Opinion
No. 3:00-CV-1892.
November 3, 2003
LAW OFFICE OF LEWIS B. OLIVER, JR., LEWIS B. OLIVER, JR., ESQ., Albany NY, Attorneys for Plaintiff.
LAW FIRM OF FRANK W. MILLER BYRON J. BABIONE, ESQ., East Syracuse NY, Attorneys for Defendant Tiska.
GERSTENZANG, O'HERN LAW FIRM, PETER J. HICKEY, ESQ., Albany NY, Attorneys for Defendants Hrazanek, V.W. Parts, Inc. and VWP, Inc.
D'AGOSTINO KRACKELER LAW FIRM, ARETE K. SPRIO, ESQ., Menands NY, Attorneys for Defendant George.
MEMORANDUM-DECISION and ORDER
I. INTRODUCTION
Plaintiff John Granito ("Plaintiff") commenced the instant action against Defendants claiming violations of various constitutional rights arising out of his prosecution for trespass. Defendants now move for summary judgment pursuant to Fed.R.Civ.P. 56 seeking dismissal of the Complaint in its entirety.
II. FACTS
a. The Parties
At all times relevant hereto, Plaintiff was the mayor of the Village of Fleischmanns (the "Village"), County of Delaware, State of New York. Defendant Sergeant Theodore Tiska ("Tiska") was a deputy sheriff with the Delaware County Sheriff's Department. Defendant Glen George ("George") was a town justice of the Town of Middletown (the "Town"). Defendants V.W. Parts, VWP, Inc. and William Hrazanek ("Hrazanek") are private entities and an individual, respectively, involved in a junkyard business in the Village.
b. The History of Events
VW Parts operates a junkyard in the Village of Fleischmanns. The Village owns two water wells situated on the VW Parts property (the "property"). The Village had a right-ofway or easement across the property to the Village's wells. On May 15, 1998, Plaintiff received a letter from the New York State Department of Health stating, in part, as follows:
This property also is known as the old Bailey Manufacturing property.
This office has been advised of a complaint by the Coalition for Junk Yard Enforcement that an indoor junkyard exists at the former Bailey property, reputedly occupied by . . . VW Parts, Inc. The condition alleged is that junk vehicles are being stored in the main building within 250 feet of Village wells numbers 5 and 6. . . .
We request that you or your representative investigate the above complaint in accordance with the State Sanitary Code and file a written report with this office.
On or about June 3, 1998, Plaintiff had a conversation with officials from the New York State Department of Motor Vehicles who purportedly stated that they were going to inspect the buildings on the VW Parts premises regarding alleged illegal automobile dismantling. That same day, Plaintiff called the Delaware County Sheriff's Department and requested that they send someone to meet him at the VW Parts site for inspection.
On June 4, 1998, Plaintiff went to the property to inspect the wells. Plaintiff attempted to gain access to the property via the Depot Street entrance, which is where the Village had its right-of-way. Plaintiff could not gain entrance because the gate at the Depot Street entrance was locked. Plaintiff then proceeded to the Wagner Avenue entrance to the VW Parts property. Defendant Tiska arrived on Wagner Avenue outside the entrance to the VW Parts property. Plaintiff showed Tiska the May 15 letter from the New York State Department of Health, the New York State regulations authorizing the inspection of the Village's wells, and the Village's resolution authorizing Plaintiff to act as a health officer for purposes of conducting any necessary inspections. Tiska read the papers and then returned them to Plaintiff. Plaintiff also informed Tiska about the Village's right-of-way and that it was locked.
The Village did not have a right-of-way through or easement across the Wagner Avenue entrance.
Defendant Hrazanek then arrived at and drove onto the VW Parts property. Tiska followed Hrazanek onto the property. Plaintiff followed Tiska onto the property. Hrazanek immediately demanded that Plaintiff leave the property. Tiska then told Plaintiff that he would have to leave the property. Plaintiff complied. Tiska remained on the property and continued to talk with Hrazanek for approximately one half hour. At some point, Hrazanek told Tiska that Plaintiff had previously been told not to come onto the property. (Hickey Aff., Ex. E.) Tiska also took a criminal information from Hrazanek charging Plaintiff with trespass in violation of N.Y. Penal Law § 140.05.
On June 6, 1998, Tiska prepared materials to be submitted to Village of Fleischmanns Town Justice Gould requesting the issuance of a criminal summons based upon Hrazanek's criminal information. Tiska placed the packet of materials in the Sheriff's Department's mail basket. Tiska was then informed that the Village no longer had a town justice and, thus, he would have to seek a criminal summons from an adjoining town. As it turns out, this information was incorrect and Alexander Graves ("Graves") was serving as the Village Town Justice. On June 8, 1998, Tiska delivered the materials to Town Justice Glen George. That same day, Hrazanek faxed a letter to Tiska regarding the Village's right-of-way and again stating that Plaintiff was told that he would be arrested for trespass if he attempted to enter the property off of the right-of-way. (Hickey Aff., Ex. F.)
George telephoned Graves at his home to see if he was available to handle the matter. George was unable to reach Graves. George, therefore, handled the matter himself and issued an arrest warrant for Plaintiff for a violation of N.Y. Penal Law § 140.05. On June 10, 1998, Tiska telephoned Plaintiff and informed him about the arrest warrant. Tiska requested that Plaintiff voluntarily appear at the Town Court. Plaintiff agreed. Hrazanek then superseded his complaint with a new complaint for criminal trespass in violation of New York Penal Law § 140.10. Plaintiff was arraigned on a charge of criminal trespass in violation of N.Y. Penal Law § 140.10 and released on his own recognizance. The criminal matter was then transferred back to the Village. On September 17, 1998, Graves dismissed the information finding that:
The element of the crime missing from the information is that defendant entered the property unlawfully. It appears that unlawful entry onto property may only be alleged by the owner of the property or by a tenant having exclusive possession thereof. No one else can be certain that permission had not been given to the alleged intruder by the owner or by such a tenant. Since the complainant has alleged neither ownership nor the right to exclusive possession, the element of the unlawfullness of the entry has not been alleged.
On or about May 23, 1999, a New York State Trooper appeared at Plaintiff's residence and served him with a new criminal summons charging him with criminal trespass. The information was prepared by Richard LoGuidice and supported by Hrazanek's deposition. On December 7, 1999, Graves dismissed this charge finding that Plaintiff was authorized to enter the property.
Plaintiff then commenced the instant action asserting violations of his civil rights.
III. STANDARD OF REVIEW
In addressing the pending motions for summary judgment, the Court will apply the familiar standards applicable to such motions, which need not be restated here. Roman v. Cornell Univ., 53 F. Supp.2d 223, 232-33 (N.D.N.Y. 1999); Phipps v. New York State Dep't of Labor, 53 F. Supp.2d 551 (N.D.N.Y. 1999); Riley v. Town of Bethlehem, 44 F. Supp.2d 451, 458 (N.D.N.Y. 1999).
IV. DISCUSSION
a. Defendant George is Entitled to Absolute Immunity
Defendant George moves to dismiss on the ground that he is entitled to absolute immunity.
As the Second Circuit has stated:
A judge will be denied immunity for damages where he (i) acts in the clear absence of all jurisdiction; and (ii) knew or must have known that he was acting in such a manner. The first element of the test is an "objective" inquiry as to whether jurisdiction is clearly absent, i.e, no reasonable person would have thought jurisdiction proper. The second element of the test is a subjective inquiry as to whether "the judge whose actions are questioned actually knew or must have known" that he was acting in the clear absence of all jurisdiction.Tucker v. Outwater, 118 F.3d 930, 933 (2d Cir. 1997) (internal citations, quotations and alternations omitted).
There does not appear to be any dispute that George was acting in his judicial capacity.
Pursuant to N.Y. Crim. Proc. Law §§ 100.55 and 120.30, a criminal complaint must be filed in the town in which the offense was committed and an arrest warrant may only be issued from the court in which the complaint was filed. Tucker, 118 F.3d at 934. Where, however, "such town court is not available at the time such instrument is sought to be filed and a warrant obtained, such accusatory instrument may be filed with the town court of any adjoining town of the same county." N.Y. Crim. Proc. Law § 120.30(2). Thus, Defendant George had jurisdiction if the Town Justice of the Town of Fleischmanns (Graves) was unavailable.
Contrary to Plaintiff's suggestion, this case is factually distinguishable from Maestri v. Jutkofsky, 860 F.2d 50 (2d Cir. 1988). In that case, the judge was not from an adjoining town. Thus, he could not have had jurisdiction under any circumstances. Id. at 53; see also Tucker, 118 F.3d at 935. Here, by contrast, George was in an adjoining town and could have had jurisdiction if Graves was unavailable.
It is undisputed that the alleged criminal activity occurred in the Village of Fleischmanns, but that the warrant was issued out of the Town of Middletown. It also is undisputed that Middletown is adjacent to, and within the same county as, Fleischmanns. Again, the sole question is whether Graves was unavailable. George contends that the application for the warrant was brought to him, he telephoned Graves at his home to see if he was available, there was no answer to the call and, thus, George determined that he had jurisdiction because Graves was unavailable. Plaintiff does not dispute these facts, but contends that jurisdiction was nonetheless lacking because Graves was available and George made an insufficient effort to determine whether was Graves was available. In support, Plaintiff submits Graves' affidavit wherein he states that there is nothing in the Village records indicating that he was absent or unavailable to issue arrest warrants, and that "I do not remember any personal business or travel that would have caused me to be absent from the Village of Fleischmanns or to be otherwise unavailable to perform my duties as Village Justice during that period; nor do I remember being present or available during that period." Graves Aff., ¶ 4.
The Court has been unable to locate any cases discussing availability within the meaning of section 120.30(2). The statute provides jurisdiction to the adjoining town court if the "town court is not available at the time such instrument is sought to be filed and a warrant obtained." Under its ordinary meaning, the term "available" means "suitable or ready for use; of use or service; at hand," "readily obtainable; accessible." Random House Dict. of the English Lang. at 104. Thus, as used in the statute, George had jurisdiction if Graves was not of use or service, not at hand, not readily obtainable, or not accessible.
It appears that it will never be known where Graves was at all relevant times. Although Graves does not recall being away from the area, he does not recall what he was doing or whether he was "available." Even if he was within 10 miles of the court, there are any number of reasons why he may not have been readily obtainable or accessible. For example, he may have been playing golf, visiting with friends, getting the car washed, running personal errands, etc. What is known is that George attempted to call him at home and there was no answer. Contrary to Plaintiff's suggestion, this Court does not believe that George had an obligation to send the police to Graves' home, make a certain minimum number of telephone calls to Graves' home, let the telephone ring a certain minimum number of times or otherwise undertake an exhaustive search to establish Graves' availability. Moreover, under the facts of this case, it was not necessary for George to try to contact Graves at the court because, as Graves testified, court was held only one day a month (Graves dep. at 13) and the only way he could be reached was at home (Graves dep. at 62). Thus, it was reasonable for George to believe that Graves was not accessible or otherwise readily obtainable and, therefore, was "not available."
The Court is wary of introducing a subjective element (availability) into an objective inquiry (whether the judge acted in the clear absence of all jurisdiction). In light of the reasons behind the doctrine of judicial immunity, the fact that George attempted to contact Graves at his home (the only place he could be contacted), and the applicable legal standard (the clear absence of all jurisdiction), the Court concludes that George did not act in the clear absence of all jurisdiction. Because of this lack of clarity concerning whether Graves was "not available" within the meaning of section 120.30(2), it cannot be said that George acted in the clear absence of jurisdiction. According, the first element of the test has not been met.
Even assuming George did act in the clear absence of authority, because he was unable to get a hold of Graves by telephone, it cannot be said that he knew or must have known that he was acting in the clear absence of jurisdiction. Thus, the second element also has not been satisfied. George, therefore, is entitled to absolute immunity and the claims against him must be dismissed.
b. Tiska's Motion for Summary Judgment
1. Probable Cause
Tiska moves for summary judgment on the grounds that he acted with probable cause or, in the alternative, that he is entitled to qualified immunity. "Probable cause is established when the arresting officer has `knowledge or reasonably trustworthy information' sufficient to warrant a person of reasonable caution in the belief that an offense has been committed by the person to be arrested." Singer v. Fulton Cty. Sheriff, 63 F.3d 110, 119 (2d Cir. 1995) (internal quotation marks and citations omitted). "An arresting officer advised of a crime by a person who claims to be the victim, and who has signed a complaint or information charging someone with the crime, has probable cause to effect an arrest absent circumstances that raise doubts as to the victim's veracity." Id.
Tiska sought an arrest warrant based on a criminal complaint alleging a violation of New York Penal Law § 140.05 (Trespass). The facts as known to Tiska were that: the property was not unused; Plaintiff intended to enter the property to inspect the public wells (Granito Aff., ¶ 15); Plaintiff called the Sheriff's Department requesting the presence of a law enforcement officer when he attempted to inspect the property; Plaintiff attempted to inspect the wells via the Village's right-of-way through the Depot Street entrance (id.); Plaintiff was denied entry via the right-of-way because the gate across the Depot Street entrance was locked; Plaintiff proceeded to the Wanger Avenue entrance (id., ¶ 17); Plaintiff purported to have authority to enter the premises because of the Village's duty to inspect the wells, the letter from the New York State Department of Health, Department of Health regulations, and the Village resolution authorizing him to act as a health officer; Plaintiff showed various documents to Tiska concerning his need and purported right to inspect the wells; Plaintiff sought to enter through the Wagner Avenue entrance; Plaintiff inquired what would happen if he was told to leave the property; Tiska informed Plaintiff that he would have to leave if he was requested to do so (id. at ¶ 18), Tiska entered upon the property via the Wagner Avenue entrance through an open fence; Plaintiff followed Tiska onto the property; Hrazanek told Tiska that Plaintiff must leave the property; Tiska advised Plaintiff that he would have to leave the premises; Plaintiff left the property; and Hrazanek informed Tiska that Plaintiff had previously been told not to enter the premises (Hrazanek Dep. at 199; Hickey Aff., Ex's E, F).
These facts establish that Tiska had probable cause to apply for an arrest warrant for a violation of N.Y. Penal Law § 140.05. That section provides that "[a] person is guilty of trespass when he knowingly enters or remains unlawfully in or upon premises." As the New York Court of Appeals has explained:
No prosecution may be brought for trespass in violation of section 140.05 of the Penal Law when the intruder enters or remains upon unimproved and apparently unused land, which is neither fenced nor otherwise enclosed in a manner designed to exclude intruders, unless the prosecution can show that notice against trespass was personally communicated to the intruder by the owner of such land or other authorized person, or unless such notice was given by posting in a conspicuous manner, the basis for this limitation being in the language in the last sentence of section 140.00. . . . Furthermore, in prosecuting one for trespass in violation of section 140.05, it must be proved that such person "knowingly" entered the premises without license or privilege and, therefore, a person who enters upon premises accidentally, or who honestly believes that he is licensed or privileged to enter, is not guilty of any degree of criminal trespass.People v. Basch, 36 N.Y.2d 154, 158-59 (1975) (internal quotations and citations omitted); see also N.Y. Penal Law § 140.00(5) (noting that "[a] person whom regardless of his intent, enters or remains in or upon premises which are at the time open to the public does so with license and privilege unless he defies a lawful order not to enter or remain, personally communicated to him by the owner of such premises or other authorized person."). The facts as known to Tiska demonstrate that Plaintiff was on the premises, that Plaintiff entered the premises off of the Village's right-of-way and outside the 250' radius from the wells, and that Plaintiff had previously been told by Hrazanek not to enter the property. The only potentially questionable element of the offense of trespass is whether Plaintiff honestly believed that he had a license or privilege to enter the property.
Plaintiff contends that he was within the 250' radius of the wells at the time Hrazanek told him to leave. While this may be true, based upon the site map submitted to the Court and the undisputed fact that Plaintiff entered the property through the Wagner Road entrance, Plaintiff necessarily crossed over the property outside the 250' radius to get to a spot within the 250' radius.
Although Plaintiff contends that Hrazanek never told him not to come onto the property, that is irrelevant to whether Tiska had probable cause to believe there had been a violation of section 140.05. What is relevant is whether the alleged victim, Hrazanek, informed Tiska that Plaintiff had been told not to come onto the premises. Both Tiska and Hrazanek testified that Hrazanek told Tiska that Plaintiff had previously been told not to enter the property off of the right-of-way. Tiska was entitled to rely upon the victim's account. See Martinez v. Simonetti, 202 F.3d 625, 634 (2d Cir. 2000) ("[I]t is well-established that a law enforcement official has probable cause to arrest if he received his information from some person, normally the putative victim or eyewitness.") (citations omitted); Singer, 63 F.3d at 119 ("An arresting officer advised of a crime by a person who claims to be the victim, and who has signed a complaint or information charging someone with the crime, has probable cause to effect an arrest absent circumstances that raise doubts as to the victim's veracity."). The Court has not been apprised of any reason why Tiska should have doubted Hrazanek's veracity. Further, probable cause continues to exist where a police officer was presented with different stories from an alleged victim and the arrestee. Moreover, the Second Circuit has "found probable cause where a police officer was presented with different stories from an alleged victim and the arrestee. . . . [O]nce a police officer has a reasonable basis for believing there is probable cause, he is not required to explore and eliminate every theoretically plausible claim of innocence before making an arrest." Curley v. Village of Suffern, 268 F.3d 65, 70 (2d Cir. 2001) (internal quotations, citations and alterations omitted).
To the extent Plaintiff contends that Hrazanek had no authority to refuse Plaintiff's entry onto the property (Pl.'s Mem. of Law at 14), it is entirely unsupported by the record. To the contrary, the later complaint filed by Richard LoGuidice (the property owner) suggests that Hrazanek did have that authority. Hickey Aff. Ex. O.
Plaintiff claims that he did have such an honest belief. There was, however, ample reason for Tiska to have doubted whether Plaintiff had such a belief in light of the facts that: (1) Plaintiff knew he was supposed to use the Village's right-of-way; (2) Plaintiff did not enter via the Wagner Avenue entrance until Tiska did so first; (3) it does not appear that Plaintiff showed anything to Tiska concerning any claimed right to access the wells off of the right-of-way; and (4) Plaintiff specifically inquired of Tiska "what would be the situation if when we went on the property, I was told to leave." Granito Dep. at 62. After Tiska responded that "you would have to go," Plaintiff did not further contend that he had a right to be there. Id. at 62, 65. Furthermore, although unknown to Tiska at the time, Plaintiff apparently thought that he might need a court order to enter the property and complete the investigation. Id. at 71-72. Thus, while Plaintiff may legitimately have believed he had the right to inspect the wells, it is far from clear that he honestly believed he had the right to go off of the right-of-way to accomplish that task and that Tiska had reason to think that Plaintiff had an honest believe that he was privileged to enter the property.
Moreover, contrary to Plaintiff's suggestion, under the facts and circumstances presented, there is serious doubt whether Plaintiff could have honestly believed he had a license or privilege to enter through private property to inspect the wells, or whether he knew he should have had a warrant to enter through the Wagner Avenue entrance. As the Supreme Court has made clear:
the basic purpose of [the Fourth] Amendment is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials. The officials may be health, fire, or building inspectors. Their purpose may be to locate and abate a suspected public nuisance, or simply to perform a routine periodic inspection. The privacy that is invaded may be sheltered by the walls of a warehouse or other commercial establishment not open to the public. These deviations from the typical police search are thus clearly within the protection of the Fourth Amendment. . . . [T]here is no diminution in a person's reasonable expectation of privacy nor in the protection of the Fourth Amendment simply because the official conducting the search wears the uniform of a firefighter rather than a policeman, or because his purpose is to ascertain the cause of a fire rather than to look for evidence of a crime, or because the fire might have been started deliberately. Searches for administrative purposes, like searches for evidence of crime, are encompassed by the Fourth Amendment. And under that Amendment, one governing principle, justified by history and by current experience, has consistently been followed: except in certain carefully defined classes of cases, a search of private property without proper consent is "unreasonable" unless it has been authorized by a valid search warrant." The showing of probable cause necessary to secure a warrant may vary with the object and intrusiveness of the search, but the necessity for the warrant persists. . . . For administrative searches conducted to enforce local building, health, or fire codes, "probable cause" to issue a warrant to inspect exists if reasonable legislative or administrative standards for conducting an area inspection are satisfied with respect to a particular dwelling. Such standards, which will vary with the municipal program being enforced, may be based upon the passage of time, the nature of the building (e.g., a multi-family apartment house), or the condition of the entire area, but they will not necessarily depend upon specific knowledge of the condition of the particular dwelling.Michigan v. Tyler, 436 U.S. 499, 504-05, n. 5 (1978) (internal quotations, alterations and citations omitted, emphasis added); see Camara v. Municipal Court, 387 U.S. 523 (1967). Based on Tyler andCamara, Plaintiff needed a warrant to enter upon private property. The Court disagrees with Plaintiff's "expert" that the warrant requirement is automatically excused where, as here, Plaintiff was responding to a citizen complaint. Although Camara did speak of certain instances, such as responses to a citizen complaint, where the warrant requirement may be excused, the citizen complaint exception referred to in Camara applies only where something has transpired that requires immediate action. See Doe v. Heck, 327 F.3d 492, 512-13 (7th Cir. 2003); Howell v. W.J. Roberts, 656 F. Supp. 1150, 1153 (N.D. Ga. 1987). Absent some sort of exigent circumstances, the dictates of the Fourth Amendment cannot be excused simply because someone has written a letter of complaint. No such circumstances were present here. The citizen complaint (which was made not to Plaintiff, but to the New York State Department of Health) was made sometime prior to May 15, 1998. Tiska Ex. A1. By letter dated May 15, 1998, the NYSDOH informed Plaintiff of the complaint and asked that he have the matter investigated. Plaintiff did not attempt to investigate the well until June 4, 1998. This delay by Plaintiff himself negates a finding of urgency needed to justify a warrantless entry. Moreover, Plaintiff has not identified any immediate danger being posed on the premises requiring an immediate entry.
It is unclear why Plaintiff has provided a so-called expert on the issue of probable cause. The determination of probable cause is a legal issue. It, therefore, is unclear how testimony from this "expert" would assist the trier of fact to understand the evidence or to determine a fact in issue. See Fed.R.Evid. 702; United States v. Bilzerian, 926 F.2d 1285, 1294 (2d Cir. 1991) ("As a general rule an expert's testimony on issues of law is inadmissable.").
Plaintiff's argument that New York may not have a procedure whereby he could have gotten a warrant to enter the premises in a non-criminal matter is of no avail. Whether a state has a certain procedure is entirely irrelevant to the enforcement of the Fourth Amendment's restriction on government action. The government is not excused from compliance with the Fourth Amendment simply because it does not have an adequate procedure to allow it to comply with that amendment. If the government does not have such a procedure, its options are simple: (1) do not enter private property except in situations that would justify a warrantless entry; or (2) establish an appropriate procedure for determining probable cause and issuing a warrant.
In sum, the objective factors gave Tiska knowledge or reasonably trustworthy information sufficient to warrant a person of reasonable caution in the belief that a trespass was committed by Plaintiff. Accordingly, the Court finds that Tiska acted with probable cause and, thus, did not act outside the boundaries of the Fourth Amendment. See, e.g., People v. Anderson, 111 A.D.2d 109, 110 (1st Dep't 1985) (police had probable cause to arrest firefighter for trespass where firefighter entered subway without paying, showed the police that he was a firefighter, but was not wearing a firefighter's uniform at the time).
Plaintiff next argues that Tiska made several material omissions from the application for the arrest warrant. Plaintiff contends that he failed to inform George that: (1) it was Plaintiff who caused Tiska to be at the property; (2) Plaintiff had shown Tiska the papers constituting his legal authority; (3) it was not personally communicated to Plaintiff that he could not enter the property; (4) there were no "no trespassing" signs; and (5) Plaintiff was within 250 feet of the well.
"The first step in assessing the materiality of such an omission is to `correct' the allegedly defective affidavit by inserting the information withheld from the magistrate judge. The second step is for the court to then determine whether as a matter of law the corrected affidavit did or did not support probable cause. If probable cause remains, no constitutional violation of the Plaintiff's Fourth Amendment rights has occurred." Smith v. Edwards, 175 F.3d 99, 105 (2d Cir. 1999).
None of the above information changes the probable cause determination. First, it is irrelevant who caused Tiska to be at the scene. Second, although Tiska did not specifically inform George about Plaintiff's paperwork, the incident report does note that "suspect 1 entered the property from the Wagner Avenue entrance citing his intent to inspect the above property for vehicle storage and or dismantling near Village wells located on the same property. The complainant states that he had given permission to the code enforcement officer to conduct any necessary inspections but did not give permission to suspect 1 or suspect 2 to enter the property for any purpose." This would have sufficiently alerted the issuing officer to the fact that Plaintiff purported to be acting pursuant to official authority and, thus, cannot be said to be a material omission. In any event, as discussed, these papers did not establish Plaintiff's right to enter the property via the Wagner Avenue entrance and, thus, it is difficult to discern how the presentation of these documents to George would have changed the probable cause determination. Again, the documents on which Plaintiff relied only established his right and duty to inspect the wells; not his authority to access the wells outside the Village's right-of-way.
The third alleged omission, that Plaintiff was not personally notified that he was not to enter the premises, is a disputed factual issue. Tiska and Hrazanek testified that Hrazanek told Tiska that Plaintiff was given personal notice not to enter the property off of the Village's right-of-way. Thus, there was no basis for Tiska to inform the issuing officer that Plaintiff did not have personal notice. There also is a factual dispute regarding the existence of trespassing signs. In any event, it is irrelevant whether there was any such signs because Hrazanek told Tiska that he personally notified Plaintiff not to enter the property off of the Village's right-of-way. Finally, it is irrelevant whether Plaintiff was within 250' of the wells if he crossed private property off of the Village's right-of-way to get there. Thus, there were no material omissions.
2. Qualified Immunity
Even if Tiska did not have probable cause, he is entitled to qualified immunity. Reasonable officers could disagree whether, based on the totality of the circumstances as presented to Tiska, Plaintiff was trespassing. Again, it was clear that Plaintiff entered the premises off of the right-of-way and that Hrazanek told Tiska that Plaintiff had been told not to enter the premises off of the right of way. It was objectively reasonable for Tiska to believe that Plaintiff violated section 140.05 and reasonable officers certainly could disagree whether Plaintiff honestly believed he had a license or privilege to enter the premises through the Wagner Avenue entrance. Thus, at the very least, Tiska had arguable probable cause. Cerrone v. Cahill, 246 F.3d 194, 203 (2d Cir. 2001).
3. Favorable Termination of Criminal Proceedings
The malicious prosecution count also fails because the criminal proceeding did not terminate in Plaintiff's favor. The criminal information filed by Tiska was superseded by one filed with Hrazanek alleging a violation of N.Y. Penal Law § 140.10. This information was dismissed by Justice Graves pursuant to N.Y. Crim. Proc. Law § 170.35 as being facially defective for failure to allege an element of the crime. Hickey Aff., Ex. V. Dismissals pursuant to § 170.35 are not treated as favorable terminations for purposes of a malicious prosecution claim.MacFawn v. Kressler, 88 N.Y.2d 859, 860 (1996); see De Cicco v. Madison County, 300 A.D.2d 706, 707-08 (3d Dep't 2002); Murphy v. Lynn, 118 F.3d 938, 948 (2d Cir. 1997). There is no factual basis in the record for Plaintiff's allegations that Tiska was involved in the subsequent criminal proceedings. See Granito Dep. at 84-88; Babione Decl. at Ex. O, P, Q, S, T.
For all the foregoing reasons, the claims against Tiska must be dismissed.
4. First Amendment Claim
To succeed on his First Amendment retaliation claim, Plaintiff must demonstrate that "(1) he has an interest protected by the First Amendment; (2) defendants' actions were motivated or substantially caused by his exercise of that right; and (3) defendants' actions effectively chilled the exercise of his First Amendment right." Curley v. Village of Suffern, 268 F.3d 65, 73 (2d Cir. 2001).
This claim must fail because Tiska had probable cause to arrest Plaintiff and it, therefore, cannot be said that his actions were motivated or substantially caused by the exercise of Plaintiff's First Amendment rights. Curley, 268 F.3d at; Singer, 63 F.3d at 120; Mozzochi v. Borden, 959 F.2d 1174, 1179-80 (2d Cir. 1992). Even if probable cause alone were insufficient to negate this element, there is an absence of proof in the record from which a fair-minded trier of fact could reasonably conclude that Tiska's actions were motivated or substantially caused by the exercise of Plaintiff's free speech rights. The undisputed evidence is that Tiska never met Plaintiff or Hrazanek before June 4, 1998. Moreover, there is no evidence that Tiska knew about Plaintiff's speech when he filed the criminal information. Accordingly, this claim also must be dismissed.
c. Hrazanek's Motion for Summary Judgment
Because there has been no violation of Plaintiff's constitutional rights, his claims that Hrazanek was part of a conspiracy with the state actors to violate his constitutional rights must fail. Singer, 63 F.3d at 119.
d. State Law Claims
The Court declines to exercise supplemental jurisdiction over any remaining state law claims which are hereby dismissed without prejudice. 28 U.S.C. § 1367(c).
V. CONCLUSION
For the foregoing reasons, Defendants' motions for summary judgment are GRANTED IN THEIR ENTIRETY and the Complaint is DISMISSED.