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Timothy Best v. State of New York

State of New York Supreme Court, Appellate Division Third Judicial Department


February 23, 2012

TIMOTHY BEST, APPELLANT,
v.
STATE OF NEW YORK, RESPONDENT.

Appeal from a judgment of the Court of Claims (DeBow, J.), entered October 4, 2010, upon a decision of the court in favor of defendant.

The opinion of the court was delivered by: Rose, J.

MEMORANDUM AND ORDER

Calendar Date: January 10, 2012

Before: Mercure, Acting P.J., Rose, Spain, Malone Jr. and McCarthy, JJ.

Claimant was stopped by a State Trooper for driving after dark with only one lighted head lamp. The Trooper then arrested claimant upon learning that he did not have a valid driver's license, the license plates on claimant's car were not registered to his vehicle and claimant had taken the plates from another vehicle he had found parked at a closed auto repair shop earlier that day. An ensuing search of claimant disclosed two rings in his pocket wrapped in tinfoil. After claiming that they were for his sister, claimant eventually admitted that he had taken them from a window sill above a sink at a nearby summer camp where he worked on the maintenance staff. When the camp director was contacted concerning the rings, he advised that a camp patron had reported them stolen. The owner of the rings then retrieved them from the State Police, claiming that they contained diamonds and sapphires, and she estimated their value at $4,700.

Based upon claimant's possession of the rings, the Trooper who had arrested claimant drafted felony informations alleging grand larceny in the third degree and criminal possession of stolen property in the third degree. The informations were never filed, however, and claimant was never arraigned on these charges. Instead, he was arraigned on charges relating to his theft of the license plates and various violations of the Vehicle and Traffic Law, and he later agreed to a plea bargain in full satisfaction of those charges. When claimant learned that the felonies based on the rings would not be prosecuted, he filed a pro se claim against defendant alleging false arrest, malicious prosecution and defamation based upon these alleged crimes. After a trial, the Court of Claims dismissed the entire claim, and we affirm.

The Court of Claims correctly dismissed the false arrest cause of action because the evidence at trial established that claimant was neither arrested nor charged in connection with his possession of the rings. Rather, claimant was arrested for the theft of the license plates and various violations of the Vehicle and Traffic Law, and he does not dispute that there was probable cause to arrest him on that basis. Although the evidence demonstrated that accusatory instruments were drafted for felonies related to the rings, claimant was not arraigned on them and he failed to establish that they were ever filed in any court (see CPL 100.05). Accordingly, no judicial proceeding was commenced against him, and his malicious prosecution cause of action must also fail (see Martinez v City of Schenectady, 97 NY2d 78, 84 [2001]; Broughton v State of New York, 37 NY2d 451, 457 [1975], cert denied 423 US 929 [1975]; Kinge v State of New York, 79 AD3d 1473, 1479 [2010]).

Finally, claimant contends that the State Police defamed him by releasing information published in two brief newspaper articles stating that, in addition to his arrest on the Vehicle and Traffic Law and license plate charges, he was also charged with grand larceny and possession of stolen diamond rings. At trial, he testified that the State Police had informed the Town Justice of the felony informations in open court at his arraignment, and the Town Justice had then advised him that he would be separately arraigned on those charges three days later in the Town Court where the rings had allegedly been stolen. Claimant presented no testimony, however, to show that the State Police had published the statements regarding the proposed felonies anywhere other than in open court, and we must agree with the Court of Claims that any such statements made in open court were absolutely privileged (see Martirano v Frost, 25 NY2d 505, 507 [1969]; Adamski v Romano-Schulman, 56 AD3d 1078, 1079 [2008]; Cavallaro v Pozzi, 28 AD3d 1075, 1077 [2006]).

Mercure, Acting P.J., Spain, Malone Jr. and McCarthy, JJ., concur.

ORDERED that the judgment is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court

20120223

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