Grucci v. Grucci

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs.

Plaintiff Michael Grucci (Michael) and defendant Christine Grucci (Christine) were married in 1988 and had two children. In 1998, Christine sued Michael for divorce. A few months later, Michael was charged with harassing Christine, and the District Court issued an order of protection directing him to stay away from her. In January 2000, Michael was accused of violating the order. The matter was presented to a grand jury, which returned an indictment charging Michael with two counts of first-degree criminal contempt for placing Christine in fear of death or injury by telephone, and harassing her by repeated telephone calls with no purpose of legitimate communication (Penal Law § 215.51 [b] [iii], [iv], respectively). After a bench trial in August 2001, County Court acquitted Michael. The court concluded that Christine’s testimony was not credible because of “discrepancies]” in the way she described Michael’s alleged threat to the police, the grand jury and at trial. In March 2002, Michael brought this civil action against Christine to recover damages for malicious prosecution.

At trial in December 2008, Michael sought, through the testimony of his brother, Anthony Grucci (Anthony), to play for the jury an audiotape of a telephone conversation in which Christine purportedly made clear to Anthony, at some point after she went to the police, that she was not afraid of Michael. Christine’s attorney successfully objected to admission of the audiotape, and to Anthony’s testimony about what Christine said during the telephone conversation. After the close of evidence, the judge charged the jury as to the elements required to establish malicious prosecution, which are that the defendant commenced or continued a criminal proceeding against the plaintiff; that the prosecution terminated in plaintiffs favor; the absence of probable cause; and actual malice (Smith-Hunter v Harvey, 95 NY2d 191, 195 [2000]). The court instructed the jurors that “[t]he first question for you to decide is whether [Christine] initiated the criminal prosecution” and “[i]f you find [that Christine was] not responsible for [initiating] the prosecution, you will find for [her] and you will proceed no further” (emphasis added); and additionally, if Christine “directed the District Attorney to prosecute or gave the District Attorney information that [she] knew to be false, [she was] responsible for prosecution.”* The jury concluded that Christine did not initiate the prosecution, and, as instructed, did not consider the other elements of malicious prosecution. Accordingly, the trial judge entered judgment dismissing the complaint.

Upon Michael’s appeal, the Appellate Division affirmed (81 AD3d 776 [2d Dept 2011]). The Court determined that “because the jury found that [Christine] did not initiate the underlying criminal proceeding . . . and the excluded evidence was not relevant to that issue, but only to the issue of [her] malice, [Michael] was not prejudiced by any error the trial court may have committed” in making the complained-of rulings (id. at 777). We subsequently granted Michael permission to appeal (17 NY3d 704 [2011]), and now affirm.

Michael claims that the trial judge made critical evidentiary errors warranting reversal and a new trial; namely, refusing to permit Anthony to authenticate the audiotape of the telephone conversation; excluding from evidence, as inadmissible hearsay, statements that Christine made to Anthony during the telephone conversation, which were supposedly offered only to show her state of mind; denying Michael’s application to have the transcript of the grand jury testimony placed into evidence; and preventing testimony allegedly showing that Christine lied to obtain the order of protection. First, while a party to a taped conversation can identify the speakers, “identity and authenticity are separate facets of the required foundation, both of which must be established” (People v Ely, 68 NY2d 520, 528 [1986]). Here, Michael’s attorney sought to play the audiotape during Anthony’s testimony “as part of [his] presentation of [the telephone] conversation” with Christine that Anthony was recounting. Christine’s attorney objected to the audiotape’s admission on the grounds it was unreliable, “pieced together from a number of things” and “unintelligible”; that no chain of custody had been established; and generally that “no foundation [had been] laid for it at [that] point.” In response, Michael’s attorney offered only to have Anthony identify the voices on the tape and state “whether or not the tape recording [was] fair and accurate.” When the judge asked if the tape had been authenticated, Michael’s attorney responded, “Not yet; this witness will authenticate.” The judge then sustained the objection, and Michael’s attorney stated that he had no further questions for Anthony.

“ The predicate for admission of tape recordings in evidence is clear and convincing proof that the tapes are genuine and that they have not been altered” (id. at 522). Here, there was no attempt to offer proof about who recorded the conversation, how it was recorded (e.g., the equipment used) or the chain of custody during the nearly nine years that elapsed between early 2000, when the conversation allegedly took place, and the trial in late 2008. Given the facts and circumstances of this case, the judge did not abuse his discretion by requiring more than Anthony’s representation that the tape was “fair and accurate” to establish a sufficient “predicate” before playing the tape for the jury.

With respect to Michael’s protests that the trial judge “repeatedly” sustained improper hearsay objections during Anthony’s testimony, he cites only one example: Anthony was asked, essentially, what Christine said on the audiotape. Although Michael argues that Christine’s alleged statements were being offered to prove her state of mind (i.e., malice) rather than for their truth, he wanted Anthony to testify that Christine told him she was not afraid of Michael and that she expressed an alternative motive for going to the police in order to show that Christine lied to the authorities. For this tactic to work, Michael would have to ask the jury to believe that Christine’s alleged, statements to Anthony were, in fact, true. While Christine’s statements were admissible as admissions of a party opponent, Michael never made this argument to the judge. Additionally, we cannot say that omission of this testimony was so crucial with respect to the issue of whether Christine initiated the prosecution as to require a new trial.

Next, in cases in which the grand jury has returned an indictment, there is a presumption of probable cause, and the plaintiff can therefore only succeed on a malicious prosecution claim if he can prove that the indictment was procured by fraud, perjury, suppression of evidence, or other bad-faith conduct (Colon v City of New York, 60 NY2d 78, 82-83 [1983]). While Michael argues that review of the grand jury and criminal trial transcripts by the jury would have strengthened his argument that Christine lied to the grand jury, the trial judge permitted Michael’s attorney to freely use Christine’s prior testimony to impeach her on cross-examination, and allowed him to quote from it during summation. The judge similarly acted within his discretion when he excluded testimony allegedly proving that Christine fabricated the incident that led to the order of protection. Notably, Michael did not dispute these facts when the order was issued.

Michael called the assistant district attorney (ADA) responsible for prosecuting the contempt charges, who testified that a standing policy removed any discretion as to whether to make an arrest when the police determined, after investigation, that an incident of domestic violence had occurred; that the ADA, after consultation with his supervisor, made the decision to present a case to the grand jury and, after indictment, proceed to trial; that “it was never up to a complainant or victim . . . whether or not to go forward” because “the ultimate decision on whether to prosecute a case or not falls on the District Attorney[’s] office”; and that he remembered that Christine was “just a nice believable lady who presented well, with kids, had marital problems, and of the thousands of cases that [he] prosecuted, that’s all [he could] remember [from] 8 years ago.” In short, there was sufficient evidence to support the jury’s verdict that Christine did not initiate the contempt proceeding.

* We have never elaborated on how a plaintiff in a malicious prosecution case demonstrates that the defendant commenced or continued the underlying criminal proceeding. The dissent points to Hopkinson v Lehigh Val. R.R. Co. (249 NY 296 [1928]) for an explanation of the “commencement” element of a malicious prosecution claim (see dissenting op at 901-903). In Hopkinson, however, we discussed a plaintiff’s burden with respect to establishing the absence of probable cause—a separate element of malicious prosecution which is not at issue in this case—and did not mention commencement. Although the dissent argues that the elements of malicious prosecution cannot be easily disentangled (id. at 902-903), the trial judge instructed the jury to consider each element separately. For purposes of this appeal, we presume that the judge’s uncontested instructions correctly stated the law.