Grucci v. Grucci, 20 N.Y.3d 893 (2012)

In a malicious prosecution claim, the plaintiff must demonstrate that the defendant commenced or continued the underlying criminal proceeding, and a jury finding that the defendant did not initiate the prosecution precludes a finding of malicious prosecution.

Summary

Michael Grucci sued his ex-wife, Christine, for malicious prosecution after he was acquitted of criminal contempt charges stemming from alleged violations of an order of protection. Michael claimed Christine initiated the criminal proceedings maliciously. At trial, the court excluded certain evidence, including an audiotape and testimony concerning Christine’s statements. The jury found that Christine did not initiate the criminal prosecution. The New York Court of Appeals affirmed, holding that the jury’s finding that Christine did not initiate the criminal proceeding was supported by the evidence, and the evidentiary rulings did not warrant reversal because the excluded evidence was not relevant to the initiation issue.

Facts

Michael and Christine Grucci divorced in 1998. Michael was later charged with harassing Christine, leading to a protective order. He was subsequently accused of violating the order and indicted on criminal contempt charges for allegedly placing Christine in fear of death or injury by telephone and harassing her with repeated calls. Michael was acquitted after a bench trial where the court found Christine’s testimony not credible. Michael then sued Christine for malicious prosecution.

Procedural History

The County Court acquitted Michael of the criminal contempt charges. Michael then sued Christine for malicious prosecution in the trial court. The trial court entered judgment dismissing Michael’s complaint based on the jury’s finding that Christine did not initiate the criminal prosecution. The Appellate Division affirmed the trial court’s decision. The New York Court of Appeals granted Michael permission to appeal and affirmed the Appellate Division’s order.

Issue(s)

Whether the trial court committed reversible error by (1) refusing to admit an audiotape of a conversation between Christine and Michael’s brother, Anthony, (2) excluding testimony from Anthony regarding Christine’s state of mind during that conversation, (3) denying the admission of grand jury testimony, and (4) preventing testimony that Christine lied to obtain the order of protection, and whether the jury’s verdict that Christine did not initiate the criminal proceeding was supported by sufficient evidence.

Holding

No, because (1) Michael failed to properly authenticate the audiotape; (2) Michael failed to properly argue the admissibility of Anthony’s testimony regarding Christine’s statements as admissions of a party opponent, and the omission of the testimony was not crucial; and (3) the trial court permitted Michael’s attorney to freely use Christine’s prior testimony to impeach her. Yes, because the assistant district attorney testified that the decision to prosecute rested with the District Attorney’s office, and there was sufficient evidence to support the jury’s verdict that Christine did not initiate the contempt proceeding.

Court’s Reasoning

The Court of Appeals held that the trial court did not abuse its discretion in excluding the audiotape because Michael failed to provide clear and convincing proof of its genuineness and that it had not been altered, as required by People v. Ely, 68 N.Y.2d 520 (1986) (“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”). The court noted the absence of proof regarding who recorded the conversation, how it was recorded, or the chain of custody. The court also found that while Christine’s alleged statements to Anthony could have been admissible as admissions of a party opponent, Michael’s attorney never made that argument to the judge. Regarding the grand jury testimony, the court noted that Michael’s attorney was permitted to use Christine’s prior testimony to impeach her. The court found sufficient evidence to support the jury’s verdict that Christine did not initiate the contempt proceeding, noting the assistant district attorney’s testimony that the decision to prosecute rested with the District Attorney’s office and not the complainant. The court cited Colon v. City of New York, 60 N.Y.2d 78, 82-83 (1983) regarding the presumption of probable cause in cases with a grand jury indictment, which requires the plaintiff to prove that the indictment was procured by fraud, perjury, or other bad-faith conduct.