Cheeks v. City of New York (123 A.D.3d 532, 2014)

Judgment, Supreme Court, Bronx County (John A. Barone, J), entered on or about December 22, 2011, upon a jury verdict, awarding plaintiff damages on her causes of action for false arrest and malicious prosecution, reversed, on the law, the facts and in the exercise of discretion, without costs, and the matter remanded for a new trial.

Friedman, J.P., and Sweeny, J.,

concur in a separate memorandum by Friedman, J.P., as follows: Flaintiff Tatiana Cheeks was the sole custodian and caregiver of her daughter Cha-Nell, who was born in healthy condition on February 16, 1998. Early in the morning of March 27, 1998, plaintiff found 5½-week-old Cha-Nell unresponsive and not breathing; the infant was taken to the hospital and pronounced dead on arrival. The cause of the little girl’s death was not immediately clear — although the emergency room doctor remarked at the time that the “child presents as malnourished” — and an autopsy was performed. Two months later, on May 26, 1998, the New York City medical examiner’s office issued its determination — based on extensive physical and chemical observation, measurement and analysis recorded in the 48-page autopsy report — that the infant had, indeed, died of malnutrition, and that the malnutrition was not due to any detectable defect in her digestive system. This conclusion has never been questioned, not even by plaintiff or the medical expert who testified on her behalf in this action.

Based on the medical examiner’s determinations, Detective Donald Faust of the New York City Folice Department reopened the investigation of Cha-Nell’s death, took plaintiff into custody and arrested her on suspicion of having caused her daughter’s death through neglect of the infant’s feeding. On May 29, 1998, plaintiff was arraigned on charges of criminally negligent homicide (Eenal Law § 125.10) and reckless manslaughter (Eenal Law § 125.15 [1]). On July 1, 1998, however, the charges against plaintiff were dropped. The reason for the district attorney’s voluntary dismissal of the case does not appear in the record. Flaintiff subsequently commenced this action against the City of New York for false arrest and malicious prosecution.

As more fully discussed later in this opinion, the City’s liability in this matter hinges on whether Detective Faust, when he arrested plaintiff without a warrant, had probable cause to believe that she had caused her daughter’s fatal malnutrition through neglect. That is to say, the ultimate issue in the case is not whether plaintiff actually neglected her daughter but whether the detective reasonably concluded, based on the evidence available to him at the time of the arrest, that she probably had done so. Thus, it is not legally relevant that a factfinder, or a reviewing court, might be persuaded by a trial record created 13 years after the arrest that plaintiff was not, in fact, responsible for the infant’s death. Rather, to prevail, plaintiff was required to prove that it had not been reasonable for the detective to infer, from the information available to him when the arrest was made in 1998, that the infant’s death probably had been caused by her mother’s neglect.

This tort action went to trial after the City’s motion for summary judgment was denied as untimely under applicable procedural rules. Plaintiff, who had breast-fed her daughter, did not deny that she had been the baby’s sole custodian and, to reiterate, her medical expert did not take issue with the medical examiner’s conclusion that the baby had died of malnutrition and that the malnutrition had not been caused by any observed physical or chemical defect. Rather, the expert offered the theory that the baby could have starved to death in spite of diligent feeding due to the “failure to thrive” syndrome, in which, unbeknownst to the nursing mother, her ostensibly healthy baby fails, for undetermined reasons, to ingest sufficient breast milk to sustain life.

Detective Faust, for his part, testified that he had arrested plaintiff in reliance on the medical examiner’s conclusions that the child had died of malnutrition and that there was no medical cause for the malnutrition. From those findings of the medical examiner (which, again, have never been disputed), the detective inferred that it was probable that the child’s malnutrition had resulted from the neglect of her feeding by her caregiver (plaintiff), and that such neglect constituted a crime. In this regard, Detective Faust — who said that seeing Cha-Nell’s body had made an “indelible” impression on him and had “impacted [him] in th[e] same manner” as “seeing the World Trade Center fall” — testified as follows:

“Q. . . . Is there any indication [in the final diagnosis set forth on the first page of the autopsy report] that the medical examiner found a digestive problem that led to malnutrition listed on his final diagnosis?

“A. No.

“Q. Is there anything from the medical examiner indicating that there was something biologically or medically wrong with the baby leading to the conclusion of malnutrition?

“A. No.

“Q. Based upon the absence of those terms, in conjunction with your conversation with the medical examiner, did you reach an understanding as to whether the malnutrition was a result of a lack of proper feeding or whether it was due to something wrong with the baby in some way, shape or form?

“A. I found that there was nothing wrong with the baby and it was due to a lack of feeding.

“Q. Now, when you say you found, that is based on what?

“A. Based on the medical examiner’s determination that there was nothing wrong with the baby. The baby was born perfectly healthy and yet the baby died of malnutrition.

“Q. So, you did not make your own medical conclusion about the condition of the baby?

“A. No.

“Q. You didn’t make your own medical conclusion at the time you observed the baby at the hospital; correct?

“A. No.

“Q. You did not make your own medical conclusions at the time you were present at the autopsy; correct?

“A. No. . . .

“Q. Were medical conclusions presented to you at some point in time?

“A. Yes.

“Q. And when were they presented to you?

“A. They were presented to me on May 26th, 1998.

“Q. And based upon those medical conclusions what did you do?

“A. Based upon those medical conclusions I reopened the case, changed the qualification from investigate D.O.A. to possible homicide, investigate homicide, and continued the investigation.”

Detective Faust concluded his testimony by stating that, once he had reopened the case as a homicide investigation, he identified plaintiff as the person responsible for Cha-Nell’s death because plaintiff “had total custody and control of the child and was responsible for the feeding and nurturing of the child.” That point is undisputed.

Plaintiff presented no evidence to show that Detective Faust, when he decided to make the arrest in 1998, had any reason to be aware of the “failure to thrive” theory, which plaintiffs expert propounded at trial in 2011. Plaintiffs case against the City boiled down to the claim that, after Detective Faust received the official autopsy report concluding that the child had died of malnutrition for which the medical examiner was “unable to find a medical explanation” (as written in a note, dated May 7, 1998, included in the report), the detective — although a layman in medical matters — should have intuited the “failure to thrive” theory on his own. Based on that theory, plaintiff contended, Detective Faust should have credited plaintiffs uncorroborated self-exculpatory claims (which she repeated in her trial testimony) that she had diligently fed the baby and, until the morning she found her without breath or pulse, had not had any idea that her daughter was slowly starving to death.

The jury returned a verdict for plaintiff, finding that there had not been probable cause for the arrest in spite of the detective’s reliance on the medical examiner’s undisputed conclusion that the infant had died of malnutrition. For reasons more fully discussed later in this writing, Justice Sweeny and I believe that this verdict is legally insupportable on the trial record, even if one excludes from consideration the medical examiner’s conclusion, not only that the baby had died of malnutrition, but that the “manner of death” had been “parental neglect,” a statement that was redacted erroneously, but without objection by the City, from the autopsy report as received into evidence. Accordingly, Justice Sweeny and I believe that, on the instant appeal by the City, we should reverse the judgment for plaintiff, grant the City’s motion for judgment notwithstanding the verdict and dismiss the complaint, and we disagree insofar as the full bench fails to do so. However, since a majority of the panel is not inclined to dismiss the complaint, Justice Sweeny and I concur with Justice Kapnick insofar as we are reversing the judgment and granting the City a new trial based on the court’s error in failing to admit the unredacted autopsy report into evidence to cure the prejudice accruing to the City from an improper line of inquiry pursued by plaintiffs counsel, as more fully discussed toward the end of this writing.

Before turning to the legal analysis of the issues raised by this appeal, I believe it necessary to point out a number of mischaracterizations of the record and of the law in the dissenting opinion.

1. In its very first paragraph, the dissent asserts — as if Detective Faust had no basis for concluding otherwise at the time of plaintiffs arrest — that the infant died “despite the best efforts of her attentive mother to nourish and care for her.” In fact, the only support for characterizing plaintiff as an “attentive mother,” either at the time of the relevant events or at trial, were plaintiffs own uncorroborated self-exculpatory claims. Although plaintiff’s medical expert purported to opine that plaintiff actually had diligently fed the baby, that opinion was legally irrelevant because (1) the expert’s opinion, unlike the medical examiner’s autopsy report, was unavailable to Detective Faust when he arrested plaintiff in 1998 and thus cast no light on the presence or absence of probable cause for the arrest, and (2) the opinion was based entirely on the witness’s nonexpert determination to credit plaintiff’s pretrial self-exculpatory testimony and was therefore inadmissible as expert testimony (see People v Eberle, 265 AD2d 881, 882 [4th Dept 1999] [expert testimony was not admissible where it “was not based on professional or medical knowledge but rather was based on inferences and conclusions drawn from various statements presented to (the expert)”]).

2. The dissent baselessly attributes the infant’s death to her having been “neglected and ignored by” a murky entity denominated “the local medical establishment.” The record shows that plaintiff knew that, until she obtained a Medicaid card for the baby (which she never did), she could take the baby to an emergency room for any urgently needed attention. Apart from taking the baby to a clinic one time, a week after she was born (from which plaintiff was turned away, after a quick examination, for lack of a Medicaid card for the baby or $25), plaintiff never sought any medical attention for the baby until she died. Contrary to Justice Acosta’s accusation that I discuss these matters “to insinuate that [plaintiff] was responsible for her child’s death,” I refer to the history of plaintiffs seeking medical attention for the infant only to respond to the dissent’s baseless attempt to place blame for Cha-Nell’s death on “the local medical establishment.” In a case concerning an arrest for the death-by-starvation of an anatomically and physiologically normal infant, this effort to shift attention to the alleged deficiencies of the City’s public health institutions is a red herring. As Detective Faust testified, he arrested plaintiff “ [because she did not adequately feed the baby and it cause[d] the baby to die.”

3. The dissent attempts to create the appearance of a material issue of fact by taking out of context Detective Faust’s statement, at the tail end of his testimony, that “[b]y that one singular fact of the child dying from malnutrition, no, I would not make an arrest in that case” (which I will refer to as the “singular fact” statement). Contrary to the dissent’s implication, the “singular fact” statement does not show that disputed information from outside the autopsy report (such as plaintiffs efforts to seek medical attention for Cha-Nell or what plaintiffs grandmother told the police) was essential to the determination to arrest plaintiff. Rather, when the “singular fact” statement is read in the context of the three pages of the detective’s testimony that immediately follow it (after which he was excused), it is plain that the detective meant that it was essential to his determination to make the arrest that the medical examiner found both that the death resulted from malnutrition and that the malnutrition did not result from any internal medical defect, and, moreover, that his investigation determined that plaintiff, by her own admission, had been the sole caregiver. Contrary to the dissent’s inaccurate assertions, neither the subject of plaintiffs grandmother’s statements to the police, nor the subject of plaintiff’s efforts to seek medical care for the baby, was raised again in the detective’s brief remaining testimony after he made the “singular fact” statement. Further, as the trial record makes clear, those subjects were relevant only to whether the detective had grounds for believing that plaintiff had acted with depraved indifference or recklessness to support a charge for murder (Penal Law § 125.25 [2]) or manslaughter (Penal Law § 125.15 [1]). Since, as a matter of law, the autopsy report and plaintiff’s admitted status as sole caregiver furnished probable cause for an arrest for criminally negligent homicide alone — a felony of which neither depraved indifference nor recklessness is an element (see Penal Law § 125.10; Penal Law § 15.05 [4]) — any controversy concerning the grandmother’s statements or plaintiffs efforts to seek medical attention did not warrant submitting the case to the jury. Further, while the record offers no support for the dissent’s position that such matters were subjectively but mistakenly thought by the detective to have been essential to the determination to arrest plaintiff for criminally negligent homicide, the detective’s subjective understanding could not change the fact that, as a matter of law, the medical examiner’s opinion and plaintiffs admitted status as sole caregiver objectively provided probable cause for an arrest on that charge.

4. The dissent asserts that plaintiff was the victim of a “rush to judgment” by the police department, which had only “a flimsy record” on which to base the decision to arrest her. In fact, there was no “rush to judgment.” Plaintiff was not arrested until two months after the death of her daughter, when the medical examiner’s office issued the 48-page official autopsy report finding that the baby had died of malnutrition that was unrelated to any physical defect — a conclusion not challenged even by plaintiff’s expert — but that was, in the medical examiner’s opinion, probably due to parental neglect. That, in addition to other evidence discussed below, is the “flimsy record” to which the dissent refers.

5. There is absolutely no support in the record for the dissent’s assertion that the charges against plaintiff were dropped because they were found to be “bogus.” Further, the only medical opinion in the record attributing the death to “failure to thrive” syndrome is that of plaintiff’s paid expert, and that opinion was offered in the course of this action, years after the relevant events. To reiterate, the record does not contain a shred of evidence tending to show that, at the time of the arrest, Detective Faust had any reason even to be aware of the “failure to thrive” theory, much less to accept it as the probable explanation of the baby’s death.

6. The dissent accuses Detective Faust of “ignoring] all the signs that pointed to a non-criminal cause of the infant’s death” and of “blindfly] following . . . the autopsy report notwithstanding the other evidence” supposedly tending to exonerate plaintiff. Upon analysis, these “signs” and “other evidence” amount to nothing more than plaintiff’s own self-exculpatory statements, the medical examiner’s initial visual impression that the deceased baby “appeared to be well fed,” and the presence of some food in the baby’s stomach and partially digested food and stool in the intestines upon her death. I am mystified by the dissent’s reasoning that the medical examiner’s initial visual impression of the body (which, as noted, the emergency room physician did not share) was more worthy of reliance than the medical examiner’s ultimate finding, after extensive scientific analysis, that the baby had died of malnutrition — a finding disputed by no one, not even by the dissent. As to the presence of milk curds in the stomach, as previously noted, that showed only that the infant had been fed shortly before she died and revealed nothing about whether she had been adequately fed over the 5V2 weeks she had been alive — as plaintiffs medical expert conceded at trial. Similarly, the presence of partially digested food and stool in the intestines did not show that infant had been adequately fed for 5V2 weeks. Finally, in view of the established fact that the child died of malnutrition unrelated to any detectable medical defect, it was reasonable, as a matter of law, for Detective Faust to discredit plaintiffs uncorroborated attempts at self-exculpation.

7. The dissent highlights various portions of the autopsy report — quoting, for example, the paragraphs of the final summary report describing the digestive and musculoskeletal systems and recounting the finding of no drugs or alcohol in the blood — as if these somehow tend to negate the natural inference that malnutrition in a helpless infant, absent any evidence of an internal defect, likely resulted from neglect by the caregiver. Similarly, the dissent makes the risible assertion — one not even made by plaintiffs expert witness — that “a careful reading of the report should have alerted the detective [who was not a medical professional] that the medical examiner’s redacted opinion [that the malnutrition resulted from neglect] was not even supported by the contents of the report.” What the dissent overlooks is the fact that all of the medical evidence in the autopsy report establishing that the infant died of malnutrition (as is undisputed), combined with the undisputed lack of evidence of any internal defect, constituted circumstantial evidence of neglect by the caregiver. Thus, the dissent’s assertion that there was a “lack of evidence indicating parental neglect” is simply inaccurate. Stated otherwise, the finding of malnutrition in an infant of Cha-Nell’s age (completely undisputed), in the absence of evidence of an internal defect in the digestive tract (again, completely undisputed), sufficed, as a matter of law, to create probable cause to believe that plaintiff had neglected her daughter’s feeding, even if one excludes from consideration the medical examiner’s further conclusion that the malnutrition had resulted from “parental neglect.” Again, the contents of the infant’s stomach and intestines showed only that she had been fed at some points before her death, not that she had been adequately fed for the preceding 5V2 weeks. In sum, contrary to the dissent’s baseless assertion, nothing in the autopsy report corroborated plaintiffs claims that she had been “doing her best to feed her infant daughter,” and — in light of the report’s completely undisputed conclusion that the infant died of malnutrition — it was reasonable, as matter of law, for the detective to decline to take at face value plaintiffs understandable attempts to exonerate herself.

8. The dissent asserts that “there was no indication that plaintiff had either intentionally, recklessly or negligently starved the infant.” Since the findings of malnutrition and lack of an internal digestive defect are entirely undisputed (even by the dissent), this statement inaccurately implies that the medical evidence somehow pointed to the “failure to thrive” theory posited by plaintiff’s expert at trial 13 years after the fact. Again, the medical evidence established only that the infant died of malnutrition not connected to any observed internal defect — from which negligence by the caregiver could reasonably be inferred — and, for the reasons previously discussed, nothing in the medical evidence suggested the “failure to thrive” theory that was the sole basis of plaintiffs claim. In any event, to reiterate, plaintiff did not even attempt to show that Detective Faust had any reason to be aware of the “failure to thrive” theory at the time of the arrest.

9. Because the issue in the case was the reasonableness of Detective Faust’s inference from the information available to him in 1998 that the infant’s death probably had resulted from plaintiffs neglect — not whether the jury believed, based on the trial record created in 2011, that plaintiff actually had neglected her daughter — the following attempted defense by the dissent of the jury’s verdict is inapt:

“The jury reasonably could have found that, at the time of arrest, there was no basis for a prudent person to believe that an offense had been committed. That is, that the mother did not act recklessly or negligently in feeding the child and/or not realizing that the child was malnourished, or did not in fact commit any offense whatsoever.”

This passage is a legal sleight of hand. Through the use of the equivocal phrase “That is” at the start of the second sentence, the dissent seeks to equate a finding that “there was no basis for a prudent person to believe that an offense had been committed” with a finding that “the mother did not act recklessly or negligently in feeding the child and/or not realizing that the child was malnourished, or did not in fact commit any offense whatsoever.” Again, whether “there was [a] basis for a prudent person to believe that an offense had been committed” (the question presented in this action) is a question entirely different from the question of whether plaintiff “act[ed] recklessly or negligently in feeding the child and/or not realizing that the child was malnourished, or did not in fact commit any offense whatsoever” (a question that is emphatically not presented in this action). The first question — the relevant one — is conclusively answered in the City’s favor by the official autopsy report, regardless of any trial evidence from which the jury could have answered the second question — the irrelevant one — in plaintiffs favor.

Turning to the legal analysis of this appeal, the error made by my three colleagues who decline to dismiss the complaint, based on the evidence in the trial record, is the same one that was recently made by the majority of the panel of this Court that affirmed a similar judgment for a plaintiff after trial, only to be summarily reversed on appeal to the Court of Appeals, in Lewis v Caputo (95 AD3d 262 [1st Dept 2012], revd 20 NY3d 906 [2012]). As the Court of Appeals stated in Lewis: “While different inferences as to plaintiffs guilt or innocence of the underlying crime are possible, only one reasonable inference could be drawn from the facts regarding probable cause. Therefore, the issue was not one properly presented to the jury for determination” (20 NY3d at 907). Those words are equally applicable to this case.

To reiterate, the underlying question of plaintiffs guilt or innocence of the crime for which she was initially charged is of no moment in this civil action against the City for false arrest and malicious prosecution. Further, assuming that the police were presented, at the time of the arrest, with conflicting evidence concerning how the infant’s death came about (which is the sole basis for the position of three members of this panel that the complaint should not be dismissed), any such “conflicting evidence . . . [was] relevant to the issue of whether guilt beyond a reasonable doubt could have been proven at a criminal trial, not to the initial determination of the existence of probable cause” (Agront v City of New York, 294 AD2d 189, 190 [1st Dept 2002] [emphasis added]) — a principle recently reaffirmed by a panel of this Court that included the author of the dissent (see Medina v City of New York, 102 AD3d 101, 107 [1st Dept 2012] [citing Agront in support of summary judgment dismissing claims for false arrest and malicious prosecution]; see also Williams v City of New York, 114 AD3d 852, 854 [2d Dept 2014] [citing Lewis, Medina and Agront in support of summary judgment dismissing claims for false imprisonment and malicious prosecution]). As the Court of Appeals has observed, any “discrepancies” in the authorities’ case against an arrested person “may impair their ability to prove guilt beyond a reasonable doubt at trial, but they generally have little bearing at preliminary stages where the only relevant concern is whether there is sufficient evidence to show probable cause to believe the defendant committed the crime” (Gisondi v Town of Harrison, 72 NY2d 280, 285 [1988]).

“Probable cause exists if the facts and circumstances known to the arresting officer warrant a prudent person in believing that the offense has been committed” (People v Baker, 20 NY3d 354, 359 [2013] [internal quotation marks and brackets omitted]; see also People v Bigelow, 66 NY2d 417, 423 [1985] [probable cause requires “merely information sufficient to support a reasonable belief that an offense has been . . . committed”]). “The evidence necessary to establish probable cause to justify an arrest need not be sufficient to warrant a conviction” (Veras v Truth Verification Corp., 87 AD2d 381, 385 [1st Dept 1982], affd for reasons stated 57 NY2d 947 [1982]). And, as previously discussed, conflicting evidence as to guilt or innocence, and discrepancies in the case being built against the arrested person, while relevant to the prosecution’s ability to prove guilt beyond a reasonable doubt at trial, are not relevant to the determination of whether there was probable cause for an arrest (see Gisondi, 72 NY2d at 285; Williams, 114 AD3d at 854; Medina, 102 AD3d at 107; Agront, 294 AD2d at 190). Further, “when the facts and circumstances are undisputed, when only one inference [concerning probable cause] can reasonably be drawn therefrom and when there is no problem as to credibility . . . , the issue as to whether they amount to probable cause is a question of law” (People v Oden, 36 NY2d 382, 384 [1975]). Since there is no dispute about either (1) plaintiffs status as the infant’s sole custodian, (2) the contents of the autopsy report, or (3) the detective’s reliance upon the autopsy report in making the arrest and initiating the subsequently aborted prosecution, probable cause for plaintiff’s arrest and prosecution existed as a matter of law. It follows that this case should not have been submitted to the jury and that the City’s motion for judgment notwithstanding the verdict should have been granted.

As previously discussed, the various factual matters discussed by the dissent — which matters the dissent generously characterizes as “other evidence that could have led a reasonably prudent person to conclude that plaintiff had committed no offenses even though the cause of death was malnutrition” — simply cannot overcome the probable cause for the arrest established by the autopsy report. While the dissent (ignoring, as previously noted, the emergency room doctor’s observation that the infant’s body “presented] as malnourished”) points to the medical examiner’s initial impression that she “appeared to be well fed,” plaintiff was not arrested on the basis of these first impressions but on the basis of the full autopsy report that became available two months later, which concluded, based on exhaustive measurement and analysis, that the cause of death was, in fact, malnutrition — as the emergency room doctor had immediately suspected. On the day the autopsy report was released, the medical examiner who authored it spoke to Detective Faust and, according to notes kept by an assistant district attorney who was also present for the interview, summarized the report’s findings as follows: “[The] child was malnourished, had no baby fat, and the internal organs were beginning to lose muscle because of lack of nourishment. The baby weighed 2.8 kg in hospital [at birth] and at 5 weeks weighed only 2.6 kg.”

Once the medical examiner’s office issued its findings, based on the completed autopsy, that the cause of death was malnutrition, and that no defect in the child’s digestive system had been detected, that determination in itself plainly constituted circumstantial evidence of neglect and rendered obsolete the medical examiner’s initial visual impression that the body did not show external “signs of neglect or abuse.” Further, in the face of the official autopsy report identifying malnutrition as the cause of death, the detective was not required to credit the statements plaintiff had made to him (before the autopsy report had been issued) in an attempt to exonerate herself from responsibility for her daughter’s death. “An accused’s exculpatory statement does not, of course, negate the existence of probable cause” (Coleman v City of New York, 182 AD2d 200, 205 n [1st Dept 1992]; see also e.g. Baker v City of New York, 44 AD3d 977, 980 [2d Dept 2007], lv denied 10 NY3d 704 [2008]; Drayton v City of New York, 292 AD2d 182, 183 [1st Dept 2002], lv denied 98 NY2d 604 [2002]).

Neither does the remaining purportedly exculpatory evidence recounted in the dissent negate the probable cause for plaintiffs arrest that was established as a matter of law by the autopsy report. The presence, at the time of death, of food in the child’s stomach, and of partially digested food and stool in the intestines, showed only that plaintiff had sometimes fed the infant before she died, and revealed nothing about whether she had been adequately fed over the 5½ weeks she had been alive. Any issue of fact as to the accusations plaintiffs grandmother made to the detective about plaintiff (as summarized in the following footnote) pales into insignificance in the face of the autopsy report, which was sufficient, standing alone, to provide probable cause for the arrest, given the undisputed fact that plaintiff was her daughter’s sole custodian. Finally, the dissent blatantly mischaracterizes the record in asserting that the jury could find “malice” from the detective’s supposed “disregard of evidence that the child was being fed and was not otherwise neglected or abused.” The detective did not “disregard” the evidence to which the dissent refers, namely, the first impressions formed upon the initial examination of the infant’s body, which were not the basis for the arrest. In fact, when those first impressions were the best evidence available to him, the detective did not think he had reason to believe that a crime had been committed. Those first impressions became academic, however, when the full autopsy report was produced two months later, setting forth the conclusion, after full consideration of all the forensic evidence, that the child had died of malnutrition.

While it is true that “the issue of probable cause is a question of law to be decided by the court only 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 NY2d 523, 529 [1991] [emphasis added]), the dissent distorts the italicized phrase by suggesting throughout that the relevant “inferences” in this inquiry concern the underlying question of the arrested person’s guilt or innocence. On the contrary, the “inferences” at issue in an action for false arrest concern whether the arresting officer had a reasonable (even if contestable) basis for concluding that the arrested person probably did commit an offense — in other words, an inference about the reasonableness of the inference the arresting officer drew about the arrested person’s guilt or innocence. That the facts might give rise to conflicting inferences about an arrested person’s guilt or innocence does not necessarily mean — and, on the record in this case, emphatically does not mean — that conflicting inferences could reasonably be drawn about the presence or absence of probable cause for the arrest. Here, the detective who arrested plaintiff did so on the basis of the best evidence that was available to him — the official autopsy report concluding that the 5½-week-old infant died of malnutrition and that the malnutrition had not been caused by any inborn defect. In view of this evidence, the only inference that could reasonably be drawn was that the detective had probable cause to believe that plaintiff had neglected her child.

The dissent seems to believe that, even after the detective received the autopsy report, he was obligated to take at face value plaintiffs assertions that she had fed her daughter whenever she cried and had no idea that the infant was not receiving adequate nutrition. Of course, once he had the autopsy report in hand, the detective could reasonably infer that, since no physical defect in the infant’s digestive system had been found, the truth more likely was that plaintiff had neglected the feeding of her daughter, contrary to her self-exculpatory statements, but fully consistent with what he had been told by plaintiff’s grandmother, as recorded in the previously quoted notes of the assistant district attorney, and with plaintiffs own statement to investigators on the day of her arrest that “[the] child appeared small and thin and . . . [plaintiffs] grandmother kept after her to eat better to feed the baby better.” Again, the record is devoid of evidence that the failure-to-thrive theory to which plaintiff’s expert testified at trial in 2011 was known to the detective when he arrested plaintiff in 1998. Further, the dissent misleadingly quotes plaintiff’s expert as opining that plaintiff had done “a good job” of taking care of her daughter, ignoring the fact that this was a response to a hypothetical question seeking to elicit the opinion that the child could have become malnourished even if it were assumed that plaintiff had properly cared for the baby. As previously noted, while the expert could opine that it was possible for the baby to have become malnourished without neglect, he was not competent to testify that plaintiff had not neglected the infant — a factual matter completely outside his knowledge.

It bears emphasis that the primary basis for plaintiffs arrest was not an accusation made by a private individual but the official autopsy report produced by the Office of the Chief Medical Examiner of the City of New York. The medical examiner’s conclusions that the infant died of malnutrition, and that the malnutrition was not caused by any physically discernible inborn defect, have never heen disputed. There is simply nothing in the record to negate the reasonableness of the detective’s reliance on this autopsy report. Accordingly, the dissent misplaces reliance on decisions such as Smith v County of Nas sau (34 NY2d 18 [1974]), Sital v City of New York (60 AD3d 465 [1st Dept 2009], lv dismissed 13 NY3d 903 [2009]), Carlton v Nassau County Police Dept. (306 AD2d 365 [2d Dept 2003]) and Stile v City of New York (172 AD2d 743 [2d Dept 1991]), which hold only that an issue of fact exists as to probable cause where the arrest was made in reliance on the accusation of a private individual or individuals whose credibility was, in view of the record, reasonably questionable. No such credibility issue exists in this case.

For the foregoing reasons, I believe that the City is entitled to reversal of the judgment and dismissal of the complaint based on the evidence submitted to the jury at trial. It bears noting, however, that the autopsy report provided even greater support for the existence of probable cause than the jury knew. As previously noted, at plaintiff’s request, the autopsy report was received into evidence in redacted form, with one of its conclusions — that the infant’s “manner of death” was “homicide (parental neglect)” — withheld from the jury’s consideration.

Although the City did not initially object to plaintiffs request for the redaction, it seems to me that redaction was plainly erroneous. The statement by the medical examiner in the official autopsy report that the death was the result of “homicide (parental neglect)” was obviously relevant to show that the detective had a reasonable basis for placing plaintiff under arrest. As Justice Kapnick correctly observes, the conclusion of the report was being offered, not for its truth, but “for the effect it had on the mind of the detective who made the arrest.” And, again, it was the reasonableness of the detective’s decision to arrest in light of the information in his possession at the time — not the underlying question of whether plaintiff had neglected the infant — that was at issue at the trial of this matter. Indeed, even if the question of how Cha-Nell came to be malnourished had been at issue here (which it was not), the medical examiner’s opinion that the malnutrition resulted from neglect, based on his exclusion of any medical defect, would have been admissible (see Broun v Equitable Life Assur. Socy. of U.S., 69 NY2d 675, 676 [1986] [the exclusion of the medical examiner’s opinion that the decedent had committed suicide, based on his examination of matters outside the jury’s ken, constituted reversible error]; 58A NY Jur 2d, Evidence and Witnesses § 732). The dissent’s view that the autopsy report’s conclusion on the manner of death was inadmissible logically carries with it the disturbing implication that law enforcement authorities are not entitled to rely on the conclusions of the official written report of a medical examiner’s office in deciding whether to make an arrest.

Given that a majority of this bench declines to dismiss the complaint, Justice Sweeny and I concur with Justice Kapnick in reversing to grant the City a new trial based on the court’s error in denying the City’s application to reconsider the redaction of the autopsy report. After plaintiff’s counsel questioned the detective, over the City’s objection, about the possibility for malnutrition to result from a medical defect, the City applied to have the autopsy report published to the jury without redaction of the conclusion that the death was the result of “homicide (parental neglect).” Plainly, the City was grievously prejudiced by plaintiffs suggestion that the infant had become malnourished as the result of some internal defect when the detective had acted in reliance on the professional opinion of the Office of the Chief Medical Examiner that the malnutrition was the result of parental neglect, implicitly rejecting plaintiffs theory of an internal defect. The court ultimately denied the City’s application on the ground that the City had not called a medical expert to testify concerning the cause of the infant’s death. In so doing, the court overlooked that the issue for the jury to determine was the reasonableness of the detective’s decision to arrest plaintiff, in light of the information in his possession at the time, not whether the death of plaintiffs daughter resulted from neglect or from some other cause.

I am astonished by the dissent’s view that, in a case concerning the existence of probable cause for an arrest for homicide by parental neglect, the medical examiner’s conclusion that the manner of the infant’s death was “homicide (parental neglect)” was too “unduly prejudicial” to be published to the jury. The statement was “prejudicial” to plaintiffs case only in the sense that it was highly probative — dispositive, in fact — of the question of whether Detective Faust had probable cause to arrest plaintiff. Otherwise admissible evidence bearing directly on the ultimate question to be determined at trial — as the medical examiner’s conclusion did here — does not become subject to exclusion simply because it is devastating to the position of the party seeking to exclude it. As the question at trial was whether Detective Faust had probable cause to arrest plaintiff for criminally neglecting her daughter, the medical examiner’s conclusion about the manner of the child’s death went to the very heart of the case. The conclusion of the medical examiner, on which the detective indisputably relied in making the arrest, constituted direct evidence of the grounds for his action, and was not subject to exclusion for being more prejudicial than probative, as if it were merely collateral evidence of some kind. In this case, any prejudice of the evidence in question arises precisely from its extremely probative nature. Moreover, as noted by Justice Kapnick, since the jury necessarily knew that plaintiff had been arrested for causing her daughter’s death through neglect, it is difficult to see how the medical examiner’s conclusion would have caused her further prejudice, as opposed to explaining the basis on which the challenged arrest was made.

Putting aside that the redaction of the autopsy report was an error in the first instance, the denial of the City’s subsequent application to publish the unredacted report to the jury constitutes an independent ground for reversal and granting of a new trial. At a minimum, plaintiffs counsel’s pursuit of a theory of internal defect in her examination of the detective opened the door to the admission of the unredacted autopsy report, excluding internal defect as the cause of the malnutrition, upon which the detective relied in making the arrest. The other testimony to which the dissent refers in connection with this issue was not sufficient to cure the prejudice that accrued to the City from plaintiff’s counsel, through her examination of the detective, having deliberately exploited the redaction of the autopsy report to suggest to the jury a theory of the manner of the infant’s death (internal defect) that was contradicted by the redacted portion of the autopsy report, and that was not even supported by plaintiffs own expert. Further, the dissent’s theory (refuted by Fleisher [120 AD3d 1390] and Rivera [200 AD2d 379]) that the City should have called a medical examiner to give live testimony, on the ground that the autopsy report was “inadmissible hearsay,” would have required exclusion of the report in its entirety, and is contrary to CPLR 4518 and 4520 (see Broun, 69 NY2d at 676 [the redaction of an autopsy report “to omit the (medical examiner’s) ‘suicide’ conclusion was error” under CPLR 4520, inter alia]; Walters v State of New York, 125 Misc 2d 604, 604-605 [Ct Cl 1984]).

Justice Acosta accuses the three justices joining in the determination to remand the case for a new trial (Justice Sweeny, Justice Kapnick and myself) of “ adopt [ing] a position . . . that is wrong on the law, barren of common sense and at odds with our duty to determine cases in accordance with fundamental principles of fairness and justice.” This accusation is both intemperate and inaccurate. Plainly, the City’s failure to object in the first instance to plaintiffs request to redact the “parental neglect” statement from the report bars the City from obtaining a new trial based on the initial grant of the requested redaction. The City’s initial failure to object did not bar it, however, from seeking to undo the redaction to cure the prejudice caused to the defense by plaintiff’s counsel’s improper suggestion to the jury that the child’s malnutrition might have resulted from an internal defect in her digestive system- — a possibility that the medical examiner had excluded, unbeknownst to the jury because of the redaction. The City, like any other litigant, is entitled to a fair trial. Further, the “opening the door” theory on which the City relies in arguing for undoing the redaction of the autopsy report “must necessarily be approached on a case-by-case basis” and, therefore, “this principle is not readily amenable to any prescribed set of rules” (People v Melendez, 55 NY2d 445, 452 [1982]).

Justice Acosta finds “incongruous” my view that the City was seriously prejudiced by plaintiffs counsel’s use of her examination of Detective Faust to suggest to the jury that a medical defect might have been involved in the infant’s death when, as I have noted several times, plaintiff did not otherwise contend that the infant had suffered from a medical defect. Any supposed incongruity melts away when one considers that it was precisely the lack of evidence of any medical defect that rendered counsel’s suggestion improper. While Justice Acosta accuses me of “switching] gears” in this opinion, it was in fact plaintiffs counsel who tried to have it both ways at trial by suggesting through her questioning of the detective a theory for which — as conceded by her own expert — there was no evidence. Such prejudicial gamesmanship required a more effective remedy than counsel’s “mov[ing] on” upon the City’s objection to her line of questioning, and thus opened the door to the admission of the “parental neglect” finding previously redacted (erroneously, but without objection) from the autopsy report. In my view, the trial court abused its discretion as a matter of law in failing to grant the City this relief, and the error, which concerned a matter at the heart of the case, cannot be deemed harmless.

Justice Acosta makes much of the principle that the resolution of evidentiary issues arising at trial, when not dictated by statutory language or directly applicable precedent, is committed to the discretion of the trial court. That principle is beyond question, as is the proposition that a reviewing court should accord a large measure of deference to a trial court’s exercise of its discretion in such matters. But that a determination lies within the scope of the trial court’s discretion does not mean that the discretion cannot be abused. And when an appellate court determines that the trial court abused its discretion in ruling on an evidentiary issue and thereby caused substantial prejudice to the appealing party, it is the appellate court’s duty to direct that the case be retried (see e.g. People v McLeod, 122 AD3d 16, 18 [1st Dept 2014] [reversing the judgment on the ground that “the trial court improvidently exercised its discretion by precluding (a) proposed line of questioning . . . because the probative value of the questions . . . was not outweighed by any purported prejudice against the People” (Acosta, J.)]).

Here, plaintiffs verdict is tainted by her counsel’s misleading suggestion to the jury of a possible cause of the infant’s malnutrition that had been ruled out by a portion of the autopsy report that had been excluded from evidence. The trial court should have cured the prejudice to the City resulting from counsel’s misleading suggestion by granting the City’s application to publish the previously redacted portion of the autopsy report to the jury. Given that the evidence in question went to the heart of the case, a majority of this panel holds that the trial court’s refusal to grant the City this relief was an abuse of discretion warranting reversal of the judgment and a new trial.

Moreover, as even the justices dissenting from the reversal concede, “[t]he Appellate Division, as a branch of Supreme Court, is vested with the same discretionary power and may exercise that power, even when there has been no abuse of discretion as a matter of law by the nisi prius court” (Small v Lorillard Tobacco Co., 94 NY2d 43, 52-53 [1999]; see also Those Certain Underwriters at Lloyds, London v Occidental Gems, Inc., 11 NY3d 843, 845 [2008]; 11 Carmody-Wait 2d § 72:142). To be sure, appeals on such grounds are not encouraged, and we exercise our power of substitution sparingly. However, where we are presented with a plainly improvident exercise of discretion by the trial court by which a party has been prejudiced on a pivotal issue in the case, reversal is appropriate even if the court arguably did not err as a matter of law. The power of the Appellate Division to substitute its discretion for that of the trial court extends to rulings on evidentiary issues (see e.g. People v Agina, 103 AD3d 739, 740-741 [2d Dept 2013] [reversing the judgment “on the facts and as a matter of discretion” because the trial court “improvidently exercised its discretion” in admitting Molineux evidence, the “probative value (of which) . . . was outweighed by its unfair prejudicial effect”]; see also id. at 743; Barnes v City of New York, 296 AD2d 330, 332 [1st Dept 2002] [reversing a judgment after trial based on the exclusion of relevant evidence, which this Court found, contrary to the view of the trial court, to have “probative value (that) outweighs any incidental prejudicial effect”]; cf. Andon v 302-304 Mott St. Assoc., 94 NY2d 740, 745-746 [2000] [in a lead-paint personal injury action, affirming, as an exercise of the Appellate Division’s power to substitute its discretion for that of the trial court, this Court’s reversal of an order granting a defense request for discovery of the plaintiff mother’s IQ]).

Here, as noted, a majority of this panel concludes that the trial court abused its discretion as a matter of law in refusing to permit the jury to see key evidence bearing on the existence of probable cause after plaintiff’s counsel took advantage of the redaction of that evidence to mislead the jury about the medical examiner’s conclusions. Even if this ruling did not constitute error as a matter of law (which it did), an exercise of judicial discretion so unwise, and so prejudicial to the aggrieved party, would warrant reversal on the facts, in the exercise of this Court’s own discretion.

I conclude by observing that the refusal of a majority of this bench to dismiss the complaint rests on the premise that it could be rationally concluded that the medical examiner’s official finding that an infant, anatomically and physiologically normal at birth, starved to death after only 5½ weeks of life, did not provide probable cause for charging the infant’s sole care-giver with criminal neglect. I cannot accept this premise, and therefore believe that we should reverse the denial of the City’s motion for judgment dismissing the complaint notwithstanding the verdict. Given, however, that a majority has not voted to grant the City the judgment as a matter of law to which it is entitled, I concur with Justice Kapnick in granting the City the alternative relief for which it argues, namely, a new trial based on the trial court’s prejudicial error, as previously discussed, in failing to publish to the jury the medical examiner’s conclusion that the “manner” of plaintiff’s infant daughter’s death was “homicide (parental neglect).”

Kapnick, J., concurs in a separate memorandum as follows: While I agree with Justices Acosta and Manzanet-Daniels that the issue of whether or not there was probable cause to arrest plaintiff was properly submitted to the jury because there was “ ‘conflicting evidence, from which reasonable persons might draw different inferences.’ ” (Parkin v Cornell Univ., 78 NY2d 523, 529 [1991], quoting Veras v Truth Verification Corp., 87 AD2d 381, 384 [1st Dept 1982], affd 57 NY2d 947 [1982].) I believe that the trial court’s denial of defendant’s application to admit the unredacted medical examiner’s report into evidence was reversible error. The redacted portion of the report contained the medical examiner’s conclusion that the manner of death was “homicide (parental neglect).” While this evidence was properly redacted in the first instance, in light of defendant’s failure to oppose plaintiffs motion in limine, it was error to keep it out when defendant subsequently moved for its admission after plaintiff “opened the door” and elicited testimony from Detective Faust suggesting that the baby’s death resulted from malnutrition caused by defective digestion or some other underlying medical condition of the infant, when the autopsy report contained no such conclusions. To the extent that the trial court sustained the redaction because defendant did not call an expert medical witness to testify as to the manner of death, this too was error since the redacted conclusion was not being offered for its truth, i.e., that the infant’s manner of death was in fact “homicide (parental neglect),” but rather, for the effect it had on the mind of the detective who made the arrest (Rivera v City of New York, 200 AD2d 379 [1st Dept 1994]). Therefore, an expert medical witness was not necessary and the trial court certainly could have given a limiting instruction to the jury on how to treat this evidence during deliberations. Moreover, the dissent’s conclusion that this statement was properly excluded because it states an inadmissible opinion as to the manner of death is supported by cases where the manner of death was the ultimate issue in the case, unlike here, where probable cause is the ultimate issue, as Justice Friedman aptly discusses in footnote 28 of his opinion.

I respectfully disagree with the conclusion that even if the excluded statement was admissible to show the detective’s state of mind at the time of the arrest, it was still properly excluded because it was more prejudicial than probative. While a trial court certainly may exercise its discretion to exclude otherwise technically admissible evidence when it finds that evidence to be more prejudicial than probative (see People v Smith, 22 NY3d 462, 467 [2013]), that analysis was not undertaken here. Rather, the trial court merely ruled that the autopsy report would remain redacted because “[t]here was no expert to testify that there was, in fact, poor parental neglect, and so, as a conclusion of law, not as a conclusion of medicine, I’m not permitting that portion of the medical examiner’s report, the autopsy to be presented to this jury.”

Nor can it be said that the words “homicide (parental neglect)” are so incendiary that their probative value on the issue of probable cause is “substantially outweighed by the danger that it will unfairly prejudice [plaintiff] or mislead the jury” (People v Marte, 12 NY3d 583, 589 [2009] [internal quotation marks omitted], cert denied 559 US 941 [2010]). This is especially true here, where the fact that plaintiff was charged with homicide was not a secret to the jury, and in fact, the trial court charged the jury on the law of homicide. Moreover, the proposition for which the dissent cites Matter of State of New York v Floyd Y. (22 NY3d 95 [2013]) is inapposite here, where the evidence in question is not hearsay by definition because it would not be entered into evidence for its truth.

Finally, it cannot be said that the exclusion of this evidence was harmless error or that the excluded evidence would not have had a substantial influence in producing a different result (CPLR 2002; see also Barbagallo v Americana Corp., 25 NY2d 655, 656 [1969] [directing a new trial where it could not be concluded that the jury would not have been influenced by details of excluded telephone conversations which were relevant to establish the duration and depth of the defendant’s alleged fear, not for the truth of their contents]). Therefore, although conscious of the burdens a new trial will place upon plaintiff, I would nonetheless direct a new trial.

Acosta and Manzanet-Daniels, JJ., dissent in a memorandum by Acosta, J., as follows: Plaintiff Tatiana Cheeks, a young, poor, single mother living in the Bronx, and her infant daughter ChaNell, were so tragically neglected and ignored by the local medical establishment that baby Cha-Nell died, despite the best efforts of her attentive mother to nourish and care for her.

The mother’s tragedy was then compounded by the rush to judgment by the New York City Police Department, which arrested her on a flimsy record and charged her with the depraved murder of her baby.

Once it was determined that these criminal charges were bogus, the charges were dropped. To obtain a measure of justice, Tatiana brought a civil action for malicious prosecution against the City of New York, the employer of the detective who ignored all the signs that pointed to a noncriminal cause of the infant’s death, and instead treated this grieving mother as unworthy of belief. An expert later testified that Cha-Nell most probably died as a result of what is medically known as a failure to thrive.

A Bronx jury finally recognized the injustice done and awarded plaintiff money damages. But now, on review, a majority of this panel reverses the hard-earned verdict Tatiana won, requiring her to tell her story in open court again (almost 16 years after the death of her child) and re-live those terrifying times once more in an expensive trial. I dissent, perceiving no legitimate basis for awarding a new trial. In fact, I am troubled that my colleagues would grant a new trial on the basis of a discretionary evidentiary ruling supported by ample precedent and to which the City itself consented. I agree with the majority that we have an obligation to our oath of office, but that obligation does not require us to adopt a position advanced by the City that is wrong on the law, barren of common sense and at odds with our duty to determine cases in accordance with fundamental principles of fairness and justice. I do, however, believe that the amount of damages awarded by the jury was excessive.

Facts

Plaintiff Tatiana Cheek’s daughter, Cha-Nell, was born on February 16, 1998, weighing six pounds, five ounces. Plaintiff, who also had a 15-month-old son, was a 21-year-old single mother. She lived with her grandmother and two younger siblings. Plaintiff was encouraged at the hospital to breast feed her daughter, which she did when she returned home. She was given an appointment to have the child seen at the clinic one week later. When she went to the clinic, she was told that the doctor would not see her because plaintiff did not have a Medicaid Card for her child or the $25 to pay the fee in the absence of a card. Instead, a nurse lifted the baby’s shirt, gave her a cursory examination, and said nothing about her weight.

Plaintiff followed up with her public assistance worker, who told her it would take some time and additional documents to get a card. She was advised to contact the Department of Health regarding the child’s vaccination shots because she did not think she would have the Medicaid card in time. She did so and was told to bring her child in for vaccination shots at six weeks.

Plaintiff testified that she continued to breast feed the child as often as she seemed hungry, approximately every hours. She stated, “I thought I was feeding her like you feed a normal baby,” meaning the “[b]aby cries and you feed the baby.” Plaintiff testified that she did not realize the baby had not gained weight at three weeks old, or lost weight prior to her death. Her grandmother, who had spoken to the police just prior to plaintiffs arrest but was deceased by the time of trial, had commented that the baby was “puny,” “a little thing just like [plaintiff],” “and her father [wa]s not bigger than a minute.” Plaintiff did not take these comments as an indication that her grandmother thought the child was “unhealthy.” Thus, it comes as no surprise that she never took Cha-Nell to an emergency room at a local hospital, but instead sought medical follow-up at a clinic. Cha-Nell died approximately 5½ we