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ABSENCE OF ANY MENTION OF DEFENDANT DISCARDING A WEAPON IN THE PAPERWORK RELATING TO DEFENDANT’S ARREST, AND THE DIFFERING VERSIONS OF EVENTS PRIOR TO DEFENDANT’S ARREST, RAISED A QUESTION OF FACT WHETHER THERE WAS PROBABLE CAUSE TO ARREST DEFENDANT FOR POSSESSION OF A WEAPON.

The First Department, over an extensive dissent, determined questions of fact precluded summary judgment in favor of the defendants (city and police) in an action alleging, inter alia, malicious prosecution. Defendant was accused of possession of a weapon and spent 247 days in jail before being acquitted at trial. The accusation was based on the testimony of one of the police officers at the scene who said he saw defendant drop the weapon on a pile of garbage bags (where the weapon was apparently recovered). No other officer at the scene saw defendant with a weapon. And there was no mention of defendant discarding the weapon in any of paperwork relating to defendant’s arrest:

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 … . A jury may infer that a defendant acted with actual malice from the fact that there was no probable cause to arrest the plaintiff … . 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. Further, 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” … . Mendez v City of New York, 2016 NY Slip Op 01586, 1st Dept 3-8-16

MALICIOUS PROSECUTION (QUESTION OF FACT WHETHER POLICE HAD PROBABLE CAUSE TO ARREST, EVIDENCE MAY HAVE BEEN FABRICATED)/MUNICIPAL LAW (MALICIOUS PROSECUTION, QUESTION OF FACT WHETHER POLICE HAD PROBABLE CAUSE TO ARREST, EVIDENCE MAY HAVE BEEN FABRICATED)

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