State of New York
Supreme Court : County of Wayne

- against -

Index No. 48113

ANDREW V. SIRACUSE, J.

Defendants have moved for summary judgment in this malicious prosecution case from Wayne County, which is scheduled for trial beginning May 16. The case arises from an assault in Newark, New York, on Halloween 1998, from which one John Grant died. The death received a significant amount of publicity in the area press, and several accounts suggested that two different assaults by different groups of teenagers were involved.

The plaintiff in the present case was in a group alleged to have committed the second assault on Mr. Grant. His complaint recites his arrest on April 6, 1999, calling it "false arrest". It is clearly not, since false arrest is not a cause of action; plaintiff in presumably claiming false imprisonment, a cause of action not made out because he was arrested at that time pursuant to a valid indictment. Even though he was subsequently acquitted, he has no claim against the Village or its police chief on that account. At oral argument, in fact, his counsel withdrew this cause of action.

The true basis for the plaintiff's action is an allegation of malicious prosecution. It is black letter law that this tort requires not only the commencement of a proceeding and its termination in the plaintiff's favor--both found here--but also a lack of probable cause and actual malice in the commencement and/or carrying forth of the proceeding. The plaintiff contends that triable issues of fact exist on these two other elements. He claims that the police failed to investigate the possibilities that either the rock thrown in the initial assault, the administration in a hospital of a drug (Dilantin) to which decedent was allergic, or both, were the actual causes of death. He also lays great stress on the claim that defendant Richard Bogen, the Newark police chief, was involved through part-time employment with the grandfather of another defendant in the criminal case, Roberto Lopez, and that Lopez received preferential treatment.

Plaintiff also argues that the defendants were negligent, careless, and reckless. These, however, are all irrelevant in a malicious prosecution case, where there must be a finding of actual malice. Admittedly, malice may be inferred from a lack of probable cause; but facts which suggest not a lack of probable cause but mere negligence in a criminal investigation can give rise to no inference as strong as deliberate malice.

The defendants lay out the chronology of the investigation and the material available to the police in their papers. After John Grant, the decedent, was found injured on October 31, 1998, Newark police obtained the names of several people seen in the area and descriptions of their clothing. The next day one witness, Heather Bushart, deposed that she saw ten to fifteen teenagers running from the scene. More than a month later another witness, Sequiya Streeter, stated that she saw a young man dressed in red with a black mask throw something at Grant, who grabbed the back of his head as if he had been hit. If these witnesses are both credited, it is clear that two separate assaults took place.

In November Cliff Sperry, grandfather of one Roberto Lopez, told Police Chief Bogen that his grandson wanted to talk about the assault. Sperry had employed Bogen in his time away from the police job, and the two were apparently friends. On November 13 Bogen went to interview Lopez at Sperry's house, and also interviewed another witness/participant, Gregory Farnsworth. Lopez said that he and some friends encountered Grant, who began arguing with one of them. Lopez admitted pushing Grant to the ground, and he saw Turner hit Grant in the head and others hit Grant afterwards. Farnsworth's statement, if taken, was not reproduced in the record. Another member of the group, Feliz Matta, then corroborated Lopez's account and admitted to kicking Grant in the head after Turner punched him in the same area. This statement was taken in early December, and at about the same time a witness not part of the group, William Sigler, told police that Turner had kicked Grant. Another witness, Bridgett East, stated that Matta had told her that he, Lopez and Turner were the only ones that struck Grant.

The police rejected Streeter's statement as being unconnected with the death, and Turner was arrested pursuant to a felony complaint on December 10, 1998. These charges were dismissed without prejudice to refile. Thereafter, if not before, the file was presumably turned over to the Wayne County District Attorney's office for grand jury consideration; this, at least, is the normal course of events, because police departments are powerless to summon or present to a grand jury. The District Attorney's presentation to the grand jury resulted in plaintiff's indictment on March 25, 1999.

Plaintiff does not object to the proceedings before the refiling; his complaint relates only to actions afterwards. This creates a significant problem, because the police investigation was far more important to the felony complaint and the initial arrest, which the plaintiff does not complain of, than it was to the subsequent prosecution, which was in the hands of the District Attorney's office, a county body which is not being sued here. There are no allegations that the Newark police department withheld information or manipulated the District Attorney's office in any way, nor has it has been shown that the police or the Village had any control over the prosecution. Over and above any factual or legal problems in the plaintiff's case, he appears to have sued parties that had no direct involvement with the prosecution.

In any event, there is certainly abundant evidence from which one may conclude that there was probable cause to arrest the plaintiff. Even though there were defense witnesses who exculpated the plaintiff at the time of the trial, three of the witnesses available to the police--Lopez, Matta and Sigler--concurred in including Turner among those who struck Grant in the head. The court notes that the exculpatory testimony, as summarized by plaintiff's counsel, are contradictory; Farnsworth "did not see the Plaintiff do anything to the decedent and did not see him around the decedent", Jonathan Lootens "did not see Plaintiff around the decedent or do anything harmful to the decedent, but William Morales "saw the Plaintiff give the decedent a gentle tap to see if he was awake"--which flatly contradicts the others.

Nor is there anything in the treatment Lopez received that would give rise to a suspicion of malice. Lopez voluntarily contacted the police through his grandfather, a long-time friend and occasional employer of the police chief. He subsequently agreed to testify in exchange for a lesser charge, a deal advocated by Chief Bogen but offered by the District Attorney. It may be that Chief Bogen's willingness to do this was assisted by his personal ties with Lopez's family, though it is equally likely that those ties contributed to Lopez's willingness to volunteer an incriminating statement. Even without those ties, however, it is common for the opportunity for a plea bargain to be given to the first of a group to confess and to express a willingness to testify against the others; this is routine police practice. In no way does it suggest that Bogen or the police department were malicious in prosecuting Turner or the others.

Next, plaintiff insists that the rejection of the Streeter evidence was improper, because it was potentially exculpating. This may have been careless, negligent, or wrong; but it was not malicious. Even if Streeter's account were correct, the later assault might have been the actual cause of death or an additional cause. Plaintiff's counsel stressed at oral argument that Streeter was interviewed by a detective with no prior homicide experience. This unsupported allegation could, even if accepted, give rise to no relevant issue unless the decision to assign this officer were part of a plot to inculpate Turner. Surprisingly, plaintiff's counsel asserts that the very lack of contact between Turner and the police department gave rise to the prosecution, as if there is an implication of malice in every prosecution. The court finds neither evidentiary support for the officer's supposed incompetence nor any reason to suspect that he was assigned as part of a scheme to victimize Turner.

The far-fetched nature of the plaintiff's case can be seen by considering what alternatives the police had to charging him and his associates. He would have had the police rely entirely on the Streeter statement, reject the consistent statements by both participants and disinterested witnesses who saw Turner and others kick Grant in the head, abandon this aspect of the case, and pursue the masked rock thrower alone; or reject Streeter (as they did) and ignore those witnesses who testified against him in favor of those who disagreed. Either course of action is irrational. Once again, no imputation of malice could ever be founded on these facts.

The plaintiff's final claim is that the police were in error in failing to investigate the possibility that Grant's death was due to hospital malpractice, the administration of Dilantin. The simplest resolution of this issue is to note that the cause of death established by the Monroe County Medical Examiner was closed head trauma. The police were entitled to rely on this opinion. No investigation into hospital care was necessary, and no imputation of malice can be raised by their understandable failure to treat the case as a zealous defense attorney might.

There is no question of fact as to the events of the investigation. The only issue is whether there are any facts from which an imputation of malice might be drawn by any rational jury. The court concludes that there are none. The plaintiff can point to nothing in the conduct of the police that would give rise to a suspicion that his prosecution was based on anything other than reasonable suspicion and probable cause. Further, he has not sued the party that had the final control over the prosecution itself. The defendants are entitled to summary judgment dismissing the complaint. In view of the extensive amount of extraneous and irrelevant material and allegations in the complaint and supporting papers, the defendants are entitled to a single bill of costs. Ms. Martin-Grande may prepare the order.

DATED: Rochester, New York

May 8, 2001

Andrew V. Siracuse, J.S.C.

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