Summary
holding that the failure to disclose in the grand jury "certain discrepancies between the description given by the eyewitness and the actual appearance of the plaintiff was "insufficient to overcome the presumption" of probable cause
Summary of this case from Sooklal v. GerbinoOpinion
December 3, 1990
Appeal from the Supreme Court, Kings County (Hurowitz, J.).
Ordered that the judgment is reversed, on the law, with costs, and the complaint is dismissed.
The plaintiff, who generally fit the description of the perpetrator, was identified by an eyewitness and arrested and indicted, inter alia, for murder in the second degree. At the Grand Jury proceeding, it was not disclosed that there were certain discrepancies between the description given by the eyewitness and the actual appearance of the plaintiff, such as the clothes he was wearing. Ten months later, new evidence resulted in the release of, and dismissal of the charges against the plaintiff. The plaintiff thereafter commenced this action to recover damages for false arrest and malicious prosecution. Following a jury trial, the plaintiff was awarded the principal sum of $150,000 on the malicious prosecution cause of action only. We reverse.
It is well settled that a Grand Jury indictment creates a presumption of probable cause to believe that the plaintiff committed the crime charged (Colon v. City of New York, 60 N.Y.2d 78; Broughton v. State of New York, 37 N.Y.2d 451, cert. denied sub nom. Schanbarger v. Kellogg, 423 U.S. 929; Lee v. City of Mount Vernon, 49 N.Y.2d 1041; Landsman v. Moss, 133 A.D.2d 359; Boose v. City of Rochester, 71 A.D.2d 59). That presumption may be overcome only by evidence establishing that the police conduct "deviated egregiously from statutory requirements or accepted practices applicable in criminal cases" (Gisondi v. Town of Harrison, 72 N.Y.2d 280, 285; see also, Lee v. City of Mount Vernon, supra, at 1043), and in any event the plaintiff is required to demonstrate the existence of malice or its factual equivalent (see, e.g., Colon v. City of New York, supra, at 82).
The discrepancies between the plaintiff's appearance and the descriptions of the perpetrator are insufficient to overcome the presumption (see, Gisondi v. Town of Harrison, supra; see also, Taylor v. City of Mount Vernon, 161 A.D.2d 631). Moreover, the plaintiff failed to establish the existence of malice or other egregious conduct on which any inference of malice could be based (see, Broughton v. State of New York, supra; cf., Gisondi v. Town of Harrison, supra; see also, Taylor v. City of Mount Vernon, supra; Boose v. City of Rochester, supra). Lawrence, J.P., Sullivan, Harwood and Rosenblatt, JJ., concur.