigation over the course of three months, and the educational endeavors of the ICAC (Exhibit 7, pp 4-6). There was no mention of the arrest of an individual for the possession of steroids. The Media Advisory alerted the press that there would be a press conference by the State Police, to discuss "an Internet Safety initiative to alert the public (parents) regarding dangers children face on the internet, and shows efforts and outreach to the community regarding internet safety" (Exhibit 8).

Mr. Perez had no recollection of whether he was aware of any of the crimes that were allegedly committed by the people in the mug shots on display. He also did not recall whether anyone discussed the placement of claimant's picture on the poster board prior to the press conference. He did not recall whether he discussed the criteria for the display of a face on the poster board. He was not aware that two weeks before the press conference that the charges against claimant were adjourned in contemplation of a dismissal (T: 38/Exhibit 11). Mr. Perez presumed that his investigators did their investigation properly, but would have liked to have known this fact (T: 42). His investigators had a search warrant for a computer owned by claimant's mother. The police records show that marihuana was taken from claimant's bedroom. Empty and non-empty bottles of steroids were taken from claimant's bedroom, living room and refrigerator (Exhibit 2). Mr. Perez was not aware, and would have liked to known, that the officers did not get a warrant for claimant's crime and that some evidence was not found in plain sight (T: 41).

Joseph Donohue was a technical lieutenant assigned to the State Police Computer Crime Unit in June 2008. It was his idea to construct the poster boards and he was responsible for placing the mug shots onto the poster boards with the small labels of alleged crimes affixed thereto. This was his first press conference. In an email to Senior Investigator Mark Brown, Mr. Donohue referred to the poster boards as a "wall of shame" (Exhibit 9). Investigator Brown provided him with the photographs for the poster boards covering the Computer Crimes Unit's northern region (T: 98). Mr. Donohue never spoke to Investigator Brown once he received the photographs. Although Mr. Donohue knew the crime for which claimant was charged, he was unaware of the dispositions of the legal cases associated with the mug shots. He acknowledged that claimant was not charged with any of the crimes listed in the press release. He testified that the instructions from Captain Pace, who did not testify, were to include on the poster boards, any mug shots of "every case that the Computer Crime Unit -not just the task force [ICAC]…got involved in for a three-month period," even though a case had nothing to do with the use of a computer (T: 105).

In June 2008, Investigator Brown was directed to report arrests by his unit to Lieutenant Donohue for a three-month span. He was asked to turn over photographs of people arrested, a brief synopsis of the crime for which they were arrested and the circumstances. He understood that at the end of the three-month period there would be a press conference to announce the arrests. Based upon information received from the Eau Clair, Wisconsin Police Department, that a woman from Albany had traveled there for the purpose of meeting a young boy in order to engage in sexual activity with him, Investigator Brown applied for and received a search warrant for this woman's apartment and house. The woman is claimant's mother and he lived with her at the apartment. The search warrant does not list the obtainment of drugs, only technical hardware, software and other evidence related to child pornography. During the

 

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execution of the warrant, claimant was arrested for criminal possession of steroids. Investigator Brown was instructed to turn over all arrests during the three-month period, regardless of the crime. Claimant's case was then transferred to the Albany County District Attorney's Office. The charges were eventually dismissed in November 2008 (Exhibit 11).

Glenn Miner was the Director of Public Information for the State Police in June 2008. His understanding of the Operation Safe Internet press conference was to "bring awareness to the public about the types of crimes that could be perpetrated upon adults and children through the internet" (T: 165). He testified that although the Media Advisory mentions that "recent Internet crime arrests, including child pornography, identity theft, online enticement and fraud, will be highlighted," it was not an exhaustive list of all the crimes to be displayed at the press conference (Exhibit 8, p 2). The same crimes mentioned in the press release were not meant to be exhaustive (Exhibit 7). He did not recall if Lieutenant Donohue consulted him about the construction of the poster boards.

LAW AND ANALYSIS

Claimant has alleged a defamation cause of action. The alleged defamatory statements are Mr. Perez's speech to the press, the press release, the media advisory and the display of claimant's mug shot on the wall of shame of sexual predators. The issue before this Court is whether the publication of those statements constitutes defamation against claimant.

Defamation "is defined as the making of a false statement which tends to ' "expose the plaintiff to public contempt, ridicule, aversion or disgrace, or induce an evil opinion of him in the minds of right-thinking persons, and to deprive him of their friendly intercourse in society' " (Foster v. Churchill, 87 NY2d 744, 751 [1996], quoting Rinaldi v. Holt, Rinehart & Winston, 42 NY2d 369, 379 [1977], citing Sydney v. MacFadden Newspaper Publ. Corp., 242 NY 209, 211-212 [1926]; Matovcik v. Times Beacon Record Newspapers, 46 AD3d 636, 637 [2d Dept 2007]; see also Knutt v. Metro Intl., 91 AD3d 915, 916 [2d Dept 2012]). "Defamation is the injury to one's reputation, either by written expression (libel) or oral expression (slander)" (Penn Warranty Corp. v. DiGiovanni, 10 Misc 3d 998, 1002 [Sup Ct, NY County 2005], citing Morrison v. National Broadcasting Co., 19 NY2d 453 [1967]). The elements of defamation are: (1) a false statement; (2) the publication of said statement without privilege or authorization to a third party; (3) fault amounting at least to negligence on the part of the publisher; and (4) the statement causes special harm or constitutes defamation per se (Dillon v. City of New York, 261 AD2d 34, 38 [1st Dept 1999]; Restatement [Second] of Torts §558). Publication of a photograph constitutes dissemination of information (see Zucker v. County of Rockland, 111 AD2d 325 [2d Dept 1985]).

In the present matter, the Court concludes that Mr. Perez's speech to the press, the press release, the media advisory and the display of the claimant's mug shot on the wall of shame, all of which wrongly imply that claimant was a sexual predator, constitute false statements. The Court further concludes that the publication of said statements was not authorized. Accordingly, the Court must determine whether the statements were privileged, whether the fault amounts at least to negligence on the part of defendant, and whether the statements caused special harm or constitute defamation per se.

Absolute privilege protects "communications made by individuals participating in a public function, such as executive, legislative, judicial or quasi-judicial proceedings" (Van Donsel v. Schrader, 84 AD3d 1467, 1468 [3d Dept 2011], quoting Rosenberg v. MetLife, Inc., 8 NY3d 359 [2007]). The privilege only extends to comments "made in the context of official communications by 'a principal executive of State or local government [or] those entrusted by

 

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law with considerable administrative or executive policy making responsibilities' " (Van Donsel v. Schrader, 84 AD3d at 1468, quoting Mahoney v. Temporary Commn. of Investigation of State of N.Y., 165 AD2d 233, 238 [3d Dept 1991]). Absolute privilege attaches to actions performed by delegation on behalf of a department head of an agency, but not to those actions undertaken by an employee on their own behalf in the discharge of their own official duties (Ward Telecom. & Computer Servs. v. State of New York, 42 NY2d 289 [1977]). "The privilege exists to protect those who bear the greatest burdens of government or those to whose official functioning it is essential that they be insulated from the harassment and financial hazards that may accompany suits for damages by victims of even malicious libels or slanders" (Stukuls v. State of New York, 42 NY2d 272, 278 [1977]).

In the present case, defendant has not argued absolute privilege. However, even if it had, it would not be applicable herein, because Mr. Perez could not recall any facts to establish that he was a policymaker with regard to the Operation Safe Internet program (T: 13-16, 56, 68). His testimony supported the position that he was only the spokesperson for the State Police, acting in the discharge of his official duties during the subject press conference, whereas the intimate details of the program were relegated to staff. Notably, the press release, media advisory and display of the claimant's mug shot on the wall of shame were prepared by individuals with less administrative or executive policy-making responsibilities than Mr. Perez.

While an absolute privilege is invoked when compelling public policy requires that the speaker be immune from suit, a qualified privilege is invoked for statements fostering a lesser public interest (O'Neill v. New York Univ., 97 AD3d 199 [1st Dept 2012]). Press statements made by governmental representatives concerning governmental affairs are covered by such a qualified privilege (Feldschuh v. State of New York, 240 AD2d 914 [3d Dept 1997], citing Buckley v. Fitzsimmons, 509 US 259 [1993]; Chase v. Grilli, 127 AD2d 728 [2d Dept 1997]; Jo v. State, 2006 WL 3615208 [Ct Cl 2006]). A qualified privilege must be pleaded and proved (Garriga v. Townsend, 285 App Div 199 [3d Dept 1954]). To establish such a privilege, defendant needs to submit proof establishing that it was objectively reasonable for the defendant to believe that its conduct was appropriate under the circumstances (Hayes v. City of Amsterdam, 2 AD3d 1139 [3d Dept 2003]). A privilege will attach to statements in which the communicating party possesses a legal duty to communicate information about another, if the communicator has a good-faith belief that the information is true (Chase, 127 AD2d at 729).

Once the defendant establishes that a communication is entitled to a qualified privilege, the burden shifts to claimant to show that defendant, in making the communication, was motivated by malice (Park Knoll Assoc. v. Schmidt, 59 NY2d 205 [1983]). There are two types of malice: common law malice which is defined as meaning spite or ill will, and constitutional malice which is " 'knowledge that [the statement] was false or…reckless disregard of whether it was false or not' " (Liberman v. Gelstein, 80 NY2d 429, 437-438 [1992], quoting New York Times Co. v. Sullivan, 376 US 254, 279-280 [1964]). Both types of malice will suffice to defeat a qualified privilege (Liberman, 80 NY2d at 438). To establish common law malice, claimant needs to prove that malice was the one and only cause for the publication (Feldschuh, 240 AD2d at 916; Liberman, 80 NY2d at 438). To establish that defendant was motivated by constitutional malice (also known as actual malice), claimant needs to prove that the communication was made with a high degree of awareness of its probable falsity (id.).

While a qualified privilege may apply to press statements made by governmental representatives concerning governmental affairs, defendant cannot avail itself of the qualified privilege defense here, because defendant did not submit any proof that its behavior was even remotely reasonable under the circumstances or that it had a good-faith belief that claimant was an online sexual predator. To the contrary, it was clear that defendant, through the actions

 

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of Lieutenant Donohue and Investigator Brown, was aware that claimant was charged with the criminal possession of a controlled substance and not one of the internet crimes that was the subject of the press conference or press release, as set forth herein below.

The State Police decided to have a press conference in June about the potential for internet crimes against children, just as school let out for summer recess. The subject matter of the speech and press release, as displayed by the banner behind Mr. Perez during his speech, was the State Police Program "Operation Safe Internet." The State Police wanted to educate the public about possible internet or cyber crimes that could be perpetrated against them and to inform the public about the arrests made during the course of Operation Safe Internet.

It is clear to this Court that Lieutenant Donohue included the labeled mug shots on the wall of shame for cases that had nothing to do with a computer, the internet or sexual predators. Although Lieutenant Donohue admitted that he did not know anything about the cases before assembling the wall of shame, he knew the crime for which claimant was arrested because he prepared the small labels placed on each mug shot. Allegedly this was done at the behest of Captain Pace, who did not testify at trial.

Further, Lieutenant Donohue did not check the legal dispositions of the cases before displaying the suggestive mug shots before television cameras. Two of the five broadcasts showed claimant's face while talking about protecting children from internet crimes and child pornography. The disingenuous small label at the bottom of the mug shot was not visible during the broadcast. The effect was to indict claimant by association for a crime he did not commit, just to bolster the amount of mug shots on display. The television broadcasts talked about "Operation Safe Internet" and did not mention arrests for controlled substances. The speech and the press release fail to mention that not everyone on the boards was a sexual predator or cyber crime perpetrator. Nor do they mention arrests for controlled substances. These omissions created a suggestive and misleading mendacity.

Glenn Miner testified that the list of crimes in the media advisory and the press release were not meant to be exhaustive, yet the same was not highlighted at the press conference, nor was there any explanation for the incompetency of the press office, which was supposedly charged with "keeping the public accurately informed of the Division's activities via all types of media" (Exhibit 19, p 18-5). By violating its own manual that governs media relations, to accurately report to the public, defendants actions constitute gross irresponsibility, particularly where the effect of such mistake subjected claimant to public contempt or disgrace by associating claimant with sexual predators. The Director of Public Information for the State Police was feckless in not checking or insisting that his staff verify the status of the cases prior to displaying the mug shots of these individuals.

Based upon the foregoing, the Court determines that no privilege attaches to any of the alleged defamatory statements. However, even if a qualified privilege did exist, it would be overcome by malice as defendant recklessly disregarded the truth (i.e. that claimant was charged with criminal possession of a controlled substance) when affixing claimant's photo to the wall of shame designed to highlight online predators (see O'Neill v. State of New York, 97 AD3d at 212-213; Loughry v. Lincoln First Bank, 67 NY2d 369 [1986]). The Court concludes that defendant's fault rises at least to negligence, and further that the defamatory statements constitute defamation per se, because they would naturally import a criminal or disgraceful charge to the mind of an intelligent person (see Golub v. Enquirer/Star Group, 89 NY2d 1074 [1997]; Liberman, 80 NY2d at 435; McCart v. Morris, 58 AD2d 700 [3d Dept 1977]).

CONCLUSION

 

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Upon review of all the evidence, including the observation of the witnesses and an assessment of their demeanor, the Court finds that claimant has proved his case by a preponderance of the credible evidence.2 Defendant is 100 percent liable for the defamation of claimant. A trial on damages shall be scheduled as soon as practicable. All motions upon which the Court reserved decision are denied.

Let interlocutory judgment be entered accordingly.

October 4, 2013

Albany, New York

1. Criminal possession of a controlled substance in the seventh degree.

2. Defendant's argument that it is immune from liability under McLean v. City of New York (12 NY3d 194 [2009]), is without merit. Immunity under McLean is based upon causes of action for negligence, not intentional torts such as defamation.