Court of Claims, May 19, 2021

Rickner PLLC (Robert Rickner of counsel) for claimant.

Letitia James, Attorney General (Felice Torres of counsel), for defendant.

{**74 Misc 3d at 975}Claimant Ennis Johnson commenced this action by verified claim filed April 24, 2019. The allegations set forth in the claim are as follows: On November 19, 2018, Johnson went to the Criminal Court for Queens County with a repossession recovery services badge in his possession (claim ¶ 3). Although he was authorized to carry the badge, he was arrested and held against his will by Court Officers Jonathan Wrobel and Michael Boland, who charged him "against all objective evidence" with criminal impersonation in the second degree (id.). Johnson was imprisoned for "approximately a day," and a prosecution was initiated against him "without probable cause and with malice" (id. ¶¶ 5-7). The criminal case was ultimately dismissed on April 16, 2019, when "a judge found that the complaint was insufficient as a matter of law" (id. ¶ 5). On this basis, claimant asserts causes of action for false arrest and malicious [*2]prosecution.^[FN1]

Defendant State of New York served and filed a verified answer, in which it set forth various affirmative defenses, including the following as the fourth affirmative defense: "The claim fails to state the correct date of accrual of November 20, 2018 of the cause of action as required by Section 11 (b) of the Court of Claims Act and therefore there is no proper claim over which the Court has jurisdiction." As made clear in its present filing, the essence of defendant's argument is that a false arrest claim accrues when the claimant is released from confinement, which occurred in this case only on November 20, 2018. Yet the only date referenced in the claim regarding the arrest is November 19, 2018.

Claimant now moves (mot No. M-96241) to dismiss the fourth affirmative defense, and in the alternative to amend the claim so as to reference the November 20 date. In regard to the first application, Johnson argues that Court of Claims Act § 11 (b) requires only that the claim state the time and place where the claim "arose," not when it accrued, and the reference to November 19, 2018, is sufficient for pleading purposes to meet the requirements of this section (see claimant's mem of law at{**74 Misc 3d at 976} 4-5). In regard to the alternative motion to amend, it includes a proposed amended claim which would add the following language after the section referencing the arrest: "Claimant was released from custody the next day, November 20, 2018" (affirmation of Rob Rickner, Esq., in support of mot, exhibit D ¶ 3).

Defendant has submitted papers in opposition to claimant's applications, and in addition brings its own motion for summary judgment under CPLR 3212 (CM-96404). In support of the motion, the State provides an affirmation of counsel and the deposition transcripts of claimant Johnson, Court Officers Wrobel and Boland, and their supervisor Lieutenant Stephanie Hunter. In essence, the State argues that the undisputed evidence demonstrates that the court officers had sufficient evidence to constitute probable cause that claimant committed a crime on the day in question—albeit not necessarily the crime with which he was charged. Further, defendant contends that because the criminal case was dismissed due to the facial insufficiency of the information, it was not a dismissal on the merits, and thus cannot support a malicious prosecution cause of action (see affirmation of Felice Torres, Esq., in support of cross mot and in opp to claimant's mot [Torres affirmation] ¶ 7).

The parties both submitted reply briefs, and an oral argument was conducted before the court on March 24, 2021, which was followed by further letters submitted at the court's direction. The motions are now ripe for adjudication.

Below is a summary of the evidence submitted by the parties, upon which basis those motions must be decided.

Claimant Johnson's deposition provides the following background: On the morning of November 19, 2018, claimant traveled to the courthouse in Kew Gardens, Queens to pay a fine (Torres affirmation, exhibit F [Johnson deposition] at 33-34). He was carrying an ID card that had been initially issued 11 years before, which certified he had been trained as a recovery services agent, along with a badge (id. at 43-47). He has to renew that certification every two years, and it was up-to-date at the time of the incident (id. at 46, 50).

Johnson also had in his possession a recovery services badge, which he had purchased in 2017 from a uniform store in Brooklyn (id. at 50-51). He used the badge in connection with his repossession work, such as serving subpoenas and summonses,{**74 Misc 3d at 977} although he had stopped doing this work by 2018^[FN2] (id. at 52-53). Johnson held a "security license" as well, although that had expired^[FN3] (id. at 55). Johnson worked for the State between 2013 and 2015, as an office assistant for a member of the New York State Assembly (id. at 35-36).

While waiting on line for the magnetometer at the courthouse, Johnson put his wallet (with the badge inside) and other items in the bucket (id. at 57). A court officer approached him and said that he could not take the badge into the building (id. at 57-58). He also asked Johnson if he had identification to go with the shield, and Johnson showed him his repossession recovery services card (id. at 62). As Johnson proceeded downstairs, a sergeant yelled to him that the badge would not be returned (id. at 63).

After Johnson paid his fine, he called an individual who had worked with him at the Assembly and informed him of the problem (id. at 61, 65). When Johnson returned to the officers, they began to argue with him, with the sergeant "pointing in [his] face" and telling him he would not get the badge back (id. at 65). The sergeant then called a lieutenant, and when she arrived, she told claimant that the badge was a fake, it would not be returned and he should leave the building (id. at 65-66). Johnson responded by stating: "I am not leaving until I get my property" (id. at 66). At that point, the lieutenant placed him under arrest, and he was handcuffed and searched (id. at 66-67, 72). Johnson later stated that one of the officers used a racial epithet during their exchange, while stating that African-Americans were "always coming in this building with these fake badges" (id. at 90).

Johnson was placed in a room on the side of the magnetometer (id. at 68). The court officers began to look at his identification cards, which included those from his job with the State Assembly (id. at 68). In his testimony, he initially denied that he made any mention about working for the State, but then acknowledged that he told the officers he used to work for the{**74 Misc 3d at 978} State in response to questioning about the Assembly identification card, which stated "New York [*3]State Assembly, Ennis Johnson, Office Assistant"^[FN4] (id. at 70).

The officers held Johnson in the room for about four hours, until a friend was able to come to get his property (id. at 74-75). He was then brought to a holding cell, still handcuffed (id. at 76-77). Subsequently, he was transferred to a cell at a precinct for about two hours (id. at 79). At some point, an attorney came to Johnson, and informed him that he had been charged with "[i]mpersonating" (id. at 81). He was arraigned before a judge the following morning, and then released on his own recognizance at around 2:00 a.m. after 16 hours in custody, with a date set for him to appear again before the court (id. at 82-83, 91). Ultimately, the case against him was dismissed (id. at 83). Although a request was made to the Queens District Attorney for the badge, it was never returned (id. at 85).

The court officers gave a different account of these events in their deposition testimony. Officer Boland testified that he was working at the magnetometer on the day in question (Torres affirmation, exhibit D [Boland deposition] at 7). The metal detector revealed the presence of a shield in Johnson's wallet—which Boland initially believed to be an NYPD shield—as well as a knife^[FN5] (id. at 8). He later acknowledged that the shield said "recovery services agent," which Boland agreed was not on a detective's shield, and while he did not think this was a badge belonging to a detective, it "resembled" one (id. at 11, 14). He testified that he had never before seen a recovery services agent with a shield, and did not know such individuals were licensed by the State (id. at 16).

Boland said that Johnson asked why the officers needed to voucher the knife, as he was a "law enforcement officer," later asserting that he worked for the State (id. at 9). Specifically, he recalled claimant making the following statement: "I'm on the job for 16 years, I'm on your side, and I work for New York State, I'm a law enforcement officer, and I carry a firearm just like you guys" (id. at 15).

{**74 Misc 3d at 979}Boland reviewed Johnson's ID card, which used the phrase "independent," and "from [his] experience, it didn't look like an official New York State ID," noting that it did not have a hologram, as is typical of State identification (id. at 9, 17). He informed Johnson that the officers would need to voucher the knife and shield—meaning they would hold them and give Johnson a sheet which he could give for their return upon his exit (id. at 20). He also discussed the matter with his partner, Officer Wrobel, who contacted their supervisor (id. at 18). In the meantime, the building was crowded, and a line was building up at the magnetometer (id. at 7, 18). As a result, the items were not vouchered, while the officers awaited their supervisors (id. at 20-21).

Eventually, Wrobel took Johnson with him inside the building (id. at 23). Boland had no further involvement, except to witness claimant getting handcuffed (id. at 24). He testified that Johnson had raised his voice during the initial exchange about whether to voucher his items, and [*4]Boland heard claimant shouting when he was in the hallway (id. at 25).

For his part, Officer Wrobel testified at his deposition that he first noticed Johnson when he went through the magnetometer, as claimant made several statements that "caught [Wrobel's] attention" (Wrobel deposition at 13-14). Specifically, Wrobel recalled that Johnson had said "he didn't know why we were vouchering his knife, [since] he's been a law enforcement officer for 16 years[,] . . . he carries a gun, and he works for the State Assembly" (id. at 14). Further, according to Wrobel his shield resembled an NYPD detective shield, based on its shape and the fact that there was a number on the bottom (id. at 20). Wrobel acknowledged that once he saw the shield, it was "quite obvious" that it was not one used by a State or Assembly employee (id. at 53).

At some point Johnson showed the officers an Assembly business card, which had a different title than the one Johnson claimed (id. at 39). Wrobel also saw Johnson's identification in regard to the shield, although he could not recall if claimant had shown it to him, or if the officers found it while going through his wallet (id.). Wrobel said that Johnson's statements—that he was a member of law enforcement, carried a gun, and carried the shield as part of his work for the State Assembly—were of greater concern than the badge itself (id. at 33).

Wrobel said that there was a protocol on how court officers should handle shields, which is posted on the magnetometers,{**74 Misc 3d at 980} and gives examples of their shape (id. at 25). In general, if some item presented at the metal detector is associated with "criminality," it will not be returned, while if the item is legal but cannot be brought into the courthouse, it will be vouchered and later given back (id. at 28-29). When shields resemble those carried by law enforcement, the ultimate decision on what to do is left to the supervisor^[FN6] (id. at 23). The concern underlying the policy is to prevent individuals in the courthouse from impersonating law enforcement officials^[FN7] (id. at 27).

Ultimately, Wrobel said that Johnson went to meet with his supervisors, Sergeant Napolitano and Lieutenant Hunter (id. at 36-37). Wrobel heard parts of the conversation, which he recalled including Johnson yelling and saying he worked for the Assembly, and the officers telling him to relax, and that they were not trying to arrest him but just wanted to figure out "the bottom line" (id. at 38). At one point, according to Wrobel, claimant said "okay, arrest me" (id.). Wrobel did not recall if anyone told Johnson that he would not get his shield back prior to his arrest (id. at 47).

After Johnson's conversation with the supervising officers, he was placed under arrest at [*5]their direction (id. at 39-40). Officer Wrobel put claimant in handcuffs, and he was brought to the arrest processing booth in the lobby, and from there to the 102nd Precinct (id. at 42). Wrobel also spoke to someone at the DA's office, and informed them of Mr. Johnson's claims that (1) he worked for the State, and (2) the shield was State property, and belonged to him by virtue of his job as a law enforcement officer with the Assembly (id. at 45-46). He also spoke to police at the 102nd Precinct about the badge, and they showed him that on the back "it said Smith & Warren, and, through their experience . . . [the company] make[s] non-authorized shields, duplicate shields, costume shields" (id. at 50).

{**74 Misc 3d at 981}Wrobel authored an arrest report about the incident, and also signed a criminal complaint. The former was based in part on information provided to Wrobel by the NYPD (id. at 8-9). It contained the following narrative of the events of November 19:

"At t/p/o, during a routine magnetometer search subject was found in possession of a shield resembling a NYPD detective shield. The shield had engraved the title[ ] 'investigator' as well as 'recovery services agent' with shield number '0031'. CO Boland asked for identification from the subject to verify the authenticity of the shield. The subject produced the id card that stated 'repossession recovery services.' The subject further stated that he is an employee of the State of NY and provides protection and security for the NYS Assembly and that he used that shield as part of his official duties of protecting politicians. The subject then further stated that the shield was issued to him from the State of NY. Subject was detained for arrest processing and shield to be vouchered for arrest . . . ." (Rickner affirmation, exhibit E.)

Wrobel recalled that in addition to the impersonating charge, there was a charge for violation of the Administrative Code in regard to possession of the shield that was placed in the computer system (Wrobel deposition at 12; see n 7, supra). But the latter does not appear on the charging documents or related reports (see Rickner affirmation, exhibits D-F).

In her testimony, Lieutenant Hunter gave the following account: On the date in question, she was called to the lobby by Sergeant Napolitano (Torres affirmation, exhibit C [Hunter deposition] at 14). Upon arrival, she was told that there was an individual who "had a shield that he probably should not have been in possession of without proper credentials" (id. at 16). When Johnson was asked to present credentials for the shield, he did not produce supporting documents, but instead said several times that the State had given him the shield (id. at 19). According to Hunter, she told Johnson that to demonstrate he received the shield from the State, he had to show her "something that the State gave [him] that says State of New York with a hologram on it that says [he is] entitled to have{**74 Misc 3d at 982} this shield"^[FN8] (id. at 19). But rather than present such identification, Johnson continued to state that he had provided security for elected officials, and the State had given him the shield (id. at 19-20). When she asked him to "tell me the truth" and acknowledge he bought the badge, Johnson insisted that he had received it from the State (id. at 20).

In Hunter's account, she eventually told claimant that if he presented some identification [*6]showing the shield had been issued by the State she would return it to him, but otherwise he could not take it with him (id.). He responded by stating that he was not leaving without it, and said "arrest me" several times, his volume increasing with each statement^[FN9] (id. at 21). The confrontation was, at this point, obstructing traffic at the magnetometers, and Hunter directed Napolitano to place Johnson under arrest, since "he was not complying with the directive" (id.). Hunter said that the officers had to close the magnetometer during their argument with Johnson, and direct those present to one of the six to eight others, as he refused to move without the badge (id. at 22).

Johnson was then taken to the security booth, and a call was placed to the District Attorney to see how he should be charged (id. at 24-25). While there, Johnson again made statements about "working for or doing security and working for a number of city officials" (id. at 31). He also asked the officers to call certain people who could "vouch" for him; she did not do so, but believed that Officer Wrobel had (id. at 31-32).

When Hunter came into the booth after Johnson, his identification cards were on the table (id. at 33-34). Hunter said she did not know whether recovery services agents could carry a shield in New York, nor did she attempt to find that out after Johnson's arrest (id. at 34).

Hunter testified that she based her assessment on this not being a proper shield on a printout of various shields used at the courthouse, none of which is in the shape of a detective shield (id.). She stated that private security "should have what is normally called a square badge," and that the use of a badge that resembles a detective's is a violation of the Administrative Code—the relevant provision of which is printed in the security booth and was checked by Hunter at the time of the arrest{**74 Misc 3d at 983} (id. at 34-36; see n 7, supra). She agreed, however, that she had not been fooled by the badge into believing that it was actually an NYPD shield—and this was "obvious" (Hunter deposition at 35-36).

Hunter described the vouchering process as follows: when someone has an item that is not allowed in the courthouse but not illegal, that person is given a voucher form on entry, and may retrieve the item when he or she exits (see id. at 39-40). She said, however, that Johnson never asked to voucher the shield, and she would have given him a voucher form if he had requested one (id.).

The documents submitted by claimant show that following his arrest, Johnson was charged by criminal complaint with criminal impersonation in the second degree (Rickner affirmation, exhibit F). A person is guilty of such offense (as relevant to this case) if he or she

"[p]retends to be a public servant, or wears or displays without authority any uniform, badge, insignia or facsimile thereof by which such public servant is lawfully distinguished, or falsely expresses by his [or her] words or actions that he [or she] is a public servant or is acting with approval or authority of a public agency or department; and . . . so acts with intent to induce another to submit to such pretended official authority, to solicit funds or to otherwise cause another to act in reliance upon that pretense" (Penal Law § 190.25 [3]).

The factual allegations in support of the charge were as follows, sworn to by Wrobel:

"Deponent states that at the above mentioned date, time and location of occurrence, which is the Queens Criminal Court, he observed the defendant, Ennis Johnson, walk into said location and submit to a routine security screening. Deponent further states that he observed the defendant place his belongings, along with his wallet, through an x-ray machine and an image of a shield appeared inside of the defendant's wallet. Deponent further states that he observed court officer Michael Bolland [sic] of the Queens Criminal Court, recover a shield, reflecting the Liberty Bell and bearing 'recovery services agent, investigator, shield number Johnson 01010031, and made by Smith and Warren Company' from the defendant's wallet. Deponent further states that the defendant produced a matching identification card, bearing a photograph of the{**74 Misc 3d at 984} defendant, and 'repossession recovery services,' and another matching identification card, bearing a photograph of the defendant and 'recovery enforcement independent agent, shield number 0031.' Deponent further states when asked by court officers about the badge, the defendant stated in sum and substance that he provides protection and security for the New York State Assembly and he uses the shield as part of his official duties protecting politicians. Deponent further states that the defendant stated in sum and substance that he is an employee of the State of New York, and he was issued the shield from the State of New York. Deponent further states that the identification card matching the above mentioned shield shows a New Jersey address and phone number and states 'independent freelance contractor.' " (Rickner affirmation, exhibit F.)

Johnson moved to dismiss the information as facially insufficient. By decision and order dated April 16, 2019, Judge Karen Gopee of Queens Criminal Court granted the motion (Torres affirmation, exhibit G). Taking the allegations set forth in the information, Judge Gopee found the accusatory instrument facially insufficient because those allegations "merely state that the defendant possessed the shield and credentials after submitting to a routine security screening" (id. at 3). The information, however, was "devoid of anything indicating that the defendant acted with the intent to induce anyone to submit to a pretended official authority or in reliance upon that pretense," which is a "required element" of section 190.25 (3) (id.). The decretal paragraph of the decision stated that the motion was granted, but stayed the sealing of the record for 30 days (id.). The decision did not include any language stating that the decision was with or without prejudice.

A certificate of disposition was issued that day indicating that the charge had been dismissed, and the record sealed^[FN10] (Rickner affirmation, exhibit G). The present action followed.

I. Claimant's Motion to Dismiss the Fourth Affirmative Defense

Under CPLR 3211 (b), claimant may move to strike an affirmative defense on the ground that it "is not stated or has no {**74 Misc 3d at 985}merit." On such a motion, the burden is on the movant to show [*8]that the defense is "without merit as a matter of law" (see Galasso, Langione & Botter, LLP v Liotti, 81 AD3d 880, 882 [2d Dept 2011] [citations and internal quotation marks omitted], lv denied in part and dismissed in part 17 NY3d 847 [2011]). The court must "liberally construe the pleadings in favor of the party asserting the defense and give that party the benefit of every reasonable inference" (id. [citations omitted]).

The essence of the affirmative defense at issue here is that the claim does not comply with the pleading requirements of Court of Claims Act § 11 (b), because it did not state the correct date on which the false arrest cause of action accrued.

Section 11 (b) requires that the claim state, among other things, "the time when and place where such claim arose." As is apparent from this language, it "requires that claimant state the date when the claim 'arose' rather than when the claim 'accrued' " (Green v State of New York, 65 Misc 3d 543, 546 [Ct Cl 2019]).

A false arrest claim arises (i.e., the wrongful conduct giving rise to the cause of action takes place) when the arrest occurs, but it accrues (i.e., the full extent of damages is known and the limitations period begins to run) at the time of release (see Huff v State of New York, 47 Misc 2d 1053, 1054 [Ct Cl 1965] [a "claim of false arrest and imprisonment arises or begins on the date of the false arrest and imprisonment" but "does not accrue until the claimant can fairly ascertain the damages he has sustained"], affd as mod on other grounds 27 AD2d 892 [3d Dept 1967]; see also Green, 65 Misc 3d at 546 [discussing these principles in the context of wrongful confinement]).

[1] Here, the claim clearly states that Johnson was arrested on November 19, 2018 (see claim ¶ 3). Therefore, it set forth the date on which the false arrest claim arose, which is all section 11 (b) requires.

Even if the statute may be read to require that Johnson state the date on which this cause of action accrued, the claim is still sufficient for this purpose. Section 11 (b) does not require "absolute exactness," but rather "a statement made with sufficient definiteness to enable the State to be able to investigate the claim promptly and to ascertain its liability under the circumstances." (Heisler v State of New York, 78 AD2d 767, 767 [4th Dept 1980]; see also Lepkowski v State of New York, 1{**74 Misc 3d at 986}NY3d 201, 207 [2003] [applying Heisler standard].)^[FN11] Johnson's claim states the date of his arrest, and that he was "imprisoned for approximately a day" thereafter (claim ¶ 7). It does not take a great deal of calculation to determine from this information the date of his release, and thus the day on which the false arrest cause of action accrued, if such was necessary.

In light of the foregoing, claimant has demonstrated that defendant's fourth affirmative defense is without merit, and must be dismissed. His alternative application to amend his claim is therefore moot.

[*9]II. Defendant's Motion for Summary Judgment

To prevail on a motion for summary judgment, the movant must make a prima facie showing of its entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Once this showing has been made, the burden shifts to the party opposing the motion to produce admissible proof to establish the existence of material issues of fact which require a trial of the action (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

Here, defendant seeks to meet its prima facie case by presenting, inter alia, the deposition transcripts of four witnesses: Boland, Wrobel, Hunter and Johnson. It is defendant's contention that such evidence demonstrates as a matter of law that defendant had probable cause to arrest claimant, which "constitutes a complete defense to the claim[ ] of false arrest" (Torres affirmation ¶ 5, citing Marrero v City of New York, 33 AD3d 556, 557 [1st Dept 2006]). Moreover, defendant argues that since the criminal charges were dismissed for facial insufficiency, and not on the merits, claimant cannot prove that the criminal case terminated in his favor as necessary to prevail on a malicious prosecution cause of action (see id. ¶ 8).

I address these arguments in turn below.{**74 Misc 3d at 987}

A. False Arrest

A cause of action for false arrest cannot proceed when the arresting officers had probable cause to make the arrest (see Redmond v City of White Plains, 77 AD3d 902, 902 [2d Dept 2010]; Marrero v City of New York, 33 AD3d at 557). Defendant argues that the record on this motion establishes that the arresting officers had probable cause as a matter of law, and so the claim must be dismissed (see Torres affirmation ¶ 6).

Probable cause "consists of such facts and circumstances as would lead a reasonably prudent person in like circumstances to believe plaintiff guilty" (Colon v City of New York, 60 NY2d 78, 82 [1983]). To show that there was probable cause, defendant need not demonstrate claimant's guilt; rather, "[a] party may act with probable cause even though mistaken, for a mistake of fact . . . may be consistent with probable cause if the party acted reasonably under the circumstances in good faith" (id.).

[2] Applying these principles to the present case, there are clearly questions of fact for trial as to whether the defendant had probable cause to believe that Johnson had committed the crime for which he was charged: criminal impersonation in the second degree. Johnson testified that he presented identification indicating that his badge was for recovery services, and he only told the officers that he used to work for the State, not that he did so at that time (Johnson deposition at 62, 70). His description of what occurred contradicts the allegation that he pretended "to be a public servant," or "falsely expresse[d] by his words or actions that he [was] a public servant or [was] acting with approval or authority of a public agency or department" (see supra at 983-984, citing Penal Law § 190.25). Since Johnson gave sworn testimony rebutting the elements of the charge, it [*10]establishes the presence of a material dispute for trial.^[FN12]

{**74 Misc 3d at 988}Defendant does not restrict its argument for probable cause, however, to the criminal violation with which Johnson was charged, but asserts that Johnson's conduct gave the officers probable cause to arrest him for other criminal violations: disorderly conduct (Penal Law § 240.20), obstructing governmental administration in the second degree (Penal Law § 195.05), and—in a reply submission and post-argument letter—trespass (Penal Law § 140.05). Neither party presents any law on the question of whether defendant may rebut a false arrest claim on the ground that there was a basis to arrest for a criminal violation with which he was never actually charged.^[FN13] This case reveals the problems with such an approach, as it would permit a defendant sued for false arrest to go searching through the penal statute books to find some basis in one of their broadly worded provisions for a criminal violation in some aspect of defendant's conduct, even if there was no probable cause that he or she committed the crime set forth in the charging instrument. To justify an arrest on an after-the-fact determination that defendant may have committed a crime of which he received no notice at the time seems contrary to the requirement that a defendant's right to receive notice of "the crime with which [he] is charged" is "a fundamental, a basic principle of justice and fair dealing, as well as a rule of law" (People v Zambounis, 251 NY 94, 97 [1929]).

But even assuming that this approach is permissible, it cannot succeed here, as there are at least questions of fact as to whether the court officers had probable cause as to the other penal statutes raised by defendant.

I note initially that since I can only grant the motion if the existence of probable cause is established as a matter of law, defendant must show that Johnson's own version of events supports the conclusion that there was a legal basis for the arrest. Defendant points to only one statement claimant made{**74 Misc 3d at 989} which it reads to support a criminal charge, thereby eliminating any [*11]material factual dispute: Mr. Johnson's testimony that when he was informed that his badge would not be returned to him, he stated that he would not leave the courthouse until that occurred^[FN14] (see Torres affirmation ¶ 7, citing Johnson deposition at 66). Since the remainder of his testimony provides no grounds to support any of the criminal violations alleged, I will focus on whether this admission—that he declined to leave the courthouse when directed to do so—gave rise to probable cause for any of the crimes cited by defendant.

An individual is guilty of disorderly conduct when "with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof" he engages in certain conduct, including (as conceivably relevant here) engaging in "tumultuous . . . behavior"; making "unreasonable noise"; using "abusive or obscene language"; "disturb[ing] any lawful assembly or meeting of persons" without lawful authority; "obstruct[ing] . . . pedestrian traffic"; and "congregat[ing] with other persons in a public place" and then "refus[ing] to comply with a lawful order of the police to disperse" (Penal Law § 240.20). Essential elements of such a charge are that "defendant's disruptive statements and behavior were of a public rather than an individual dimension," and defendant had "an intent to threaten public safety, peace or order" (People v Baker, 20 NY3d 354, 359 [2013]). Moreover, "a person may be guilty of disorderly conduct only when the situation extends beyond the exchange between the individual disputants to a point where it becomes a potential or immediate public problem" (id. at 359-360, citing People v Weaver, 16 NY3d 123, 128 [2011]). The mere fact that such conduct may have created an inconvenience is not sufficient for a disorderly conduct charge (see People v Jones, 9 NY3d 259, 262 [2007] ["Something more than a mere inconvenience of pedestrians is required to support the charge"]).

The record before me presents ample basis for a material factual dispute as to whether Johnson's conduct could support probable cause as to these elements. In his version of events, it{**74 Misc 3d at 990} was Lieutenant Hunter that began yelling at him, and Johnson initially "didn't say two words or anything" (Johnson deposition at 65). Moreover, there is testimony that this dispute happened in a hallway, not at the public entry point through the magnetometers (Boland deposition at 21, 23). While defendant argues that conduct that violates courthouse decorum may give rise to a disorderly conduct charge in instances that would not constitute a crime on a public street, the case law it cites involved disruptive actions of the sort that are alleged but disputed here, not merely a refusal to leave (see Norasteh v State of New York, 44 AD3d 576, 576 [1st Dept 2007] [probable cause for disorderly conduct charge existed where plaintiff was "agitated" on court line, made "physical contact" with a woman, and "refused to cooperate" with court officers]). Since Johnson's testimony supports the inference that claimant did not intend to interfere with public order, and Boland's testimony supports the inference that he did not in fact do so, there are questions of fact for trial as to whether claimant's actions gave rise to probable cause that he had engaged in disorderly conduct.

As to the crime of obstructing governmental administration in the second degree, as [*12]relevant here it is committed when a person "prevents or attempts to prevent a public servant from performing an official function, by means of intimidation, physical force or interference, or by means of any independently unlawful act" (Penal Law § 195.05). The record only presents an undisputed case for probable cause that such a crime occurred here if Johnson's admitted refusal to leave the courthouse without his badge constituted "intimidation," "interference," or an independent unlawful act, and Johnson intended thereby to obstruct some governmental function. But the mere refusal to follow a directive from a law enforcement officer does not prove these elements (see Uzoukwu v City of New York, 805 F3d 409, 415 [2d Cir 2015] [refusal to respond to officer's questions not obstruction of government administration]; People v Alston, 9 Misc 3d 1046, 1048 [Crim Ct, NY County 2005] ["(t)he defendant's mere verbal refusal to give (the officer) his license, registration and proof of insurance cannot itself be considered intimidation or physical force or interference"]; People v Offen, 96 Misc 2d 147, 150 [Crim Ct, NY County 1978] ["it is no crime to refuse to open a door to police officers"]). As a result, I cannot find that there was probable cause for this charge on the basis of the undisputed facts before me.

In a letter submission following oral argument, defendant also suggests that Johnson's refusal to leave the building gave{**74 Misc 3d at 991} the officers probable cause to arrest him for trespass (see defendant letter to court of Mar. 31, 2021), which occurs when an individual "knowingly enters or remains unlawfully in or upon premises" (Penal Law § 140.05). But that begs the question of whether Johnson "remained unlawfully" in a public courthouse because the order he disobeyed was lawful. If Johnson's account were credited, he explained why it was legal to carry the shield, and provided identifying documents supporting this contention, and nonetheless was told it would be taken from him and he must leave the building. If what he said is true, the court officers had no lawful basis to demand that he leave without his property, and thus no trespass occurred. Indeed, the case relied upon by defendant—People v Leonard (62 NY2d 404 [1984])—supports this conclusion. In Leonard, the Court held that when property is open to the public an individual is "presumed to have a license and privilege to be present," and a trespass occurs only when "a lawful order excluding the defendant from the premises issued, . . . the order was communicated to the defendant by a person with authority to make the order, and . . . the defendant defied that order" (id. at 408). For reasons stated above, there are factual questions as to whether a lawful order was issued here, and thus as to whether the officers had a proper basis to arrest Johnson for trespass.

In sum, even if defendant could establish probable cause by pointing to uncharged crimes, it is not entitled to summary judgment on this basis, since the record before me does not establish any such probable cause as a matter of law in this case. As a result, defendant's motion must be denied as to claimant's false arrest cause of action.

B. Malicious Prosecution

On a cause of action for malicious prosecution, claimant must ultimately prove that (1) a criminal proceeding was commenced against him; (2) it was terminated in his favor; (3) the prosecution's case lacked probable cause; and (4) the proceeding was brought out of actual malice (see Martinez v City of Schenectady, 97 NY2d 78, 84 [2001]). Defendant argues that claimant cannot prove that the criminal case against him was terminated in claimant's favor, [*13]since the dismissal of an indictment for facial insufficiency does not constitute a favorable termination for purposes of a malicious prosecution cause of action (see Torres affirmation ¶ 8).

The legal backdrop to this argument is set by two Court of Appeals decisions. In the first, MacFawn v Kresler (88 NY2d{**74 Misc 3d at 992}859 [1996]), the Court dismissed a claim for malicious prosecution where the information charging plaintiff in the underlying criminal proceeding had been dismissed—as here—because "the facts alleged by the People were not legally sufficient to support the charge" (id. at 860). The Court noted that "[t]he People were at liberty to amend the information to correct the deficiency but did not do so," nor "did they refile the charge as they could have" (id.). Nevertheless, the Court found the malicious prosecution claim could not proceed since the "criminal action was disposed of on procedural grounds," the court never "reach[ed] the merits," and thus "the question of plaintiff's guilt or innocence remained unanswered after the court dismissed the information" (id.). Since (as the Court characterized the standard) a criminal proceeding is terminated favorably to the accused for purposes of a malicious prosecution cause of action "when the final disposition of the proceeding involves the merits and indicates the accused's innocence," the dismissal at issue could not support such a claim (id.).

Four years later, the Court of Appeals rewrote the standard for this element of a malicious prosecution claim in Smith-Hunter v Harvey (95 NY2d 191 [2000]). In that case, the Court considered whether a dismissal of a charge on speedy trial grounds represented a termination of the case in plaintiff's favor. The Court answered that question in the affirmative, notwithstanding that such a dismissal clearly does not concern the merits, nor is it indicative of innocence. The Court noted that language in MacFawn and in other cases seemed to require that the dismissal in some way "affirmatively indicate the innocence of the accused" (id. at 198-199). The Court rejected this notion, however, finding that a proper reading of the law was only that "dispositions inconsistent with innocence" could not serve as the basis for a malicious prosecution claim, even if procedural in nature (id. at 199 [emphasis added]).

Having rejected the basis for the Court's decision in MacFawn, the Court went on to recast, rather than overturn, that decision. Specifically it construed its prior holding as follows:

"MacFawn simply held that a plaintiff in a malicious prosecution action must show, as a threshold matter, that the criminal proceeding was finally terminated. Indeed, it is well settled that any disposition of the criminal action which does not terminate it but permits it to be renewed . . . cannot serve as a foundation for the [malicious prosecution]{**74 Misc 3d at 993} action. This is so for two reasons. First, it cannot be known that the prosecution was unjust or unfounded until it is terminated. Second, if a malicious prosecution action is allowed to proceed before the final termination of the underlying action, there might be two conflicting determinations as to the same transaction" (id. at 197 [citations, internal quotation marks and emphasis omitted]).

Since the dismissal in MacFawn was "without prejudice," the MacFawn Court (as Smith-Hunter tells it) had noted that such a dismissal was "not a final termination of the action," since the prosecution had "remained 'at liberty to amend the information to correct the deficiency' " (id., citing MacFawn, 88 NY2d at 860).

On the basis of this bit of revisionist history (see the actual MacFawn decision), the Court [*14]upheld the result of its prior decision, albeit on the different ground that the dismissal for facial insufficiency at issue in that case had not been a final determination. The Court noted that a dismissal without prejudice could qualify as a "final, favorable termination if the dismissal represents 'the formal abandonment of the proceedings by the public prosecutor,' for instance, by the entry of a nolle prosequi" (Smith-Hunter, 95 NY2d at 198, citing Restatement [Second] of Torts § 659 [c] and Comment e). It stated that in MacFawn—notwithstanding that the Court had specifically noted in that case that the prosecutor had failed to amend the information to correct the decision or refile the charges—"there was no indication that the prosecutor abandoned charges against the accused," and thus the Court had "held" that the non-final, "without prejudice" dismissal could not sustain a malicious prosecution claim (id. at 198).

Claimant contends that MacFawn, as read by Smith-Hunter, does not mandate dismissal of the malicious prosecution claim, since the latter decision makes clear that MacFawn "did not create a per se rule regarding facial insufficiency dismissals," but rather found that such could support a cause of action for malicious prosecution so long as the prosecutor had formally abandoned the proceeding, and this occurred here because "the prosecutor neither refiled the charges nor appealed the dismissal" (claimant letter to court of Mar. 31, 2021).^[FN15]

[3] But this argument faces at least two insurmountable obstacles. For one thing, the circumstances described above—{**74 Misc 3d at 994}that the district attorney had done nothing to revive the case following dismissal—are precisely what occurred in MacFawn, and yet the Court of Appeals made clear in Smith-Hunter that such did not render the dismissal "with prejudice" or otherwise final. Further, the Second Department has twice been faced with the question of whether a malicious prosecution claim could proceed on the basis of a dismissal for facial insufficiency post-Smith-Hunter, and it answered the question in the negative both times, with no indication that the Court engaged in any analysis beyond the basis for the dismissal (see Sperling v Amoachi, 191 AD3d 913, 915 [2d Dept 2021] [malicious prosecution claim dismissed; "the Nassau County criminal proceeding was dismissed, without prejudice, as a result of the facial insufficiency of the criminal information and thus, was not a final termination of the action"]; Semmig v Charlack, 143 AD3d 802, 804 [2d Dept 2016] [malicious prosecution claim dismissed; "(t)he underlying criminal proceeding in this matter was terminated as a result of the facial insufficiency of the criminal information and not on the merits of the matter"],^[FN16] citing inter alia MacFawn, 88 NY2d at 860).

Given this case law, I do not see how I can reach a different result in this case.

That said, I cannot help but note some of the problems that have been created by this rule, and the degree to which it is in tension with New York's general approach to malicious [*15]prosecution claims. For one thing, when a case is dismissed for facial insufficiency and there has been no appeal, absent a motion by the prosecution or order of the court it is sealed pursuant to Criminal Procedure Law § 160.50 and designated as a criminal action terminated "in favor of the accused" (see CPL 160.50 [3] [b]). Indeed, all "appropriate police departments and other law enforcement agencies" are notified that the case has terminated in the accused's favor (CPL 160.50 [1]).

Second, while such a dismissal is "without prejudice" in the sense that the charges may be refiled without implicating{**74 Misc 3d at 995} double jeopardy concerns (see People v Nuccio, 78 NY2d 102, 104 [1991]), that does not necessarily mean that the door is open to further prosecution. The CPL states that a facially insufficient charging instrument "may not be dismissed as defective, but must instead be amended, where the defect or irregularity is of a kind that may be cured by amendment and where the people move to so amend" (see CPL 170.35 [1] [a] [emphasis added]). In short, the statute contemplates that there may be facial deficiencies that cannot be cured by amendment, i.e., that render the instrument irreparably insufficient. But under the governing case law, there is no indication that a court ruling on a malicious prosecution claim may determine that the criminal charges at issue suffered from such a defect, so long as the refiling of a new indictment was theoretically possible.

Third, it does not appear, under the standard set in Smith-Hunter, that there would ever be a circumstance when such a dismissal would be a final order which could be the basis for a malicious prosecution action. The Court of Appeals intimated that such would be the case if the district attorney filed a nolle prosequi (95 NY2d at 198). For this proposition, it relies on section 659 of the Restatement (Second) of Torts. But the comments to the Restatement say that "it is not necessary that the proceedings should have gone so far as to preclude further prosecution on the ground of double jeopardy," but rather even if

"the quashing of an indictment does not preclude the initiation of new proceedings for the same offense or for other charges growing out of the same misconduct on the part of the accused, it constitutes a termination of the original proceedings in favor of the accused unless the new proceedings have been initiated before the trial of the civil action," except in certain circumstances not present here (Restatement [Second] of Torts § 659, Comment b).

Such circumstances occurred in MacFawn—and in this case.

Further, there is one significant problem with conditioning the finality of a dismissal of the indictment for facial insufficiency on the issuance of a nolle prosequi: that instrument, by which a DA can unilaterally terminate an action, was abolished by statute in New York, "still does not exist," and has been replaced by the various dismissal provisions set forth in the{**74 Misc 3d at 996} CPL^[FN17] (see People v Extale, 18 NY3d 690, 695 [2012]; see generally People v Douglass, 60 NY2d 194 [1983]). But what possible reason would there be for the prosecutor to seek dismissal if the case had already been dismissed for facial insufficiency?

The present state of the law has left a dismissal for facial insufficiency an orphan in the [*16]law of malicious prosecution. The Court of Appeals made clear in Smith-Hunter that, as a general rule, the "termination in favor of the accused" element of a malicious prosecution claim is met when the dismissal is made under circumstances that are not "inconsistent with plaintiff's innocence" at least where it is clear that the prosecution has "abandoned" the case (95 NY2d at 198, 199). Although a dismissal for facial insufficiency clearly meets the first test—and may in some circumstances even demonstrate innocence (i.e., if the dismissal order makes clear that a certain element of the case cannot be proved by the facts at issue)^[FN18]—the Court of Appeals has found it to be non-final even when no challenge is made by the prosecution to the ruling, and although the matter is sealed on the ground that it has ended (in the words of CPL 160.50) "in favor of the accused." The only way around this ruling, by its terms, is if the prosecutor uses a procedural tool that has been abolished in New York State.

The Smith-Hunter Court allowed a malicious prosecution claim to proceed following a speedy trial dismissal because a contrary rule "would have the anomalous effect of barring recovery for an innocent accused whose prosecution was abandoned for lack of merit" (95 NY2d at 199). Yet under the present case law, this is precisely what occurs when a charging instrument is found facially insufficient, and the prosecution abandons the matter post-dismissal.{**74 Misc 3d at 997}

Nonetheless, I see no way to distinguish this case from the holdings of the Court of Appeals and Second Department in Smith-Hunter, Sperling and Semmig cited above.^[FN19] As I am bound by those decisions, I am compelled to grant the State's motion and dismiss Johnson's malicious prosecution cause of action.

Accordingly, it is hereby ordered that claimant's motion to dismiss defendant's fourth affirmative defense is granted; and it is further ordered that defendant's motion for summary judgment is granted as to claimant's malicious prosecution cause of action and denied as to his false arrest cause of action.

"[e]ven if the Court could appropriately discount Johnson's testimony and accept the officers' stories as true, the record is nevertheless devoid of any facts showing that Johnson had the specific intent to 'injure or defraud,' either through the use of his repossession services badge, or during the discussion about his prior employment with the state" (claimant's mem of law at 9).

The statute does not use that language, and this charge can be premised on an "intent to . . . cause another to act in reliance upon that pretense [of the claim to be a public servant]" (Penal Law § 190.25 [3] [b]). Although I theoretically could consider whether there is any evidence in the testimony which could support such a charge in determining whether to grant summary judgment for the non-moving party (see CPLR 3212 [b]), the parties have not really addressed the question, and I decline to rule on it at this stage