and whatever issues there were with respect to larry's performance under this contract should have been litigated in the civil arena not in the criminal court system in new york now if we step back on to denote a review and look at this evidence in a fresh li this record there is absolutely no evidence of any theft or fraud or intent to defraud and in fact the grand larceny charges fail as a matter of law to specific rooms one there is no intent here in the record anywhere no criminal intent to there's no reminds the office conducted an investigation in view with mrs made a decision to poseur has committed a malicious prosecution and i just want to quote it exactly for the record generally quote generally in malicious prosecution actions alleging that a police officer provided false information to a prosecutor what prosecutors do subsequently has no effect whatsoever on the police officers initial potentially tortious behavior think that's the key issue i mean even if we assume i would really i'm inclined the motivating factor to the prosecutor in bringing the prosecution and that's where i think you've got hers ok but we would agree just as a general proposition we stored with the idea that causation is generally an issue fact for the can find right now this court in rentis deerbrook roughen this spring addressed almost an identical issue which is whether or not accord properly granted summary judgment on malicious prosecution on the ground that the da conducted a so called independent investigation the district court said yes this is independent and threw out the malicious prosecution claim this court reversed and said there were issues of fact that on the record it wasn't clear whether or not this is truly an independent investigation whether or not it was tainted by some false information and here we have powerful evidence in the record that a deer russo was not acting independently she said she was reluctant to do it she said it wasn't fair play it was outside her comfort zone shafter recommended it she followed it a reasonable jury could make the same conclusion but it was still her choice she made th decision she might have been uncomfortable but she me the decision was for us about he gave his opinion to her that you should do this she was reluctant but she did it well the difference is this is unlike a typical nine hundred eighty three case where there's a handoff between the police officer they hand off the case to the d a s office and they run with it hear the defendant shout for state actively involved for two and a half years in this investigation and like judge rico found in by case which we cite in the brief that the inspector general's office in that case was sufficiently involved over a long period of time that a reasonable jury could conclude that there was in fact causation and we must also posit your honour's that causation there doesn't have to be a sole proximate cause it could be more than one proximate causes discord set in hydroelectric power strip over what is the false information  because it's a it's a fact that motivates that moves a prosecution forward from the round of a simple breach of contract into knowing full sit and here again and this is so lame when she did her investigation function of a screening prosecutor in relation to malicious prosecution claim the prosecution's actions do not supersede the complaining officer's actions they only determine whether the officer's actions  disagrees with me that this is an independent decision despite all the evidence that we we corralled also in the conspiracy section we put all the evidence together how they were working together over two years but assume the court disagrees but that would not be a defense to go forward the judge threw out the fair trial claim one on grounds that don't stand up for example the judge found that the chapter never testified therefore that couldn't be a fair trial claim multiple district courts have rejected their the false information is transmitted that the material right it's due to the prosecutor to go forward with the case but who makes that decision the judge or the jury question on this record two and a half years of involvement where and remember this is coming from the inspector general's office the in house police department of port authority this man's walking over to the d a and saying these guys stole a lot of money from us this court has recognized in the past or over live filippi that comes from a state official making representations in fact one hundred fifty thousand dollars was paid for but it was never purchased but at the critical point is it with this is the end of it it's not as if it was a crazy theory of then it becomes the question of intent but as a factual matter there there there was and for the right we have to be clear the overbuilding is the difference in the value of services between using new equipment versus the value of services using the older equipment the port authority did not own this apartment it was not a sale the quitman at the end of the contract to quicken goes by it already was paying for new whitman and it never knew they were paying for services which they said were quote very good in code and very impressive so good your honor that they actually renew the contract after three years even after they learned about the breach which is so they couldn't be reminds you were with me even if the new equipment would have meant better services they paid extra based on you with that really i would respectfully disagree it's a lump sum contract there's no line item in any invoice talking about a footman they were getting paid roughly six hundred thousand dollars a year a month it's a twenty six million dollars contract this these are two pieces of equipment out of fourteen out of sixteen that were not purchased but they were paid for cleaning services that's at the end of the day the critical point if there is a problem here the problem is a breach of contract what grand jury indictments in the law of new york as the court of appeals of the state if you are found to colon versus city of new york is that a grand jury indictment creates a presumption a probable cause which i'm sure this court  very well because they adopt this standard in rustin versus carrier and that presumption can only be rebutted if you show that there was fraud perjury suppression of evidence or some other bad conduct on the part of the police officer or in this case the investigator so the state of the state court judge who dismissed the indictment the second time talked about prosecutorial misconduct  conduct that judged by bell referred to in his decision by the prosecutors he clearly stated it did not rise to the level of misconduct such as would support vacating the grand jury indictment he's he's reflect his decision reflected a struggle about that and the district court judge here on what a written an excellent opinion but said i believe that he was discounting or ignoring that his statements because it was hearsay about the record reflects the prosecutor's activities in fashion for witnesses and other conduct that the state court judge called out so i'm a little concerned that judge connell may not have taken full was pursued in that that's true but judge why bell was very clear that the the the prosecutorial errors did not rise to the level of misconduct such as that he would set aside the decision his decision to set aside the first grand jury indictment and it was only set aside against patroclus it was not set aside against her and the second grand jury indictment which was set aside against both he talks about errors and he talks about vouching he talks about being prior bad acts related to the health care but he's distinctly says this does not rise to the level of this conduct such as would set aside   even putting aside the prosecutors company well that there are decisions saying we don't go behind the motive if there is sufficient evidence to support the investigation is that the investigator and there's been no showing here i think exhaustive perhaps your honor pieces of equipment that that statement he durant three things three three little things that the plane has said that chapter did one is chapter stated that he was invent that he found that laura was overbilling the port authority which present at meetings with the port authority that's in the second grand jury proceeding when they discussed how the costs were being allocated and that the equipment was part of the what they were paying for when they were paying the per man hour grand jury what he said to the second major he was the power to be was a hands on person that he was involved in every aspect of the case and made major decision i mean major decisions for the company that's what he told the second  schaffel never testified to the first injury or the second century so that piece of information never got to the grand jury wasn't part of their decision to indict and lawyer present to rebut it there's no have it in that statement that opinion by schaffel or had any influence on india rizzo who did her own investigation and testified she had her own investigation for more than a year encouraged her to continue with the investigation she never said that you are there so few pixels to use dr b m incessantly for two years he's going after get this guy he's got a vendetta he's not letting up on here and he's persistent couldn't have a reasonable jury concluded he kept there's no evidence that he got to her she never said that he got to remember your honor  lists cussing his poor authority can't tax he's talking about his person at the port authority who nobody knew and that's what chafee began to investigate who did he have at the port authority was there some over billion the contract that was the and his mother who were not employees of the company onto the health care plan and they were looking into potential health care fraud they didn't indict him for that they didn't prosecute him for that but it was an investigation and i know of no case it says you have a constitutional right not to be investigated for possible improper conduct if there are some facts that would support that investigation the only indictment here the only prosecution was with respect to the overbilling of port authority and you simply proof to support that they built thirty six times over the course of the two years they were paid in those bills those bills thousand dollars for equipment that they never purchased the billick that it was to provide services using new equipment and the seventy six cent component i believe was incorporated into the overall bill it's not like it was a line item that was blatantly false is not correct well as part of the contract after they submitted their initial proposal which incidently later said was reviewed by batouti of the port authority came back to them and asked them to give a breakdown of the dollar amounts that they were going to be charging and in that breakdown it clearly says that seventy six cents is for equipment and mr virtually admitted that his deposition that he partially understood that it was for equipment and asking on the individual bills was there a line item that said no taxes for you know you your own is correct on the individual bills there was no line item it was just a monthly bill for services to the two of over a year over six hundred thousand dollars it was a twenty four million dollar contract and while this may have been a small part of the contract it was nonetheless significant the two pieces of equipment both of which exceeded fifty thousand dollars were not purchased which meant they could breach of contract claim that it's a little hard to get to three there was a meeting with the port authority because they were cutting back on the hours for a little and that they talked about the issue of bond how the impact of them adversely because they had fixed costs in their hourly rate so cutting back hours would adversely impact and then they talked about and this is what he testified to in the second painter proceeding that particularly in new that the equipment was part of the fixed costs for which he was billing on an hourly basis and he knew because it was in the prior contract the knowledge of whatever but firm and somewhere in the contract that's entirely separate from fraudulent intent and now having heard my adversary argue we still have not heard any evidence that supports that i want to also clarify that  are first he got the wiretaps and then he continued this investigation not true the record is quite the opposite he went in may of two thousand and seven he admitted at his deposition he had no evidence whatsoever at that time  overbilling he did not receive the wire taps into late fall six or seven months later at the end of the year he did not have those wiretaps he brought this investigation to the d a s office and retroactively is trying to use the word justification with respect to the grand jury why do you think he was and what was his movie a bigger fish to fry he was trying to get charles gargano who was vice chairman of the port authority he thought my guy had information quote he can quote lead us to other areas in quote so this is in the record he had a motive to do it looked to be a was it was easy to roll on for this breach of contract pressure him to spill the beans of what he thought he knew  two separate occasions for lack of still legal sufficiency why then inside we give rise to any presumption one court has found that it shouldn't that's the cuts case which we cite which we think is compelling reasoning if you can't make out a prime aphasia case even viewing the evidence most favorably to the people at the stage of a grand jury then why should that dismissed indictment turn around and create a presumption of probable cause but assuming it does there's a brand new court of appeals case that came out after judge total made his decision he didn't have the benefit of this but it's a very important case thirty years have passed until the court of appeals spoke again what does it take to overcome the presumption and the court expanded and broadened the grand jury presumption and laid out two standards that are that are very important i just want to put it put it on the record if we could one way of overcoming the presumption according to the lords taurus's the new case is a plaintiff shows quote the evidence of guilt for a large upon by the defendant was so skint that the prosecution was entirely baseless and maliciously instituted here it was so skinny the criminal court judge threw it out choice he call just one clarification at this point as far as i can tell from your briefs you're only proceeding against schaffel that's correct look i think you will reserve decision