good morning steven bernstein for the plaintiff appellant the plaintiff is entitle to a trial on her malicious prosecution claim because only a couple of days after the grand jury indicted the plaintiff the detective who supervised the investigation filled out an arrest report that noted that rios is tattoos deployments tattoos were materially different from the tattoos worn by the woman who was involved in the gun sale so this is a case of you know they got the wrong person with respect to the false arrest yet when they knew that rios had tattoos that limiting really different from j d pause who was present at the gun sale they proceeded with the arrest anyway and the plaintiff spent four months in confinement and then even after she was released from confinement she was still there and under indictment for another eight or nine months until the charges were finally dismissed  outright for lack of probable cause so that's the case in a nutshell i recognize that a grand jury indictment creates a presumption of probable cause but that is not a bright line rule there are ways around it if something happens along the way that foreseeability results in unlawful or unjust confinement and this court held that in cameron versus city of new york where it's the initial wrong i can reasonably foresee that his misconduct will result in an in it in a quote unquote independent decision by the prosecutor that results in a deprivation of liberty and that's what happens here and secure your argument the person who was it was at the crime should she had tattoos on her shoulder and chest and that she didn't have a tattoo on her arm and your argument is at the time an indictment takes place your client is arrested  arrest report indicates that your client has tattoos on her shoulder and on her arm and that's all it indicates correct and doesn't indicate you begin the argument by saying that the officer when he filled out the rest report noted the discrepancy between these two documents us report doesn't actually do that he just notes what tattoos your client had of the day on the day of her arrest wrecked so why does this defeat the probable cause or why is this at that moment because i i think that your argument boils down to at that moment the officer should have realized we have the wrong person and acted to make sure she did not spend four months in jail that's the argument what does an officer do when he fills out the report and he sees a discrepancy like this you can either be silent and allow the person is prosecution to continue which is wrong or you do something you intervene you know you get on the phone you talk to the prosecutor we have a problem so far as i can tell from the is your well not fraud i think the bad faith is the failure to affirmatively act upon information that makes it clear they have the wrong person and the foreseeable the failure to do so foreseeable results in her continued foreseeable results in the plaintiff's continued detention what about the qualified immunity point i mean this is a case where there are no similarities i understand the and they didn't look at exactly alike the photographs are on the record but you know whatever similarities married sister that they both at both women knew the ringleader of the grunt gun sale whatever similarities may have existed between the two women the right so it's really boils down to the tattoo on the chest of the person in the video and that could have been and i'm not saying it was your client was the prosecution was discontinued but in this case is th is they got more evidence it seems like the prosecutor did what you would want to prosecutor to do you get notice of an alibi witness they investigate the alibi witness they get the cell phone records and your client ultimately the prosecution against her is discontinued but at the moment of the arrest report i'm not sure that the existence of those tattoos allowed to feed the probable cause and help me understand what i'm missing well they didn't do anything when they saw that there was just this discussion i guess theoretically she could have gotten a tattoo need the interim but they didn't do anything about it and you know again ultimately she was released but that was almost a year later thank you and i ask you just to be clear as to what it is that you are appealing i just want to be  about that are you appealing anything other than the grant a summary judgment for the detectives upon an undercover officer on seventy seven on the section  the continued prosecution of rio's thereby severing any causal link between the defendant's conduct and rios prosecution or is it your view that the presumption of probable cause which creates a presumption of probable cause for the initiation of the prosecution and the only way that can be rebutted is with evidence that the grand jury indictment was procured through fraud or some kind of bad faith and then there's the second aspect which is the continued prosecution and at that point the a t a i had completely taken over and everything with all the information was going through the prosecutor and the defendants to the extent that they were involved was because the prosecutor was asking them to interview witnesses or you know their involvement was completely through the prosecutor how do you respond to the arguments  if you think he filled out the arrest report based on the information provided by the officers was to match the rest the officer it might but i think the other stuff in the record indicates that he actually wasn't there he just filled out as the supervisor he filled out the report so the actual report might indicate that he was the arresting officer but he wasn't actually there and so based on the information that was provided by the officers he filled out the rest report which noted that she had a tattoo on her back and one on reform and you have to remember at the time the and controlled by took place it was a year before there was an i don't think he realized that there was any discrepancy at that point it wasn't something that was glaring or obvious and then you also saw when they did realize that the different meaning in terms of color you know colored actually i don't i don't think that they do if you there's some lighting issues with the different photos but after the arrest she was put in a lineup and the undercover officer again identified her as the woman who sold him the drugs so that was after the arrest took place and to the extent that the tattoos when they a t a i realize that there was an issue with the tattoos she took photographs of the tattoos inch confirm that as of the time of the photographs the tattoos were different but at that point still it was unclear as to whether or not rios had the tattoo on her forearm at the time of the actual controlled by it wasn't until they got  photos from her cell phone that were date stamped that they could definitively say that at the time of the control by she didn't have the tattoo on her forearm and so based on that as well as some other evidence including the alibi the eighty eight ultimately made the decision that they couldn't prove beyond a reasonable doubt that was what was it a proper police procedure help me understand for rios and these things happen very quickly and afterwards it's a pretty tense situation the undercover described it as something that maybe looked like paw prints because easily be butterflies or small flowers or you know so they're similar they have similar build it's not a reasonable he twice picture out of photo lineup then actually picked her out of the lineup and at all times throughout the prosecution the eighty eight was actively investigating rios is claims and when she gave the alibi witness they interviewed the alibi witness and ultimately the a d a s continued investigation is what led to you couple of quick points i think the record shows a path to was president at the time of the gun sale that's page ninety four of the appendix where he talks about he was able to video j d power and the