good morning you may please the court i'm jeff works from rochester this case is the same as the same case that came before you in two thousand and fifteen where you held as the district court held the defendant's absolute immunity is foreclose by your case in hill vs the city of new york in which you said you denied absolute immunity on facts that are materially the same now just to last to who originally made the motion to dismiss the night said well maybe she'll find something in discovery that will bring her back and give her the right to say there's absolute community i submit are facts are you say materially the same that's what this court saddest significantly different aren't they not my view judge no respectfully i mean it wasn't the fact in the hill that was it the fact in hill that there was insufficient information to determine whether there was probable cause for the indictment at the time of the of the subpoenaing of the of the witness into the video granger e testimony that is the read to which they cling in this case that there was probable cause and that that's the distinction that's not a distinction that judge told us to found that is nothing new certainly we knew all that at the beginning of the case what they found alaska found it or not could very well distinction and why isn't it a very important distinction because if it was such i mean let me just put i'm sorry jeff write my question then you can answer it where where a witness who who is the crucial witness to the to the  indictment has informed the the the the government authorities the prosecuting authorities whether it's the police or the a da or or whatever has has given the information that the facts constituting the crime are true  and that and that would be my testimony were i to testify and then the aide takes the next step of bringing that witness before the grand jury to place before the grand jury the already given information the a da in that circumstance is not investigating the a da is performing a court related function a necessary function in order to obtain the indictment the a da has got to get to scott to translate that previously given information into grand jury testimony otherwise there can be no indictment so why isn't that a a very important difference between this case and and and here because if they thought that it was such important compelling probable cause that made the case why didn't they arrest them you know the local court procedure they could have brought him before a local court with a felony complaint they didn't do that instead they felt they needed more they felt they needed probable cause even by their own admission so what they did they employed this procedure under section one ninety point thirty two of the criminal procedure law where you videotape a child who's been known to make certain allegations they felt they needed then they have probable cause then what they did need to have probable cause before the grand jury otherwise it's probable cause to arrest but not probable cause to indict well in other words it's not it's not probable cause presented to the grand jury but it's pretty but that's where they needed the probable cause in order to indict they they went to this procedure in order to get it and they and the matter of fact is the end of the unique facts of this case they didn't get it you know the facts here three times they went and the child said just the opposite of what she was known to have said previously the first time on a friday morning december tenth two thousand and ten the child says i don't you talk about enough nobody did anything to me under one nine hundred thirty two i'm not even sure they have the authority to go back yet this is just in to school turning on her camera and decide to go back that afternoon they again i'm not sure it's permitted but they did it anyway they still get the same answer a week goes by apparently sparks are flying in their office and they get marching orders to go back and do it again as with whether there was probable if what was being sought was a federal indictment instead of a state indictment where in the federal grand juries hearsay evidence is allowed and is generally either the basis of federal indictment s they could have indicted as of the beginning they could indict could have indicted after the child had said several times now no no no no they still have probably cause from what the child had previously said especially i the fact that the child had said something about my dad he told me don't talk about this but they didn't they didn't choose i mean they didn't choose to do that one in three times because if there are no significance to the fact that once the first three times out of the four that she gets if bad information from her point of view from the child is probable cause even there anymore you're saying that because they didn't arrest that means they didn't have probable cause to arrest i'm saying that's what it looks like and they're saying afterwards as a matter of convenience that's why we did it they're saying that now it's not what they said that here they go three times they get bad information there is probable cause anymore the fourth time you know the famous facts or the she doesn't even tell the truth to the child we learned this during discovery she says to the child when there's a knock on the one way window your mom's out there she she admits during my deposition of her that she didn't believe that to be true she just wanted what's the quote to make her feel safe feel comfortable to make her feel safe so she would admit to all of a sudden she's singing like a bird yes my brother did that to me for the first of four times and finally they have the probable cause they need for the first time that's my respectful submission before this court hearing or thank you judge unless there's anything else you that this court can take to affirm judge syracuse's decision below first is the first three all involve absolute immunity the first avenue of absolute immunity which is the shortest path and easiest path to affirm in this case is basically i believe what your honor was addressing with with counsel a moment ago that here because again as this court well knows to apply absolute immunity we have to ascertain was this da acting in an investigative capacity or was she acting in a prosecutorial or advocate of capacity and here briefly the facts were that the child made a report of abuse to a state police investigator that created probable and that's put that aside that's really avenue to the state police concluded their investigation they forwarded the file to the district attorney's office the district attorney himself decided to prosecute  he gave the marching orders so he called into his abs one of which was lindsay can to lone who is two years out of law school who the prosecutors used because she was the only female in the office and they believe that she would have the best reporter to deal with a child and he told those who prosecutors go and prosecute this individual there's unlike hill there's only one individual that the child has ever reported abuse to she had previously reported abuse numerous times not only to the state police but to her mother her grandmother various health care providers so uninterrupted tyler dieter did it unlike hill where the child there said little jesse did it big jessie did it maybe my stepmother did it and then the in the prosecution there said you know i think your biological mother did it and this is what i want you to say and then when the child deviated from that they stopped it and retaped it so hills is as your honor noted substantially different from this case so the first path again to indict even without probable cause and told the assistant district attorney go and get an indictment of that person before probable cause existed that that that the district attorney's decision to indict would mean absolute immunity for the a d a s i do believe it would maybe a different question for the district attorney perhaps but but again in under this court's discussion and analysis in geraldo versus kessler  the court indicated that you know we look at this from the view of a reasonable prosecutor would a reason prosecutor look at what happened and believe that what was going on was invest investigation to determine a perpetrator or investigation to pursue a particularly prosecution and here it was a particularly prosecution the district attorney said you go and indict that individual and again what else would we expect from so you say with if the boss tells you indict that person i don't care how you do it i don't care where you find the evidence just indict that person that what what what what subsequently happens in the effort to find something that would justify the indictment or to fabricate it that  it doesn't already exist that's that's all probable cause protected by absolutely no but that i do respect that's not our case here we didn't have a just what it's what you were just arguing no i think  unclear here what i'm arguing is that again the district attorney you know there was probable cause there was only one suspect identified by the complainant and the district attorney said go prosecute this so if you're looking i'm sorry yes ok thank you state police investigator probably cause therefore rose and therefore you know judge surfaces reasoning is that a particularly prosecution existed at that point because we now have probable cause to arrest in and prosecute this individual unless and just briefly addressing some of the council's points that he addressed with respect to the probable cause issue again he says why didn't they why didn't they arrest him again  and i think he made some comment that you know they knew they needed more i think that speculation is nothing in the record the only evidence in the record is that both the a loan and the state police investigator said we did this to protect a three year old child from having to testify at a felony here and that's why they taped her testimony and that's why they they did this so but many events so that's that's that's that's the second path the third path also through absolute unity address briefly in the papers is judicial stoppel that basically in the criminal case the defense counsel kind of the fence counsels said that what was happening in that room was the equivalent of a grand jury and so we don't believe that  refiled it wasn't so he should count his lucky stars but in any event the his criminal defense attorney did say you know make that statement and we and we think they should not be able to walk away from that and i would like to ask you it seems to me that while the hill case provides a very substantial president that justifies and perhaps requires a firm and sit in this  case i wonder it seems to me to go with respect not to these facts but to other facts to go further than is perhaps justified because if the five percent of the proposition of the hill case was that if probable cause already exists at the time of the questioning in the grand jury then the then the prosecutor's questioning in the grand jury is protected by absolute immunity because he's because the prosecutor is performing a court function and there are certainly a lot of circumstances where that would be true and justifiable and perhaps this case is one of them where what's being done in the grand jury is simply translating into grand jury testimony information that has already been supplied to law enforcement outside the grand jury testimony the prosecutor has no choice to parse uter must make that into grand jury testimony otherwise can't get an indictment so it's a court function inspected by absolute immunity but the proposition that the so called investigative phase and means when there's probable cause or ns when when probable cause is before the grand jury is just contrary to to to reality because very very frequently a prosecutor already has probable cause and so let's say let's say putting it in terms of of closely related to these facts suppose that the the child witnesses grand jury testimony had already been recorded and indeed already presented to the grand jury and then the a da goes further and says well you know i don't want this case to rest solely on the testimony of this child i want to get as much corroboration as i can so issues grand jury subpoenas to all the neighbors for example calling them using subpoena power to get them under oath and get them before the grand jury and asks purely investigative questions did you did you see who did you see going into that house or coming out of that house that day did you see the young child did you see the older brother did you did you when you when you saw the child did you what how did she look when she was leaving the house did she look upset of questions like that are entirely investigative looking to to bolster the the the indictment for which probable cause already exists before the grand jury the way the hill case is framed it seems to say that all of of that investigative questioning before the grand jury after probable cause already exists is protected by absolute immunity does that make sense i think it does your honor and i think that the panel this court in her although also thought the same thing just direct your honour's a page seventeen of my brief and briefly quoted good prosecutors may usually should perform acts recently characterized as investigative at all faces of a criminal proceeding and so there i i think the important point and again i'm going to run out of time momentarily but the important point i think with respect to probable cause and absolute immunity is when we get to the point of we have multiple suspects we're trying to identify a perpetrator and when do we have a particular prosecution and i think that's the distinction made in her although i'm out of time but unless your honour's have colby told you that the players in the original scenario did what they did to protect the child having to testify at the preliminary hearing i think that speculation afterwards i don't think that we conclude that that's why they did it then what the result was instead is they let this kid who they thought sixteen year old kid who they thought was a molester they let him run around for months they didn't arrest him from the time that they had this proceeding a proponent children time at least happened as you have a serious said after the decision to prosecute was made after the session to prosecute yes well they're obviously deciding to prosecute all along but that doesn't mean that they are dip that they gain absolute immunity by doing so the apt they are investigating if you're if unless you're saying as opposed to investigating no they are investigating at that point because prosecution is it is it right that the official decision to prosecute by the d a s office was made before the testimony of the statement was and the interview was conducted are you asking me is there what they did yes i can't see how they could when they have especially after those first three interviews a little girl who is saying tyler didn't do anything so i don't see how they look they couldn't possibly be  six statement a four eighty five you agreed that after deciding to prosecute it was later decided that the child's grand jury testimony would be taped and that it would be presented to the grand jury in lieu of live testimony yes yes i'm afraid i'm stuck with that nonetheless i think that situation when you have three times when a little girl is saying there is nothing that he did to me there is no probable cause and that point and they don't have probable cause until the time the fourth time when she is prompted by her mother knocking on the door to say