Peterec v. Hilliard et al

Filing 90

OPINION AND ORDER: Defendant's Motion for Summary Judgment is GRANTED and Plaintiffs Motions are DENIED. The Clerk of Court is respectfully directed to terminate the pending Motions, (Docs. 73, 74, 82), enter judgment for Defendant, and close the case. SO ORDERED. (Signed by Judge Cathy Seibel on 12/8/2014) (lnl)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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JOHN L. PETEREC,
Plaintiff,
– against –
NEW YORK STATE POLICE TROOPER SCOTT D.
HILLIARD, in his individual capacity,

OPINION AND ORDER
No. 12-CV-3944 (CS)

Defendant.
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Appearances:
John L. Peterec
New York, New York
Plaintiff Pro Se
John E. Knudsen
Assistant Attorney General of the State of New York
New York, New York
Counsel for Defendant
Seibel, J.
Before the Court are Defendant’s Motion for Summary Judgment, (Doc. 82), Plaintiff’s
Motion for Summary Judgment, (Doc. 74), and Plaintiff’s Motion in Limine, (Doc. 73). For the
following reasons, Defendant’s Motion is GRANTED and Plaintiff’s Motions are DENIED.
I.

BACKGROUND
The following facts are based upon the parties’ Local Civil Rule 56.1 statements and

supporting materials, and are undisputed except as noted. I set forth only those facts relevant to
my decision.

Defendant is a Trooper with the New York State Police. (Knudsen Decl. Ex. A (“D’s
Aff.”), at ¶ 1.)1 On May 28, 2008, at approximately 8:00 pm, Defendant received a radio
transmission from the State Police Barracks in Monroe, New York seeking an available patrol
unit on State Route 17 westbound. (Id. ¶ 2.) Defendant, who was assigned to a construction
zone detail on State Route 17, answered this transmission and spoke with Trooper Jason Coulon.
(Id.) Trooper Coulon notified Defendant that an off-duty Trooper was following a green Toyota
that was driving erratically and was approaching the construction zone on State Route 17. (Id.)
According to Defendant, the following occurred: At about 8:25 pm, he observed the
green Toyota and noticed that the passenger side headlight was out. (Id. ¶ 3.) Defendant then
stopped the vehicle and asked Plaintiff, who was driving it, for his license and registration. (Id.)
When speaking with Plaintiff, Defendant immediately detected an odor of alcohol on his breath,
and noticed that Plaintiff had red, watery eyes. (Id.) Defendant asked Plaintiff how much he had
had to drink, and Plaintiff admitted that he drank two beers earlier in the day. (Id.) Defendant
then asked Plaintiff to exit his vehicle. (Id. ¶ 4.) When Plaintiff exited his vehicle, Defendant
noticed a container of yellow liquid on the floor in front of the driver’s seat and that Plaintiff’s
fly was open. (Id.) In response to Defendant’s question as to what was in the container, Plaintiff
stated that it was urine. (Id.) Defendant then frisked Plaintiff and conducted field sobriety tests.
(Id. ¶¶ 4-5.) Before each field sobriety test, Plaintiff objected that he was too tired to perform
what was requested of him. (Id. ¶ 5.) Due to Plaintiff’s complaint of a “crooked back,”
Defendant did not require Plaintiff to perform two of the field sobriety tests – the walk and turn
and the one leg stand tests. (Id.) Plaintiff failed the other five field sobriety tests – horizontal
gaze nystagmus, Romberg balance, finger to nose, finger count, and reciting the alphabet. (Id.;
1

“Knudsen Decl.” refers to Declaration of John Knudsen. (Doc. 84.)

2

Knudsen Decl. Ex. D, at 3.) Defendant then arrested Plaintiff and brought him to the Monroe
State Police Barracks. (D’s Aff. ¶ 5.)
Plaintiff disputes much of Defendant’s account. First, Plaintiff argues that Defendant
could not have seen a nonfunctioning headlight, because both of his car’s headlights were
working and, even if a headlight was out, that would not have justified the traffic stop because
the sun had not yet set. (P’s 56.1 ¶ 2.)2 Second, according to Plaintiff, Defendant could not have
detected any odor of alcohol on Plaintiff’s breath, because he did not have anything to drink that
day, and his car window did not go down far enough for Defendant to have been exposed to
Plaintiff’s breath before Plaintiff got out of the car. (Id. ¶¶ 3-4.) Plaintiff testified, however, that
Defendant opened the car door to talk to Plaintiff after Plaintiff told him that the window was
broken. (P’s Opp. Ex. 8, at 41.)3 Third, Plaintiff states that Defendant could not have heard
Plaintiff admit that he had two beers, because Plaintiff never admitted to drinking alcohol that
day. (P’s 56.1 ¶ 4.) Fourth, Plaintiff says his eyes were not red and watery, and his speech was
not slurred. (Id. ¶ 12.) Fifth, according to Plaintiff, he did not fail any field sobriety test,
because he refused to perform any such test. (Id. ¶ 5.)4 Plaintiff, however, admitted in his
deposition that he was unsteady on his feet after exiting his car, but claims “divots” on the
ground caused his unsteadiness. (Knudsen Decl. Ex. C, at 43.) Finally, Plaintiff avers that the
container of yellow liquid was wonton soup, not urine, and that he never said it was urine, (P’s
56.1 ¶ 3), although he does not deny that his fly was open.

2

“P’s 56.1” refers to Plaintiff’s Statement Pursuant to Rule 56. (Doc. 76.)

“P’s Opp.” refers to Memorandum of Law to Deny Trooper Defendant’s Motion for Summary Judgment. (Doc.
79.)
3

4

This statement contradicts statements Plaintiff made to the Monroe Town Court in a Motion to Suppress Results of
Field Sobriety Test. (See Supplemental Declaration of John Knudsen, (Doc. 87), Ex. A, at 8-10, 18-20.)

3

The events at the State Police Barracks are not in dispute. There, another Trooper,
Douglas Tinirello, administered a breathalyzer test. (D’s Aff. ¶ 6; see Knudsen Decl. Ex. D, at
2.) The test indicated that Plaintiff had a blood alcohol content (“BAC”) of .08 percent. (D’s
Aff. ¶ 6.) Plaintiff argues that the breathalyzer results were unreliable, and that Defendant knew
they were unreliable, for the following reasons: “a) The calibrations were way off. b) Me
informing him that [asthma] medications cause false positives for Breathalyzers, thus I required
my blood drawn which he refused. c) Fact that the machine couldn’t have been properly
working as it never printed out from its internal printer[, which produces] the ONLY reliable
verifiable result that can be certified as true, as any 8 ½ by 11 print out externally can be deemed
false by alteration.” (P’s 56.1 ¶ 7.) After receiving the results of the breathalyzer test, Defendant
gave Plaintiff misdemeanor tickets for driving with a BAC of .08 percent or more, and driving
while intoxicated, in violation of N.Y. Vehicle & Traffic Law (“VTL”) §§ 1192(2) and (3),
respectively, and a traffic infraction ticket for not having two functioning headlights, in violation
of VTL § 375(2)(a)-1. (D’s Aff. ¶ 6; Knudsen Decl. Ex. D, at 4-6.)
Plaintiff filed this action on May 16, 2012, asserting several state and federal claims
against several individuals, Orange County and the Orange County District Attorney. On
September 16, 2013, the Court granted motions to dismiss as to all claims except for the state
and Section 1983 malicious prosecution claims against Defendant. (See Doc. 56.) Plaintiff and
Defendant both now move for summary judgment on these claims. (Docs. 74, 82.)5

Plaintiff also submitted a “Motion in Limine – To Bar Any References to Plaintiff’s Arrest, i.e.: Field Sobriety
Tests, and Breath Machines Unsupported Documentation Readings, etc.” (“P’s Motion in Limine,” (Doc. 73).) I
have considered the arguments set forth in this document to the extent they are relevant to the dueling summary
judgment motions.
5

4

II.

DISCUSSION
A. Summary Judgment Standard
Summary judgment is appropriate when “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). “[T]he dispute about a material fact is ‘genuine’ . . . if the evidence is such that
a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). A fact is “material” if it “might affect the outcome of the suit
under the governing law . . . . Factual disputes that are irrelevant or unnecessary will not be
counted.” Id. On a motion for summary judgment, “[t]he evidence of the non-movant is to be
believed, and all justifiable inferences are to be drawn in his favor.” Id. at 255. The movant
bears the initial burden of demonstrating the absence of a genuine issue of material fact, and, if
satisfied, the burden then shifts to the non-movant to present evidence sufficient to satisfy every
element of the claim. Holcomb v. Iona Coll., 521 F.3d 130, 137 (2d Cir. 2008) (citing Celotex
Corp. v. Catrett, 477 U.S. 317, 323-24 (1986)). “The mere existence of a scintilla of evidence in
support of the [non-movant’s] position will be insufficient; there must be evidence on which the
jury could reasonably find for the [non-movant].” Anderson, 477 U.S. at 252. Moreover, the
non-movant “must do more than simply show that there is some metaphysical doubt as to the
material facts,” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986),
and he “may not rely on conclusory allegations or unsubstantiated speculation,” Fujitsu Ltd. v.
Fed. Express Corp., 247 F.3d 423, 428 (2d Cir. 2001) (internal quotation marks omitted).
“A party asserting that a fact cannot be or is genuinely disputed must support the
assertion by . . . citing to particular parts of materials in the record, including depositions,
documents, electronically stored information, affidavits or declarations, stipulations (including
5

those made for purposes of the motion only), admissions, interrogatory answers, or other
materials . . . .” Fed. R. Civ. P. 56(c)(1)(A). Where, as here, affidavits are used to support or
oppose the motion, they “must be made on personal knowledge, set out facts that would be
admissible in evidence, and show that the affiant . . . is competent to testify on the matters
stated.” Fed. R. Civ. P. 56(c)(4); see Major League Baseball Props., Inc. v. Salvino, Inc., 542
F.3d 290, 310 (2d Cir. 2008). In the event a party “fails to properly address another party’s
assertion of fact as required by Rule 56(c), the court may,” among other things, “consider the
fact undisputed for purposes of the motion” or “grant summary judgment if the motion and
supporting materials – including the facts considered undisputed – show that the movant is
entitled to it.” Fed. R. Civ. P. 56(e)(2), (3).
Because Plaintiff is proceeding pro se, the Court must read his papers liberally and
construe them “to raise the strongest arguments that they suggest.” McPherson v. Coombe, 174
F.3d 276, 280 (2d Cir. 1999) (internal quotation marks omitted).6 Nevertheless, “when
confronted with evidence of facts that would support [the opposing party’s motion for] summary
judgment, the [pro se] plaintiff must come forward with evidence in admissible form that is
Pursuant to Local Civil Rule 56.2, Defendant was required to send Plaintiff a “Notice To Pro Se Litigant Who
Opposes a Motion for Summary Judgment.” The Notice informs pro se litigants that their case may be dismissed if
they do not submit a timely opposition to a summary judgment motion and that they must submit evidence to
contradict factual averments made by the moving party.
6

Despite the clear dictates of Local Civil Rule 56.2, Defendant failed to send such a notice to Plaintiff. (See
Memorandum of Law to Deny Trooper Defendant’s Motion for Summary Judgment, (“P’s Opp.”), (Doc. 79), at 45.) “[T]he failure of a litigant who moves for summary judgment to provide a pro se party with notice of the
requirements of [Fed. R. Civ. P. 56] will result in [denial] of the [motion for] summary judgment, no matter how
meritorious, unless the movant shows (or it is obvious to the court) that the pro se was aware of this rule’s
requirements.” Ortiz-Alvear v. United States, 21 F. App’x 27, 28 (2d Cir. 2001) (summary order) (internal quotation
marks and alterations omitted). Where, as here, the pro se litigant submits “extensive documentation . . . [and]
conten[ds] that issues of material fact properly resolved by a jury should prevent entry of summary judgment against
him,” it is obvious that the pro se litigant “understood the nature and consequences of summary judgment,” and the
failure to send the Local Civil Rule 56.2 Notice is harmless. Hafez v. City of Schenectady, 524 F. App’x 742, 743
(2d Cir. 2013) (summary order). Indeed, that Plaintiff pointed out Defendant’s failure to comply with Local Civil
Rule 56.2 demonstrates Plaintiff’s understanding of the information that would have been included in such a notice.
Accordingly, Defendant’s failure to send the Local Civil Rule 56.2 Notice does not mandate denial of Defendant’s
Motion.

6

capable of refuting those facts.” Sacks v. Gandhi Eng’g, Inc., 999 F. Supp. 2d 629, 642
(S.D.N.Y. 2014).
B. Plaintiff’s Malicious Prosecution Claims
Plaintiff’s Section 1983 and state-law malicious prosecution claims require him to
establish the elements of a malicious prosecution claim under New York law. See Manganiello
v. City of N.Y., 612 F.3d 149, 160-61 (2d Cir. 2010). These elements are “(1) the
commencement or continuation of a criminal proceeding against the plaintiff, (2) the termination
of the proceeding in favor of the accused, (3) the absence of probable cause for the criminal
proceeding and (4) actual malice.” Smith-Hunter v. Harvey, 95 N.Y.2d 191, 195 (2000) (internal
quotation marks omitted).
“[T]he existence of probable cause is a complete defense to a claim of malicious
prosecution in New York,” Savino v. City of N.Y., 331 F.3d 63, 72 (2d Cir. 2003), but the
defendant must have possessed probable cause as to each offense charged, see Posr v. Doherty,
944 F.2d 91, 100 (2d Cir. 1991). “In the context of a malicious prosecution claim, probable
cause under New York law is the knowledge of facts, actual or apparent, strong enough to justify
a reasonable man in the belief that he has lawful grounds for prosecuting the defendant in the
manner complained of.” Rounseville v. Zahl, 13 F.3d 625, 629 (2d Cir. 1994) (internal quotation
marks omitted); see Michaels v. City of N.Y., No. 10-CV-2666, 2011 WL 570125, at *5
(S.D.N.Y. Feb. 16, 2011) (“[P]robable cause is evaluated under an objective standard,” under
which “courts look to the information available to the law enforcement officer . . . and consider
the totality of the circumstances.”) (internal quotation marks omitted).7 “[T]he existence, or
lack, of probable cause is measured as of the time the judicial proceeding is commenced (e.g.,
7

Copies of all unpublished opinions cited herein will be sent to Plaintiff.

7

the time of the arraignment), not the time of the . . . arrest.” Morgan v. Nassau Cnty., No. 03CV-5109, 2009 WL 2882823, at *10 (E.D.N.Y. Sept. 2, 2009) (internal quotation marks
omitted). Thus, “[i]nformation obtained ‘after the arrest, but before the commencement of
proceedings, is relevant to the determination of probable cause’ for a malicious prosecution
claim.” Hoyos v. City of N.Y., 999 F. Supp. 2d 375, 390 (E.D.N.Y. 2013) (quoting Jackson v.
City of N.Y., 939 F. Supp. 2d 235, 251 (E.D.N.Y. 2013)).
1. Plaintiff’s Claims Relating to VTL §§ 1192(2) and (3) Charges
Plaintiff’s claims relating to the VTL §§ 1192(2) and (3) charges must be dismissed
because Defendant possessed probable cause to charge him with these offenses. VTL § 1192(2)
prohibits “operat[ing] a motor vehicle while [an individual] has .08 of one per centum or more
by weight of alcohol in the person’s blood.” N.Y. Veh. & Traf. Law § 1192(2). VTL § 1192(3)
prohibits “operat[ing] a motor vehicle while in an intoxicated condition.” Id. § 1192(3).
The following facts are undisputed and provided the requisite probable cause: Defendant
was informed that a fellow officer observed Plaintiff driving erratically and that Plaintiff was
approaching the construction zone on State Route 17. Defendant observed Plaintiff’s vehicle
approaching that zone, pulled Plaintiff over and asked Plaintiff to exit his car. After Plaintiff
exited his car, Plaintiff – by his own admission – walked in an uncoordinated manner.
Defendant then arrested Plaintiff and brought him to the State Police Barracks, where Plaintiff
submitted to a breathalyzer that revealed a BAC of .08%. Defendant then wrote Plaintiff a ticket
for misdemeanor violations of VTL §§ 1192(2) and (3). By the time Defendant wrote these
tickets, the above facts were sufficient to establish probable cause to charge Plaintiff with
violating VTL §§ 1192(2) and (3). See Costello v. Milano, No. 12-CV-7216, 2014 WL 1794886,
at *11 (S.D.N.Y. May 6, 2014) (probable cause to charge plaintiff with violating VTL
8

§§ 1192(2) and (3) where breathalyzer revealed “BAC was .08 percent and Plaintiff failed three
field sobriety tests”) (collecting cases). Indeed, it is hard to imagine what more than an
observation of erratic driving and a test showing a BAC of .08 percent could be required.
At the very least, even if Defendant did not possess probable cause to charge Plaintiff
with violating VTL §§ 1192(2) and (3), he would be entitled to qualified immunity because these
facts support a finding of arguable probable cause. See Jean v. Montina, 412 F. App’x 352, 354
(2d Cir. 2011) (summary order) (defendant entitled to qualified immunity from malicious
prosecution if facts supported arguable probable cause to charge, which “exists where,
accounting for any new information learned subsequent to an arrest, ‘it was not manifestly
unreasonable for [the defendant officer] to charge [the plaintiff]’ with the crime in question”)
(alterations in original) (quoting Lowth v. Town of Cheektowaga, 82 F.3d 563, 572 (2d Cir.
1996)); Amore v. Novarro, 624 F.3d 522, 536 (2d Cir. 2010) (“Arguable probable cause exists if
either (a) it was objectively reasonable for the officer to believe that probable cause existed, or
(b) officers of reasonable competence could disagree on whether the probable cause test was
met.”) (internal quotation marks omitted). Indeed, removing potentially inebriated drivers from
the roadways and enforcing drunk-driving laws involve decisions for which fear of liability
ought not to “unduly inhibit officials in the discharge of their duties.” Provost v. City of
Newburgh, 262 F.3d 146, 160 (2d Cir. 2001) (internal quotation marks omitted). On these facts,
it cannot be said that Defendant’s “judgment was so flawed that no reasonable officer would
have made a similar choice,” Lennon v. Miller, 66 F.3d 416, 425 (2d Cir. 1995), and so
Defendant would be entitled to qualified immunity even if he lacked probable cause to charge.
The malicious prosecution claim is thus subject to dismissal on this alternative ground.

9

Plaintiff, however, argues that the breathalyzer test could not have formed the basis of
probable cause for several reasons. Plaintiff contends that the traffic stop and his arrest were
unsupported by probable cause, which would have mandated suppression of the results of the
subsequent breathalyzer test at any criminal trial, and thus prohibits Defendant from relying on
the breathalyzer results in connection with Plaintiff’s malicious prosecution claim. (See P’s Opp.
7-10.) I will assume that the fruit of the poisonous tree doctrine applies.8 But contrary to
Plaintiff’s argument, his traffic stop and arrest were both lawful, or at least it would have been
objectively reasonable for Defendant to have believed they were lawful. Defendant had probable
cause or arguable probable cause to believe that Plaintiff committed a traffic infraction based on
the radio transmission that stated Plaintiff was driving erratically, see United States v. Colon, 250
F.3d 130, 135 (2d Cir. 2001) (arresting officer can base probable cause on knowledge of fellow
officer involved in investigation); People v. Lypka, 36 N.Y.2d 210, 213 (1975) (“A police officer
is entitled to act on the strength of a radio bulletin . . . from a fellow officer or department and to

Based on the Second Circuit’s analysis in Boyd v. City of N.Y., 336 F.3d 72 (2d Cir. 2003), which involved a
§ 1983 malicious prosecution claim for which the court would not permit the defendant to rely on evidence obtained
in violation of the plaintiff’s Fourth Amendment rights, see id. at 77, it seems as if the fruit of the poisonous tree
doctrine applies to § 1983 malicious prosecution claims. Boyd, however, was decided four years after Townes v.
City of N.Y., 176 F.3d 138 (2d Cir. 1999), a case involving a § 1983 false arrest claim, in which the court broadly
stated that the fruit of the poisonous tree rule is an “evidentiary doctrine [that] is inapplicable to civil § 1983
actions,” id. at 145. This inconsistency appears to have been caused by different formulations of the probable cause
element in malicious prosecution claims – one line of cases defines probable cause as “probability of guilt,” while
the other defines it as “probability of success.” Boyd, 336 F.3d at 76 n.7 (internal quotation marks omitted).
Although the Second Circuit in Boyd glossed over this difference, see id. (“There does not appear to be any conflict
between [these] formulations . . . .”), probability of guilt and probability of a successful prosecution are very
different where the evidence against the accused is strong but unlawfully obtained. Moreover, Boyd neither
mentions nor cites Townes. Whatever the cause, the inconsistency between Boyd and Townes has led to inconsistent
application of the fruit of the poisonous tree doctrine in § 1983 malicious prosecution claims. See Gannon v. City of
N.Y., 917 F. Supp. 2d 241, 245 (S.D.N.Y. 2013) (collecting inconsistent district court opinions following Boyd and
Townes). I need not, however, decide whether the fruit of the poisonous tree doctrine applies to Plaintiff’s claims,
because Plaintiff’s arrest was supported by probable cause, or at least arguable probable cause.
8

10

assume its reliability.”),9 which permitted Defendant to pull Plaintiff over, see Whren v. United
States, 517 U.S. 806, 810 (1996) (“[T]he decision to stop an automobile is reasonable where the
police have probable cause to believe that a traffic violation has occurred.”); People v. Robinson,
97 N.Y.2d 341, 349 (2001) (same).10 Plaintiff’s unsteadiness when he exited the vehicle,
coupled with the report of his erratic driving and his slight dishevelment, provided at least
arguable probable cause that Plaintiff was driving while impaired by something – either alcohol,
in violation of VTL § 1192(1), or drugs, in violation of VTL § 1192(4). See People v. Hira, 934
N.Y.S.2d 36, 36 (App. Term 2011) (once officer had probable cause of impairment, “[b]ased on
[individual’s] failure to perform [field sobriety] tests, [officer] had probable cause to arrest [him]
for driving while intoxicated”); People v. Davis, 879 N.Y.S.2d 268, 269 (App. Term 2009)
(“erratic operation” of vehicle provided “probable cause to infer that defendant’s ability to
operate a motor vehicle was impaired to any extent” as required by VTL §§ 1192(1) and (4))
(internal quotation marks omitted); see also Hoyos, 999 F. Supp. 2d at 387-88 (“[T]ypical indicia
of inebriation . . . [c]oupled with the [fellow officer’s] report of plaintiff’s erratic driving . . . are
sufficient to give defendants probable cause for the arrest.”); People v. Kowalski, 738 N.Y.S.2d

9

Both the individual reporting the erratic driving and the police dispatcher were state troopers, so the exception to
the collective knowledge doctrine announced in Colon is inapplicable. See Colon, 250 F.3d at 135-38 (collective
knowledge doctrine inapplicable to information known to civilian 911-operator but not relayed to trained officers).
Plaintiff’s argument that he was not, in fact, driving erratically is irrelevant to whether Defendant had probable
cause to believe Plaintiff had committed a traffic infraction. Absent obvious evidence that his fellow Trooper’s
report of Plaintiff’s erratic driving was false, Defendant could rely on that report. See Panetta v. Crowley, 460 F.3d
388, 395 (2d Cir. 2006) (“The determination of probable cause does not turn on whether the fellow agent’s
observations were accurate, but on whether the arresting agent was reasonable in relying on those observations.”)
(internal quotation marks and alterations omitted). Moreover, Plaintiff’s odd behavior and lack of coordination
during the traffic stop would only have bolstered the report that he was driving erratically.
10

11

427, 429 (App. Div. 2002) (“[P]robable cause need not always be premised upon the
performance of field sobriety tests.”).11
In addition to the fruit of the poisonous tree argument, Plaintiff contends that there were
several issues with the breathalyzer test – the calibrations “were way off” because the machine
had not been recalibrated within six months of Plaintiff’s breathalyzer, Plaintiff’s asthma
medications caused a false positive, and the machine did not generate a printout of the results –
each of which would have prevented a reasonable officer from believing the results would be
admissible in a criminal trial. (See P’s 56.1 ¶ 7; Memorandum of Law in Support of Plaintiff’s
Motion for Summary Judgment, (“P’s Mem.”), (Doc. 75), at 8; P’s Motion in Limine 7.) These
arguments merit little discussion. First, Plaintiff’s assertion about the timeframe within which a
breathalyzer must be calibrated for its results to be admissible misstates the law. See People v.
Boscic, 15 N.Y.3d 494, 500 (2010) (“[T]here has been no strict six-month calibration rule . . . .
Rather, the admissibility of breath-alcohol analysis results remains premised on the People’s
ability to demonstrate, among other requirements, that the device was in proper working order
when it was used to test an accused.”) (internal quotation marks omitted). Moreover, Plaintiff
presents no evidence that the breath-alcohol analysis equipment in the machine was not in proper
working order, or that a reasonable officer in Defendant’s position would have believed that it
Crediting Plaintiff’s assertion that there was no alcohol on his breath – despite the subsequent breathalyzer result
that indicated otherwise – the undisputed evidence cited in this paragraph was sufficient to support at least arguable
probable cause that Plaintiff’s apparent impairment was caused by a drug that would not have left an odor on
Plaintiff’s breath, see, e.g., People v. Gonzalez, 935 N.Y.S.2d 826, 827 (App. Div. 2011) (Vicodin is a drug
prohibited by VTL § 1192(4)), or that Plaintiff was able to mask the scent of alcohol on his breath. In any event,
“the legality of a DUI arrest is not conditioned upon whether the arresting officer specified the correct subdivision of
[VTL] § 1192, or upon his belief as to which subdivision had been violated.” Bobolakis v. DiPietrantonio, 523 F.
App’x 85, 86 (2d Cir. 2013) (summary order) (internal quotation marks and alterations omitted); cf. Jaegly v. Couch,
439 F.3d 149, 153 (2d Cir. 2006) (probable cause evaluated under objective standard and, to support lawful arrest,
need not be “predicated upon the offense invoked by the arresting officer, or even upon an offense closely related to
the offense invoked by the arresting officer,” and “the subjective reason for making the arrest need not be the
criminal offense as to which the known facts provide probable cause”) (internal quotation marks omitted).
11

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was not in proper working order. Second, Plaintiff has cited to no New York case, and I have
found none, that rejects a breathalyzer test solely because the defendant was on asthma
medication. Plaintiff likewise presents no evidence as to what he told Defendant about any
recent use of his inhaler, so even assuming that a reasonable officer would not rely on a
breathalyzer result for somebody who recently used an inhaler, there is no evidence as to what
Defendant knew about Plaintiff’s inhaler use on the day of this incident. Moreover, even if
Defendant were aware that Plaintiff had used an inhaler that could have affected the breathalyzer
test, “probable cause does not require that the police rule out innocent explanations for the
suspect’s activities.” Carthew v. Cnty. of Suffolk, 709 F. Supp. 2d 188, 199 (E.D.N.Y. 2010)
(collecting cases). Finally, Plaintiff does not present any evidence to support his assertion that
Defendant could only rely on a printout generated by the breathalyzer, rather than the results that
appeared on the screen of the breathalyzer.12
Accordingly, Defendant possessed probable cause or arguable probable cause to charge
Plaintiff with violating VTL §§ 1192(2) and (3), and his malicious prosecution claim as to these
charges must be dismissed.

Plaintiff seems to argue that the printout is the “best evidence” and thus the only acceptable evidence pursuant to
the Best Evidence Rule. (See P’s Mem. 8-9.) Even if the Best Evidence Rule applied – and it seems to the Court
that it is an evidentiary rule for trial, not one an officer in the field must apply – based on Plaintiff’s assertions that
the breathalyzer’s printer was not working, it appears as if any failure to produce the printout was due to the internal
printer malfunctioning, not Defendant’s or Trooper Tinirello’s bad faith, so Trooper Tinirello’s testimony regarding
the breathalyzer results would have been admissible in a criminal trial. New York’s Best Evidence Rule allows for
the admission of secondary evidence where the absence of primary evidence is satisfactorily explained. See Schozer
v. William Penn Life Ins. Co., 84 N.Y.2d 639, 644 (1994) (secondary evidence of contents of unproduced original
admissible where proponent “has sufficiently explained the unavailability of the primary evidence”); id. at 646
(“Once a sufficient foundation for admission is presented, the secondary evidence is subject to an attack by the
opposing party not as to admissibility but to the weight to be given the evidence . . . .”) (internal quotation marks
omitted).
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2. Plaintiff’s Claims Relating to VTL § 375(2)(a)-1 Infraction
VTL § 375(2)(a)-1 requires, among other things, that all motor vehicles activate two
functioning headlights 30 minutes after sunset. See N.Y. Veh. & Traf. Law § 375(2)(a)-1. The
parties dispute whether Plaintiff had two functioning headlights on the date of this incident, and,
if he did not, whether he was pulled over less than 30 minutes after sunset.
I need not delve into these factual disputes, because violation of VTL § 375(2)(a)-1 is a
traffic infraction, “not a criminal offense, [and] the traffic court proceeding is civil in nature, a
regulatory rather than a ‘criminal proceeding.’ Therefore, the first element of the malicious
prosecution claim cannot be met.” Standt v. City of N.Y., 153 F. Supp. 2d 417, 434 (S.D.N.Y.
2001); accord Topolski v. Cottrell, No. 11-CV-1216, 2012 WL 3264927, at *6 (N.D.N.Y. Aug.
9, 2012); Harley v. Suffolk Cnty. Police Dep’t, No. 09-CV-2897, 2012 WL 642431, at *8 n.5
(E.D.N.Y. Feb. 28, 2012); see also N.Y. Veh. & Traf. Law § 155 (“A traffic infraction is not a
crime and the punishment imposed therefor shall not be deemed for any purpose a penal or
criminal punishment . . . .”); Beck v. City of N.Y., No. 12-CV-9231, 2014 WL 80544, at *4
(S.D.N.Y. Jan. 3, 2014) (“[T]raffic infractions are civil [rather than criminal] violations.”)
(collecting cases). Plaintiff’s malicious prosecution claim as to his ticket for violating VTL
§ 375(2)(a)-1 must, therefore, be dismissed.13

Given the above dispositions, I need not reach Defendant’s alternative argument that Plaintiff suffered an
insufficient deprivation of liberty to state a malicious prosecution claim. I also note that I have considered all of
Plaintiff’s arguments – even those not mentioned in this Order – and find them to be without merit.
13

14

III.

CONCLUSION
For the foregoing reasons, Defendant’s Motion for Summary Judgment is GRANTED

and Plaintiff’s Motions are DENIED. The Clerk of Court is respectfully directed to terminate the
pending Motions, (Docs. 73, 74, 82), enter judgment for Defendant, and close the case.

SO ORDERED.
Dated: December 8, 2014
White Plains, New York

_________________________
CATHY SEIBEL, U.S.D.J.

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