        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

349
CA 15-01561
PRESENT: SMITH, J.P., DEJOSEPH, NEMOYER, TROUTMAN, AND SCUDDER, JJ.


CHRISTOPHER DANN, PLAINTIFF-RESPONDENT-APPELLANT,

                    V                               MEMORANDUM AND ORDER

AUBURN POLICE DEPARTMENT, CITY OF AUBURN,
DEFENDANTS-APPELLANTS,
CAYUGA COUNTY DISTRICT ATTORNEY’S OFFICE, AND
COUNTY OF CAYUGA, DEFENDANTS-RESPONDENTS.


THE LAW FIRM OF FRANK W. MILLER, EAST SYRACUSE (FRANK W. MILLER OF
COUNSEL), FOR DEFENDANTS-APPELLANTS.

JARROD W. SMITH, ESQ., P.L.L.C., JORDAN (JARROD W. SMITH OF COUNSEL),
FOR PLAINTIFF-RESPONDENT-APPELLANT.


     Appeal and cross appeal from an order of the Supreme Court,
Cayuga County (Mark H. Fandrich, A.J.), entered February 26, 2015.
The order, among other things, granted that part of defendants’ motion
seeking summary judgment dismissing the complaint against defendants
Cayuga County District Attorney’s Office and County of Cayuga and
denied that part of defendants’ motion seeking to dismiss the
malicious prosecution cause of action against defendants Auburn Police
Department and City of Auburn.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by granting that part of the motion
with respect to the malicious prosecution cause of action in its
entirety and dismissing that cause of action against all defendants
and as modified the order is affirmed without costs.

     Memorandum: In this action by plaintiff to recover damages from
two sets of defendants on various theories, defendants Auburn Police
Department and the City of Auburn (City defendants) appeal and
plaintiff cross-appeals from an order that, inter alia, granted that
part of defendants’ motion for summary judgment dismissing the cause
of action for malicious prosecution only against defendants Cayuga
County District Attorney’s Office and County of Cayuga (County
defendants). We reject plaintiff’s contention on his cross appeal
that Supreme Court erred in granting the motion to that extent. The
County defendants demonstrated their entitlement to judgment as a
matter of law based on their prosecutorial immunity, and plaintiff
failed to raise a triable question of fact (see generally Zuckerman v
City of New York, 49 NY2d 557, 562). The law provides absolute
immunity “for conduct of prosecutors that was ‘intimately associated
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                                                         CA 15-01561

with the judicial phase of the criminal process’ ” (Buckley v
Fitzsimmons, 509 US 259, 270, quoting Imbler v Pachtman, 424 US 409,
430; see Kirchner v County of Niagara, 107 AD3d 1620, 1622), i.e.,
conduct that involves “ ‘initiating a prosecution and . . . presenting
the State’s case’ ” (Johnson v Kings County Dist. Attorney’s Off., 308
AD2d 278, 285, quoting Imbler, 424 US at 431; see Kirchner, 107 AD3d
at 1623). Although prosecutors are afforded only qualified immunity
when acting in an investigative capacity (see Buckley, 509 US at 275-
276; Kirchner, 107 AD3d at 1623; Claude H. v County of Oneida, 214
AD2d 964, 965), we reject plaintiff’s contention that the prosecutor’s
actions in this case went beyond “the professional evaluation of the
evidence assembled by the police,” a function that would not deprive
the prosecutor of absolute immunity (Buckley, 509 US at 273; cf.
Kirchner, 107 AD3d at 1623-1624).

     We conclude, however, that the court erred in denying that part
of the motion for summary judgment dismissing the malicious
prosecution cause of action against the City defendants as well. The
court should have dismissed that cause of action in its entirety, and
we modify the order accordingly. The City defendants demonstrated
their entitlement to judgment as a matter of law on the issue whether
the police had probable cause to charge plaintiff with assault in the
second degree, and plaintiff failed to raise a triable issue of fact
(see Zetes v Stephens, 108 AD3d 1014, 1015-1016; Lyman v Town of
Amherst, 74 AD3d 1842, 1842; see generally Broughton v State of New
York, 37 NY2d 451, 457, cert denied sub nom. Schanbarger v Kellogg,
423 US 929). That quantum of suspicion was furnished to the police by
the sworn statements of the victim and the victim’s brother-in-law,
was buttressed by the sworn statement of plaintiff himself, and was
further supported by the findings made by the police during their
prudent and careful investigation into the incident. “In the context
of a malicious prosecution cause of action, probable cause consists of
such facts and circumstances as would lead a reasonably prudent person
in like circumstances to believe plaintiff guilty” (Zetes, 108 AD3d at
1015-1016 [internal quotation marks omitted]; see Colon v City of New
York, 60 NY2d 78, 82, rearg denied 61 NY2d 670). “ ‘Probable cause
does not require proof sufficient to warrant a conviction beyond a
reasonable doubt but merely [requires] information sufficient to
support a reasonable belief that an offense has been or is being
committed’ by the suspected individual” (Torres v Jones, 26 NY3d 742,
759). It is well established that “ ‘information provided by an
identified citizen accusing another of a crime is legally sufficient
to provide the police with probable cause to arrest’ ” (Lyman, 74 AD3d
at 1843; see Zetes, 108 AD3d at 1016). Moreover, where, as here, “a
warrant of arrest [has been] issued by a court of competent
jurisdiction, there is ‘a presumption that the arrest was [made] on
probable cause’ ” (Chase v Town of Camillus, 247 AD2d 851, 852,
quoting Broughton, 37 NY2d at 458; see Lyman, 74 AD3d at 1842-1843),
and that the accompanying criminal prosecution was likewise based on
probable cause. That “presumption of probable cause ‘can be overcome
only upon a showing of fraud, perjury or the withholding of
evidence’ ” (Lyman, 74 AD3d at 1843), none of which is demonstrated by
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                                           CA 15-01561

plaintiff in this case.




Entered:   April 29, 2016         Frances E. Cafarell
                                  Clerk of the Court
