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June 6, 1990


The opinion of the court was delivered by: Wexler, District Judge.


Plaintiff Kristin Goree ("Goree") brings this civil rights case against the Town of Southampton and two of its police officers alleging violations of his civil rights based on false arrest and use of excessive force. Previously before the Court was Goree's motion for leave to amend the complaint to add civil rights and state law claims based upon the alleged malicious prosecution of plaintiff in a prior criminal proceeding. By order dated June 8, 1989, his motion was denied. Goree now seeks reconsideration of that determination in light of a recent Second Circuit decision which reversed in relevant part a decision (of this Court) on which this Court relied in denying his motion for leave to amend. See Janetka v. Dabe, 892 F.2d 187 (2d Cir.), aff'g in part, rev'g and remanding in part, 710 F. Supp. 906 (E.D.N.Y. 1989). For the reasons below, the motion for reconsideration is denied.

I. Background

Following his arrest on February 12, 1987 by the defendant police officers, Thomas Tully ("Tully") and Robert Gunning, Goree was charged under the New York Penal Law ("Penal Law") with: (1) resisting arrest (§ 205.30); (2) disorderly conduct (§ 240.20(3)); (3) harassment (§ 240.25(2)); (4) criminal possession of a weapon in the fourth degree (§ 265.01(2)); and (5) menacing (§ 120.15). Under the Penal Law, resisting arrest and criminal possession of a weapon in the fourth degree are class A misdemeanors, menacing is a class B misdemeanor, and disorderly conduct and harassment are violations. Upon a jury trial in the Southampton Town Justice Court, Goree was convicted of the first three charges enumerated above, but acquitted of the last two — criminal possession of a weapon in the fourth degree and menacing. Based on his acquittal of these two charges, Goree argued that he could properly assert a claim for malicious prosecution of these two charges. This Court disagreed and, relying on its decision in Janetka v. Dabe, 710 F. Supp. 906 (E.D.N.Y. 1989), held:

  Where, as here, the charges lodged against the
  defendant arose out of events that occurred on the
  same occasion and in connection with conduct that
  occurred either simultaneously or within minutes
  of each other, the Court views the charges brought
  as a single criminal proceeding heard and decided
  by a single jury. Under these circumstances, the
  Court cannot view that proceeding as terminating
  in Goree's favor.

Goree v. Gunning, CV 88-1452, slip op. at 3 (E.D.N.Y. June 8, 1989). The Court now turns to address whether the Second Circuit's decision in Janetka, supra, warrants disturbing this Court's June 8 order.

II. Discussion

As noted by the Second Circuit in Janetka, a § 1983 civil rights claim based on malicious prosecution is governed by state law in the absence of federal rules of decision for adjudicating such claims. Janetka, 892 F.2d at 189 (citing Conway v. Village of Mount Kisco, 750 F.2d 205, 214 (2d Cir. 1984)). Under New York law, a plaintiff alleging malicious prosecution must establish that:

  (1) the defendant either commenced or continued a
  criminal proceeding against him; (2) that the
  proceeding terminated in his favor; (3) that there
  was no probable cause for the criminal proceeding;
  and (4) that the criminal proceeding was
  instituted in actual malice.

Russo v. New York, 672 F.2d 1014, 1018 (2d Cir. 1982) (quoting Martin v. City of Albany, 42 N.Y.2d 13, 396 N.Y.S.2d 612, 614, 364 N.E.2d 1304 (1977)), modified on other grounds, 721 F.2d 410 (2d Cir. 1983) (per curiam).

In Janetka, the plaintiff Janetka had been charged with resisting arrest and disorderly conduct, which are, as noted above, a misdemeanor and a violation, respectively; at a trial on both charges, Janetka was acquitted of the resisting arrest charge but convicted of the disorderly conduct charge. Janetka, 710 F. Supp. at 907. Janetka then brought an action in this Court for, inter alia, malicious prosecution. In directing a verdict against Janetka on his malicious prosecution claim, this Court held that, under the circumstances, Janetka's prior criminal proceeding was not a favorable termination for purpose of a malicious prosecution claim on the disorderly conduct charge. Id. at 909.

However, the Second Circuit reversed that determination, and held that the acquittal on the resisting arrest charge was a "favorable" termination for malicious prosecution purposes. Citing cases from the Supreme Courts of South Carolina and Virginia, the court noted:

  [C]ourts have held that an acquittal satisfies the
  favorable termination requirement even when there
  has been a conviction on a related charge, or one
  arising from the same incident or event. See Ruff
  v. Ekards Drugs, Inc., 265 S.C. 563,
  220 S.E.2d 649, 650-51 (1975) (favorable termination
  established where malicious prosecution plaintiff
  previously arrested for assault and disorderly
  conduct "aris[ing] out of the same set of
  circumstances" was convicted of assault and
  acquitted of disorderly conduct); Cuthrell v. Zayre
  of Va., Inc., 214 Va. 427, 201 S.E.2d 779, 780
  (1974) (favorable termination established where
  malicious prosecution plaintiff, previously
  arrested for disorderly conduct after dispute over
  arrest for petit larceny, was convicted of
  disorderly conduct and acquitted of petit larceny).

Janetka, 892 F.2d at 190. In reaching its conclusion, the Second Circuit observed that Janetka was charged with two distinct offenses involving distinct allegations. Id. In this respect, the court noted that the disorderly conduct charge arose out of Janetka's actions directed at an unidentified hispanic man whereas the resisting arrest charge arose out of Janetka's actions directed at the police officers' attempts to arrest him. Id. The court further added that the elements of each charge are different and neither is a lesser included offense of the other. Id. The court then reasoned that to hold that acquittal on the ...

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