Partridge v. State

173 A.D.3d 86

100 N.Y.S.3d 730

Robert PARTRIDGE, Respondent—Appellant,

v.STATE of New York, Appellant—Respondent.

526704

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: March 18, 2019

Decided and Entered: May 9, 2019

Letitia James, Attorney General, Albany (Jonathan D. Hitsous of counsel), for appellant-respondent.

LaFave Wein & Frament PLLC, Guilderland (Paul H. Wein of counsel), for respondent-appellant.

Before: Egan Jr., J.P., Lynch, Clark, Devine and Pritzker, JJ.

OPINION AND ORDER

Pritzker, J.

(1) Appeal from a decision of the Court of Claims (Hard, J.), entered October 25, 2013, in favor of claimant, and (2) cross appeals (a) from a decision of said court, entered July 18, 2017 in favor of claimant, and (b) from the judgment entered thereon.

On June 17, 2008, the State Police held a press conference to publicize an initiative called "Operation Safe Internet" (hereinafter the initiative). At the press conference, Pedro Perez, then First Deputy Superintendent of the State Police, explained that this initiative was championed by the Internet Crimes Against Children Task Force, which was established to "investigate and prosecute crimes involving the online sexual exploitation of children." While Perez spoke, he stood before a large sign that depicted a child looking at a computer and included the words, "Internet Crimes Against Children." Also part of the presentation were large poster boards that included photographs of the approximately 60 individuals who were arrested during this initiative. Among the photographs was one of claimant, who had never been convicted or charged with a crime involving the sexual exploitation of a child. The press conference aired on various news channels, including WTEN Channel 10 News, located in the City of Albany. During WTEN's coverage of the press conference, many of the photographs of those arrested were displayed, including that of claimant.

In June 2009, claimant filed a claim against defendant for defamation and requested damages in the amount of $ 750,000. Thereafter, defendant answered and asserted the defense of qualified privilege. After a bifurcated trial, the Court of Claims determined that claimant had proven his case by a preponderance of the evidence and subsequently awarded claimant $ 300,000. These appeals and cross appeals ensued, with defendant challenging the liability determination and claimant alleging that the damage award is insufficient.¹

Defendant challenges the Court of Claims' determination with respect to liability, arguing that claimant failed to make the requisite showing for defamation by implication, which defendant argues is the only cognizable theory for the claim.² "A claim of defamation requires proof that the defendant made a false statement, published that statement to a third party without privilege, with fault measured by at least a negligence standard, and the statement caused special damages or constituted defamation per se" ( Dickson v. Slezak, 73 A.D.3d 1249, 1250, 902 N.Y.S.2d 206 [2010] [internal quotation marks and citations omitted]; see Jackie's Enters., Inc. v. Belleville, 165 A.D.3d 1567, 1569–1570, 87 N.Y.S.3d 124 [2018] ). As to the first element, defamation by implication does not require that a direct statement is, in and of itself, false; rather, it is premised on "false suggestions, impressions and implications arising from otherwise truthful statements" ( Armstrong v. Simon & Schuster, 85 N.Y.2d 373, 380–381, 625 N.Y.S.2d 477, 649 N.E.2d 825 [1995] ; accord Stepanov v. Dow Jones & Co., Inc., 120 A.D.3d 28, 35, 987 N.Y.S.2d 37 [2014] ). Indeed, defamation by implication can include statements whose falsity is based not on what was said, but rather "by omitting or strategically juxtaposing key facts" ( Martin v. Hearst Corp., 777 F.3d 546, 552 [2d Cir.2015] ). In determining whether claimant has proven this first element of defamation, defendant urges this Court to adopt a heightened level of proof and require claimant to "make a rigorous showing that the language of the communication as a whole can be reasonably read both to impart a defamatory inference and to affirmatively suggest that the author intended or endorsed that inference" ( Stepanov v. Dow Jones & Co., 120 A.D.3d at 37–38, 987 N.Y.S.2d 37 ).

In determining whether to adopt this heightened standard, we are mindful of the reason for doing so; the suspect communication can impart two distinct contextual meanings and, although one of these meanings is false, the other is true. Accordingly, any limitation imposed upon communication must be scrupulously balanced against the fundamental rights guaranteed by the First Amendment, including "protection for publishing substantially truthful statements" ( Stepanov v. Dow Jones & Co., 120 A.D.3d at 38, 987 N.Y.S.2d 37, citing Armstrong v. Simon & Schuster, 85 N.Y.2d at 381, 625 N.Y.S.2d 477, 649 N.E.2d 825 ). To ensure this balance remains inviolate, both the First Department (see Stepanov v. Dow Jones & Co., Inc., 120 A.D.3d at 37–38, 987 N.Y.S.2d 37 ) and the Second Department (see Udell v. NYP Holdings, Inc., 169 A.D.3d 954, 957, 94 N.Y.S.3d 314 [2019] ) have imposed this "rigorous" evidentiary standard when determining whether to hold a declarant civilly liable for a statement that is facially true, but inferentially false.³ Our concerns do not end with the protection of First Amendment rights, however, as there is also the issue of fairness. Although a published statement may be inferentially defamatory, there certainly may be instances when the context of the statement does not suggest that the declarant endorsed or intended that particular meaning (see Biro v. Conde Nast, 883 F.Supp.2d 441, 466–467 [S.D.N.Y. 2012] ), which would result in the conclusion that only the true meaning was intended or endorsed. Therefore, weighing these important and legitimate concerns, we now adopt a two-part test to determine whether the first element is met in causes of action alleging defamation by implication, requiring proof (1) that the language of the communication as a whole reasonably conveys a defamatory inference, and (2) that such language affirmatively and contextually suggests that the declarant either intended or endorsed the inference (see Stepanov v. Dow Jones & Co. Inc., 120 A.D.3d at 37–38, 987 N.Y.S.2d 37 ).

As to the first part of the test, defendant contends that its communication did not wrongly imply that claimant was a sexual predator. We disagree. By way of background, claimant was arrested after a search warrant was issued in connection with an investigation regarding allegations that an individual, who resided with claimant, had allegedly traveled to Wisconsin to engage in sexual activity with a minor that she had met online.⁴ On May 7, 2008, as a result of the execution of the warrant, claimant was charged with unlawful possession of marihuana, a violation, and criminal possession of a controlled substance in the seventh degree, a misdemeanor, stemming from a search of his bedroom where police officers located and confiscated marihuana and "several half full and empty bottles of what appeared to be anabolic steroids." On June 4, 2008, about two weeks before the press conference, claimant's criminal charges were adjourned in contemplation of dismissal (see CPL 170.55[2] ). Thereafter, on November 3, 2008, the criminal charges were dismissed and the records were sealed.

The communication at issue here is the press conference, which included Perez's speech to the press, a press release, a media advisory and posters displaying mug shots of those arrested during the initiative. A review of the text of Perez's speech, which was admitted into evidence at trial, described the initiative as a "three-month Internet crime fighting initiative and community outreach program." Perez also stated in his speech that the initiative had resulted in over 60 arrests for charges, including "[p]ossession 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." Perez's speech then went on to explain the community outreach portion of the initiative, which included public service announcements that were available to the media and covered topics such as "online harassment, online sexual predators, Internet safety, and password protection." Perez then went on to point out the poster boards with photographs of those individuals who were arrested during the course of the initiative. Specifically, the State Police created seven poster boards – measuring 40 inches by 32 inches – and displayed 61 mug shots. The mug shot photographs were 8 inches by 10 inches. Underneath the mug shots were small labels, with one-half-inch print on which the arrestees' names, locations and the crime or crimes for which he or she was arrested appeared. Claimant's photograph appeared in the bottom row of one of these poster boards, and, as indicated by the Court of Claims, claimant's photograph was "located directly below a mug shot of a locally known criminal arrested for child pornography." The evidence at trial revealed that the press conference was covered by five television news programs, and that two of these five showed claimant's mug shot during their broadcasts.

At trial, Perez testified that, aside from claimant, all of the individuals depicted on the poster boards were either "Internet criminals or sexual predators" and that most of the sexual crimes involved children. Perez also admitted that the labels underneath the photographs were not visible during the news broadcasts.⁵ Joseph Donohue, who was a Technical Lieutenant in the State Police Computer Crime Unit, testified at trial that he prepared the poster boards for the press conference and explained that it was his decision to place claimant's photo on the board, despite knowing the underlying details of claimant's charges....