The opinion of the court was delivered by: Norman A. Mordue, Chief U.S. District Judge
MEMORANDUM-DECISION AND ORDER
Daniel Gonzalez,*fn1 defendant in these two actions under 42 U.S.C. § 1983, moves for summary judgment, and plaintiffs Anthony N. Potenza and Gregory D. Reynolds cross-move for summary judgment (Potenza v. Gonzales, 5:07-CV-225, Dkt. Nos. 47, 50; Reynolds v. Gonzales, 5:07-CV-226, Dkt. Nos. 47, 50). Plaintiffs claim that Gonzalez, a police officer employed by Cornell University ("Cornell"), violated their rights under the United States Constitution to be free from false arrest, malicious prosecution, and abuse of process. As explained below, the Court denies the motions.
The actions stem from Gonzalez' arrest of plaintiffs for disorderly conduct outside Lynah Rink at Cornell at the beginning of an ice hockey game on January 16, 2004, and the ensuing prosecution in Ithaca City Court. The accusatory instruments filed by Gonzalez charged Potenza with disorderly conduct in violation of subdivisions (1) and (3) of section 240.20 of the New York Penal Law ("section 240.20"), and Reynolds with disorderly conduct in violation of subdivision (3) of section 240.20. The applicable provisions read:
A person is guilty of disorderly conduct when, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof:
1. He engages in fighting or in violent, tumultuous or threatening behavior; or ***
3. In a public place, he uses abusive or obscene language, or makes an obscene gesture[.]
On June 3, 2004, Ithaca City Judge Judith A. Rossiter held a joint bench trial on the charges. Gonzalez was the sole witness. He was not questioned about the number of other people in the area at the time of the arrests or other factors relevant to whether plaintiffs acted "with intent to cause public inconvenience, annoyance or alarm, or recklessly creat[ed] a risk thereof", nor did he volunteer any testimony on the issue. In her written decision acquitting Potenza and Reynolds of "Disorderly conduct as charged", Judge Rossiter made the following findings of fact and conclusions of law:
On January 16, 2004, the defendants entered Lynah Rink on the Cornell campus. Officer Gonzalez of the Cornell University Police Department testified that both men appeared intoxicated and that they attempted to enter a section of the rink other than the one denoted on their tickets. Officer Gonzalez directed both individuals to leave Lynah Rink and accompany him outside. Both Mr. Reynolds and Mr. Potenza complied with that directive. Once outside, the officer requested identification from Mr. Reynolds and Mr. Potenza. The officer testified that, during the exchange with the two defendants outside the rink, each used abusive or obscene language and acted in a manner with intent to cause public inconvenience, annoyance, or alarm, or recklessly created the risk of same.
However, at no time did the officer testify that anyone else was present in the parking lot besides the two defendants and himself. In other words, there was no allegation in either accusatory instrument nor any evidence presented by the Prosecution that any other members of the public were present or inconvenienced by the inappropriate behavior of the defendants. The intent of the Disorderly Conduct statute is to proscribe that type of conduct that has a real tendency to provoke public disorder (Practice Commentary, PL §240.20, McKinney's Consolidated Laws of New York Annotated). The lead case on this point is People v. Munafo (50 NY2d 326), which requires that the behavior proscribed by the statute be of a public rather than an individual dimension. To determine if the behavior comes within the Disorderly Conduct statute, the Court must make findings about the number of people attracted by the conduct, taking into account the surrounding circumstances, including the time and place of the event. In this instance, as indicated above, no evidence was presented that any members of the public were attracted by the conduct that occurred outside the rink, which is the only unlawful conduct charged within the accusatory instruments. There is no question that the officer was perfectly within his right to direct the defendants to leave Cornell property, given that they were intoxicated and attempted to enter a section for which they did not have tickets. However, the Court must find the defendants not guilty of Disorderly Conduct as charged, on the grounds of lack of evidence of any public, as opposed to private, disturbance.
The present actions, commenced in New York State Supreme Court on January 16, 2007, were removed to this Court on March 2, 2007. Gonzalez moves for summary judgment in both cases (Potenza v. Gonzales, 5:07-CV-225, Dkt. No. 47; Reynolds v. Gonzales, 5:07-CV-226, Dkt. No. 47). Plaintiffs cross-move for summary judgment in both cases (Potenza v. Gonzales, 5:07-CV-225, Dkt. No. 50; Reynolds v. Gonzales, 5:07-CV-226, Dkt. No. 49).