Cook v. Dwyer et al
Filing
41
MEMORANDUM-DECISION and ORDER granting 36 Motion for Summary Judgment. Clerk shall enter judgment and close case.. Signed by Senior Judge Frederick J. Scullin, Jr on 3/30/2018. (bjw, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_______________________________________________________
TRAVIS L. COOK, SR.,
Plaintiff,
v.
1:16-CV-752
(FJS/DJS)
JOHN DWYER, City of Albany Police Officer,
both individually and/or as an agent, servant, and/or
employee of the City of Albany; GREGORY
MULLIGAN, City of Albany Police Officer,
both individually and/or as an agent, servant, and/or
employee of the City of Albany; JOHN REGAN,
City of Albany Police Officer, both individually and/or
as an agent, servant, and/or employee of the City
of Albany; and TYSON RUECKER, City of Albany
Police Officer, both individually and/or as an agent,
servant, and/or employee of the City of Albany,
Defendants.
_______________________________________________________
APPEARANCES
OF COUNSEL
THE KINDLON LAW FIRM, PLLC
52 James Street, 5th Floor
Albany, New York 12207
Attorneys for Plaintiff
LEE CAREY KINDLON, ESQ.
GENNARO D. CALABRESE, ESQ.
THE REHFUSS LAW FIRM P.C.
40 British American Boulevard
Latham, New York 12110
Attorneys for Defendants
ABIGAIL W. REHFUSS, ESQ.
STEPHEN J. REHFUSS, ESQ.
SCULLIN, Senior Judge
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
On June 24, 2016, Plaintiff commenced this action under 42 U.S.C. § 1983 against
Defendants, all of whom are City of Albany Police Officers. See Dkt. No. 1 ("Complaint"). In his
complaint, Plaintiff asserted three causes of action: (1) false arrest, (2) false imprisonment, and
(3)malicious prosecution, all of which arose from events that occurred in 2014. See id.
Pending before the Court is Defendants' motion for summary judgment pursuant to Rule 56
of the Federal Rules of Civil Procedure. See Dkt. No. 36.
II. BACKGROUND
On August 1, 2014, Defendants, members of the City of Albany Police Department's
Community Response Unit ("CRU"), arrested an individual ("CS"), who told the arresting officers
that "he wanted to help himself out by offering up information on his heroin dealer, the Plaintiff, by
setting up a buy." See Dkt. No. 36-1 ("Defendants' Statement of Facts") at ¶¶ 1-4 (citing [Dkt. No.
36-5 ("Grand Jury Tr. A")1 at] 8:11-25, 9:1-8).2
In the presence of Defendants Mulligan and Dwyer, the CS "placed a recorded phone call
and exchanged several text messages with phone number 518-650-4080 setting up a buy for 50
grams of heroin for $3,500" at a specified time and location. See Defendants' Statement of Facts at
¶¶ 5, 7 (citing [Grand Jury Tr. A at] 9:1-8, 9:12-14, 9:17-20, 9:21-10:6). Defendants Mulligan and
Dwyer listened to the phone call and read the text message exchange. See id. at ¶ 6 (citing [Dkt.
No. 36-6 ("Suppression Hearing Tr.") at] 6:4-7:2).
1
Both Plaintiff and Defendants filed certain pages of the Grand Jury Transcript.
References to "Grand Jury Tr. A" are to the pages that Defendants filed. References to "Grand
Jury Tr. B" are to the pages that Plaintiff filed.
2
Generally, the Court's references to page numbers are to those page numbers that the
Court's electronic filing system ("CM/ECF") generates. However, citations to transcripts of any
kind are to the actual page numbers of those transcripts designated in the following manner:
[page number]:[line numbers].
-2-
After the CS finished setting up the buy, Defendants Mulligan and Dwyer drove him to the
specified location, an apartment building, to commence surveillance from an unmarked vehicle.
See id. at ¶ 8 (citing [Grand Jury Tr. A at] 10:6-15). Defendants planned "to perform a RIP
operation," in which "officers intercept the drug dealer before he has any contact with the [CS]."
See id. at ¶ 9 (citing [Grand Jury Tr. A at] 17:10-13, 34:8-11; [Suppression Hearing Tr. at] 5:13-17).
Just before arriving at the apartment building, a caller at the aforementioned number
telephoned the CS and "told him that he was arriving and that he was going to send his white girl up
to the residence with the drugs." See id. at ¶ 11 (citing [Grand Jury Tr. A at] 10:16-23). The CS
placed the call on speakerphone so that Defendants Mulligan and Dwyer could also listen to the
conversation and confirm that the caller was a male. See id. at ¶¶ 12-13 (citing [Grand Jury Tr. A
at] 10:16-11:7; [Suppression Hearing Tr. at] 8:7-19). They also visually confirmed that the call
came from the same number that the CS had contacted while at the police station, 518-650-4080.
See id. at ¶ 13 (citing [Suppression Hearing Tr. at] 8:7-19).
Shortly after the telephone call, Defendants observed a vehicle arrive outside the apartment
building. See id. at ¶ 14 (citing [Grand Jury Tr. A at] 10:1-19; 34:23-35:4). The CS confirmed to
Defendant, "'that's the car.'" See id. at ¶ 15 (quoting [Suppression Hearing Tr. at] 9:1-9). Inside the
vehicle was a white female, two adult males, one of whom was Plaintiff, and a small child. See id.
at ¶ 14 (citation omitted); Dkt. No. 38-2 ("Plaintiff's Memorandum") at 4 (citing [Dkt. No. 38-3
("Grand Jury Tr. B")] at 25[:13-18]; [Dkt. No. 38-5 ("Plaintiff's Deposition Tr.")] at 18[:13-16]).
Ms. Holland McKay, "the white female" was driving the car, Mr. Artce Kennedy was sitting in the
front passenger seat, and Plaintiff and his young son were sitting in the back seat. See Defendants'
Statement of Facts at ¶¶ 18-19 (citing [Grand Jury Tr. A at] 12:5-11, 12:22-25; [Dkt. No. 36-7
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("Brucato Deposition Tr.")] at 18:20-24]). Plaintiff claims that, earlier in the evening, Ms. McKay
and Mr. Kennedy had agreed to drive him and his son home but had informed him that "they had to
make a stop on the way." See Plaintiff's Memorandum at 4 (citing [Grand Jury Tr. B] at 25[:10-13];
[Plaintiff's Deposition Tr.] at 15[:15]-16[:3]).
After arriving at the location, Ms. McKay exited the vehicle and began to enter the
apartment building where the CS had arranged to purchase the drugs. See Defendants' Statement of
Facts at ¶ 16 (citing [Grand Jury Tr. A at] 11:11-13, 11:20-22]). Plaintiff claims that, while Ms.
McKay was entering the building, Mr. Kennedy was speaking to someone on his cell phone. See
Plaintiff's Memorandum at 4 (citing [Grand Jury Tr. B] at 25[:20-21]). As Defendant Mulligan
observed Ms. McKay about to enter the apartment building, he relayed the information to "take
down units" in the area, who subsequently followed her into the building. See Defendants'
Statement of Facts at ¶ 17 (citing [Grand Jury Tr. A at] 11:23-12:4). Officers subsequently arrested
Ms. McKay after searching her and finding 62 grams of heroin and approximately 5 grams of
cocaine on her person. See id. at ¶ 18 (citing [Suppression Hearing Tr. at] 9:13-23; [Grand Jury Tr.
A at] 12:22-13:17; [Dkt. No. 36-8 ("Defendants' Ex. F: McKay Police Report") at 3-4]).
At the same time that the take down units were approaching Ms. McKay, additional officers
approached Plaintiff and Mr. Kennedy, who were still sitting in the vehicle. See id. at ¶ 17 (citing
[Grand Jury Tr. A at] 11:23-12:4). Officers then searched and arrested both Plaintiff and Mr.
Kennedy. See id. at ¶¶ 17, 19-20 (citing [Grand Jury Tr. A at] 11:23-12:4, 12:5-11, 12:9-15, 35:5-7;
[Brucato Deposition Tr. at] 13:7-12, 18:20-24). During the arrest and subsequent search, officers
confiscated a "wallet, identification, money, and a cell phone" from Mr. Kennedy. See Defendants'
Statement of Facts at ¶ 21 (citing [Grand Jury Tr. A at] 35:5-11). Officers also retrieved a cell
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phone from Plaintiff. See id. (citing [Grand Jury Tr. A at] 12:9-15). Plaintiff admits that, after the
officers took him to the police station, Defendant Ruecker made sure that both seized cell phones
were on and operating properly. See id. at ¶ 22 (citing [Grand Jury Tr. A at] 36:18-24, 38:18-39:7);
Plaintiff's Statement of Facts at ¶ 22 (citing [Grand Jury Tr. B] at 28[:21]-29[:13]; [Plaintiff's
Deposition Tr.] at [33:20-22,] 24[:17-22]). Plaintiff also acknowledges that Defendant Ruecker
called the previously-mentioned number associated with the drug buy, 518-650-4080, from his
office phone. See Plaintiff's Statement of Facts at ¶ 22 (citations omitted). However, the parties
disagree about whether the phone that rang when Defendant Ruecker called that number was the
phone that the officers had seized from Plaintiff. See Defendants' Statement of Facts at ¶ 22
(citations omitted); Plaintiff's Statement of Facts at ¶ 22 (citations omitted). Plaintiff claims that his
cell phone had a number that began with a "434" area code, not a "518" area code; and, therefore,
his phone was not the phone that rang when Defendant Ruecker placed a call to the number
associated with the drug buy. See Plaintiff's Statement of Facts at ¶ 33 (citing [Grand Jury Tr. B] at
29[:1-13], 32[:5-12]). Nevertheless, Defendants charged Plaintiff with "Criminal Sale of a Narcotic
Drug." See Defendants' Statement of Facts at ¶ 23 (citing [Defendants' Ex. E: Cook Police Report
at 1]). After Defendants generated "pedigree information and a field contact card for" Mr.
Kennedy, they released him. See Defendants' Statement of Facts at ¶ 24 (citing [Grand Jury Tr. A
at] 35:17-21; [Dkt. No. 36-8 ("Defendants' Ex. G: Kennedy Pedigree Information") at 5-6]).
Albany County Assistant District Attorney ("ADA") Joseph Brucato prosecuted Plaintiff's
criminal case. See Defendants' Statement of Facts at ¶ 25 (citing [Brucato Deposition Tr. at] 5:76:8). A grand jury indicted Plaintiff, and the presiding judge at Plaintiff's probable cause hearing
found that there was probable cause for the charge against Plaintiff. See id. at ¶¶ 26-27 (citing
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[Brucato Deposition Tr. at] 6:18-20, 25:2-12). ADA Brucato ultimately sought dismissal of the
charges "against Plaintiff in the interest of justice" because he believed he did not have "enough
evidence to prove the case beyond a reasonable doubt." See Defendants' Statement of Facts at ¶ 28
(citing [Brucato Deposition Tr. at] 11:10-12).3
ADA Brucato based his decision to seek dismissal of the charge against Plaintiff on
information he had received prior to trial. First, Plaintiff's counsel informed ADA Brucato that
Plaintiff protested his innocence and "was willing to have the phone dumped, meaning release all
the information to it." See Brucato Deposition Tr. at 10:15-19. Plaintiff's counsel also told ADA
Brucato that he had "brought in a private DNA lab to have the phone swabbed," which ADA
Brucato found to be "highly irregular." See id. at 10:20-22. Finally, after talking to Plaintiff's
counsel, ADA Brucato located Mr. Kennedy, who at that time was in the Albany County jail for
another drug charge. See id. at 10:22-11:1. Mr. Kennedy told ADA Brucato that "he was the one
[who] committed the crime." See id. at 11:3-4.
III. DISCUSSION
A.
Standard of review
Under Rule 56 of the Federal Rules of Civil Procedure, "[t]he court shall grant summary
judgment if the movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The moving party bears
3
ADA Brucato also testified, however, that he believed that Defendants "'absolutely had
probable cause to arrest Plaintiff '[b]ecause he had the buy phone on him and he showed up in a
car when there was a call made for drugs.'" See Defendants' Statement of Facts at ¶ 25 (quoting
[Brucato Deposition Tr. at] 25:16-24).
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the burden of demonstrating "that no genuine issue of material fact exists." Eastman Mach. Co.,
Inc. v. United States, 841 F.2d 469, 473 (2d Cir. 1988) (citing Adickes v. S.H. Kress & Co., 398
U.S. 144, 157, 90 S. Ct. 1598, 1608, 26 L. Ed. 2d 142 (1970)).
To survive a motion for summary judgment, the non-movant "'must "do more than simply
show that there is some metaphysical doubt as to the material facts." . . . [He] must come forth with
evidence sufficient to allow a reasonable jury to find in [his] favor.'" Cuffee v. City of New York,
No. 15 Civ. 8916, 2018 WL 1136923, *4 (S.D.N.Y. Mar. 1, 2018) (quoting Brown v. Henderson,
257 F.3d 246, 252 (2d Cir. 2001) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 586 (1986))). Therefore, "'[m]ere conclusory statements, conjecture or speculation' by the
[non-movant] will not defeat a summary judgment motion." Id. (quoting Gross v. Nat'l Broad. Co.,
Inc., 232 F. Supp. 2d 58, 67 (S.D.N.Y. 2002)).
B.
Plaintiff's false arrest/false imprisonment claims
Under § 1983, claims of false arrest and false imprisonment share the same elements. See
Saldana v. Vill. of Port Chester, No. 09 Civ. 6268, 2010 WL 6117083, *2 (S.D.N.Y. July 21, 2010)
(citations omitted). To maintain either of these claims, in addition to showing that the defendant
acted under color of state law, a plaintiff must establish "(1) that the defendant[s] intended to
confine him, (2) [he] was conscious of the confinement, (3) [he] did not consent to the confinement,
and (4) the confinement was not otherwise privileged." Pawlicki v. City of Ithaca, 993 F. Supp.
140, 144 (N.D.N.Y. 1998) (citation omitted). "An arrest may be 'privileged' if it was 'based on
probable cause.'" Folk v. City of New York, 243 F. Supp. 3d 363, 371 (E.D.N.Y. 2017) (quoting
Savino v. City of New York, 331 F.3d 63, 76 (2d Cir. 2003)). Consequently, a defendant may defeat
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such a claim if "he had probable cause for the arrest[.]" Hulett v. City of Syracuse, 253 F. Supp. 3d
462, 494 (N.D.N.Y. 2017) (quotation omitted).
There is no dispute that Plaintiff has satisfied the first three elements of his false arrest/false
imprisonment claims. Thus, the Court need only address whether Plaintiff has satisfied the fourth
element of his claims, i.e., whether the arrest/imprisonment was otherwise privileged.
"[P]robable cause to arrest exists where the officers have knowledge or reasonably
trustworthy information of facts and circumstances that are sufficient to warrant a person of
reasonable caution in the belief that the person to be arrested has committed or is committing a
crime." Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996) (citations omitted). "The probable cause
inquiry is objective, rather than subjective, and should consider only the facts known to the
arresting officer at the time of the arrest." Dawkins v. Williams, 511 F. Supp. 2d 248, 251 (2d Cir.
2007) (citing Jaegly v. Couch, 439 F.3d 149, 154-55 (2d Cir. 2006) (citing Devenpeck v. Alford,
543 U.S. 146, 152-53, 125 S. Ct. 588, 160 L. Ed. 2d 537 (2004))); see also Haussman v. Fergus,
894 F. Supp. 142, 147 (S.D.N.Y. 1995) (stating that "the validity of an arrest does not depend on an
ultimate finding of guilt or innocence. . . . Rather, the soundness of the arrest hinges on the
existence of probable cause at the time the arrest was made." (citing Pierson v. Ray, 386 U.S. 547,
555, 87 S. Ct. 1213, 1218, 18 L. Ed. 2d 288 (1967))). Moreover, "[p]robable cause is not dependent
on the ultimate accurateness and truthfulness" of the knowledge officers possessed at the time of the
arrest. Universal Calvary Church v. City of New York, No. 96CIV.4606(RPP), 2000 WL 1538019,
*5 (S.D.N.Y. Oct. 17, 2000). Rather, the probable cause inquiry turns on whether officers "acted
reasonably and in good faith" when they relied on inaccurate or mistaken information. Bernard v.
United States, 25 F.3d 98, 102-03 (2d Cir. 1994) (holding that the district court had correctly found
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that police officers had probable cause to arrest the plaintiff despite later discovering that their CS
had misidentified the plaintiff as being his seller of crack cocaine). Finally, "[c]ourts should look to
the 'totality of the circumstances'" when determining whether there is probable cause to arrest an
individual. Panetta v. Crowley, 460 F.3d 388, 395 (2d Cir. 2006) (quotation omitted).
In the present case, the "totality of the circumstances" surrounding Plaintiff's arrest leads to
the inescapable conclusion that Defendants had probable cause to arrest and imprison him. As
outlined above, Defendants personally observed every moment leading up to and culminating in
Plaintiff's arrest. Additionally, prior to Defendants' execution of the "RIP operation," the CS had
identified Plaintiff as his drug dealer and, in the presence of Defendants Mulligan and Dwyer, set
up a drug buy at a specified time and location with an individual with a cell phone number
beginning with area code "518." Furthermore, both officers listened to the phone call and read the
text message exchange and confirmed that the individual associated with the "518" number agreed
to sell the CS more than $3,000 worth of heroin and cocaine at the apartment building where
Defendants subsequently arrested Plaintiff.
Moreover, upon arriving at the apartment building, the CS identified the car in which
Plaintiff was a passenger as the car associated with the drug buy. In addition, a "white female"
exited that car and began to walk towards the apartment building, thereby confirming for
Defendants that the vehicle the CS had identified was likely the car associated with the drug buy, as
Defendants had overheard the "518" caller indicate that he would be sending the drugs into the
apartment building with his "white girl." In addition, take down units subsequently confirmed that
the "white girl," Ms. McKay, was carrying the agreed upon quantity of drugs on her person at the
time they arrested her in the building. Based on all this information, the Court finds that any
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reasonable officer, knowing what Defendants knew at the time, would have reasonably concluded
that one or both of the male individuals in the car had arranged the drug deal; and, therefore, the
Court concludes that Defendants had probable cause to arrest Plaintiff.
Furthermore, Plaintiff's assertion that his phone had a "434" area code,4 not a "518" area
code, and, therefore, that his phone was not the one that rang when Defendants called the number
associated with the drug deal, see Plaintiff's Statement of Facts at ¶¶ 22, 33 (citations omitted),
when viewed in light of the totality of the circumstances, is insufficient to create an issue of fact as
to whether Defendants had probable cause to arrest Plaintiff.
Finally, even assuming that Defendants were mistaken about which of the two phones they
took from Plaintiff's person, Plaintiff has not come forward with any evidence to suggest that
Defendants acted unreasonably or did not act in good faith. See Universal Calvary Church, 2000
WL 1538019, at *5 (discussing a series of cases in which the courts concluded that probable cause
could exist even when the officers had relied on mistaken information so long as they acted in good
faith in relying on that information).
Accordingly, after reviewing the entire record and drawing all reasonable inferences in favor
of Plaintiff, the Court concludes that Plaintiff has not come forward with sufficient evidence to
4
Other than Plaintiff's statement that the phone that Defendants removed from his person
had a "434" area code, there is nothing in the record to support this claim. To support their
contention that both of the phones they confiscated when they arrested Mr. Kennedy and
Plaintiff had "518" area codes, Defendants submitted a photograph of the evidence bags
containing the two cell phones that they confiscated from Mr. Kennedy and Plaintiff. See Dkt.
No. 39 ("Defendants' Reply Memorandum") at 5-6 (citing [Defendants' Ex. 1: Photographs of
Evidence Bags with Cell Phones]). The label on one of the evidence bags indicates that it
contains a cell phone with the number 518-375-9409; the label on the other evidence bag
indicates that it contains a cell phone with the number 518-650-4080. See Dkt. No. 39-1
("Defendants' Ex. 1: Photographs of Evidence Bags with Cell Phones") at 2-3.
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allow a reasonable jury to find in his favor. Rather, the totality of the circumstances clearly
demonstrates that Defendants had probable cause to arrest him. Accordingly, the Court grants
Defendants' motion for summary judgment with regard to Plaintiff's false arrest and false
imprisonment claims.
C.
Plaintiff's malicious prosecution claim
To state a claim for malicious prosecution under § 1983, a plaintiff must establish that "'(1)
the defendant either commenced or continued a criminal proceeding against him; (2) that the
proceeding terminated in his favor; (3) that there was no probable cause for the criminal
proceeding; and (4) that the criminal proceeding was instituted with actual malice.'" Dawkins, 511
F. Supp. 2d at 251 (quoting Russo v. N.Y., 672 F.2d 1014, 1018 (2d Cir. 1982) (quoting Martin v.
City of Albany, 42 N.Y.2d 13, 16, 396 N.Y.S.2d 612, 364 N.E.2d 1304 (1977))).
In this case, there is no dispute that Plaintiff has satisfied the first element of his claim,
therefore the Court need only address the other three elements.
A plaintiff cannot successfully maintain a claim for malicious prosecution if the criminal
proceeding against him did not terminate in his favor. See Amex Dev., LLC v. Aljohn Grp., Inc.,
134 A.D.3d 865, 867 (2d Dep't 2015) (citations omitted). In Cantalino v. Danner, 96 N.Y.2d 391
(2001), the New York Court of Appeals held that "[t]here is no per se rule that a dismissal in the
interest of justice can never constitute a favorable termination." Id. at 396. Rather, the court
explained that "the question is whether under the circumstances of each case, the disposition was
inconsistent with the innocence of the accused." Id. In Catalino, the Court of Appeals concluded
that the dismissal in the interest of justice in that case constituted a favorable termination because
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"the Criminal Court [had] stated in no uncertain terms that it was dismissing the case because the
criminal charges against [the] plaintiff were unfounded." Id.; see also Bellissimo v. Mitchell, 122
A.D.3d 560, 562 (2d Dep't 2014) (concluding that the trial court erred in dismissing the plaintiff's
malicious prosecution claim for failure to allege a favorable termination in the underlying criminal
proceeding when the criminal charges against the plaintiff were dismissed in the interest of justice
"based upon 'the weakness of the proof of guilt' . . . a conclusion which [wa]s not inconsistent with
the plaintiff's innocence. . . ." (internal quotation and citation)).
In this case, the state trial court dismissed Plaintiff's case in the interests of justice. See
Defendants' Statement of Facts at ¶ 28 (citing Brucato Deposition Tr. at 11:10-12). Although in
many cases a dismissal in the interest of justice would not satisfy the second element of a plaintiff's
malicious prosecution claim, in this case, the parties have raised factual issues regarding the nature
of the dismissal that preclude the Court from finding, as a matter of law, that the dismissal did not
constitute a "favorable termination." ADA Brucato indicated that he sought dismissal of Plaintiff's
case, at least in part, based on information that he had received before Plaintiff's trial commenced
that tended to support Plaintiff's claim of innocence. See Brucato Deposition Tr. at 10:11-11:16.
As noted, Plaintiff's counsel told ADA Brucato that he had hired a private DNA laboratory to swab
the cell phone associated with the drug buy, behavior that ADA Brucato found strange if Plaintiff
truly was guilty. See id. at 10:14-22. Additionally, Mr. Kennedy told ADA Brucato that, although
he and Plaintiff "both used this girl to transport drugs, . . . on that occasion . . . he was the one who
[committed the crime], not Plaintiff." See id. at 11:5-9. Thus, unlike dismissals in the interest of
justice based on "mercy and compassion," in this case. Plaintiff has come forward with sufficient
evidence from which a jury could find that the dismissal of his case was not inconsistent with his
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innocence and, therefore, constituted a favorable termination for purposes of his malicious
prosecution claim.
However, even if the Court assumes for the sake of argument, that Plaintiff could establish
that his criminal case terminated in his favor, he must still prove that there was no probable cause
for the commencement and/or continuation of the criminal proceedings against him. See Savino,
331 F.3d at 75. "[E]vidence of a subsequent arraignment or indictment is admissible as some proof
of the presence of probable cause," Broughton v. New York, 37 N.Y.2d 451, 458 (1975), as "the law
holds that [a] Grand Jury [indictment] creates a presumption of probable cause," Colon v. City of
New York, 60 N.Y.2d 78, 82 (1983) (citations omitted). Under New York law, the plaintiff bears
the burden of refuting that presumption, which "may only be rebutted by evidence that the
indictment was procured by 'fraud, perjury, the suppression of evidence or other police conduct
undertaken in bad faith.'" Savino, 331 F.3d at 72 (quoting Colon, 60 N.Y.2d at 83, 468 N.Y.S.2d at
456). Thus, in order to survive a motion for summary judgment on his malicious prosecution claim,
a plaintiff "must have submitted evidence sufficient for a reasonable jury to find that his indictment
was procured as a result of police conduct undertaken in bad fath." Id. at 73. Mere conjecture or
surmise and allegations that officers procured an indictment in bad faith are not enough. Id. (citing
Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991)).
Furthermore, a court cannot simply rely on a plaintiff's version of the events and a favorable
disposition to conclude that officers procured the indictment in bad faith. See Lewis v. City of New
York, 591 F. App'x 21, 22 (2d Cir. 2015) (summary order) (stating that "[t]he various iterations of
[the plaintiff's] complaint fail to rebut [the probable cause presumption], essentially alleging only
that the defendant officers must have fabricated evidence in light of [the plaintiff's] version of the
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events and his ultimate acquittal. Such conclusory allegations are insufficient to counter the
presumption of probable cause, and to allow a court to draw the reasonable inference that the grand
jury's indictment was a result of fraud or other misconduct" (citation omitted)). However, "[w]here
there is some indication in the police records that, as to a fact crucial to the existence of probable
cause, the arresting officers may have 'lied in order to secure an indictment,' and 'a jury could
reasonably find that the indictment was secured through bad faith or perjury,' the presumption of
probable cause created by the indictment may be overcome." Manganiello v. City of New York, 612
F.3d 149, 162 (2d Cir. 2010) (quotation omitted). Finally, where a plaintiff alleges that the
arresting officers lied before a grand jury to help secure an indictment, he must "establish what
occurred in the grand jury, and . . . establish that those circumstances warrant a finding of
misconduct sufficient to erode the 'premise that the Grand Jury acts judicially[.]'" Rothstein v.
Carriere, 373 F.3d 275, 284 (2d Cir. 2004) (quoting Colon, 60 N.Y.2d at 82, 468 N.Y.S.2d 453,
455 N.E.2d 1248).
In this case, Plaintiff claims that, even if Defendants had probable cause to arrest him, issues
of fact exist as to whether Defendants had probable cause to proceed with the criminal charges
against him because the phone they seized from him was not associated with the drug buy and, in
fact, had a number that began with a "434" area code. See Plaintiff's Statement of Facts at ¶¶ 22, 33
(citations omitted). Therefore, Plaintiff asserts that Defendants "misrepresented and/or deliberately
concealed" from the grand jury "that the cell phone [they] seized as evidence did not belong to
[him] and was not seized from his person." See Complaint at ¶ 23; see also id. at ¶ 19 (stating that
Defendants "falsely and maliciously asserted that the cell phone seized from [Mr. Kennedy]
belonged to [Plaintiff]").
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As noted, the Court cannot simply rely on Plaintiff's allegations in this complaint that
Defendants lied about the cell phone they seized from him.5 As the courts explained in Savino and
Lewis, allegations in a plaintiff's complaint or memorandum of law that a defendant acted in bad
faith, without more, are insufficient to overcome the probable cause presumption of a grand jury
indictment. In addition, a plaintiff "cannot rely on the allegations in his . . . pleadings, conclusory
statements, or on 'mere assertions that affidavits supporting the motion are not credible'" to defeat a
motion for summary judgment. Santana v. Rent a Throne, Inc., No. 2:15-cv-2563, 2018 WL
1027667, *2 (E.D.N.Y. Feb. 21, 2018) (quoting Gottlieb. v. Cnty. of Orange, 84 F.3d 511, 518 (2d
Cir. 1996)). Rather, when the moving party has properly supported his motion with "affidavits,
depositions, or other documentation, the non-movant must offer similar materials setting forth
specific facts that show that there is a genuine issue of material fact to be tried." Id. (citing Rule v.
Brine, Inc., 85 F.3d 1002, 1011 (2d Cir. 1996)). Finally, even if the Court were to assume that
Defendants lied to the grand jury, the Court would still need to find that their false testimony was
5
The Court notes that Plaintiff provided inconsistent testimony at several points in the
record, which tends to undermine his claim that Defendants lied, misrepresented or concealed
information. Specifically, Plaintiff's testimony before the grand jury on August 14, 2014, and his
testimony at his deposition on August 25, 2015, which occurred as a result of his filing of a
Notice of Claim with the City of Albany prior to commencing this lawsuit, are not always
consistent. As noted, although Plaintiff admits that Defendants confiscated a cell phone from
him during the arrest, see Plaintiff's Statement of Facts at ¶¶ 21-22, he claims that his phone had
a number beginning with a Virginia area code of "434, see id. at ¶ 33. However, at his
deposition, Plaintiff explained that the cell phone he had with him on the day of his arrest was
his wife's cell phone, which had a "434" area code, and that the cell phone he had lost one or two
weeks earlier had an Albany ("518") area code. See Plaintiff's Deposition Tr. at 34:17-35:11.
Regardless of whether the cell phone with the area code "434" belonged to Plaintiff or his
wife, the evidence in the record indicates that Defendants seized two cell phones, one from Mr.
Kennedy and one from Plaintiff, on the day of their arrests and that both of those cell phones had
numbers that began with a "518" area code." See Defendants' Ex. 1: Photographs of Evidence
Bags with Cell Phones.
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"sufficient to erode the 'premise that the Grand Jury act[ed] judicially.'" Rothstein, 373 F.3d at 284
(quotation omitted).
In this case, an examination of the grand jury transcript unequivocally demonstrates that the
grand jury acted judicially before handing down the indictment in Plaintiff's case. The grand jury
questioned Defendants about the cell phones they had seized from Plaintiff and Mr. Kennedy based
on information that Plaintiff had provided when he testified to his version of the events. See Grand
Jury Tr. A at 36:11-39:13. The grand jurors asked Defendants how many phones they had retrieved
from Plaintiff and Mr. Kennedy, whether any of the phones they had retrieved had a "434" or
Virginia area code, as Plaintiff had testified, and asked detailed questions about the process
whereby Defendants confirmed that the phone they had confiscated from Plaintiff was indeed the
phone associated with the drug deal. See id. Furthermore, the grand jury heard both Plaintiff's and
Defendants' versions of the events and took full advantage of the opportunity to question both
Plaintiff and Defendants and to weigh the testimony of all the witnesses. Thus, despite Plaintiff's
allegations that Defendants lied to or somehow misled the grand jury, the record does not support a
finding that the grand jury did not act judicially or relied solely on Defendants' purported "false
testimony" about the cell phone associated with the drug deal.
Furthermore, the grand jury had "independent, untainted information" upon which it could
rely as a basis for the indictment against Plaintiff. Plaintiff does not claim that all of Defendants'
testimony or that all of the evidence presented to the grand jury was false. In fact, he admits that
the CS identified the car in which he was a passenger as the vehicle associated with the drug buy,
that he was in the car with Ms. McKay, whom Defendants found carrying a significant quantity of
heroin and cocaine, and that he was at the apartment building where the CS and his buyer had
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agreed to execute the drug transaction. Based on this independent, untainted evidence alone, the
grand jury could have found probable cause that Plaintiff intended to commit a crime.
Finally, even after viewing all the evidence in the record in the light most favorable to
Plaintiff and drawing all reasonable inferences from that evidence in his favor, the Court concludes
that Plaintiff has not raised an issue of material fact from which the Court could "draw the
reasonable inference that the grand jury's indictment was the result of fraud or other misconduct,"
Lewis, 591 F. App'x at 22 (citation omitted), or that the criminal proceeding against Plaintiff lacked
the requisite probable cause. To the contrary, the evidence in the record overwhelmingly supports
the unrebutted conclusion that the criminal proceeding against Plaintiff was supported by probable
cause. Therefore, for all of the above-stated reasons, the Court concludes that Plaintiff has not
provided sufficient evidence to rebut the presumption of probable cause that the grand jury's
indictment created.6
Accordingly, because Plaintiff has not come forward with sufficient evidence from which a
jury could find that he had established all of the required elements of his malicious prosecution
claim, the Court grants Defendants' motion for summary judgment with regard to that claim.
IV. CONCLUSION
Having reviewed the entire record in this case, the parties' submissions and the applicable
law, and for the above-stated reasons, the Court hereby
ORDERS that Defendants' motion for summary judgment, see Dkt. No. 36, is GRANTED
6
The Court also notes that Plaintiff has not come forward with any evidence that would
support a finding that Defendants instituted on continued the criminal proceedings against him
with actual malice.
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in its entirety; and the Court further
ORDERS that the Clerk of the Court shall enter judgment in favor of Defendants and close
this case.
IT IS SO ORDERED.
Dated: March 30, 2018
Syracuse, New York
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