it cannot be said that this statement affirmatively induced Officer Baker to make the arrest. Officer Baker did not effectuate plaintiff's arrest immediately following defendant's Scott's request that he be arrested. Nor was the plaintiff arrested when he subsequently appeared at the campus Public Safety office to be interviewed by the officers. Baker Dep. at 56. Indeed, it was not until after Officer Baker interviewed the plaintiff and his roommate that he believed he had probable cause to charge him with forcible rape. Baker Aff. P 21. Even at that point Officer Baker did not place the plaintiff under arrest but instead presented the matter to the town justice for the issuance of a judicial arrest warrant. Baker Dep. at 117. This being the case, plaintiff cannot demonstrate that it was Scott's demand for his arrest that caused Officer Baker to make the arrest. Accordingly, defendant Scott is entitled to summary judgment with respect to plaintiff's false arrest claim.
2. Malicious Prosecution
Defendant Scott argues that plaintiff cannot establish a prima facie case of malicious prosecution because he cannot establish that the underlying criminal proceedings were terminated in his favor. Defendant notes that the charges instituted by the Schoharie County District Attorney against the plaintiff for Sexual Abuse in the Third Degree; False Imprisonment in the Second Degree; and Menacing are still pending. Plaintiff argues that he established this element because the rape charge and subsequent sexual misconduct charge were dismissed for lack of evidence of forcible compulsion.
The nature of the village court's dismissal of the rape and sexual misconduct charges cannot be ascertained with absolute certainty from the record. There is no order of dismissal or transcript of the court's ruling. The only evidence in the record is presented by the affirmation of plaintiff's attorney who states that the rape charge was "reduced" by the village court to sexual misconduct because no evidence of a forcible sexual encounter were elicited at the preliminary hearing. Donohue Aff. PP 35-37. Further, plaintiff's attorney affirms that the "sexual misconduct charge was also eventually dismissed on the ground that it, too, required evidence of forcible compulsion." Id. at P 38. In his affidavit, the Schoharie District Attorney only confirms that the rape charge was dismissed on October 27, 1994.
If the plaintiff here had been acquitted of the rape charge, the issue here would be a simple one. That, however, is not the case and "when a termination is indecisive because it does not address the merits of the charge, the facts surrounding the termination must be examined to determine 'whether the failure to proceed implies a lack of reasonable grounds for prosecution.'" Janetka v. Dabe, 892 F.2d 187, 189 (2d Cir. 1989)(quoting Conway v. Village of Mount Kisco, 750 F.2d 205, 215 (2d Cir. 1984)). The only evidence present in the record (which is scant) indicates that the rape and sexual misconduct charges were dismissed because the prosecution could not provide any evidence of forcible compulsion, an element of these offenses. Since the prosecution was unable to prove an element of these offenses, the dismissal of the rape and sexual misconduct charge can be said to address the merits of the prosecution's case. This dismissal is thus a sufficient predicate upon which to found a claim for malicious prosecution.
Defendant Scott's argument that the pendency of the three lesser charges prevents the maintenance of an action for malicious prosecution is misplaced. It is true that there are criminal charges pending against the plaintiff relating to conduct for which he had previously been charged in the rape complaint. However, it also remains true that the rape charge and the sexual misconduct charge have been dismissed. The question of whether the now dismissed charges were maliciously instituted is not affected by the subsequent prosecutions. As the Second Circuit noted, the purpose of the favorable termination requirement is to prevent inconsistent judgments. Janetka, 892 F.2d at 189. That concern is not implicated by the fact that there are pending lesser charges relating to the same conduct that provided the foundation for the dismissed charges. By way of illustration, it would not be inconsistent to find that the defendant Scott maliciously instigated a rape prosecution while the plaintiff is in fact guilty of the crime of false imprisonment. Thus, the mere pendency of the three charges subsequently filed by the Schoharie County District Attorney does not vitiate the plaintiff's showing that the criminal proceedings have been terminated in his favor. Accordingly, defendant Scott has not demonstrated her entitlement to summary judgment with respect to this claim.
For the foregoing reasons, it is hereby
ORDERED that the motions for summary judgment made by defendants Baker, Kowalski are GRANTED and the Complaint is DISMISSED as to those defendants; and it is further
ORDERED that the motion for summary judgment made by defendant Scott is GRANTED IN PART and DENIED IN PART in that the cause of action for false arrest is DISMISSED as to this defendant and the motion is otherwise DENIED; and it is further
ORDERED that the summary judgment motion of defendants Wing and Brown is GRANTED IN PART and DENIED IN PART in that all claims in the complaint are DISMISSED as to these defendants with the exception of the plaintiff's claim that he was denied procedural due process when he was not permitted to cross-examine defendant Scott in the SUNY Cobleskill disciplinary hearing; and it is further
ORDERED that the Clerk serve a copy of this order on all parties by regular mail.
IT IS SO ORDERED.
September 5, 1997
Albany, New York
LAWRENCE E. KAHN
UNITED STATES DISTRICT JUDGE