Triable issues of fact exist in Civil Rights Case regarding whether Probable Cause Existed, New York
Mr. Mendez was walking down the street in the Bronx to meet a woman. After inquiring of a passing citizen on the street, several police officers pulled up and threw the Plaintiff against the wall. With Plaintiff was the passerbyer - Jamal Joseph - who was thrown up against the wall of an apartment building with the Plaintiff. "Officers Shea and Moreno and their supervisor, Lieutenant Davis, were on patrol in the vicinity [that day]. Shea observed plaintiff standing near Joseph on the sidewalk, admittedly doing nothing suspicious. After circling the block, the officers happened upon the men again, walking in opposite directions, Mendez toward Morris Avenue and Joseph east toward Grand Concourse. Shea, in the passenger seat of the police vehicle, observed Joseph dip behind a parked vehicle, whereupon he heard a metallic clink as an object hit the ground. Lieutenant Davis, who was in the rear passenger seat, testified that he observed Joseph duck down to the ground. Shea told Officer Moreno, I got this guy, and exited the vehicle. Shea and Davis were focused on Joseph and did not have occasion to observe plaintiff. Shea testified that for the minute or two prior to exiting the vehicle, he had not observed an object in plaintiff's hands. Neither observed plaintiff in possession of contraband."
Where there is conflicting evidence concerning the existence of probable cause to arrest the plaintiff, from which reasonable persons might draw different inferences, the question is one for the jury (see Parkin v Cornell Univ., 78 NY2d 523, 529 , citing Veras v Truth Verification Corp., 87 AD2d 381, 384 [1st Dept 1982], affd 57 NY2d 947 )….Presence in a public place does not itself prove dominion and control over contraband discovered there (People v Pearson, 75 NY2d 1001, 1002 ). It is well settled that to support a charge of constructive possession, the People must show that the defendant exercised dominion or control over the property by a sufficient level of control over the area in which the contraband is found or over the person from whom the contraband is seized (People v Manini, 79 NY2d 561, 573  [internal quotation marks omitted]).
The elements of a claim for malicious prosecution are (1) the commencement or continuation of a criminal proceeding by the defendant against the plaintiff; (2) the termination of the proceeding in favor of the plaintiff; (3) the absence of probable cause for the criminal proceeding; and (4) actual malice (see Broughton v State of New York, 37 NY2d 451, 457 , cert denied sub. nom. Schanbarger v Kellogg, 423 US 929 (1975)). A jury may infer that a defendant acted with actual malice from the fact that there was no probable cause to arrest the plaintiff (see Martin v City of Albany, 42 NY2d 13, 17 ; Lundgren v Margini, 30 AD3d 476, 477 [2d Dept 2006] [error to grant motion for summary judgment dismissing malicious prosecution claim where triable issue of fact existed as to whether there was probable cause to arrest the plaintiff, noting that the lack of probable cause could support an inference of actual malice]).
The Court finds that "facts preceding plaintiff's arrest are in dispute, including whether he dropped an object onto the pile of garbage bags." Indeed, there was no observation of a gun or any other object being placed or dropped into the garbage. Further, Officer "Shea testified at trial that at no time did he observe an object in plaintiff's hand, even in the moments their unmarked vehicle approached the men, coming within 10 to 15 feet of them….Plaintiff denies discarding any object; Moreno maintains that he did, though his observations are recorded nowhere in the relevant paperwork, as defendants concede." It seems like a classic case of he said-she said, something that requires a jury trial.
As noted, there are numerous factual questions concerning whether the police had the requisite probable cause to arrest plaintiff and initiate criminal proceedings. The omissions in the police paperwork and the various versions of events raise questions as to the credibility of the police account of what transpired. Additionally, the presumption of probable cause attaching upon an accused's arraignment or indictment may be overcome by evidence that the police witnesses have not made a complete and full statement of facts either to the Grand Jury or to the District Attorney, that they have misrepresented or falsified evidence, that they have withheld evidence or [that they have] otherwise acted in bad faith (Maxwell v City of New York, 156 AD2d 28, 34 [1st Dept 1990] [internal quotation marks omitted]). Since the police paperwork admittedly omitted mention of Detective Moreno's observations, there is a question as to whether Shea's testimony before the grand jury was a full and complete statement of the facts.
The Court here holds that "[t]he parties' differing versions of the events leading to plaintiff's arrest raise a triable issue of fact whether the officers had probable cause to believe that plaintiff was in possession of a gun, precluding summary dismissal of the false arrest and false imprisonment claims." (citing Musto v Arakel, 184 AD2d 243, 243 (1st Dept 1992)). This is yet another case of police overbearing, drawing the conclusion as to the Plaintiff's involvement of wrongdoing with little more than speculation.
There was a significant dissent from Judge Andrias who thought that summary judgment should be granted as to the malicious prosecution, false arrest and imprisonment, assault, battery, and violation of 42 USC Section 1983. Notably, the dissent points out that the Grand Jury indictment is a presumption of probable cause. The dissent felt that the Plaintiff did not properly rebut that presumption of probable cause:
To rebut the presumption, it was incumbent on plaintiff to tender evidence establishing that the indictment was produced by fraud, perjury, the suppression of evidence or other police conduct undertaken in bad faith (Colon v City of New York, 60 NY2d at 82-83 [presumption may be overcome only by evidence establishing that the police witnesses have not made a complete and full statement of (the) facts either to the Grand Jury or to the District Attorney, that they have misrepresented or falsified evidence, that they have withheld evidence or (that they have) otherwise acted in bad faith]; see also Lawson v City of New York, 83 AD3d 609, 610 [1st Dept 2011], lv dismissed 19 NY3d 952  [(t)he dismissal of the indictment upon the People's motion, based on the conclusion that the evidence against plaintiff was too weak to establish guilt beyond a reasonable doubt in light of her son's confession that he solely possessed and intended to sell the narcotics recovered by police, does not negate the finding of probable cause]). Pp. 5.
The dissent would have dismissed the case. The testimony coupled with the DNA stipulation was enough to provide probable cause Because there was probable cause, the claim of a violation of 42 USC § 1983 as against the individual officers should also be dismissed (see Narvaez v City of New York, 83 AD3d 516, 517 [1st Dept 2011]; Manganiello v City of New York, 612 F3d 149, 160-162 [2d Cir 2010]). In addition, because the arrest of plaintiff was lawful, the individual officers did not commit an assault or battery when they touched plaintiff during that arrest (compare Johnson v Suffolk County Police Dept., 245 AD2d 340, 341 [2d Dept 1997]), and therefore those claims should be dismissed as well. Pp. 5-6.
The case is Mendez v City of New York, 2016 NY Slip Op 01586 (1st Dep't March 8, 2016)