what had happened. Kruppenbacher produced his license but would
not respond to any of the officer's questions about what had
happened. Next, Albany PD Officer Paul Gaida arrived. Both
officers noticed a dent and bent chrome on the driver's side door
of the Mazzeos' car and that the lip of David Mazzeo was cut and
bleeding. Officer Gaida unsuccessfully attempted to locate
witnesses to the incident during the course of his investigation.
Affidavit of Gaida at ¶ 6. A discussion between the Mazzeos and
the police officers then took place and focused on the
appropriate manner for the Mazzeos to pursue reparations.
Kruppenbacher's driver's license only listed a post office box
as his address. He refused to give the officers his street
address. Both officers thought that without knowledge of a street
address the Mazzeos would be unable to sue Kruppenbacher in small
claims court. The officers explained to the Mazzeos that without
a street address the Mazzeos would be unable to properly effect
service on Kruppenbacher.
After the officers had discussed the various options with the
Mazzeos, Kruppenbacher was arrested and taken into custody by
Officers Peters and Gaida. He was charged with criminal mischief
in the fourth degree and assault in the third degree.
Kruppenbacher was taken to the police station where he was
photographed and fingerprinted by Detective James Halpin. This
identification process took ten minutes and no conversation took
place between Halpin and Kruppenbacher. Deposition of
Kruppenbacher at 55-56. While in custody and during processing,
Kruppenbacher was also charged with criminal possession of stolen
property in the third degree because officer Peters found that
Kruppenbacher had possession of the nondriver, Department of
Motor Vehicles, identification card of Katherine Kastner. Kastner
was called by the police department. She reported the card as
stolen and signed a crime report.
Kruppenbacher was arraigned on January 10, 1985 before City of
Albany police court Judge Thomas W. Keegan. Judge Keegan remanded
Kruppenbacher to the Albany County jail. On February 1, 1985
Kruppenbacher was released on $6,000.00 cash bail. The Mazzeos
never signed a criminal complaint against Kruppenbacher.
Consequently all charges against the plaintiff were dropped on
June 6, 1985. Id. at 75-76. Kruppenbacher then filed this Section
1983 action against David Mazzeo, Elise Mazzeo, the City of
Albany Police Department, Officer Charles Peters, Officer Paul
Gaida, and Detective James Halpin.*fn2
Rule 56(c) of the Federal Rules of Civil Procedure provides
that a trial judge shall grant summary judgment "if the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law."
Fed.R.Civ.P. 56(c). The burden rests on the moving party to
demonstrate the lack of a genuine issue of fact, Adickes v. S.H.
Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d
142 (1970). "In cases where the non-movant will bear the ultimate
burden of proof at trial on an issue, the moving party's burden
under Rule 56 is met if he can point to an absence of evidence to
support an essential element of the non-moving party's claim."
Brady v. Town of Colchester, 863 F.2d 205, 210-11 (2d Cir. 1988).
When the movant bears the ultimate burden on an issue upon which
he is moving for summary judgment, he must initially establish a
prima facie showing on that issue. See Beaver Valley Power Co. v.
National Engineering & Contracting Co., 883 F.2d 1210, 1217 n. 7
(3d Cir. 1989). If the moving party meets its burden, the
plaintiff must then respond with specific facts to support his
case. Fed.R.Civ.P. 56(e). On the motion for summary judgment, the
evidence "must be viewed in the light most favorable to the
party opposing the motion." United States v. Diebold, Inc.,
369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962).
Recovery under 42 U.S.C. § 1983 is premised upon a showing by
the plaintiff, first, that the defendant deprived plaintiff of a
right, privilege, or immunity secured by the Constitution or laws
of the United States and, second, that the defendant was acting
under color of state law at the time such denial was effected.
Adickes, 398 U.S. at 150, 90 S.Ct. at 1604; Patterson v.
Coughlin, 761 F.2d 886, 890 (2d Cir. 1985).
Plaintiff alleges deprivation of his eighth and fourteenth
amendment rights and brings pendent state law tort claims of
false arrest and malicious prosecution.*fn3 Plaintiff has no
eighth amendment claim because he was not convicted of a criminal
offense. Revere v. Massachusetts General Hosp., 463 U.S. 239,
244, 103 S.Ct. 2979, 2983, 77 L.Ed.2d 605 (1983). The court will
instead focus on the allegation that defendants' actions violated
the plaintiff's right under the fourteenth amendment to be free
of deprivations of liberty without due process of law. Under the
due process clause, an individual may not be punished prior to an
adjudication of guilt in accordance with due process of law. Bell
v. Wolfish, 441 U.S. 520, 535, 99 S.Ct. 1861, 1872, 60 L.Ed.2d
447 (1979). The standards and procedures for arrest and detention
in accordance with due process of law have been derived from the
fourth amendment and its common-law antecedents. Gerstein v.
Pugh, 420 U.S. 103, 111, 95 S.Ct. 854, 861, 43 L.Ed.2d 54 (1975).
Therefore, the arrest of Kruppenbacher will be found to be in
violation of the fourteenth amendment if it was performed without
probable cause, as defined in the fourth amendment.*fn4
The fourth amendment protects an individual against unfounded
invasions of liberty and privacy and applies to the states by
virtue of the fourteenth amendment. See generally Hayes v.
Florida, 470 U.S. 811, 105 S.Ct. 1643, 84 L.Ed.2d 705 (1985).
Although the Government may permissibly detain a person suspected
of committing a crime prior to a formal adjudication of guilt,
the existence of probable cause is the standard necessary for
arrest without a warrant. See Gerstein, 420 U.S. at 111-114, 95
S.Ct. at 861-63. The fourth amendment requires the states to
provide a fair and reasonable determination of probable cause as
a condition for any significant pretrial restraint of liberty.
Id. at 114, 95 S.Ct. at 863.
Probable cause to arrest exists when the arresting officer has
knowledge and reasonably trustworthy information of facts and
circumstances in themselves sufficient to warrant a person of
reasonable caution to believe that an offense has been committed
by the suspect. Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225,
13 L.Ed.2d 142 (1964); Calamia v. City of New York,
879 F.2d 1025, 1032 (2d Cir. 1989); People v. Smith, 44 N.Y.2d 613, 622,
407 N.Y.S.2d 462, 467, 378 N.E.2d 1032, 1037 (1978). Stated more
concisely, probable cause exists when an officer believes
reasonably and in good faith that a suspect committed a crime.
Collom v. Incorporated Village of Freeport, N Y., 691 F. Supp. 637,
640 (E.D.N.Y. 1988).
Plaintiff asserts that defendant officers violated New York
Criminal Procedure Law section 140.10 because they arrested him
without a warrant and without probable cause. Section 140.10
provides that "a police officer may arrest a person for a crime
when he has reasonable cause to believe that such person has
committed such crime, whether in his presence or otherwise." NY
CPL § 140.10(1)(b). "Reasonable cause," as used in the New York
statute, is substantially the same as "probable
cause" within the meaning of the fourth amendment. See Raysor v.
Port Authority, 768 F.2d 34, 39-40 (2d Cir. 1985); People v.
Lombardi, 18 A.D.2d 177, 180, 239 N.Y.S.2d 161, 164 (2d Dept.
1963), aff'd. 13 N.Y.2d 1014, 245 N.Y.S.2d 595, 195 N.E.2d 306
On its own, the fact that the Mazzeos reported Kruppenbacher's
behavior to the police strongly supports the officers' finding of
probable cause. "In many cases where the victim has made a
`positive identification,' the circumstances may be such as to
warrant a court's finding of reasonable cause as a matter of
law." Collom, 691 F. Supp. at 640. The constitutional requirement
of probable cause can be satisfied by hearsay information.
Spinelli v. United States, 393 U.S. 410, 412, 89 S.Ct. 584, 587,
21 L.Ed.2d 637 (1968). The officers deciding whether there is
probable cause for arrest must believe that their informant was
credible and that the information conveyed was reliable. Id. at
413, 89 S.Ct. at 587. The fact that the arresting officers did
not have first hand knowledge of what occurred between
Kruppenbacher and the Mazzeos does not render improper the
determination of whether probable cause exists.
Officers Peters and Gaida were summoned to the corner of
Washington and Lark Streets by the phone call of Elise Mazzeo.
The Mazzeos identified Kruppenbacher as an assailant.
Kruppenbacher was in the immediate vicinity. The officers
observed the dent in the driver's side door of the Mazzeo's car
and saw David Mazzeo's swollen lip. The officers had reason to
believe that the Mazzeos were credible witnesses because the
substance of their complaint was supported by physical evidence.
A person of reasonable caution, after analyzing this physical
evidence, would have probable cause to believe that Kruppenbacher
had punched David Mazzeo and had kicked the car. These actions
constitute the offenses of criminal mischief in the fourth degree
and assault in the third degree.*fn5
Kruppenbacher argues that a constitutional violation occurred
because he was not prosecuted. The fact that Kruppenbacher was
not prosecuted does not compel the conclusion that there was a
deprivation of liberty without due process of law. Probable cause
does not require an officer to be certain that subsequent
prosecution of the arrestee will be successful. Krause v.
Bennett, 887 F.2d 362, 371 (2d Cir. 1989); see also Baker v.
McCollan, 443 U.S. 137, 145, 99 S.Ct. 2689, 2695, 61 L.Ed.2d 433
(1979), United States v. Manley, 632 F.2d 978, 984 (2d Cir.
1980). The fact that the charges against Kruppenbacher were
eventually dropped does not compel the conclusion that the
arresting officers lacked probable cause to take Kruppenbacher
Police officers often encounter situations where parties argue
as to what has occurred following incidents such as street
fights. However, "the existence of competing accounts cannot of
itself render the
issue of probable cause a jury question." Collom, 691 F. Supp. at
640. For instance, in Collom, the plaintiff brought a section
1983 action claiming that his constitutional rights were violated
when he was arrested after complaints, which stated that he swung
a bat at the heads of complainants, were filed with the police.
Id. The court concluded that the arresting officers acted upon
probable cause even though the parties disputed the events that
The court's reasoning in Collom is fully applicable to the case
at bar. If a dispute as to what transpired automatically raised
an issue for the jury to decide, police officers might fear a
jury's reexamination of their decisions. Id. Law enforcement
officials would then be discouraged from taking any action at
all. See id. Courts should not be in the position of constantly
second-guessing police officers.
For the foregoing reasons, this court concludes as a matter of
law that the arresting officers possessed probable cause to
arrest Kruppenbacher for criminal mischief in the fourth degree
and assault in the third degree. Therefore, the motion for
summary judgment made by defendants Peters, Gaida and Halpin is
granted insofar as those officers are alleged to have arrested
Kruppenbacher without probable cause.*fn7
In addition to the individual officers, the plaintiff seeks to
hold the Albany PD liable for alleged constitutional violations.
To hold the police department liable, plaintiff must demonstrate
that the constitutional wrongs complained of resulted from the
department's "official policy, custom, ordinance, regulation, or
decision." Rookard v. Health and Hospitals Corp., 710 F.2d 41, 45
(2d Cir. 1983). Plaintiff has not come forward with any evidence
of other incidents involving the Albany PD. He may not premise
the department's liability solely upon "evidence of the
occurrence of the incident in question." Fiacco v. City of
Rensselaer, 783 F.2d 319, 328 (2d Cir. 1986), cert. denied,
480 U.S. 922, 107 S.Ct. 1384, 94 L.Ed.2d 698 (1987). Consequently,
the complaint, as it names the Albany PD as a defendant, is
Plaintiff also submits that the private defendants, the
Mazzeos, are liable under section 1983 because they caused the
deprivation of his constitutional rights by participating in a
conspiracy with the Albany PD. Conspiracies are actionable under
section 1983. In proving such a claim the plaintiff must
demonstrate actual deprivation of a right secured by the
Constitution or laws. See Scales v. Village of Camden, 1990 WL
124066, 1990 U.S.Dist.LEXIS 11194 (N.D.N.Y. August 17, 1990)
(McAvoy, J.); see also Dean Tarry Corp. v. Friedlander,
826 F.2d 210, 213 (2d Cir. 1987); Hanna v. Home Ins. Co., 281 F.2d 298,
303 (5th Cir. 1960), cert. denied, 365 U.S. 838, 81 S.Ct. 751, 5
L.Ed.2d 747 (1961). "[M]ere proof of a conspiracy is insufficient
to establish a section 1983 [conspiracy] claim." Hampton v.
Hanrahan, 600 F.2d 600, 622 (7th Cir. 1979), cert. denied in
part, granted in part, 446 U.S. 754, 100 S.Ct. 1987, 64 L.Ed.2d
670 (1980); see also Brennan v. Hendrigan, 888 F.2d 189, 195 (1st
Cir. 1989). As the previous discussion demonstrates, there has
been no deprivation of constitutional rights because plaintiff
was arrested upon probable cause. Kruppenbacher is therefore
unable to prevail on a conspiracy claim brought under section
The court accordingly concludes that plaintiff has no viable
claim under 42 U.S.C. § 1983. Because the federal claims have
been dismissed before trial, under the dictates of United Mine
Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16
L.Ed.2d 218 (1966), the court dismisses the pendent state law
In brief, the complaint is dismissed in its
entirety.*fn8 The clerk of the court is directed to enter
judgment for the defendants.
It is So Ordered.