A New York Criminal Lawyer said the plaintiff and defendant were married in 1988 and have two children together. In January 1998, defendant commenced an action, assigned index number 98-732. for a judgment of divorce on the ground of cruel and inhuman treatment. In July 1998, a misdemeanor complaint charging harassment was filed against plaintiff. The harassment charge arose out of an alleged incident between the parties at the former marital home. In November 1999, the Suffolk County District Court issued an order of protection directing that plaintiff stay away from defendant, and that he refrain from assaulting, harassing or any committing other criminal offense against defendant. That same month, the District Court granted plaintiff an adjournment in contemplation of dismissal on the misdemeanor complaint.
Sub sequently, in February 2000, plaintiff was arrested for violating the order of protection. An indictment was handed up by the Grand Jury charging plaintiff with two counts of criminal contempt in the first degree. One count of the indictment alleged that plaintiff violated the order of protection by making repeated telephone calls to defendant with the intent of harassing, annoying, threatening or alarming her. The second count alleged that plaintiff, with the intent of placing defendant in reasonable fear of death or serious physical injury, told defendant that he had put out a hit on her. Following a bench trial, the Suffolk County Court rendered a verdict acquitting plaintiff of both charges on the grounds that defendant’s trial testimony regarding the alleged death threat was not credible, and that the People failed to show that the phone calls at issue were made without legitimate purpose of communication. Thereafter, plaintiff brought the instant action to recover damages for malicious prosecution.
A New York Criminal Lawyer said the defendant now moves for summary judgment dismissing the complaint, arguing that plaintiff cannot overcome a presumption of probable cause created by the Grand Jury’s indictment. Defendant so asserts that there is no evidence in the record of actual malice. Defendant’s submissions in support of the motion include copies of the pleadings, a transcript of plaintiff’s deposition testimony, various documents related to the parties’ divorce action, and an affidavit by defendant. Plaintiff opposes the motion, arguing that issues of fact exist as to whether the indictment against him for criminal contempt was the result of perjurious testimony by defendant.
The tort of malicious prosecution protects the personal interest of freedom from unjustifiable litigation. To recover damages for malicious prosecution, the plaintiff has the heavy burden of establishing (1) the commencement or continuation of a criminal proceeding against the plaintiff, (2) the termination of that proceeding in the plaintiff’s favor, (3) the absence of probable cause for the criminal proceeding, and (4) actual malice.
A Suffolk County Criminal Lawyer said the defendant’s argument that she is entitled to summary judgment dismissing the complaint, because plaintiff cannot establish the lack of probable cause for the underlying criminal proceeding or actual malice, is rejected. A civilian complainant, by merely seeking police assistance or furnishing information to law enforcement authorities who are then free to exercise their own judgment as to whether an arrest should be made and criminal charges filed, will not be held liable for false arrest or malicious prosecution. Instead, a plaintiff must show that the complainant played an active role in the prosecution, such as giving advice and encouragement or importuning the authorities to act. Further, while an indictment creates a presumption that there was probable cause for the underlying proceeding, a malicious prosecution claim still can be maintained after an indictment has been handed up if the plaintiff can establish that the indictment was procured by fraud, perjury, misrepresentation or falsification of evidence on the part of the defendant.
In addition, a Westchester County Criminal Lawyer said to demonstrate the element of actual malice, a plaintiff must show that the defendant initiated the prior criminal proceeding due to a wrong or improper motive, something other than a desire to see the ends of justice served. Although proof of malice may be shown with evidence that the defendant was motivated by spite or hatred, such evidence is not required. In fact, in the context of malicious prosecution, actual malice seldom is shown by direct evidence; rather, it usually is inferred from the facts and circumstances surrounding the underlying criminal proceeding. Moreover, a jury may, but is not required to, infer the existence of actual malice from the fact that there was no probable cause to initiate the criminal proceeding against the plaintiff.
Here, plaintiff had the burden of presenting evidence negating the presumption of probable cause created by his indictment on two counts of criminal contempt in the first degree. Contrary to the conclusory allegations by defendant’s counsel, Judge’s finding that defendant was not a credible witness due to the discrepancies between her grand jury testimony and her trial testimony is sufficient to create factual issues as to whether defendant instigated plaintiff’s arrest by giving false information to police, and whether she acted with actual malice. Accordingly, defendant’s motion for summary judgment dismissing the complaint is denied.
Stephen Bilkis and Associates together with Nassau County Order of Protection Attorneys can help you secure order of protection from court against harassment, threats, violence and similar incident, like the case above, just drop by our offices in New York for free legal consultation. Also, our Nassau County Criminal Lawyers can assist you during the entire criminal proceedings and guide you on what action to pursue, don’t hesitate to call us.