NICHOLAS V. MIDEY, J.

Defendant's motion for summary judgment dismissing this claim which alleged malicious prosecution, false imprisonment, and negligent training and supervision, was granted.

Recitation: Claimant has instituted this claim seeking damages based upon allegations of malicious prosecution, false imprisonment, and negligent training and supervision, all arising out of a criminal investigation and subsequent prosecution of claimant for the robbery and assault of an elderly man which occurred on August 30, 1988. A trial limited to the issue of liability commenced on April 24, 2001. During claimant's testimony, the trial was adjourned to provide counsel for both parties an opportunity to confer and hopefully reach an agreement as to the admissibility into evidence of numerous documents previously marked as exhibits. Counsel then subsequently notified the Court that not only had they reached an agreement on the introduction of these exhibits into evidence, but they had also agreed that there was no need for any further testimony from any witnesses, and that resolution of this claim could be determined by the Court based upon its consideration and evaluation of such documentary evidence. Accordingly, at the request of the parties, and upon counsels' representations that there was no further need for any witness testimony, this Court adjourned the trial without date, and directed the parties to submit separate motions, in the nature of summary judgment, supported by such information or affidavits where necessary, together with supporting memoranda of law. Even though the parties did not enter into a formal stipulation of submitted facts (see, Uniform Rules for the Court of Claims, § 206.24), there does not appear to be any material issue of fact which would preclude the Court from making a determination as to liability at this time.

In addition to the testimony which was heard at the outset of this trial, the Court has therefore considered the following submissions in arriving at its decision:

Claimant's Notice of Motion, Affidavit of Mark A. Prentice, with Exhibits A-T (M-65785) 1,2

Defendant's Notice of Motion, Affirmation of Edward F. McArdle, Esq., Affidavit of Joseph F. Loszynski, with Exhibits A-Z, AA-DD (M-65786) 3,4,5

Defendant's Memorandum of Law (M-65786) 6

Affidavit of Claimant in Response to Defendant's Motion 7

Affidavit of Hazel Garvin Prentice 8

Memorandum of Law in Support of Claimant's Motion, with Exhibits A-X (amending and fully replacing Exhibits A-T to Items 1,2) (M-65785). 9

Answering Affirmation (Defendant)10

Answering Memorandum of Law (Defendant) 11

Reply Memorandum of Law (Defendant) 12

Notice of Motion In Limine and to Quash Subpoena, Affirmation of Edward F. McArdle, Esq., with Exhibits A-F 13, 14

Affirmation in Opposition to Defendant's Motion In Limine by Thomas H. Kheel, Esq. .15

Text of the decision:

BACKGROUND

On August 30, 1988, Lawrence G. Meeker, Sr., was assaulted and robbed at his home in Enfield, Tompkins County. Mr. Meeker was 81 years old at the time of this incident, and was seriously injured after being violently struck in the head with a blunt instrument by his assailant. As a result of an investigation by the New York State Police (see Exhibit F to Items 3, 4, 5), claimant, a neighbor of the victim, was arrested, without a warrant, two days later on September 1, 1988.

During the initial investigation (and prior to the arrest of claimant), Johnny R. Meeker (a grandson of the victim), and Bret C. Cochran, who were both with claimant on the day of the incident, were interviewed several times by investigators with the State Police, and each signed multiple affidavits regarding the incident. Both Mr. Meeker and Mr. Cochran, in separate statements, eventually named claimant as the assailant. Additionally, even though the victim was hospitalized in serious condition and could not be questioned, the victim's son provided the State Police with a description of the assailant given to him by his father, which matched that of claimant. Claimant was then arrested on September 1, 1988.

Based on information obtained during their investigation that Johnny Meeker, Bret Cochran and claimant had been drinking together in a tool shed on the victim's property on the morning of the incident, investigators conducted a search of the shed on September 2, 1988, the day following claimant's arrest. Trooper David Harding of the State Police reported that he had seized an empty beer bottle from the shed during this search.

Subsequently, on September 10, 1988, the victim, although still hospitalized, had recovered to the point where he was able to be interviewed in depth by the State Police. He provided a detailed statement, and the interview was audiotaped (see Exhibit G to Items 3,4,5). Again, the victim provided a description of his assailant that matched claimant. Mr. Meeker subsequently identified claimant in a line-up.

On September 20, 1988, Trooper Harding advised Senior Investigator Gary Allen, the State Police Investigator supervising this case, that he had completed his fingerprint analysis, and that a fingerprint found on a sink in the victim's kitchen matched that of the claimant. He also reported that he matched a fingerprint found on the beer bottle (which had been found in the shed adjacent to the victim's residence during the search on September 2, 1988) to that of the claimant.

In October, 1988, claimant was indicted by the Tompkins County Grand Jury, and was charged with robbery, burglary, and assault. The Grand Jury heard testimony from the victim, Bret Cochran and Johnny Meeker, and also considered the fingerprint evidence presented by Trooper Harding.

A suppression hearing was held on January 31, 1989, at which the victim again testified and identified claimant as his assailant. Immediately following this suppression hearing, the criminal trial commenced. Several prosecution witnesses testified, including the victim, who once again identified claimant as his assailant. Trooper Harding also was called as a witness, and he testified that his fingerprint analysis placed claimant in the victim's home and in the tool shed. After this testimony, claimant decided to plead guilty. Based on his plea, claimant was convicted of two counts of robbery in the first degree, two counts of burglary in the first degree, and two counts of assault in the first degree (see Exhibit K to Items 3,4,5). Claimant was subsequently sentenced to indeterminate concurrent terms of imprisonment of 12 ½ to 25 years on the robbery and burglary counts, and concurrent terms of 7 ½ to 15 years on the assault counts.

Claimant appealed various aspects of these criminal proceedings, but his appeal was denied and the County Court judgment of conviction was affirmed by the Appellate Division, Third Department ( People v. Prentice, 175 AD2d 315, lv denied 78 NY2d 1079).

In May, 1992, however, defendant received information from the United States Department of Justice that Trooper Harding, during a job interview for a position with the United States government, admitted that he had fabricated the fingerprint evidence in this proceeding, as well as in other State Police investigations.

Based on this revelation, claimant moved to vacate his conviction, and by an Order dated March 12, 1993 (pursuant to a Memorandum Decision of Judge Betty Friedlander dated February 26, 1993) (see Exhibit O to Items 3,4,5), claimant's conviction was vacated by the Tompkins County Court, and the indictment was dismissed, with leave to the People to re-present the matter to the Grand Jury. Following this vacatur, claimant was re-indicted on first degree burglary and assault charges by the Tompkins County Grand Jury in April, 1993 (obviously, without any fingerprint evidence being submitted to the Grand Jury).

Claimant was then re-tried in a second criminal trial during July, 1993. After a four day trial (again, without use of any fingerprint evidence) claimant was convicted of burglary first degree and assault first degree. Claimant was sentenced in September, 1993, to concurrent terms of imprisonment of 12 ½ to 25 years on the burglary conviction, and 7 ½ to 15 years on the assault count.

Claimant appealed this conviction as well, and the Appellate Division, Third Department, determined that the trial court had committed reversible error when it refused to permit claimant to subpoena former Trooper Harding and other State Police officers in order to question them about the fabrication of fingerprint evidence which had occurred in this case ( People v. Prentice, 208 AD2d 1064, lv dismissed 84 NY2d 1037). The matter was remitted to Tompkins County Court for a new trial. Pursuant to the decision of the Appellate Division, Third Department, claimant was then tried for a third time during March, 1995, at which time he was acquitted.

In May, 1993, after it had been revealed that Trooper Harding had fabricated evidence against claimant in this criminal proceeding, and after claimant's first judgment of conviction had been vacated by the Tompkins County Court, claimant served and filed a Notice of Intention to File a Claim. This action was not commenced, however, until claimant served and filed his claim in May, 1995, after he had been acquitted in the third criminal trial.

In this claim, he alleges causes of action for malicious prosecution, false imprisonment, and negligent training, monitoring, and supervision. Essentially, it is claimant's position that without the fingerprint evidence which was fabricated by Trooper Harding, the State lacked any probable cause to commence and continue the criminal proceedings against him, and that such fabricated evidence caused him to be falsely arrested and then imprisoned continuously from September 1, 1988 to his acquittal following the third criminal trial on March 31, 1995. Claimant further contends that the State was negligent in its training, monitoring, and supervision of its officers, specifically Trooper Harding, thus providing Trooper Harding with the opportunity to fabricate the false fingerprint evidence in the first place.

STATUTE OF LIMITATIONS

In its motion (M-65786), defendant first argues that this claim should be dismissed based upon a failure to serve and file the claim within applicable statutes of limitation for each cause of action. For whatever reason, defendant has couched this argument with reference to statutes of limitation contained in CPLR Article 2. Such reference, however, is misplaced, since, with one exception not relevant herein, the limitations of time set forth in the CPLR are not applicable to actions brought in the Court of Claims.

COURT OF CLAIMS ACT §§ 10 AND 11

For actions brought in the Court of Claims, the appropriate inquiry is whether claimant has complied with the provisions of the Court of Claims Act governing the service and filing of claims. Such provisions have long been held to be jurisdictional in nature ( Finnerty v. New York State Thruway Authority, 75 NY2d 721; Byrne v. State of New York, 104 AD2d 782, lv denied 64 NY2d 607).

The records of this Court confirm that this claim was filed with the Clerk of the Court on May 12, 1995. An affidavit of mailing filed with the Clerk of the Court of Claims indicates that the claim was mailed to the office of the Attorney General by certified mail, return receipt requested, on May 10, 1995. As indicated on the copy of the claim submitted by defendant (see Exhibit A-2 to Items 3,4,5), the claim was received by the Attorney General on May 12, 1995.

Prior thereto, records of the Court establish that claimant filed a notice of intention to file a claim with the Clerk of the Court on May 17, 1993. There is no indication, however, in Court records or in the submitted papers herein, as to when the notice of intention was served on the Attorney General. Since defendant has not raised the manner or timeliness of service of the notice of intention as a defense, for purposes of these motions the Court assumes that service of the notice of intention was made in the proper manner, on or about May 17, 1993 (the date on which the notice of intention was filed with the Clerk of the Court of Claims).

At the time this claim was commenced, for intentional torts (i.e., the malicious prosecution and false arrest/imprisonment causes of action asserted in this claim), Court of Claims Act § 10(3-b) required a claim to be served and filed within 90 days of accrual, unless a notice of intention to file a claim was served and filed within such time period, in which case claimant had one year from accrual to serve and file a claim.

In this claim, since the Court has determined herein that the causes of action alleging malicious prosecution and false arrest/imprisonment both accrued on March 31, 1995, the claim, having been filed May 12, 1995 with the Clerk of the Court of Claims and served on the Attorney General on the same date, was timely, as it satisfied the 90 day period from accrual provided by § 10(3-b).

For torts alleging negligence (i.e., negligent training, monitoring and supervision), Court of Claims Act § 10(3) required (at the time this claim was initiated), that a claim be served and filed within 90 days of accrual of the cause of action, unless a notice of intention to file a claim was served and filed within such time period, in which case a claimant then had two years from accrual to serve and file the claim.

In this claim, the Court has previously determined herein that the cause of action for negligent training, monitoring and supervision accrued on March 12, 1993, when the Tompkins County Court ordered that claimant's original conviction be vacated. Since a notice of intention to file a claim was then filed with the Court on May 17, 1993, within 90 days of accrual, claimant was entitled to the extension of time provided by § 10(3) and could therefore commence his claim at any time within two years of accrual. The claim, however, was not filed until May 12, 1995 which, obviously, is beyond the two years provided by § 10(3).

Section 11(c) of the Court of Claims Act, however, requires the State to raise any defense relating to untimeliness either in a motion to dismiss prior to service of the responsive pleading, or in the responsive pleading itself. Furthermore, § 11(c) requires that such a defense must be raised with particularity. A failure to assert such a defense under § 11(c) results in its waiver.

In this matter, defendant asserted at paragraph 56 of its answer, as a second affirmative defense to the negligence cause of action, the following:

The Court lacks jurisdiction to hear and determine the claim herein pursuant to section 9 of the Court of Claims Act in that neither a Notice of Intention to File a Claim, nor a Claim was filed with the Court or served on the office of the Attorney General within ninety (90) days of the accrual of the claim pursuant to the requirements of sections 10 and 11 of the Court of Claims Act.

There can be no dispute, therefore, that defendant has raised timeliness as a defense in its responsive pleading as required by § 11(c). The question to be resolved, however, is whether such defense was raised with the requisite particularity in order to preserve the defense. Similar language has previously been found to be adequate to preserve the defense of untimeliness ( Ramirez v. State of New York, 171 Misc 2d 677; see also Sinacore v. State of New York, 176 Misc 2d 1). In this case, however, the defense of untimeliness as asserted in the affirmative defense is premised upon a failure of the claimant to serve and file either a notice of intention or claim within 90 days of accrual. This statement is incorrect since, in actuality, this Court has determined that a notice of intention was in fact served and filed within 90 days of accrual, but that the claim (for the negligence cause of action) was not thereafter served and filed within two years of accrual as permitted by § 10(3). This aspect of untimeliness in the service and filing of the claim, is not mentioned or referenced at all in defendant's affirmative defense. Accordingly, since the defense pleaded by the defendant is inaccurate, the Court must find that defendant has not preserved its defense as to untimely service and filing of the claim, and that such defense has therefore been waived pursuant to § 11(c).

EVIDENTIARY ISSUES

In its moving papers, defendant has also raised an evidentiary issue, pertaining to the admissibility of certain documents offered by claimant at trial. Specifically, defendant objects to the admission into evidence of (1) the "Confidential Report to the Honorable George E. Pataki" (herein referred to as the "Roth Report") authored by Special Prosecutor Nelson E. Roth, Esq. (Trial Exhibit 24; see also Claimant's Exhibit T to Items 1, 2), as well as (2) a letter dated February 1, 1993, written by Special Prosecutor Roth to James A. Baker, Esq., claimant's defense attorney throughout his criminal proceedings (Trial Exhibit 20; see also Claimant's Exhibit W to Item 9).

At the trial of this claim, Mr. Roth, was called as a witness by claimant. He testified that following the admissions by David Harding that he had fabricated evidence in the criminal prosecution of claimant, he had been appointed as a Special Prosecutor (pursuant to County Law § 701) by Tompkins County Judge Betty D. Friedlander, for the purpose of conducting the criminal prosecution of Mr. Harding. Subsequently, when it became apparent that questions regarding the fabrication of evidence extended beyond the criminal proceedings against claimant, and potentially involved additional members of the State Police, Mr. Roth was appointed a Special Prosecutor by then Governor Mario Cuomo pursuant to Executive Law § 63(2) and as a Moreland Act Commissioner pursuant to Executive Law § 6. Mr. Roth was also appointed by then Attorney General Robert Abrams as a Deputy Attorney General for the State of New York. Pursuant to his duties, Special Prosecutor Roth prepared and submitted a confidential report to Governor Pataki detailing the findings made from his investigation.

At trial, Mr. Roth confirmed that he was the author of such report, that such report was prepared in connection with his official duties under Executive Law § 63, and he authenticated the copy of the report (Trial Exhibit 24) which was being offered into evidence by claimant. When claimant offered the report into evidence, defendant objected, contending that any information obtained or developed during an inquiry pursuant to Executive Law § 63 is expressly held confidential under Executive Law § 63(8).

In his testimony, however, Mr. Roth acknowledged that at the press conference in Albany at which time his findings were reported, copies of this report were made freely available to members of the press and others in attendance.

Based upon the fact that copies of this report were and are readily available, the Court, at trial, overruled defendant's objection based upon confidentiality and received the report into evidence.

As to the correspondence of February 1, 1993, written by Mr. Roth to James Baker (see Trial Exhibit 20), the Court also received said letter into evidence, over defendant's objection, after it was authenticated by Mr. Roth.

In its motion herein, defendant continues to object to the admission of these documents into evidence based upon grounds of hearsay and relevancy.

Although the Roth Report was allowed into evidence at trial, the Court advised counsel that it would only consider those portions expressly dealing with the investigation into the charges of evidence tampering which occurred in the underlying criminal proceedings against claimant. Clearly, the findings of Special Prosecutor Roth as to Harding's actions in such investigation are relevant to the pending claim. Furthermore, although the report does contain unattributed statements, undisputed factual findings made by Roth with respect to the Prentice investigation (e.g., that Harding had admitted to the fabrication of evidence; and that he was charged and convicted of falsifying such evidence) eliminated the need for testimony from witnesses (such as Mr. Harding), and in effect also limited the extent of testimony required from Mr. Roth.

In his report, however, Mr. Roth expressed opinions and conclusions formulated by him during the course of his investigation, an investigation which extended in scope far beyond the criminal proceedings which are the basis of the instant claim. At trial however, Mr. Roth was not called to testify as an expert witness, nor did claimant attempt to qualify him as such at trial. Furthermore, there was no pre-trial disclosure from claimant indicating that Mr. Roth was to be called as an expert witness, even though defendant had served a demand for expert witnesses. In fact, in response to defendant's motion in limine (see Item 13,14), claimant expressly stated that he made "no claim that Mr. Roth is an 'expert witness'", and that Mr. Roth was to be called as "a typical fact witness . . . to authenticate his 'Report' and to testify as to its published contents and to other public matters of which he has direct knowledge." (See Item 15, p. 7, par. 14[e]).

Accordingly, even though the Roth Report was received in evidence at the trial, it should be noted that to the extent such report contains opinions formulated by Mr. Roth during his investigation, such opinions have not been considered by the Court in its determination of this claim.

DISCUSSION

Turning now to the merits, the gravamen of this claim is that Trooper Harding fabricated fingerprint evidence which placed claimant at the scene of the crime, and that such false fingerprints were relied upon by the State Police to justify claimant's arrest and continued prosecution. Furthermore, claimant contends that Harding's perjured testimony regarding the fingerprint evidence at the first criminal trial left him with no alternative but to plead guilty at that trial. Claimant additionally argues that the fabricated fingerprint evidence was also utilized by the State Police to coerce and manipulate statements and testimony from key witnesses, further implicating claimant. Without such false evidence, it is claimant's position, in sum, that there was insufficient probable cause for his arrest, prosecution, and continued detention.

A. RESPONDEAT SUPERIOR

Initially, claimant contends that the State should be held vicariously liable under the doctrine of respondeat superior for the tortious acts of its employee, David Harding. There is no dispute that the State, as an employer, can be held liable for those torts committed by its officers and employees in the course of employment ( Adams v. New York City Transit Authority, 88 NY2d 116).

The Court of Appeals has enunciated five factors which must be considered when determining whether the tortious act occurred within the scope of employment. These factors are: (1) the connection between the time, place, and occasion for the act; (2) the history of the employer/employee relationship, as defined in actual practice; (3) whether the act is one which is commonly done by such an employee; (4) the extent of departure from normal performance; and (5) whether the employer could have reasonably anticipated that the employee would commit the specific act ( Riviello v. Waldron, 47 NY2d 297).

If the specific act is found to be generally foreseeable, even intentional torts committed by employees can fall within the scope of employment ( Riviello v. Waldron, supra).

In this case, there can be no dispute that Trooper Harding fabricated the fingerprint evidence, and subsequently offered perjured testimony regarding those fingerprints, while on duty. However, neither the act of fabrication, nor the giving of perjured testimony, can be found to be acts which are commonly done by such employees within the normal scope of employment. These actions represent such a gross departure from acceptable police conduct that they cannot be considered as furthering the State's interest. Furthermore, such acts extended so far beyond the realm of proper police conduct and procedures that they cannot be found to be generally foreseeable by the State. Accordingly, the criminal acts committed by Trooper Harding cannot be attributed to the State vicariously through the doctrine of respondeat superior, and liability of the State cannot be established solely through the application of this doctrine. Liability, if any, must therefore be considered under the three causes of actions asserted in the claim, that of false arrest/imprisonment, malicious prosecution, and negligent supervision.

B. FALSE ARREST/IMPRISONMENT

In order to prevail on a claim for false imprisonment, it must be established that the defendant intended to confine the claimant, that the claimant was conscious of the confinement, that the claimant did not consent to such confinement, and that the confinement was not otherwise privileged ( Broughton v. State of New York, 37 NY2d 451, 456, cert denied sub nom. Schanbarger v. Kellogg, 423 US 929). A cause of action for false arrest has been described as essentially the same tort as false imprisonment (see Blanchfield v. State of New York, 104 Misc 2d 21), with the imprisonment beginning at the time of the arrest ( Budgar v. State of New York, 98 Misc 2d 588). As is often the case, in this claim there is no dispute that the first three elements have been established. The only issue to be resolved is whether the confinement of claimant was privileged

In situations, as occurred here, where an arrest was made without a warrant, there is a presumption that the arrest and imprisonment were unlawful ( Broughton v. State of New York, supra). The burden then shifts to the State, which must establish that the arrest was otherwise privileged. The existence of probable cause provides legal justification for the arrest, and serves as an affirmative defense to the claim (see Martinez v. City of Schenectady, 97 NY2d 78, 85). In cases involving a warrantless arrest, it is therefore defendant's burden to establish that probable cause existed at the time of arrest.

Probable cause has been defined as consisting of such facts and circumstances which would lead a reasonably prudent person in like circumstances to believe that the claimant is guilty ( Hyman v. N.Y. Central R.R. Co., 240 NY 137, 143). If an officer, in good faith, believes that a person has committed a felony, and such belief is based upon grounds which an ordinarily prudent and cautious person, under similar circumstances, would also believe, such probable cause therefore exists and justifies the arrest without a warrant ( Coleman v. City of New York, 182 AD2d 200).

In this case, the issue therefore is whether the State Police had established sufficient probable cause, independent from the fabricated fingerprint evidence, to justify the warrantless arrest and confinement of claimant.

Prior to the arrest of claimant, Investigator Allen conducted several interviews with Johnny Meeker and Bret Cochran, both of whom had been admittedly drinking with claimant on the day of the incident. Although they each initially denied any involvement in, or awareness of, the crime, eventually both individuals signed statements implicating claimant as the assailant. Due to several inconsistencies contained in the various statements from these individuals, claimant contends that the weight attributed to these statements should be discounted. Additionally, when considered with their dubious character, claimant argues that such statements are completely unreliable, and that the Court should therefore not attribute any weight whatsoever to them in determining the existence of probable cause.

In addition to these inculpatory statements, however, Investigator Allen, prior to the arrest, had obtained a description of the assailant. Due to Mr. Meeker's medical condition, Investigator Allen had been unable to interview the victim. However, he had spoken with the victim's son, who provided a physical description of the assailant which had been given to him by his father. The description provided by the victim to his son matched that of the claimant. Even though the information was hearsay, such statements can be used to establish probable cause (see Coleman v. City of New York, supra; People v. Smalls, 271 AD2d 754).

In his affirmation in support of its motion, (see Item 4), defendant's attorney also emphasizes other points to bolster its argument that probable cause existed for claimant's arrest. The Court finds that these additional factors provide little support, if any, on the issue of probable cause. The Court, however, does find that the statements provided by Johnny Meeker and Bret Cochran, combined with the victim's identification which matched that of claimant, were sufficient to establish probable cause for the initial arrest of claimant on September 1, 1988.

Furthermore, the determination of probable cause must be determined on the facts which were known to the investigating officer at the time of the arrest. As previously stated herein, the false fingerprint evidence produced by Trooper Harding was not provided to Investigator Allen until September 20, 1988, almost three weeks after claimant's arrest. The initial arrest, therefore, could not be tainted by the fabricated fingerprint evidence, which did not even exist at that point in time. Nevertheless, claimant argues that in order to obtain inculpatory statements from Mr. Meeker and Mr. Cochran, Investigator Allen misled them by stating that the police had fingerprint evidence placing claimant at the scene of the crime, and that the police then needed to create such fingerprint evidence in order to corroborate these statements. There is no evidence before the Court, however, that either witness relied on such information when they made their statements implicating claimant and even if they did, it did not constitute improper police tactics (see People v. Tankleff, 84 NY2d 992). The Court therefore finds that the subsequently produced false fingerprint evidence was not a factor in claimant's initial arrest.

C. MALICIOUS PROSECUTION

Claimant also has alleged a cause of action based upon malicious prosecution. For reasons of public policy, a heavy burden is placed on a claimant in order to establish such a cause of action. To succeed on such a theory, a claimant must establish that a criminal proceeding was commenced or continued by the defendant against the claimant, that the proceeding was terminated in favor of the accused, that there was an absence of probable cause for the criminal proceeding, and that the defendant acted with actual malice ( Broughton v. State of New York, supra at 457). As with the false arrest cause of action, the presence or absence of probable cause for the criminal proceeding is crucial to this claim. As discussed above, the Court herein has found that probable cause existed for the initial arrest for claimant. By extension, therefore, the commencement of criminal proceedings against claimant, based upon sufficient probable cause, do not give rise to an action for malicious prosecution.

The Court must also determine, however, whether there was sufficient cause to continue with the prosecution of claimant, once the initial arrest had been made.

Following his arrest, Trooper Harding admittedly fabricated fingerprint evidence in order to establish claimant's presence at the scene of the crime. Trooper Harding subsequently testified before the grand jury which indicted claimant, and the fingerprint evidence was also presented to this grand jury. A presumption of probable cause normally exists following a grand jury indictment, but since the indictment in this matter was tainted by the improper police procedures (see Hernandez v. State of New York, 228 AD2d 902), no such presumption can be found in this matter.

It is defendant's contention, however, that despite the false fingerprint evidence, additional factors existed which justified the prosecution of claimant. Specifically, Investigator Allen conducted an interview with the victim, Lawrence Meeker, Sr., on September 10, 1988, and obtained a statement from him describing the assault, as well as providing a description of his assailant. The Court notes that this statement was also obtained prior to Trooper Harding's report containing the fabricated fingerprint evidence.

Additionally, following claimant's indictment, claimant was identified by the victim in a line-up procedure conducted by the Tompkins County District Attorney. At the first criminal trial, Mr. Meeker also identified claimant as his assailant. Therefore, even though the fabricated fingerprint evidence became an integral part of the case against claimant, and that such evidence had to be considered a significant factor in his conviction at this first trial, sufficient probable cause, independent from such fabricated evidence, existed to justify the prosecution of claimant.

Following the disclosure that Trooper Harding had fabricated the fingerprint evidence, and that he had offered perjured testimony in the first criminal trial, claimant's conviction was set aside by the Tompkins County Court in March, 1993. Therefore, the issue is raised as to whether sufficient probable cause existed for the continued prosecution of claimant from that point forward. Interestingly, Judge Friedlander, in her decision, vacated claimant's conviction without prejudice, permitting the State to present this case once again to a grand jury, obviously without the fabricated fingerprint evidence. The case was brought before another grand jury, which again returned an indictment against claimant. Claimant has presented no evidence to suggest that this indictment was produced by fraud, perjury, the suppression of evidence or other police misconduct. Since the case was presented to the grand jury upon express judicial authority (Judge Friedlander's decision vacating the original conviction, without prejudice), claimant has failed to rebut the presumption of probable cause that resulted from this indictment (see Colon v. City of New York, 60 NY2d 78). Claimant remained under this indictment through the second trial, in which he was convicted, his appeal therefrom (where the Appellate Division, Third Department, overturned this conviction) and up to and through the third criminal trial in which claimant was ultimately acquitted.

Accordingly, the Court must conclude that probable cause existed not only for the original arrest of claimant, but also for the continued prosecution and detention of claimant throughout the criminal proceedings against him.

Additionally, and as previously noted, in order to establish a cause of action for malicious prosecution, a claimant must also establish actual malice, which has been defined as instituting a criminal proceeding "due to wrong or improper motive, something other than a desire to see the ends of justice served" ( Nardelli v. Stamberg, 44 NY2d 500, 501). In this matter, even though claimant was ultimately acquitted, there is no evidence of any prior relationship between Investigator Allen and claimant, and no evidence was submitted to suggest that Investigator Allen proceeded with any actual malice against claimant (see Conkey v. State of New York, 74 AD2d 998).

Claimant's claims for both false arrest and malicious prosecution, therefore, must be dismissed.

D. NEGLIGENT TRAINING, MONITORING, AND SUPERVISION

Claimant has also asserted a cause of action for negligent training, monitoring, and supervision.

To the extent, if any, that claimant has attempted to establish a cause of action for negligent investigation of this crime by members of the State Police, it is well settled that such a cause of action does not exist in New York (see Hernandez v. State of New York, 228 AD2d 902).

Furthermore, with respect to any allegations of negligent training of Trooper Harding, defendant has submitted the affidavit of Joseph F. Loszynski (see Item 5), an Assistant Deputy Superintendent with the State Police in the Internal Affairs Department. Mr. Loszynski, in his affidavit, states that proper hiring practices were followed when Trooper Harding was hired by the State Police, and that he had successfully completed all training required by the department. He further indicates that the training requirements of the New York State Police at that time complied with, or exceeded, that which was considered proper police practice. He further states that after Harding's actions were revealed, he examined Harding's police record and found no evidence of any prior misconduct on his part which would have placed the State Police on notice of any potential or possible wrongdoing. Mr. Loszynski states that there was no indication or evidence of any misconduct by Trooper Harding until his actions came to light in 1992, several years after the first Prentice trial. This affidavit, which is unrefuted, establishes to the satisfaction of this Court that there was no failure on the New York State Police to properly train, qualify, or evaluate Trooper Harding.

In order to establish that aspect of his claim based on negligent supervision, a claimant must establish that the defendant knew of its employee's propensity to commit the criminal act, or that the defendant would have known of such propensity if he or she had been adequately supervised (see Honohan v. Martin's Food of South Burlington, Inc., 255 AD2d 627; Ray v. County of Delaware, 239 AD2d 755).

Claimant relies upon certain opinions formulated by Mr. Roth during his investigation, and contained in his report to the Governor, that other State Police employees were involved to some degree in Trooper Harding's fabrication of the fingerprint evidence in this case. However, as previously decided herein, this Court has determined that any opinions or conclusions formulated by Mr. Roth are inadmissible.

Furthermore, even though claimant intimates that Investigator Allen, as Harding's immediate supervisor, was involved in, or at least aware of, his scheme to fabricate evidence, there is no evidence, beyond the inferences contained in Mr. Roth's report, establishing any such knowledge or involvement. Although numerous other members of the State Police were implicated, charged, and prosecuted as a result of Mr. Roth's investigation, no criminal charges were ever filed against Investigator Allen arising from his actions in this case.

Accordingly, even though claimant wants this Court to ascribe negligence against the State based on inferences and assumptions, no direct evidence has been presented that the defendant knew, or should have known at the time, that Trooper Harding had fabricated evidence against claimant. Similarly, there has been no direct evidence presented by which this Court can conclude that a lack of supervision of Trooper Harding allowed the fabrication of fingerprint evidence to occur in this particular claim.

Therefore, each and every cause of action alleged by claimant, and therefore his claim, must be dismissed.

Even though this claim must be dismissed, such a decision should not be considered justification in any manner whatsoever for the reprehensible conduct of Trooper Harding. His actions can never be condoned in a nation which holds as a basic premise the fair and uniform application of its laws upon all of its citizens. Our citizens must have the utmost faith that those individuals charged with the responsibility of enforcing our laws will do so in a fair and impartial manner. Trooper Harding, and the other officers prosecuted as a result of Mr. Roth's investigation, have understandably severely shaken that faith. That being said, under the particular facts of this claim, and based upon the fact that this Court has found sufficient probable cause for the prosecution of claimant independent of the fabricated evidence, claimant is not entitled to any recovery.

Finally, the Court would be remiss if it did not commend the efforts made by counsel for both parties throughout the prosecution of this claim. In particular, the numerous submissions made to the Court in connection with these motions were extremely well-written, thoroughly researched, and cogently presented.

Based on the foregoing, it is

ORDERED, that claimant's Motion No. M-65785 is hereby DENIED; and it is further

ORDERED, that defendant's Motion No. M-65786 is hereby GRANTED; and it is further

ORDERED, that Claim No. 91731 is hereby DISMISSED.