                            State of New York
                     Supreme Court, Appellate Division
                         Third Judicial Department
Decided and Entered: February 23, 2017                     523667
________________________________

CORNELIUS J. MAHONEY et al.,
                    Respondents,
      v                                       MEMORANDUM AND ORDER

STATE OF NEW YORK,
                    Appellant.
________________________________


Calendar Date:   January 13, 2017

Before:   Peters, P.J., Lynch, Devine, Clark and Aarons, JJ.

                               __________


      Eric T. Schneiderman, Attorney General, Albany (Jonathan D.
Hitsous of counsel), for appellant.

      Cappello & Linden, Potsdam (Roger B. Linden of counsel),
for respondents.

                               __________


Peters, P.J.

      Appeals (1) from a decision of the Court of Claims (Midey
Jr., J.), entered October 15, 2015, following a bifurcated trial
in favor of claimant Cornelius J. Mahoney on the issue of
liability, and (2) from the judgment entered thereon.

      Claimant Cornelius J. Mahoney (hereinafter claimant) is the
owner and sole shareholder of a used car dealership in the
Village of Canton, St. Lawrence County. Many of the vehicles
that claimant sold were imported from Canada for resale in
New York. Because most Canadian cars measure distance in
kilometers, claimant would use one of several companies to have a
vehicle's odometer converted from kilometers to miles prior to
resale. Upon selling a vehicle, the dealership would assist the
customer in registering the vehicle. Erin Hayes, claimant's
                              -2-                523667

daughter and office manager, was responsible for filing the
registration paperwork with the Department of Motor Vehicles
(hereinafter DMV) at its Canton branch office.

      In 2001, an employee at DMV's Canton branch informed Hayes
of a new requirement for the registration of vehicles imported
from Canada – the filing of an "odometer conversion statement"
identifying the vehicle and setting forth the odometer conversion
from kilometers to miles. Although there was no specific form to
be used for such statement, Hayes was advised that it had to be
on letterhead and come from the business that performed the
conversion. At that time, claimant had been using two companies,
Online Speedometer and SpeedoMax, to perform the odometer
conversions. When Online Speedometer went out of business in
spring 2001, however, Hayes was unable to obtain the necessary
odometer conversion statements from it for the vehicles on which
that company had already performed the conversion. To address
the inability to obtain odometer conversion statements from
Online Speedometer, claimant directed Hayes to create odometer
conversion statements containing SpeedoMax letterhead, the
conversion company that the dealership was currently using, on
which the required information would be provided.

      In March 2003, an investigator in DMV's Odometer Fraud Unit
contacted the State Police after receiving a report of a
suspicious speedometer calibration certification that had been
filed with the Canton DMV. Following an investigation conducted
primarily by Investigator James DiSalvo, claimant was charged
with 51 counts of offering a false instrument for filing, brought
in three groups in May, June and July 2003, related to the filing
of odometer conversion statements by his dealership. In August
2003, claimant was also charged with one count of grand larceny
in the fourth degree and criminal possession of a forged
instrument in the second degree stemming from allegations that
he, respectively, furnished a customer with an extended warranty
that never became effective and a falsified odometer conversion
statement. For the June and August sets of charges, the police
obtained and executed a warrant for claimant's arrest.

      In 2004, all charges were dismissed on speedy trial grounds
(see CPL 30.30). Shortly thereafter, claimants commenced this
                              -3-                523667

action against defendant for, among other things, malicious
prosecution and false arrest. Following a bifurcated trial on
the issue of liability, the Court of Claims found, insofar as is
relevant here, that the charges filed in May and June 2003 were
supported by probable cause, while the July and August 2003
charges were not. Accordingly, the court found that defendant
was liable for malicious prosecution and false arrest with
respect to the July and August 2003 sets of charges.1 Defendant
now appeals from the decision of the Court of Claims and the
judgment entered thereon.2

      Because this is "an appeal from a judgment issued after a
nonjury trial, we are able to independently review the weight of
the evidence and, while according appropriate deference to the
trial judge's credibility assessments and factual findings, grant
the judgment warranted by the record" (Williams v State of New
York, 140 AD3d 1376, 1377 [2016] [internal quotation marks,
ellipses and citations omitted]; see Medina v State of New York,
133 AD3d 943, 944 [2015], lv denied 27 NY3d 905 [2016]). It is
fundamental that the lack of probable cause is an essential
element of causes of action for false arrest and malicious
prosecution (see De Lourdes Torres v Jones, 26 NY3d 742, 761
[2016]; Gisondi v Town of Harrison, 72 NY2d 280, 283 [1988];
Saunders v County of Washington, 255 AD2d 788, 789 [1998]; Brown
v Roland, 215 AD2d 1000, 1001 [1995], lv dismissed 87 NY2d 861
[1995]). In the context of a false arrest or malicious


    1
        The claim also sought to recover damages for abuse of
process, defamation, constitutional deprivation, prima facie tort
and false imprisonment of claimant's wife. These claims were
either withdrawn following the trial or dismissed by the Court of
Claims. The Court of Claims also dismissed all of the causes of
action brought by the other named claimants. Claimants have not
cross-appealed.
    2
        Inasmuch as the decision does not constitute an
appealable paper (see CPLR 5512 [a]; Smith v State of New York,
121 AD3d 1358, 1358 n [2014]), the appeal therefrom must be
dismissed (see Haber v Gutmann, 64 AD3d 1106, 1109 [2009], lv
denied 13 NY3d 711 [2009]).
                              -4-                523667

prosecution claim, "[p]robable cause consists of such facts and
circumstances as would lead a reasonably prudent person in like
circumstances to believe [claimant] guilty" (Colon v City of New
York, 60 NY2d 78, 82 [1983]; see Smith v County of Nassau, 34
NY2d 18, 25 [1974]; Guntlow v Barbera, 76 AD3d 760, 762 [2010],
appeal dismissed 15 NY3d 906 [2010]). Notably, "[p]robable cause
does not require proof sufficient to warrant a conviction beyond
a reasonable doubt but merely information sufficient to support a
reasonable belief that an offense has been or is being committed
by the suspected individual" (De Lourdes Torres v Jones, 26 NY3d
at 759 [internal quotation marks and citation omitted]).
Furthermore, where, as here, an arrest warrant has been issued by
a court of competent jurisdiction, there is "a presumption that
the arrest was [made] on probable cause" (Broughton v State of
New York, 37 NY2d 451, 458 [1975], cert denied 423 US 929 [1975];
see Dann v Auburn Police Dept., 138 AD3d 1468, 1470 [2016], lv
denied 141 AD3d 1124 [2016]).

      Applying these principles to the matter before us, we
conclude that the Court of Claims' probable cause findings with
regard to the July and August 2003 charges were in error. With
respect to the July 2003 charges, "[a] person is guilty of
offering a false instrument for filing in the first degree
when[,] knowing that a written instrument contains a false
statement or false information, and with intent to defraud the
state . . ., he or she offers or presents it to a public office
. . . with the knowledge or belief that it will be filed with,
registered or recorded in or otherwise become a part of the
records of such public office" (Penal Law § 175.35 [1]). Here,
claimant's sworn statements to police establish that he directed
Hayes to create odometer conversion statements on falsified
SpeedoMax letterhead and then caused such statements to be filed
with DMV while registering vehicles sold through his dealership.
Indeed, Hayes confirmed claimant's role in the operation and gave
police the electronic template that she had created for the
SpeedoMax letterhead.

      The Court of Claims found that such facts gave rise to
probable cause to arrest and prosecute claimant on the May and
June 2003 sets of charges. Yet, the court concluded that
DiSalvo's knowledge as of July 2003 that claimant had no legal
                              -5-                523667

duty to file odometer conversion statements with DMV, and his
failure to divulge this information to the court when applying
for an arrest warrant for the 11 additional counts of offering a
false statement, eviscerated the probable cause that otherwise
supported the charges and claimant's arrest. This was error.
Simply put, a legal duty to file an instrument is not an element
of the offense of filing a false instrument (see Penal Law
§ 175.35). Thus, "a finding as to whether [claimant] was
required to file such instrument is irrelevant to the
determination that the instrument filed was false" (People v
Willette, 290 AD2d 576, 578 [2002], lv denied 97 NY2d 763 [2002];
see People v Isakov, 120 AD3d 589, 591 [2014]; see generally
Gisondi v Town of Harrison, 72 NY2d at 284-285).3 Accordingly,
DiSalvo's failure to disclose this information could have no
bearing on the ultimate issue of whether probable cause existed
to believe that claimant committed a crime (see Gisondi v Town of
Harrison, 72 NY2d at 285-286; Brown v Sears Roebuck & Co., 297
AD2d 205, 211 [2002]; Manno v State of New York, 176 AD2d 1222,
1223 [1991]; Davis v State of New York, 124 AD2d 420, 422-423
[1986]).

      Nor does the record support the finding of the Court of
Claims that DiSalvo knew after his June 25, 2003 meeting with the
District Attorney's office that the pending May and June 2003
charges would be dismissed. To be sure, while DiSalvo had an
"impression" that such charges would be dismissed based on that
meeting, the record reflects that the officials of that office
"never told [DiSalvo] that they were going to dismiss the case."
Moreover, an Assistant District Attorney specifically instructed


    3
        Claimant argues that defendant may not now assert the
irrelevancy of the lack of a legal duty to file the documents
because it did not specifically make such argument before the
Court of Claims. However, defendant merely recites governing
law, and its contention in this regard appeared on the face of
the record and could not have been avoided if brought to the
attention of the court (see People ex rel. Roides v Smith, 67
NY2d 899, 901 [1986]; Paolicelli v Fieldbridge Assoc., LLC, 120
AD3d 643, 645 [2014]; Matter of Persing v Coughlin, 214 AD2d 145,
148-149 [1995]).
                              -6-                523667

DiSalvo to "move forward" with respect to the July 2003 charges
and the arrest warrant. In any event, such information would not
have undermined the probable cause for the new charges brought in
July 2003 and the procurement of the arrest warrant for claimant,
all of which were, as previously observed, supported by probable
cause (see Callan v State of New York, 73 NY2d 731, 732 [1988],
revd for reasons stated in dissenting op 134 AD2d 882, 883-884
[1987]; see also People v McEaddy, 20 AD3d 585, 586 [2005];
People v Putsis, 217 AD2d 670, 670-671 [1995], lv denied 87 NY2d
850 [1995]).

      Claimant further failed to demonstrate that the State
Police acted unlawfully in pursuing the August 2003 charges. As
relevant here, a person is guilty of criminal possession of a
forged instrument in the second degree when he or she
"possess[es] a written instrument . . . filed with a public
office . . . 'with knowledge that it is forged and with intent to
defraud, deceive or injure another'" (People v Briggins, 50 NY2d
302, 305 [1980], quoting Penal Law § 170.25; see Penal Law
§ 170.10 [2], [3]). Claimant provided a customer with an
odometer conversion statement that displayed SpeedoMax
letterhead, but referred to a conversion that predated
SpeedoMax's existence. Indeed, there was no dispute at trial
that the conversion statement that claimant provided to this
customer contained false information (see People v Smith, 138
AD3d 1248, 1250 [2016], lv denied 27 NY3d 1139 [2016]).
Claimant's knowledge that the document was forged was established
by the undisputed proof that he instructed Hayes to create the
falsified letterhead and insisted that vehicles not serviced by
SpeedoMax be included on such letterhead in order to meet what he
believed to be the local DMV's registration requirement.
Further, claimant's intent to defraud could be readily inferred
from the act itself as well as his conduct and the surrounding
circumstances (see People v Rodriguez, 71 AD3d 450, 452 [2010],
affd 17 NY3d 486 [2011]). As with the offering a false
instrument for filing charges, whether claimant was required to
file the document in question is irrelevant; for purposes of the
crime of criminal possession of a forged instrument in the second
degree, there need only be proof that the instrument in question
is false and has been filed (see Penal Law §§ 170.25, 170.10
[2]).
                              -7-                523667

      Claimant's charge and arrest for grand larceny in the
fourth degree were also based on probable cause. A person is
guilty of such offense "when he [or she] steals property and when
. . . [t]he value of the property exceeds [$1,000]" (Penal Law
§ 155.30 [1]). Prior to lodging this charge and arresting
claimant, the police had statements from claimant's customers
that, despite having paid claimant for a warranty on their
automobile in February 2003 when they bought their vehicle from
his dealership, as of July 2003 they still had no warranty and
claimant had not offered to refund the money. It is well settled
that, "[g]enerally, information provided by an identified citizen
accusing another individual of a specific crime is legally
sufficient to provide the police with probable cause to arrest"
(Masciello v Incorporated Vil. of Lloyd Harbor, 140 AD3d 834, 835
[2016] [internal quotation marks and citation omitted], lv denied
28 NY3d 906 [2016]; see Smithers v County of Oneida, 138 AD3d
1504, 1505 [2016]; Romero v State of New York, 294 AD2d 730, 732
[2002], appeal dismissed 98 NY2d 727 [2002], lv denied 99 NY2d
503 [2002]). Although the statements did not specifically name
claimant as the one who sold the warranty to these customers,
claimant testified that, as the owner of the dealership, he was
personally involved in all aspects of his business. The police
were aware of this and, therefore, could reasonably conclude that
claimant bore ultimate responsibility (see generally People v
Mattiace, 77 NY2d 269, 271 [1990]). Armed with knowledge that
the complaining customers had neither a warranty nor a refund,
police had probable cause to believe that claimant intended "to
permanently deprive" the customers of their warranty money
(People v Medina, 18 NY3d 98, 105 [2011]; see People v Allen, 132
AD3d 1156, 1157 [2015], lv denied 26 NY3d 1107 [2016]).

      In addition, DiSalvo and another officer had received a
letter from the successor to the warranty company stating that a
preliminary search revealed no record of a warranty issued to
those customers. Although the successor company cautioned
DiSalvo that the search was not conclusive, "conflicting evidence
uncovered in the course of the police investigation" is "relevant
to the issue of whether guilt beyond a reasonable doubt could
[be] proven at a criminal trial, not to the initial determination
of the existence of probable cause" (Williams v City of New York,
114 AD3d 852, 854 [2014] [internal quotation marks and citation
                              -8-                523667

omitted]; see De Lourdes Torres v Jones, 26 NY3d at 761).
Moreover, the mere fact that the letter noted that the record
search was not necessarily conclusive does not establish that
police improperly concealed it (see Gisondi v Town of Harrison,
72 NY2d at 284-285; Batten v City of New York, 133 AD3d 803, 806
[2015], lv denied 28 NY3d 902 [2016]). While the Court of Claims
also stressed that DiSalvo failed to inform the court that issued
the arrest warrant for claimant that he had attempted to pay the
warranty company, nothing in the record suggests that DiSalvo
knew about this payment attempt at that time.

      While DiSalvo's investigation and pursuit of claimant can
fairly be characterized as overzealous and, at times, relentless,
any purported malicious motive on the part of DiSalvo is
irrelevant to the claims at issue here given that probable cause
existed for claimant's arrest and the charges lodged against him
(see Broughton v State of New York, 37 NY2d at 458-459; Besson v
Southard, 10 NY 236, 239 [1851]; Restey v Higgins, 252 AD2d 954,
955 [1998]). On this record, we conclude that claimant failed to
meet the "heavy burden" (Smith-Hunter v Harvey, 95 NY2d 191, 195
[2000]) of establishing "that the police conduct deviated
egregiously from statutory requirements or accepted practices" to
rebut the presumption of probable cause for the July and August
2003 sets of charges (Gisondi v Town of Harrison, 72 NY2d at 285;
see Batten v City of New York, 133 AD3d at 806). Accordingly,
the causes of action alleging malicious prosecution and false
imprisonment related to those charges must be dismissed (see
Gisondi v Town of Harrison, 72 NY2d at 283; Martinez v City of
Schenectady, 276 AD2d 993, 996 [2000], affd 97 NY2d 78 [2001]),
thereby necessitating the dismissal of the claim in its entirety.

     Lynch, Devine, Clark and Aarons, JJ., concur.



      ORDERED that the appeal from the decision is dismissed,
without costs.
                              -9-                  523667

      ORDERED that the judgment is modified, on the law, without
costs, by reversing so much thereof as found defendant liable on
claimant's malicious prosecution and false arrest causes of
action with regard to the third and fourth sets of criminal
charges; claim is dismissed in its entirety; and, as so,
modified, affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
