Opinion
November 19, 1998
Appeal from the Supreme Court (Dier, J.).
In July 1992, plaintiff resigned from her position as a payroll clerk with defendant's Sheriff's Department effective August 1, 1992. Prior to her departure, plaintiff informed a co-worker, Joanne Murone, that she had deleted the 1991 budget report from the computer system and planned on deleting other files. On July 22, 1992, Murone reported this information to a senior account clerk and plaintiff's computer access code was deactivated by the Deputy Sheriff that same day. The following day, plaintiff was nevertheless observed using the computer in the communications center between 9:30 A.M. and 9:45 A.M. On July 24, 1992, a current purchase order list could not be retrieved from the computer by the senior account clerk. A computer audit revealed that on July 23, 1992 between 9:30 A.M. and 9:42 A.M. someone had accessed the computer from the communications center using Murone's access code and deleted over 100 files.
Upon being asked about the deleted files, plaintiff admitted to the Sheriff that she had used Murone's access code without permission to delete them. She claimed, however, that she did not intentionally delete current files. During the State Police investigation that followed, plaintiff gave a written statement. In this statement, plaintiff indicated that she had been the subject of harassment at work and readily acknowledged that, after being denied access to the computer system, she used Murone's code to delete files in an "attempt to show the department the value of [her] services"
Plaintiff was arrested and charged with a felony count of computer trespass (Penal Law § 156.10) and a misdemeanor count of tampering with public records in the second degree (Penal Law § 175.20). After the felony charge was reduced to a misdemeanor, a jury acquitted her of all charges. Thereafter, she commenced this action alleging false arrest, malicious prosecution and defamation. At issue on appeal is the propriety of Supreme Court's order granting defendant summary judgment.
As relevant here, a person is guilty of computer trespass when he or she knowingly uses a computer without authorization and "thereby knowingly gains access to computer material". (Penal Law § 156.10 [2]). With respect to the tampering with public records count, "[a] person is guilty of tampering with public records in the second degree when, knowing that he [or she] does not have the authority of anyone entitled to grant it, he [or she] knowingly removes * * * any record or other written instrument filed with, deposited in, or otherwise constituting a record of a public office or public servant" (Penal Law § 175.20).
Plaintiff maintains that Supreme Court erred in dismissing her causes of action for malicious prosecution and false arrest. Plaintiff's warrantless arrest gave rise to a presumption that her arrest and imprisonment were unlawful ( see, Broughton v. State of New York, 37 N.Y.2d 451, 458, cert denied sub nom. Schanbarger v. Kellogg, 423 U.S. 929). To defeat the false arrest claim, therefore, defendant had to establish legal justification as an affirmative defense based upon proof that, at the time of the arrest, the State Police possessed probable cause to believe that she committed computer tampering ( see, id.; see also, Yeras v. Truth Verification Corp., 87 A.D.2d 381, 384, affd on opn below 57 N.Y.2d 947). Since the lack of probable cause is also an essential element of malicious prosecution, the dispositive issue on appeal is whether there was probable cause, as a matter of law, to arrest plaintiff ( see, Stratton v. City of Albany, 204 A.D.2d 924, 925; Navarro v. Federal Paper Rd. Co., 185 A.D.2d 590, 591). The existence of probable cause can be decided as a matter of law "where there is no real dispute as to the facts or the proper inferences to be drawn from such facts" ( Parkin v. Cornell Univ., 78 N.Y.2d 523, 529). Probable cause is defined as "`such grounds as would induce an ordinarily prudent and cautious person, under the circumstances, to believe that plaintiff had committed the [crime]'" ( Stratton v. City of Albany, supra, at 925, quoting Smith v. County of Nassau, 34 N.Y.2d 18, 25).
Here, the unrefuted evidence in the record, including plaintiff's own admissions and the statements of her coworkers, supports a finding that a reasonable person would have believed that plaintiff had committed the crimes for which she was arrested. Accordingly, we agree with Supreme Court that at the time of the arrest, the State Police, as a matter of law, had probable cause "because there is no real dispute as to the essential facts underlying the arrest or the proper inferences to be drawn from those facts" ( Stratton v. City of Albany, supra, at 926 [emphasis in original]).
Even if one were to assume the existence of a question of fact on the issue of probable cause, we would still conclude that the false arrest and malicious prosecution claims were properly dismissed. In order to establish a cause of action for false arrest, a plaintiff must show that the defendant intended to confine her and, with respect to malicious prosecution, that the defendant initiated the criminal proceeding ( see, Broughton v. State of New York, 37 N.Y.2d 451, 456-457, supra). Plaintiff maintains that defendant solicited the State Police to act as its "agent" in her confinement and prosecution. However, there is no evidence that any employees of defendant confined plaintiff ( see, Carrington v. City of New York, 201 A.D.2d 525, 526-527), and the mere reporting of an alleged crime to police or providing them with truthful information is insufficient to establish that defendant "importuned" the authorities to act as required for a cause of action in malicious prosecution ( see, Celnick v. Freitag, 242 A.D.2d 436, 437; DeFilippo v. County of Nassau, 183 A.D.2d 695, 696). Here, the unrefuted evidence reveals that the State Police, after an independent investigation, confined and arrested plaintiff. Plaintiff has offered no substantive proof to the contrary (despite several years of opportunity for discovery).
Finally, Supreme Court correctly dismissed plaintiff's defamation claim based upon a press release issued by defendant reporting plaintiff's arrest. As noted by Supreme Court, truth constitutes a complete defense to such a claim ( see, Jung Hee Lee Han v. State of New York, 186 A.D.2d 536, 537; see also, Schwartzberg v. Mongiardo, 113 A.D.2d 172, 174, lv denied 68 N.Y.2d 602). Although plaintiff disputes the truth of the statement in the press release that "discrepancies" were found in the coarse of the computer audit, she herself conceded in her statement to the State Police that she deleted important 1992 budgetary files, albeit in "error". Since there is no substantive factual dispute that all statements made in the press release were true, plaintiff's defamation cause of action was also properly dismissed.
Cardona, P. J., Mikoll, Crew III and White, JJ., concur.
Ordered that the order is affirmed, without costs.