honors the poet in this case asked the court to reverse the two two court decisions of the corporal's holding that the defendant officers were entitled to all fight immunity for a trespass arrest which occurred on property open to the public where he understood that he had not been told he could not be present and the court billows holding that plaintive cannot establish a favorable terminations as part of his malicious part of a prosecution cause of action where his underlying criminal charges prong mr russell's terminations was not inconsistent with his innocence the second time problem is a final germination such that it cannot be brought again now at the moment of dismissal in this particular case not talking about this case i'm talking about an it's not barred from reprosecute however once the speedy trial clock begins to turn or has run as it did in this case actually at the time of dismissal that is a bar i think this court has continuously held that where there's a non final terminations plus  the court recognize that a terminations can be considered favorable even of the prosecutor is theoretically capable of resurrecting a car the prosecution and to adopt the right line would mean that the malicious prosecution claims often could not be brought in cases where kno can cancel you know and at one point under the make four decision the dismissal of the interest of justice was not considered to be a favorable germination however following smith hunter the court of appeal said it was and i think the rule for when a case is favorable shifted significantly from that phone to smith hunter under the the standard so i think we have to really reevaluate the standard and ask is a for militias a why is this a favorable terminations because it's right there wasn't really a decision on the merits because it was without prejudice because under smith hunter the court of appeals in new york state and again to cancel leno specifically said that you do not need a determination on the merits what you need  determination that's not inconsistent with the innocence of the accused thereby shifting the test from the mic form decision where they held that you had to have a german nation on the merits to one that is not required but has guy was simply sitting on a park bench i want to know what the officers knew and and when they when they when they made the request the officers knew that this was a public campus a public office park was open your tell me everything that they knew also that they knew that there was a letter written there was a red letter in all mr in there that a couple days before and been told that he was he was not not welcome there but that doesn't get them over the threshold you want to because new york law is very specific to new york legislator made a very specific legislature intended was communication to the person who is actually being told it can't be pres what's the burden on the officers impossible is it not it is not there are cases where the where the the officer observes a person being told t of qualified immunity and that it had and they had gotten information from from the company that is or from from the journal news this guy was not welcome there they knew about the letter that had written and explained it to him before they peace officers what the score seven ackerson is that from a even from a police officers point of view that where the actions being attributed to the point of don't establish the elements of the crime there's no qualified immunity i think that's the case here because once it was  p knows it's not an office park that the a ploy the my kind of his employer the showing he worked a stone's throw from where he was sitting prominently displayed and the officers the information provided to the officers to the t had written a letter to his attorney there was no evidence that he had been personally communicated to and to the extent that the court applied the collective doctorate a collective doctrine to it to find out based on a  information that was conveyed from mr placement to mr to to mr de vito the nine one one operator namely that mr russell is critical told not to come back but really the officers had more specific knowledge that what he meant course i think podium there's a switch over on the podium that lowers that and that's a lot easier for us vertically challenged may it please the court my name is steve harvey and i represent the municipal defendants in this case judge cybill got the both of these issues correct i'll start with the qualified immunity analysis quite frankly i think that that there's actual actual probable cause to have a rest mr russell but there certainly are you will probably cause so what what's the standard we have to look at whether it was objective lee reasonable for officer the lawyer to arrest mr russell for trial for a for a trespass or would reason a law for years reasonably when officers reasonably disagree as to whether or not there is probable cause that's is private property it may be open to somebody but it is private property and under new york state law if you you can be arrested for trespass to private property if you have essentially knowledge that you know are not permitted on the the tenants have the same possessory rights as a landlord unless the landlord has provides otherwise there's no evidence to the to anything to the contrary and the fact of the matter is let's look at it the officers could have reasonably believe that they have the right absolutely to especially when the bench located i mean let's like we keep this within context the benchers up against the virtual up against the door where employees of the journal news come in and out this this is it mr russell wasn't there just you know enjoying a beautiful day eating his lunch he had just finished a absence of direct notice to him ok so the question are becomes me letters to his lawyer apparently there was a letter sent to his lawyer i don't know what but the evidence is about the receipt of a letter by the where it was emailed there's an e mail receipt that shows his lawyer received it ok ok so the answer becomes and then the question is do the work communicate or worse is that it is just the letter of the orders right now is it reasonable for a police officer to believe that that satisfies the communication requirement for a trespass violation of course  was a day before it was marked in what's known as the red book which is basically when the patrol supervisor is reading off potential issues it's in the book anita and i blew detective sergeant deathless indicated that he had read it as his practice to read all of what's contained in the red at that point in time is completely reasonable first of lawyers we impute knowledge to clients from lawyers actions all the time and just as you said before in the under the plate this theory the police officers in a quagmire because he can't communicate with with he can't communicate directly with mr russell has to go through his lawyer because he knows he's represented so that women in a work in a sense that you could never have a trespass unless the police officer actually visually saw the person trespass if they're represented by counsel i'm not sure that's the policy decision that we necessarily want to make and put police officers into that position it doesn't make it it doesn't make any sense and it kind of guts it got it got probably got to the concept of qualified immunity we not necessarily the most artfully drafted issue to opinion on this particular issue but the fact of the matter is that what it does say is that a dismissal for facial of itself doesn't necessarily arise to a favorable terminations so the question at their hand we're dealing with is what happens when a thirty thirty necessarily arises for thirty thirty violations i do not believe that to be correct i think it's a misunderstanding of the new york criminal procedure law and then even ran afterwards it ran after some time so the question then becomes when the when does that for the purposes of a favorable terminations when does that trigger when does that arise rise when the complaint was dismissed with pred without with leave to refile that's when it arises that's when the court has that's what the court has to focus on the action taken by the or at that particular time we don't have a again you know dismissed without prejudice is not a real term nation that's the point that's pretty clear but then the question is what happens when you have a wrinkle such as running at  the problem with a judge walker is that you have not even a thirty not every thirty thirty dismissal constitutes a fable terminations the cases that have allowed for for thirty thirty cases to a constant if able to measure were all after lengthy prosecutions in other words plaintiff get the plate of got arrested he was charged and thirty thirty unlike the federal speedy trial clock has very hard deadlines and the put the people the prosecution didn't meet those deadlines you can't distinction here at some point a clock expire and it could well rot or are there exceptions there are exceptions and it's there is the plaintiff's statement that it's undisputed the thirty thirty bar that close i think flies in the face of of the statute itself i don't i think that there is more that the rule has more exemptions or some sort of interest of justice or some there or there are numbers there are a number of state of subsections of thirty thirty the my view you get a thirty thirty dismissal with an order it's it's with with prejudice they can't we commence the prosecution are exceptions to them so it didn't if this had been a thirty thirty dismissal with print which would be with prejudice if there had been an order we would write from the court then we would be having we would not be having this we'd be having a different discussion as to whether or not that the the evidence of the bases for the thirty thirty dismissal laws consistent with innocence as opposed as opposed to  time and then the people abandoned that because they couldn't they couldn't prove their case this was a this was a local village justice dismissing the case because he believed that it had been pled correctly and giving the prosecution leave to refile thank you and mr joseph will give you plenty of time for a bottle sometimes we have a short calendar today so we're not continues to be even after smith hunter as judge walker said which is that a facial insufficiency terminations by itself if it's not you know if it's without prejudice and with leave to refile which is this clearly was the court for us at the  criminal court said it two or three times and in fact the eighty eight made sure that the court said it so there was no question that there was actually an abandonment here is there anything that gives us guidance on the situation we are in and no one side is saying well we look at it only at the moment that the dismissal occurs and see what the status was there wasn't refile a full two minutes later or an hour later well i think i think there's a couple of things one is smyth informal abandonment procedure gets adopted that is at some point you can deem the court to they deem the prosecution to have been abandoned and so i think i think it is i think the fair reading of some if hunter would have to we have to you know no i understand that but i think the i think the other source of guidance for this court is the fact that the new york court of appeals has repeatedly said that the public policy of new york disfavors malicious prosecution claims it's call that a heavy quote unquote heavy burden for plaintiffs and i think that for it certainly this would be an area because of that public policy where argue with getting guidance on this this question but i think the court frankly i think court has sufficient guidance from the tenor of the opinions to you know think that six months later the new york court of appeals is going to come down and say we're wrong dismiss one was for insufficiency one was for speedy trial at least two where they may have been a map annoying and chalk or rule based on sufficiency and didn't address the speedy trial that's correct i would suggest that it was really time barred at that point or the speedy trial clock board at that point is difficult and that's going to be a difficult question remains and for joe cybill to determine if the court determines that you know decides that she has to do that and i think just to finish up that is that sort of collateral litigation of the criminal suit is one of the things that new york typically has tried to avoid in crafting its malicious prosecution and that i will thank the court what the court said in council on it was that we're going to look at malicious prosecution cases on a case by case basis specifically and i think when you look at the tests which were not seated at all smith hunter is there anything in the ratner that tells which dismissed the thing then the court dismissed the case based on facial insufficiency and then it and then mr russell's criminal defense attorney still continued to argue the judge essentially said i'm not getting into the merits so much but on this record is there a favorable terminations in the sense that there is a terminations for speedy trial purposes there is the there's not a there's not a court order complaint decisions by steve trial right but so let me ask you this it seems to me that the court if i am i am understanding the record correctly that the trial court in the state proceeding that issue and didn't deal with it one way or the other i think it given even given the defense the most favorable viewpoint in this time the speedy trial time is thirty days once thirty days a lobster's from the date of a non non final dismissal it becomes final the operation of new york's speedy trial because any it's as the courts i think and don't know any attempt to reap ringgit at this point would necessarily be futile because would be automatically dismissed and there's no exception thirty thirty thirty three and and i think when you have a non  final chairman nation plus the statutory or constitutional bar towards re bringing the action that does transform a non final determination into a final determination under the clear language of the candle you know and smith hundred decisions which said that it doesn't matter how the case is determined so long that it ends in failure and is over and cannot be brought under that definition of facial insufficiency determination ripens by virtue of law now when we talk about facial insufficiency the other thing to keep in mind is is it truly is not inconsistent with innocence because what is official inconsistency try relation is it's a determination that the acts as alleged do not support the crime so it's not inconsistent with innocence which i think is important point to try to remember now turning back to the plaintiff's right to be there i think the record supports that this was not an isolator hidden section this is a park as the park bench why not right next to a roadway where the public can just drive in in fact officer gloria drove in i think testified that the bench was ten to fifteen feet from the roadway there's exercise stations right there is pictures of the exercise stations in the record and  reserve decision on this case