(concurring):
I concur in the result reached by the majority, but I would like to add a few words on the issue of favorable termination. A careful review of the record reveals that none of the participants in the trial below focused on this requirement in a state law malicious prosecution action. As the majority persuasively demonstrates, the stipulation went only so far as agreeing to the fact *1024of termination, not the circumstances of it, see supra at 1020. Therefore, a remand is not an inappropriate disposition.
I am troubled, however, by the majority’s willingness to decide that as a matter of law, the proof presented at trial was insufficient. We should not so easily erect barriers to plaintiffs who seek to recover for injuries that result from police misconduct, particularly when the exclusionary rule, the only other major common law principle for controlling the police, is undergoing a slow erosion. There is not much doubt in this case that Officer Cichocki decided to pay unusual attention to the Russo family in a way that is inconsistent with our notions of appropriate police behavior. The evidence presented at trial tended to show that Cichocki had prosecuted Mrs. Russo for writing checks on insufficient funds; he prosecuted one of Russo’s daughters for criminal mischief for smoking in the restroom of a supermarket while another girl was setting some toilet paper on fire; although Cichocki was involved with an accident on a road, he stopped what he was doing when he happened to notice Russo sitting in a van at a side street, simply to determine if Russo was driving without a license; he had heated exchanges with Russo’s family in their homes, and was heard to promise that he would “dig and dig and dig until he came up with something” on Russo. Of course the jury did not have to believe all this evidence, but they clearly believed enough of it to conclude that Cichocki had prosecuted Russo with malice.
I do not think that in order to prevail, Russo must prove what the state judge was thinking when he dismissed the malicious prosecution action. A much less stringent showing is all that is needed under New York law, Loeb v. Teitelbaum, 77 A.D.2d 92, 432 N.Y.S.2d 487, 493 (2d Dep’t 1980) (“the voluntary abandonment of the prosecution by the People ... is ... a termination of the prosecution favorable to the accused,” citing Reit v. Meyer, 160 A.D. 752, 146 N.Y.S. 75 (1914)). If Russo can show that Cichocki was correct when he hypothesized that the prosecution was abandoned because Lostraglio left town, then the jury could correctly decide that the state dropped the prosecution for total failure of proof. Such a failure should suffice to support a recovery in malicious prosecution. Singleton v. City of New York, 632 F.2d 185 (2d Cir. 1980), cert. denied, 450 U.S. 920, 101 S.Ct. 1368, 67 L.Ed.2d 347 (1981), cited by appellant, is not on point. In that case, prosecution was terminated under N.Y.C. P.L. § 170.55 as an adjournment in contemplation of dismissal. As we stated in Singleton, 632 F.2d at 194:
Section 170.55 creates a procedure not unlike probation, designed as a “special break, given usually to first offenders.” Kenul v. Hollander, 86 Misc.2d 466, 382 N.Y.S.2d 650 (Dist.Ct. Nassau County 1976).... It is a period of observation, during which time the defendant’s behavior may be observed to determine whether the prosecutor’s acquiescence in the adjournment was justified.
In contrast to the conditional dismissal of § 170.55, dismissal here was independent of Russo’s future behavior.
The New York rule, as typified by the paragraph from Halberstadt v. New York Life Insurance Co., 194 N.Y. 1, 10-11, 86 N.E. 801 (1909), cited by the majority, supra at 1019, sets up two categories of cases: those that terminate through some action attributable to the plaintiff in the malicious prosecution action, and those that terminate in some other manner. I would hold that so long as Russo can show that he did not procure the absence of his brother-in-law, the state’s decision to abandon the prosecution falls within the latter category. After all, Lostraglio’s testimony could have been obtained by deposing him at his new home. The state should not be allowed to protect its errant police officers by the simple expedient of ending legal actions aimed at harassment just before the court officially decrees that, indeed, the action had no merit.