United States District Court, Eastern District of New York
September 3, 1991
ALEXANDER SALZMANN, PLAINTIFF,
FRANK SCICCITANO, GERARD PELKOFSKY AND THOMAS BARRY, DEFENDANTS.
The opinion of the court was delivered by: Bartels, District Judge.
MEMORANDUM-DECISION AND ORDER
This action arises out of an incident involving plaintiff
Alexander Salzmann's two sons, Scott and Timothy, who bought a
stolen "go-cart" and transported the same to the plaintiff's
premises. On inquiry by the Suffolk County police on October
13, 1986, the plaintiff led the police to a Chevrolet van,
which contained the go-cart. Plaintiff and his sons took the
van and accompanied the police to the local precinct. At the
precinct the plaintiff's sons were questioned by the police,
but were repeatedly interrupted by the plaintiff, who was quite
agitated at the time. Plaintiff stormed out of the precinct,
apparently in an attempt to drive away with the van,
disregarding the officers' orders to the contrary. After a
short scuffle with officer Frank Sciccitano, the plaintiff was
arrested by the defendants, Gerald Pelkofsky, Thomas Barry, and
Sciccitano, for the misdemeanor of obstructing governmental
administration. Thereafter, plaintiff was prosecuted for that
offense in State court, where he was acquitted.
Plaintiff then brought this civil rights action in Federal
court. In his suit under 42 U.S.C. § 1983, plaintiff set forth
three distinct violations of his civil rights: First, he sues
all three defendants for excessive use of force. Second, he
sues defendants Sciccitano and Pelkofsky for false arrest.
Third, he sues defendant Sciccitano for malicious prosecution.
Plaintiff's § 1983 action was tried before this Court from June
3-7, 1991. The jury rendered a unanimous verdict rejecting all
of the plaintiff's claims and judgment was entered for the
three defendants. The jury inexplicably concluded, as stated in
its answers to special verdict interrogatories, that there was
probable cause to arrest the plaintiff, but there was not
probable cause to prosecute him. In answering another
interrogatory, the jury concluded that there was no malice
involved in the prosecution.
Plaintiff now argues, in the instant motion for a judgment
notwithstanding the verdict (j.n.o.v.) or a new trial, that the
court incorrectly charged the jury on the malice element of the
malicious prosecution claim. Plaintiff brings this motion
despite the fact that he never objected to the disputed
language at the Court's charging
conference. Plaintiff seeks a j.n.o.v., pursuant to
Fed.R.Civ.P. 50(b),*fn1 in favor of plaintiff on his malicious
prosecution claim against defendant Sciccitano, or
alternatively, for a new trial on that claim, pursuant to
Fed.R.Civ.P. 59(a).*fn2 Upon the law, the Court hereby denies
Initially, the Court notes that under our system it is a
novel concept to challenge a defective jury charge by a motion
for a j.n.o.v. Instead, a motion for a j.n.o.v. must renew a
prior motion for a directed verdict based on the merits of the
case. Fed.R.Civ.P. 50(b). Plaintiff failed to move for a
directed verdict before the case went to the jury. "The rule is
well established that a motion for a directed verdict at the
close of all the evidence is a prerequisite for j.n.o.v."
Hilord Chemical Corp. v. Ricoh Electronics, Inc., 875 F.2d 32
(2nd Cir. 1989). Since an objection to an alleged error in the
jury charge could not have been raised until after that charge
was given, plaintiff's objection cannot now serve as the basis
for a j.n.o.v. Hilord Chemical Corp., supra at 37-38 ("the
motion for j.n.o.v. cannot assert a ground that was not
included in the motion for a directed verdict").
II. NEW TRIAL ON MALICIOUS PROSECUTION
The Court will therefore treat plaintiff's motion solely as
a motion for a new trial. Again, such a motion will not be
granted, even if there is a prejudicial error in the jury
charge, if the same is not raised before the jury retires.
"Unless it is nonprejudicial, the giving of an erroneous
instruction or the failure to give a proper requested
instruction is a ground for a new trial, provided that the
party moving for a new trial made an objection before the jury
retired to consider its verdict, and stated distinctly the
matter to which he objected and the grounds of his objection."
6A MOORE'S FEDERAL PRACTICE DIGEST ¶ 59.08. Plaintiff's
motion must therefore be denied for two reasons: First, he
failed to make a timely objection to the alleged error, as
required by Fed.R.Civ.P. 51.*fn3 Second, even if his objection
had been timely, he has failed to show any prejudice which
might justify a new trial under Fed.R.Civ.P. 59(a).
A) Not Timely
The purpose of the timely objection requirement is to
"prevent unnecessary new trials because of errors the judge
might have corrected if they had been brought to his attention
at the proper time." Cohen v. Franchard Corporation,
478 F.2d 115, 122 (2nd Cir. 1973), cert. denied 414 U.S. 857, 94 S.Ct.
161, 38 L.Ed.2d 106 (1973). Plaintiff objects to the Court's
instruction on the malice element of malicious prosecution,
which reads as follows:
A defendant initiates a prosecution maliciously
when the prosecution is totally
baseless and when he initiated the prosecution for
an improper or wrongful motive, rather to bring a
criminal to justice. The initiation of the
prosecution must have been accompanied by ill
will, spite or grudge. As I have told you, even if
you find that the defendant lacked probable cause
to initiate the prosecution at issue in the
particular claim you are considering, that finding
is not necessarily determinative of the question
of malice. However, if you find that probable
cause was totally lacking, you may, although you
are not required to, infer malice from the total
lack of probable cause.
Plaintiff objects to the language requiring that "the
initiation of the prosecution must have been accompanied by ill
will, spite, or grudge."
Plaintiff never objected to this language at any time during
the week long trial. The Court gave a copy of its proposed jury
charge to counsel prior to holding its charging conference. The
charging conference on June 6 was unusually time consuming and
afforded each side an ample opportunity to raise objections to
the proposed charge. Plaintiff's counsel took advantage of this
opportunity by making a number of objections to the charge,
including a different objection to the very same instruction on
malice. Accordingly, the Court made a number of revisions in
its proposed charge at the June 6 conference.
Another opportunity was afforded counsel to raise objections
when the Court reopened the charging conference on the morning
of June 7. The Court made further changes in its charge at the
request of counsel and finally read its thirty six pages of
instructions to the jury. After charging the jury for ninety
minutes, the Court excused the jury from the courtroom and gave
counsel for both parties an opportunity to make any exceptions
to the charge on the record, "out of the hearing of the jury".
Fed.R.Civ.P. 51. The plaintiff made no objections to the malice
instruction at that time.
The plaintiff now bases his motion on his written "Requests
to Charge and Objections to Defendant's Request to Charge."
Plaintiff's proposed charges were submitted prior to the trial
and before the jury was selected. These ten pages of proposed
charges included thirteen separate requests to charge. This was
not sufficient. At no point during the five day trial did
plaintiff refer the Court to the request which is the basis of
It is well-settled that a submission before trial of written
charge requests is no substitute for satisfying the
requirements of Rule 51. See e.g., Grosvenor Properties, Ltd.
v. Southmark Corp., 896 F.2d 1149, 1152 (9th Cir. 1990)
("remarks made by counsel in chambers, discussion of law in
pretrial memoranda and mere submission of proposed charges did
not clearly show that the issue was focused before the court");
Hicks v. Six Flags Over Mid-America, 821 F.2d 1311 (8th Cir.
1987) (raising contention in trial brief and in the charging
conference was not sufficient to preserve it for appeal in the
absence of a specific objection to the instruction given);
Beckman v. Mayo Foundation, 804 F.2d 435 (8th Cir. 1986)
(failure to give requested charge will not preserve issue in
the absence of an objection to the charge); Aspen Highlands
Skiing Co. v. Aspen Skiing Co., 738 F.2d 1509, 1516 (10th Cir.
1984), aff'd 472 U.S. 585, 105 S.Ct. 2847, 86 L.Ed.2d 467
(1985) (same); Schwartz v. American Honda Motor Co.,
710 F.2d 378 (7th Cir. 1983); Blair v. Cullom, 168 F.2d 622, 624
(2nd Cir. 1948) (same).
B) No Prejudice
Courts "may review a jury charge for error absent timely
objection by the harmed party only where the error is `plain
and may result in a miscarriage of justice' or in `obvious
instances of . . . misapplied law'". Air Et Chaleur, S.A. v.
Janeway, 757 F.2d 489, 494 (2nd Cir. 1985). The "plain error"
standard requires a higher showing than that required for
objections which comply with Rule 51.
The charge itself was adequate. Even if plaintiff had
satisfied Rule 51, a new trial will only be granted if, based
on a review of the record as a whole, the error is deemed
prejudicial. National R. Passenger
Corp. v. 25,900 Square Foot, 766 F.2d 685, 688 (2nd Cir. 1985).
"Determination of whether error was prejudicial is guided by
the harmless error doctrine as incorporated in Fed.R.Civ.P.
61." Id. That doctrine cautions that a judgment should stand
unless it appears inconsistent with substantial justice because
it followed from an error that affected the substantial rights
of the parties. Fed.R.Civ.P. 61.*fn4
Since the Court's malicious prosecution instruction only
resulted at the most in a harmless error, a new trial is
inappropriate under either the "plain error" or "prejudice"
standard. "To recover on a claim of malicious prosecution under
New York law, a plaintiff must establish four elements: 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. State of N.Y.,
672 F.2d 1014, 1018 (2nd Cir. 1982).
Plaintiff contends that the Court's definition of "malice"
was too restrictive. Plaintiff correctly cites Brault v. Town
of Milton, 527 F.2d 730, 739 (2nd Cir. 1975), which held that
"the `malice' that lies at the basis of the action does not
necessarily involve spite, hatred, malevolence or a corrupt
design; it is sufficiently established by showing that the
baseless suit was instituted from any improper and wrongful
motive." See also, Weg v. Macchiarola, 729 F. Supp. 328, 336
(S.D.N.Y. 1990) ("plaintiff is not required to prove that the
defendant was motivated by spite or ill will, although such
proof will satisfy the legal requirements").
To find prejudice the charge must be viewed in its entire
context. National R. Passenger Corp. v. 25,900 Square Foot,
766 F.2d 685, 688 (2nd Cir. 1985). There are three reasons to
negate the existence of prejudice: First, other language in the
charge off-set any prejudice resulting from the "spite, ill
will, or grudge" language. The Court's instruction defined
"malice" as when the prosecution is "totally baseless and . . .
initiated . . . for an improper or wrongful motive, rather than
to bring a criminal to justice." These words mirror the
language in Brault v. Town of Milton, 527 F.2d 730, 739 (2nd
Cir. 1975). Furthermore, the Court properly instructed as to
the relationship between probable cause and malice. The Court's
charge stated that "if you find that probable cause was totally
lacking, you may, although you are not required to, infer
malice from the total lack of probable cause". This language
permitted the jury to infer malice, even if the plaintiff could
not show direct evidence of "spite, ill will, or grudge".
Second, the plaintiff has shown no evidence that at the trial
the jury was in any way confused by the malice instruction. The
jury deliberated for three hours and never sent out a note. It
never indicated it was confused. Nor did it ever request a
rereading of the charge. As a matter of fact, in their answer
to the inquiry as to whether malice existed, the jury answered
"no". There is no basis for believing that the jury was
confused as to the malice element of malicious prosecution.
Importantly, plaintiff has made no attempt to show that the
evidence at trial proved that malice existed under any
definition of the term. Therefore, the Court finds that no
rational jury could have found actual malice, even if the
objectionable language had been omitted. Any error in the
instruction could not have prejudiced the plaintiff.
Third, the Court finds as a matter of law that since there
was probable cause to arrest the plaintiff there was probable
cause to prosecute him. Any error in the court's "malice"
definition was therefore
harmless. It is well-settled that "a plaintiff may not recover
for a violation of his civil rights arising out of an arrest if
probable cause to arrest is established". Parker v. Hearn,
695 F. Supp. 1421, 1425 (E.D.N.Y. 1988) (summary judgment in favor
of defendant police officer, on both false arrest and malicious
prosecution claims, where defendant had probable cause to
arrest plaintiff). See also, Jaroslawicz v. Seedman,
528 F.2d 727, 732 (2nd Cir. 1975); Lindsey v. Loughlin, 616 F. Supp. 449
(E.D.N.Y. 1985); Greene v. Brown, 535 F. Supp. 1096, 1100
(E.D.N.Y. 1982). In other words, probable cause to arrest is,
as a matter of law, automatically probable cause to prosecute.
Probable cause to arrest is satisfied when a police officer has
knowledge of "facts and circumstances sufficient to warrant a
prudent man in believing that an offense has been committed".
Gerstein v. Pugh, 420 U.S. 103, 111, 95 S.Ct. 854, 861, 43
L.Ed.2d 54 (1975).
The jury in this case arrived at the bizarre conclusion, as
stated in its answers to special verdict interrogatories, that
there was probable cause to arrest the plaintiff, but there was
not probable cause to prosecute him.*fn5 It is difficult to
harmonize these verdicts. As stated above, if there was
probable cause to arrest the plaintiff, it necessarily follows
that there was probable cause to prosecute him. See Parker,
supra. In any event, after carefully reviewing the record, the
Court finds as a matter of law that there could be but one
reasonable conclusion as to the element of probable cause and
that therefore no rational jury could find that the prosecution
was commenced without probable cause. Any error in the Court's
definition of "malice" was totally harmless.*fn6
Since plaintiff failed to make a timely objection to the jury
charge, and since any error in the jury charge was entirely
harmless, plaintiff's motion for a new trial is hereby denied.