Full opinion text
DECISION AND ORDER LAWRENCE E. KAHN, District Judge. This matter comes before the Court following a Report-Recommendation filed on June 5, 2007 by the Honorable George H. Lowe, United States Magistrate Judge, pursuant to 28 U.S.C. § 636(b) and L.R. 72.3(c) of the Northern District of New York. Report-Rec. (Dkt. No. 50). After ten days from the service thereof, the Clerk has sent the entire file to the undersigned, including the objections by Roger A. Williams, which were filed on June 20, 2007. Objections (Dkt. No. 57). It is the duty of this Court to “make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b). “A [district] judge... may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” Id. This Court has considered the objections and has undertaken a de novo review of the record and has determined that the Report-Recommendation should be approved and adopted in part. The Court fully approves and adopts Judge Lowe’s learned ruling with respect to the dismissal of Plaintiff Rayon Dawkins’s (“Plaintiff’) false arrest claim. The Court also approves and adopts the denial of Defendant Roger A. Williams’s (“Defendant”) Motion for summary judgment with respect to Plaintiffs claim, under the Fourth and Fourteenth Amendments, that Plaintiff was denied a prompt probable-cause hearing. However, the Court rejects Judge Lowe’s recommendation with respect to Plaintiffs malicious prosecution claim and grants Defendant’s Motion for summary judgment on this claim as well. The issue for this Court to decide with respect to Plaintiffs malicious prosecution claim is whether or not there was probable cause for Defendant to arrest Plaintiff for attempted second degree grand larceny. Plaintiff originally reported to the New York State Police on June 19, 2002 that his girlfriend, Nicola Disant, had been raped by Plaintiffs attorney. See Disant Statement (Dkt. No. 45, Attach.ll) at 4. Defendant arrested Plaintiff on July 19, 2002 for attempted second degree grand larceny for trying to extort from Attorney Catalano the sum of $110,000.00 in exchange for dropping the rape charge. See Felony Complaint (Dkt. No. 7, Ex. E). Judge Lowe determined that there was a triable issue of fact regarding whether Defendant had probable cause to make this arrest. Report-Ree. (Dkt. No. 50) at 39. In order to prove a § 1983 claim for malicious prosecution, a plaintiff must establish that: “(1) the defendant either commenced or continued a criminal proceeding against him; (2) that the proceeding terminated in his favor; (3) that there was no probable cause for the criminal proceeding; and (4) that the criminal proceeding was instituted with actual malice.” Russo v. N.Y., 672 F.2d 1014, 1018 (2d Cir.1982) (quoting Martin v. City of Albany, 42 N.Y.2d 13,16, 396 N.Y.S.2d 612, 364 N.E.2d 1304 (1977)). At issue here is whether or not Defendant had probable cause to arrest Plaintiff for attempted grand larceny in the second degree under N.Y. Penal Law §§ 110.00, 155.40. Probable cause exists when the arresting officers “have knowledge or reasonably trustworthy information of facts and circumstances that are sufficient to warrant a person of reasonable caution in the belief that the person to be arrested has committed or is committing a crime.” Weyant v. Okst, 101 F.3d 845, 852 (2d Cir.1996) (internal quotations and citations omitted). The probable cause inquiry is objective, rather than subjective, and should consider only the facts known to the arresting officer at the time of the arrest. Jaegly v. Couch, 439 F.3d 149,154-55 (2d Cir.2006) (citing Devenpeck v. Alford, 543 U.S. 146, 152-53, 125 S.Ct. 588, 160 L.Ed.2d 537 (2004)). “Once probable cause has been established, a cause of action to recover for malicious prosecution may not be successfully maintained.” Rivera v. City of New York, 40 A.D.3d 334, 836 N.Y.S.2d 108 (App. Div. 1st Dep’t 2007). The record shows that Defendant had “reasonably trustworthy information” sufficient for a “reasonable officer” to conclude that the offense of attempted grand larceny in the second degree had been committed by Plaintiff. Attempted second degree grand larceny in New York under N.Y. Penal Law §§ 110.00 and 155.40(1) is when a person attempts to intentionally steal property and that the value of the property exceeds fifty thousand dollars. N.Y. PENAL LAW §§ 110.00,155.40(1). At the time of arrest, Defendant knew of the following facts: (1) Ms. Disant’s sworn statement to the police on July 18, 2002 affirming that it was Plaintiffs idea to blackmail Attorney Catalano, that Plaintiff made her lie about the rape, and that the sexual relations between her and Attorney Catalano were consensual, Disant Statement (Dkt. No. 45, Attach.ll) at 5-6; (2) taped phone conversations that took place in June and July, 2002 between Plaintiff and Attorney Catalano in which Plaintiff admitted to “dodging” questions from police, while demanding money from Attorney Catalano, Williams Affidavit (Dkt. No. 45, Attach.7) at ¶¶ 12, 19, 31; and (3) Plaintiffs meeting with Attorney Catalano at a pre-arranged site to attempt to collect the $110,000.00 that was demanded by Plaintiff. Id. at ¶ 32 et seq. The probable cause inquiry requires the Court to focus on the arresting officer’s knowledge and state of mind at the time of arrest, and not the state of mind or actions of the alleged wrongdoer. Even if, as Judge Lowe found, Plaintiff might have had a good faith belief that his pursuit of money from Mr. Catalano was legal, Reporb-Rec.(Dkt. No. 50) at 27-28, it would be irrelevant in determining probable cause because at the time of arrest Defendant knew of sufficient “facts and circumstances [that] would lead a reasonably prudent person in like circumstances to believe the plaintiff guilty.” See Colon v. City of New York, 60 N.Y.2d 78, 82, 468 N.Y.S.2d 453, 455 N.E.2d 1248 (1983). However, probable cause can be rebutted or overcome by evidence that an indictment was procured by “fraud, perjury, the suppression of evidence or other police conduct undertaken in bad faith.” Id. at 83, 468 N.Y.S.2d 453, 455 N.E.2d 1248. Here, probable cause was not overcome because no evidence was withheld by Defendant that would exonerate Plaintiff, nor was there any misrepresentations of the law. First, the felony complaint filed by Defendant did not misstate the elements of the crime of Attempted Grand Larceny in the Second Degree under Sections 110.00 and 155.40(1) of the Penal Law of the State of New York. See Report-Rec. (Dkt. No. 50) at 27. Under the plain language of N.Y. Penal Law § 155.40(1), which Defendant cited in the felony complaint, there is no explicit element of “an awareness of wrongful conduct.” The statute reads as mentioned above “A person is guilty of grand larceny in the second degree when he steals property and when: 1) the value of the property exceeds fifty thousand dollars.” The felony complaint did however include an implicit “awareness” element by stating that the defendant “did intentionally, knowingly and unlawfully commit THE FELONY of ATTEMPTED GRAND LARCENY 2ND.” Felony Complaint (Dkt. No. 7, Ex. E). Second, there was no bad faith on behalf of Defendant for failing to reference in the felony complaint the taped telephone conversations between Plaintiff and Attorney Catalano. See Report-Rec. (Dkt. No. 50) at 28. These taped conversations were not subsequently withheld by Defendant, and are clearly a part of the record. Third, Defendant did not withhold evidence or act in bad faith by failing to mention in the felony complaint portions of Ms. Disant’s sworn statement. See ReportARec. (Dkt. No. 50) at 29. Including portions of Ms. Disant’s July 18th statements in the felony complaint would certainly not exonerate Plaintiff and were in fact used by Defendant to help establish probable cause. Her statement included testimony to the police that she believed that Plaintiff was attempting to blackmail Attorney Catalano, that it was Plaintiffs idea to blackmail Attorney Catalano and that Plaintiff made her lie about the rape. Disant Statement (Dkt. No. 45, Attach.ll) at 4, 6. Moreover, Defendant did not withhold Ms. Disant’s sworn statement from Plaintiff. Lastly, without more, Mr. Catalano’s friendship with Defendant’s partner, John Dolan, is not evidence of Defendant’s bad faith. See Reporh-Rec. (Dkt. No. 50) at 31. Neither can bad faith be inferred from Mr. Dolan’s presence at the Guilder-land Police Station at the time Ms. Disant initially filed her rape charge against Mr. Catalano. Defendant has thus failed to rebut the probable cause established by Defendant. Accordingly, it is hereby ORDERED, that the Report-Recommendation (Dkt. No. 50) is APPROVED and ADOPTED in PART and REJECTED in PART; and it is further ORDERED, that Defendant’s Motion for summary judgment (Dkt. No. 45) is GRANTED IN PART and DENIED IN PART; and it is further ORDERED, that Plaintiffs claim of false arrest is DISMISSED, and it is further ORDERED, that Plaintiffs claim of malicious prosecution is DISMISSED; and it is further ORDERED, that Defendant’s Motion for summary judgment is DENIED with respect to Plaintiffs Fourth and Fourteenth Amendment claims of being denied a prompt probable-cause hearing; and it is further ORDERED, that the Clerk serve a copy of this Order on all parties. IT IS SO ORDERED. REPORT-RECOMMENDATION GEORGE H. LOWE, United States Magistrate Judge. This matter has been referred to me for Report and Recommendation by the Honorable Lawrence E. Kahn, United States District Judge, pursuant to 28 U.S.C. § 636(b) and Local Rule N.D.N.Y. 72.3(c). In his Amended Complaint, brought pursuant to 42 U.S.C. § 1983, Rayon Dawkins (“Plaintiff’) alleges that New York State Police Investigator Roger A. Williams (“Defendant”) violated various of Plaintiffs constitutional rights, when, between June and August of 2002, instead of investigating the complaint of rape filed by Plaintiffs girlfriend (Nicola Disant) against Plaintiffs then-criminal defense attorney (Frank Catalano), Defendant (as a favor to Defendant’s partner, John Dolan, who was a friend of Mr. Catalano) worked with Mr. Catalano to entrap Plaintiff in the crime of trying to steal $110,000 from Mr. Catalano. (Dkt. No. 7.) More specifically, Plaintiff alleges that Defendant (1) falsely arrested Plaintiff for Attempted Grand Larceny in the Second Degree, (2) maliciously prosecuted him for that crime, and (3) violated his rights under the Fourth and Fourteenth Amendments by, following his arrest on July 18, 2002 for the aforementioned crime, preventing him from receiving a prompt probable cause hearing with respect to that crime. (Id.) Currently before the Court is Defendant’s motion for summary judgment. (Dkt. No. 45.) Generally, Defendant’s motion raises the following five issues: (1) whether any record evidence exists sufficient to create an issue of fact with regard to Plaintiffs claim of false arrest, particularly any record evidence indicating that Defendant initiated any criminal proceeding against Plaintiff and/or indicating that Defendant lacked probable cause to arrest Plaintiff; (2) whether any record evidence exists sufficient to create an issue of fact with regard to Plaintiffs claim of malicious prosecution, particularly any record evidence indicating that Defendant lacked probable cause to arrest Plaintiff; (3) whether, as a matter of law, Defendant is protected from liability by the doctrine of qualified immunity; (4) whether the Eleventh Amendment bars Plaintiff from suing Defendant in his official capacity; and (5) whether any record evidence exists in support of Plaintiffs Fourteenth Amendment due process claim against Defendant (for preventing him from promptly receiving a probable cause hearing) in light of the fact that, following Plaintiffs arrest on July 18, 2002, he would have been detained anyway on another criminal charge. (Dkt. No. 45, Part 3 at 10-23 [Def.’s Mem. of Law].) For the reasons discussed below, I recommend that Defendant’s motion be granted in part, and denied in part. TABLE OF CONTENTS I. RELEVANT LEGAL STANDARD...........................................254 II. ANALYSIS................................................................255 A. Plaintiffs False Arrest Claim.............................................256 B. Plaintiffs Malicious Prosecution Claim.....................................260 1. Defendant’s Arguments Regarding Elements of Claim...................261 i. Elements “(4)” and “(5)”.........................................261 ii. Element “(1)”...................................................262 iii. Elements “(2)” and “(3)”.........................................264 a. Defendant’s First Argument Regarding Elements “(2)” and “(3)”.....................................................264 b. Defendant’s Second Argument Regarding Elements “(2)” and “(3)”.....................................................266 2. Effect of Probable Cause for Another Crime............................271 C. Defendant’s Qualified Immunity Defense...................................274 D. Defendant’s Eleventh Amendment Immunity Defense.......................278 E. Plaintiffs Claim Alleging the Denial of a Prompt Probable-Cause Hearing.....280 I. RELEVANT LEGAL STANDARD Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment is warranted if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). In determining whether a genuine issue of material fact exists, the Court must resolve all ambiguities and draw all reasonable inferences against the moving party. However, if and when the moving party has met its initial burden of establishing the absence of any genuine issue of material fact, the nonmoving party must come forward with “specific facts showing that there is a genuine issue for trial.” Fed. R.Civ.P. 56(e). The nonmoving party must do more than “simply show that there is some metaphysical doubt as to the material facts.” “A dispute regarding a material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” When deciding a motion for summary judgment, the facts set forth in a movant’s Statement of Material Facts (as required by Local Rule 7.1[a][3]) will be taken as true to the extent those facts are supported by the evidence in the record and are not specifically controverted by the non-movant. A district court has no duty to perform an independent review of the record to find proof of a factual dispute, although it retains the discretion to do so. II. ANALYSIS As an initial matter, I find that, among the papers that the Court may consider in deciding Defendant’s motion for summary judgment are the exhibits to Plaintiffs Amended Complaint, even though that pleading is not verified. I make this finding for several reasons. First, Rule 56(c) expressly provides that summary judgment is warranted if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c) [emphasis added]. Here, the exhibits to the Amended Complaint are a part of that pleading, pursuant to Rule 10(c) of the Federal Rules of Civil Procedure. See Fed.R.Civ.P. 10(c). Furthermore, one of the exhibits is expressly an “affidavit” and another of the exhibits is a sworn complaint, which is equivalent to an “affidavit” for purposes of a summary judgment motion. Second, Defendant has not denied the existence of the attachments or contested their authenticity. Indeed, several assertions by Defendant either expressly reference these exhibits or are consistent with them. (Compare Dkt. No. 45, Part 2, ¶ 50 [Def.’s Rule 7.1 Statement, referencing Defendant’s arrest of Plaintiff on 7/30/02] with Dkt. No. 7, Ex. G [Plf.’s Am. Compl., attaching the Arrest Report authored by Defendant, for Plaintiffs arrest on 7/30/02]; compare Dkt. No. 45, Part 10, ¶ 24 [Def.’s Investigation Sheet, referencing communication with “ADA Joe Muia” regarding Plaintiff] with Dkt. No. 7, Ex. E [Plf.’s Am. Compl., attaching two documents authored by Assistant District Attorney Joseph Muia, Jr., regarding Plaintiff based on charge filed by Defendant].) The aforementioned two circumstances have served as grounds for federal courts to consider attachments to pleadings when deciding a summary judgment motion, under analogous circumstances. See Lester v. U.S., No. 90-562591991 WL 222197, at *2, n. 2, 1991 U.S.App. LEXIS 25133, at *4, n. 2 (9th Cir. Oct.8, 1991) (“We reject the appellant’s curious argument that the uncontroverted affidavit of James Brasher, attached to her complaint, was somehow off-limits for the district court to consider in ruling on the motion for summary judgment.”) [citation omitted]; Coregis Ins. Co. v. McCollum, 96-CV-1068, 1997 WL 128132, at *4-5, 1997 U.S. Dist. LEXIS 3147, at *11-13 (M.D.Fla. March 6, 1997) (plaintiff could rely on attachment to unverified complaint for purposes of summary judgment motion, in part because “Defendant ... has not denied the existence of [the attachment] or contested its authenticity”). Third, Plaintiff is proceeding pro se on a civil rights claim and must be afforded special solicitude. This solicitude is nowhere more appropriate than where (as here) a plaintiff has a lack of litigation experience and familiarity with court procedures, and has asserted serious constitutional violations. Under the circumstances, I decline to stay this proceeding, which has been pending since April of 2004, simply to permit Plaintiff to rectify his oversight of not verifying his Amended Complaint, or of not specifically referencing the Exhibits to his Amended Complaint in his affirmation in opposition to Defendant’s motion. (Dkt. No. 47, Part 2 [Plf.’s Affirm.].) Finally, I would reach the same conclusions as I do in this Report-Recommendation even if I were not to consider the exhibits to Plaintiffs Amended Complaint. A. Plaintiffs False Arrest Claim “To prove the elements of false arrest under New York law, [a] plaintiff must show: (1) the defendant intended to confine the plaintiff, (2) the plaintiff was conscious of the confinement, (3) the plaintiff did not consent to the confinement, and (4) the confinement is not otherwise privileged.” Bernard v. United States, 25 F.3d 98, 102 (2d Cir.1994) [citation omitted]. A confinement is privileged if probable cause existed to arrest the plaintiff. Bernard, 25 F.3d at 102 [citation omitted]. Defendant argues that, here, probable cause existed to arrest Plaintiff. (Dkt. No. 45, Part 3, at 10-14 [Defi’s Mem. of Law].) In his analysis of whether probable cause existed, Defendant appears to assume that Plaintiff was charged with Section 155.40/2) of New York’s Penal Law (which discusses the crime of grand larceny in the second degree by extortion), rather than Section 155.40(1) of New York’s Penal Law (which discusses the crime of grand larceny in the second degree by stealing property in excess of fifty thousand dollars). Specifically, in attempting to define the elements of the crime with which Plaintiff was charged, Defendant relies on Section 155.05(2)(e) (which provides that the crime of “larceny by extortion” may occur through a threat to expose a secret or private fact tending to subject the victim to hatred, contempt or ridicule). However, Defendant did not cite Section 155.40(2) or Section 155.05(2)(e) in the felony complaint that he filed against Plaintiff on July 19, 2002. Rather, he expressly relied on Section 155.40(1), which does not regard extortion. To complicate matters further, on November 13, 2002, the prosecutor in the case (Joseph Muia, Jr.) issued an Information charging Plaintiff under yet a third statute — Section 155.30(6) (providing that the crime of grand larceny in the fourth degree may occur if the property stolen is obtained by extortion ). Fortunately for Defendant, these inconsistencies are immaterial. This is because Defendant is correct that “[e]ven assuming arguendo that not all of the elements of the crime [actually charged] were present, Defendant Williams is entitled to summary judgment on this claim if [no dispute of material fact exists that] probable cause to arrest [Plaintiff] for any charge existed at the time of arrest, even a charge with which Plaintiff was never charged.” (Dkt. No. 45, Part 3, at 13 [Def.’s Mem. of Law, citing cases].) The problem is that, to the extent that Defendant is arguing that probable cause existed to arrest Plaintiff for larceny by extortion committed by instilling in the victim a fear that he would be charged with a crime, that argument fails to take into account the record evidence (discussed below in Part II.A. of this Report-Recommendation) indicating that Plaintiff was, or may have been, acting in good faith when he aggressively demanded compensation from Mr. Catalano in exchange for a withdrawal of Ms. Disant’s pending rape complaint. Early New York State cases disagreed on the issue of whether a good-faith belief in the truth of the threatened disclosure is a defense to extortion. However, in 1965, the New York State legislature enacted a law providing that, in any prosecution for larceny by extortion, it is an affirmative defense that “the defendant reasonably believed the threatened charge to be true and that his sole purpose was to compel or induce the victim to take reasonable action to make good the wrong which was the subject of the threatened charge.” N.Y. Penal Law § 155.15(2). It is important to note that, although the statute uses the word “affirmative defense,” the New York State Court of Appeals has struck down the word “affirmative” since treating the defense as an affirmative defense would unconstitutionally shift the burden to the defendant to disprove the element of intent. See New York v. Chesler, 50 N.Y.2d 203, 428 N.Y.S.2d 639, 643, 406 N.E.2d 455, 458 (N.Y.1980). Thus, the government retains the burden to disprove good faith beyond a reasonable doubt. See Chesler, 428 N.Y.S.2d at 643, 406 N.E.2d at 459. In light of this fact, it appears to me doubtful that the government would have, based on the current record, been able to obtain a grand jury indictment of Plaintiff based on a charge of larceny by extortion committed by instilling in the victim a fear that he would be charged with a crime, Having said that, the good-faith defense made available by Section 155.15(2) does not apply to instances when a person “compels or induces another person to deliver ... property to himself or to a third person by means of instilling in him a fear that, if the property is not so delivered, the actor or another will ... expose a secret or publicize an asserted fact, whether true or false, tending to subject some person to hatred, contempt or ridicule.” N.Y. Penal Law § 155.05(2)(e)(v) [emphasis added]. (Examples of such secrets or private facts might include information about one’s personal life learned through an intimate relationship with the person, or the fact that the victim had fathered a child with a woman other than his wife.) Nor does the Section 155.15(2) good-faith defense apply to the conduct of “[p]erform[ing] any other act which would not in itself materially benefit the actor but which is calculated to harm another person materially with respect to his ... business, calling, career, ... [or] reputation .... ” N.Y. Penal Law § 155.05(2)(e)(ix). The rationale for not making the Section 155.15(2) good-faith defense available to a defendant on a charge under Section 155.05(2)(e)(v) or 155.05(2)(e)(ix) appears to be that the type of threat proscribed by those sections are wholly gratuitous ones, in that the threatened disclosure would not in and of itself materially benefit the actor (for example, by being a part of the pursuit of some legal remedy), but simply is a tool to obtain money from the victim. As explained by the Second Circuit with regard to an analogous statute (18 U.S.C. § 875[d]), We ... view as inherently wrongful the type of threat to reputation that has no nexus to a claim of right. There are significant differences between, on the one hand, threatened disclosures of such matters as consumer complaints and nonpayment of dues, as to which the threatener has a plausible claim of right, and, on the other hand, threatened disclosures of such matters as sexual indiscretions that have no nexus with any plausible claim of right. In the former category of threats, the disclosures themselves-not only the threats-have the potential for causing payment of the money demanded; in the latter category, it is only the threat that has that potential, and actual disclosure would frustrate the prospect of payment. Thus, if the club posts a list of members with unpaid dues and its list is accurate, the dues generally will be paid; if the consumer lodges her complaint and is right, she is likely to receive her refund; and both matters are thereby concluded. In contrast, if a threatener having no claim of right discloses the victim’s secret, regardless of whether her information is correct she normally gets nothing from the target of her threats. And if the victim makes the demanded payment, thereby avoiding disclosure, there is nothing to prevent the threatener from repeatedly demanding money even after prior demands have been fully met. U.S. v. Jackson, 180 F.3d 55, 70-71 (2d Cir.1999). Here, Plaintiff did not merely threaten to continue to pursue Ms. Disant’s rape complaint, and to file a complaint with an attorney grievance committee (neither of which appear to be criminal acts under the circumstances, given the good-faith defense available under Section 155.15[2]), but Plaintiff also repeatedly threatened to contact various news outlets and report Mr. Catalano’s alleged misconduct to them if Mr. Catalano did not pay Plaintiff money. I find that, based on the current record, probable cause existed to believe that Plaintiff was not acting in good faith when he threatened to go to the press with his claims, given the lack of any “nexus” between the threatened disclosures to the press and any inherent material benefit to Plaintiff from going to the press. See Jackson, 180 F.3d at 70-71. I acknowledge that a case exists standing for the proposition that a person’s conduct is not extortion where the conduct “was part of a larger endeavor to obtain recompense for a perceived wrong and was but a small part of extensive criticism leveled at [the victim] .... ” Niagara Mohawk Power Corp. v. Testone, 272 A.D.2d 910, 708 N.Y.S.2d 527, 530 (N.Y.App.Div., 4th Dept.2000). However, I find that the festone case is distinguishable from the current case. This is because, here, Plaintiffs conduct in threatening to contact news outlets (as well as his apparent conduct of twice actually calling such news outlets) was not “part” of his “larger endeavor to obtain recompense for a perceived wrong,”- since it was not a step that was necessary to pursue some sort of legal remedy (for example, filing a complaint against Defendant with an attorney grievance committee of the Appellate Division of the New York State Supreme Court, or by filing a civil action against Defendant in New York State Supreme Court). Rather, the record evidence indicates that this conduct was a significant tool that Plaintiff used as a last resort, after his other threats had apparently failed, in order to try to extract an increased and exorbitant sum of money from Defendant. Because I find that no question of fact exists that Plaintiffs conduct gave rise to probable cause to arrest him (for violating Section 155.30[6] and either Section 155.05[2][e][v] or Section 155.05[2][e][ix]), I find that Plaintiffs false arrest claim is precluded as a matter of law. I therefore recommend that the Court grant Defendant’s motion for summary judgment with respect to Plaintiffs false arrest claim. B. Plaintiffs Malicious Prosecution Claim “An action for malicious prosecution has long been available against an individual who (1) instituted criminal proceedings against the plaintiff (2) with malice and (3) without probable cause, if (4) the criminal proceedings terminated in the plaintiffs favor.” White v. Frank, 855 F.2d 956, 959, n. 2 (2d Cir.1988) [citations omitted]. It is significant to note that, although the Second Circuit has sometimes characterized the first element as being that the defendant instituted a criminal “prosecution” of the plaintiff, it appears that, more recently, more often, and more properly, the Second Circuit has characterized the first element as being that the defendant instituted a criminal “proceeding” against the plaintiff. I say “more properly,” because the substantive law of New York state, which is what is being applied by federal courts sitting in New York state when addressing a tort claim such as malicious prosecution, uses the term “proceeding,” not “prosecution.” This distinction between a “prosecution” and a “proceeding” is significant, because New York law recognizes a distinction between the “commencement of a criminal action” (or “proceeding”) and the actual “prosecution,” as explained below. In addition, the Second Circuit has recognized the existence of a fifth element, namely that “there was ... a sufficient post-arraignment liberty restraint to implicate the plaintiffs Fourth Amendment rights.” See, e.g., Rohman v. New York City Transit Auth., 215 F.3d 208, 215 (2d Cir.2000). 1. Defendant’s Arguments Regarding Elements of Claim i. Elements “(4)” and “(5)” Here, I do not read Defendant’s motion papers as contesting the fact that the record contains at least some evidence creating a triable issue of material fact with regard to elements “(4)” and “(5).” (See generally Dkt. No. 45, Part 3 at 14-16 [Def.’s Mem. of Law].) Even if Defendant were to make such an argument, I would reject it. Specifically, I find that at least some evidence exists in support of these two elements. Specifically, with regard to element “(4),” on November 3, 2003, the Hon. John Egan, an Albany City Court Judge, dismissed the aforementioned charge against Plaintiff. (Dkt. No. 7, Ex. H [Plf.’s Am. Compl.].) With regard to element “(5),” on July 30, 2002, Plaintiff was arraigned in front of Judge Egan in the Albany City Court. (Dkt. No. 7, Ex. D, ¶2 [Plf.’s Am. Compl.]; see also Dkt. No. 45, Part 10, ¶ 20 [Ex. C to Def.’s Affid.].) On August 7, 2002, Plaintiff was ordered held for the action of the Grand Jury. (Dkt. No. 7, Ex. D, ¶ 3 [Plf.’s Am. Compl.].) On November 13, 2002, Assistant District Attorney Joseph Muia, Jr., filed an affidavit stating, inter alia, that as of that date, the Grand Jury of Albany County had taken no action with respect to the aforementioned charges. (Dkt. No. 7, Ex. D, ¶ 4 [Plf.’s Am. Compl.].) Under the circumstances, at the very least, a question of fact exists about whether there was a sufficient post-arraignment liberty restraint to implicate the plaintiffs Fourth Amendment rights. See Murphy v. Lynn, 118 F.3d 938, 944-945 (2d Cir.1997) (“When the accused is physically detained following arraignment, there can be no question that he has been seized within the meaning of the Fourth Amendment.”) [citation omitted]. Here, there is evidence that Plaintiff was physically detained following arraignment. (See, e.g., Dkt. No. 45, Part 10, 1Í20 [Ex. C to Def.’s Affid.]; Dkt. No. 7, Ex. D, ¶¶3-4 [Plf.’s Am. Compl.].) ii. Element “(1)” Defendant argues, inter alia, that the record contains no triable issue of material fact with regard to element “(1),” namely that Defendant initiated a prosecution against Plaintiff, because the “independent, discretionary actions” of the local District Attorney’s Office broke any causal connection between Defendant’s actions and the prosecution of Plaintiff. (Dkt. No. 45, Part 3 at 14-16 [Def.’s Mem. of Law, arguing that “defendant was not the party initiating the prosecution; the independent actions of the prosecutors broke the causal chain between defendant’s actions and Plaintiffs prosecution”].) Here, on or about July 19, 2002, Defendant filed a felony complaint against Plaintiff in the Albany City Court. The felony complaint alleged, “[Dawkins] did[,] over the period from June 23, 2002 to July 17, 2002[,] threaten to cause the criminal charge of RAPE to be brought against FRANK CATALANO if he did not deliver to him $110,000.00 in United States currency.” (Dkt. No. 7, Ex. E [Plf.’s Am. Compl.].) As a result of this aforementioned conduct, the felony complaint alleged, Plaintiff had committed the felony crime of Attempted Grand Larceny in the Second Degree in violation of Sections 110.00 and 155.40(1) of the Penal Law of the State of New York. (Id.) On July 18, 2002, Defendant arrested Plaintiff for the aforementioned crime. (Dkt. No. 45, Part 9, ¶¶ 12-13 [Ex. B. to Def.’s Affid.].) Defendant then took Plaintiff before Judge Egan in an unrelated criminal matter (involving a charge of attempted criminal sale of a controlled substance in the third degree), and Judge Egan revoked Plaintiffs bail in that unrelated matter. (Id. at ¶ 14.) On July 30, 2002, Defendant filed a felony complaint against, and arrested, Plaintiff for the crime of Attempted Grand Larceny in the Second Degree. (Dkt. No. 7, Exs. D, F, G [Plf.’s Am. Compl.].) Later that day, Plaintiff was arraigned in front of Judge Egan in the Albany City Court. (Dkt. No. 7, Ex. D, ¶2 [Plf.’s Am. Compl.]; see also Dkt. No. 45, Part 10, ¶ 20 [Ex. C. to Def.’s Affid.].) Under the circumstances, I find that sufficient evidence exists to create an issue of fact with regal'd to element “(1).” As an initial matter, the two cases that Defendant relies on, in support of his argument, are inapposite. Specifically, in the Southern District of New York’s decision in Stephenson v. Rosa, (1) it does not appear that the two defendants in that case (Officers Rosa and McCabe) did anything more than arrest the plaintiff (i.e., it does not appear that either of those officers filed a felony complaint against the plaintiff, as did Defendant in this case), and (2) it appears that the “independent, discretionary actions” taken by the District Attorney’s Office in that case (which involved actively “prosecuting] [the plaintiff] in Kings County for a wider course of criminal behavior involving [the victim]”) were of a much more active and extensive nature than those taken in this case (in which the case stalled following arraignment, never reaching a grand jury). 03-CV-8503, 2006 WL 464081, at *1, 3 (S.D.N.Y. Feb.24, 2006). Nor does the Second Circuit’s decision in White v. Frank support Defendant’s argument. In fact, that decision undermines Defendant’s argument. Specifically, in White v. Frank, the Second Circuit stated, “The exercise of independent judgment by the public prosecutor and his active role in initiating criminal prosecutions may decrease the likelihood that a complaining witness will be considered to have ‘caused’ or ‘procured’ the prosecution .... ” 855 F.2d 956, 962 (2d Cir.1988) [emphasis added]. Here, again, the criminal proceeding in the current action was initiated by Defendant’s filing of a felony complaint. Moreover, even if the Albany County District Attorney’s Office could have been said to have had “an active role in initiating [the] criminal prosecution,” such a fact would only “decrease the likelihood” that Defendant can be deemed to have initiated the prosecution. Contrary to Defendant’s argument, New York law appears rather clear that the filing of a felony complaint is sufficient to commence a criminal action or proceeding. See N.Y.Crim. Proc. Law § 100.05 (“A criminal action is commenced by the filing of an accusatory instrument with a criminal court .... [An] accusatory instrument [includes] ... [a] felony complaint.”); N.Y.Crim. Proc. Law § 100.10(5) (“A ‘felony complaint’ is a verified written accusation by a person, filed with a local criminal court, charging one or more other persons with the commission of one or more felonies. It selves as a basis for the commencement of a criminal action, but not as a basis for the prosecution itself.”). Granted, “[t]he definition of the commencement of a proceeding for purposes of the law of criminal procedure, however, does not necessarily coincide with the counterpart definition for purposes of the law of torts [such as malicious prosecution].” Rosario v. Amalgamated Ladies’ Garment Cutters’ Union, 605 F.2d 1228, 1249 (2d Cir.1979) [citation omitted]. However, the Second Circuit has specifically explained in the context of a malicious prosecution claim, Judicial proceedings may begin in any of a number of ways, e.g., by the filing of an indictment, information, or other formal charge, or by an arraignment or a preliminary hearing.... Under New York law, if there has been no indictment, a criminal action is commenced by the filing of an accusatory instrument, to wit, a ‘felony complaint’ for a felony charge ... However, the filing of a felony complaint serves only to commence the criminal action; in order for a felony prosecution to follow, an indictment must be obtained. Murphy, 118 F.3d at 944 [citations omitted]. Similar conclusions have been reached by district judges of this Court. See, e.g., Damiano v. City of Amsterdam, 466 F.Supp.2d 456, 463-464 (N.D.N.Y. Dec.19, 2006) (Hurd, J.) (officer who filed a felony complaint against the plaintiff initiated criminal proceedings against the plaintiff because “[t]o satisfy the first element, initiation, a plaintiff must show [only] that the officers brought formal charges and caused him to be arraigned”) [citation omitted]; Pritzker v. City of Hudson, 26 F.Supp.2d 433, 442 (N.D.N.Y. Oct.30, 1998) (McAvoy, C.J.) (“It is undisputed that [Officer] Kisselbrack signed the felony complaint [against the plaintiff] and, therefore, the first element [of a malicious prosecution claim] is established as to him.”). Indeed, authority exists for the proposition that, even where a police officer has not filed a felony complaint, he may be deemed to have initiated a criminal proceeding, despite subsequent actions of a prosecutor. See, e.g., Rosario v. Amalgamated Ladies’ Garment Cutters’ Union, 605 F.2d 1228, 1249 (police officer’s issuance of an “appearance ticket” commenced a prosecution for purposes of plaintiffs malicious prosecution claim); Taylor v. City of New York, 03-CV-6477, 2006 WL 1699606, at *2-3 (S.D.N.Y. June 21, 2006) (“Despite defendants’ assertions to the contrary, clearly the defendants initiated a prosecution against the plaintiff’-even where defendant-officers filed no felony complaint and the prosecutor subsequently obtained an indictment of the plaintiff). iii. Elements “(2)” and “(3)” Finally, Defendant argues that the record contains no triable issue of material fact with regard to elements “(2)” and “(3),” namely whether Defendant acted with malice and lacked probable cause to believe the proceeding could succeed. (Dkt. No. 45, Part 3 at 14r-16 [Def.’s Mem. of Law].) More specifically, Defendant sets forth two arguments on this subject. (Id.) a. Defendant’s First Argument Regarding Elements “(2)” and “(3)” First, Defendant argues that (1) to show that “probable cause” existed to believe a proceeding could succeed (for purposes of defending against a malicious prosecution claim), the finding of such probable cause by a neutral arbiter (after the defendant’s initiation of the proceeding) is sufficient to establish the aforementioned “probable cause,” and (2) here, on July 18, 2002, Saratoga County Court Judge Jerry Scarano found such probable cause when he revoked Plaintiffs bail on an unrelated charge (of attempted criminal sale of a controlled substance in the third degree) because Plaintiff had violated his conditions of release by engaging in the attempted extortion. (Dkt. No. 45, Part 3 at 14-16 [Defi’s Mem. of Law].) The problem with this first argument is that Defendant has adduced no evidence showing that Judge Scarano’s revocation of Plaintiffs bail on an unrelated (drug) charge necessarily involved a finding that probable cause existed for the charge of grand larceny in the second degree. Rather, the revocation of Plaintiffs bail could have occurred simply because one of the conditions of Plaintiffs release with regard to that unrelated charge was that Plaintiff shall not be arrested again, or because the incentive for Plaintiff to flee the jurisdiction had increased as a result of the fact that he was now facing a longer potential term of imprisonment on the original charge (i.e., the charge on which he had been released on bail). However, Defendant did not attach to his motion papers either the court order or hearing transcript or minutes that set the conditions upon which Plaintiff would be released on bail. Rather, the sole “evidence” offered by Defendant in support of his argument on this issue is either silent as to why Plaintiffs bail was revoked or actually indicates it was revoked merely because Plaintiff had been arrested. (See Dkt. No. 45, Part 3 at 15 [Def.’s Mem. of Law, containing citation to unspecified portion of Defendant’s Affidavit]; Dkt. No. 45, Part 7, ¶¶ 32, 54 [Def.’s Affid., citing to Ex. A, ¶ 6, which indicates that Defendant was informed by an Assistant District Attorney on July 16, 2002, that “in order to get [Plaintiffs] bail revoked [on an unrelated charge] an arrest would have to occur,” and citing to Ex. B, ¶ 14, which indicates that Plaintiffs bail was revoked by Saratoga County Court Judge Scarano on July 18, 2002, but not indicating why ]; see also Dkt. No. 45, Part 2, ¶¶28, 41 [Def.’s Rule 7.1 Statement, containing same factual assertions with same record citations].) Moreover, I note that, although Defendant does not attach to his motion papers a copy of a transcript of the court proceedings before Judge Scarano on July 18, 2002, I have found that document on the docket sheet. Specifically, on September 8, 2005, Plaintiff attached that transcript in support of his motion to strike various of Defendant’s affirmative defenses. (Dkt. No. 28, Part 3, “Ex. IV.”) It is questionable, at least in my mind, whether the Court may consider this document in deciding Defendant’s motion for summary judgment since it is not part of the record on that motion. In any event, I find that such issue is moot, since the transcript does not indicate that, in revoking Plaintiffs bail in the unrelated (drug) action, Judge Scarano reviewed the felony complaint filed by Defendant against Plaintiff in the current action (or any materials in support of that felony complaint). Rather, it appears that Judge Scarano based his revocation of Plaintiffs release on (1) the fact that Plaintiff had been arrested for a crime in violation of the terms of his release, and/or (2) the fact that the incentive for Plaintiff to flee the jurisdiction had increased since he was now facing a longer potential term of imprisonment on the original charge. Moreover, a further review of the attachments to Plaintiffs motion to strike indicates that, when Judge Scarano was deciding whether or not to revoke Plaintiffs bail in the drug action during the July 18, 2002, hearing, Judge Scarano did not even accurately understand the crime in question in this action-understanding that crime to be one of conspiracy and extortion, not the (arguably) less serious crime of attempted grand larceny. Finally, while the transcript of the July 18, 2002, hearing indicates that the government moved for the revocation of Plaintiffs bail pursuant to N.Y. Criminal Procedure Law § 530.60(1) and “the Parker warnings” that had apparently previously been given to Plaintiff, two points bear mentioning: (1) N.Y. Criminal Procedure Law § 530.60(1) does not say that a finding of “good cause” for the revocation of a defendant’s bail must involve a finding that probable cause existed to arrest the defendant for a crime committed after his release on bail; and (2) the record contains no evidence indicating that the administration of the warnings required by People of New York v. Parker; 57 N.Y.2d 136, 141, 454 N.Y.S.2d 967, 440 N.E.2d 1313 (N.Y.1982), which generally advise a defendant of “the nature of his right to be present at trial and the consequences of failing to appear for trial,” placed on Plaintiff the specific condition that his bail would be revoked if probable cause was found by a judge that he had committed a crime after release on bail. b. Defendant’s Second Argument Regarding Elements “(2)” and “(3)” Second, Defendant appears to argue that Plaintiffs arraignment before Judge Egan on July 30, 2002, demonstrates that a neutral arbiter found probable cause. (Dkt. No. 45, Part 3 at 6 [Def.’s Mem. of Law, arguing that “once the arraigning judge found probable cause, the possibility of defendant’s liability for any malicious prosecution came to an end”].) I reject this argument as well. As an initial matter, it is unclear, from the record, that what is referred to as Plaintiffs “arraignment” on July 30, 2002, involved a finding by Judge Egan that probable cause existed to support the charge of attempted grand larceny in the second degree. Defendant has not provided a transcript of that proceeding. Granted, it appears quite possible and perhaps likely that, on July 30, 2002, Judge Egan reviewed the facial sufficiency of the felony complaint filed by Defendant, and made such a finding of probable cause. Then again, the “arraignment” referenced in the record could simply have been a proceeding in which Plaintiff was brought before the court to (1) initially appear before the court, (2) have the charge read to him, and/or (3) be advised of his rights. In any event, even if Judge Egan had made a finding of probable cause on July 30, 2002, the resulting presumption that probable cause in fact existed can be rebutted or overcome by “evidence establishing that the police witnesses have not made a complete and full statement of facts ..., that they have misrepresented or falsified evidence, that they have withheld evidence or otherwise acted in bad faith.” Richards v. City of New York, 97-CV-7990, 2003 WL 21036365, at *14, 2003 U.S. Dist. LEXIS 8037, at *43 (S.D.N.Y. May 7, 2003) [quoting Colon v. New York, 60 N.Y.2d 78, 468 N.Y.S.2d 453, 455-56, 455 N.E.2d 1248 (N.Y.1983) ]. “Although the government has no constitutional obligation to present exculpatory material to [a court], ... New York law thus strips an indictment of its presumptive force in a malicious prosecution action when the indictment was obtained through improper means.” Richards, at *14, 2003 U.S. Dist. LEXIS 8037, at *43 [citation omitted]. Furthermore, as a New York State appellate court has explained, In the context of a malicious prosecution action, probable cause consists of such facts and circumstances as would lead a reasonably prudent person in like circumstances to believe plaintiff guilty. Although a mistake of fact ... might not void probable cause, a failure to make further inquiry when a reasonable person would have done so may evidence a lack of probable cause. New York law has long equated the civil defendant’s failure to make a full and complete statement of the facts to ... the court, or holding back information that might have affected the results, with that defendant’s initiation of a malicious prosecution. Ramos v. City of New York, 285 A.D.2d 284, 729 N.Y.S.2d 678, 690 (N.Y.App.Div., 1st Dept., 2001) [citations omitted]. Here, several pieces of record evidence exist from which a rational fact-finder could find that Defendant made an incomplete statement of the material facts to Judge Egan, and/or withheld material evidence from Judge Egan, and/or committed other bad faith conduct. First, the felony complaint authored by Defendant mis-stated the elements of the crime of Attempted Grand Larceny in the Second Degree under Sections 110.00 and 155.40(1) of the Penal Law of the State of New York, omitting the element of an awareness of wrongful conduct (a rather important element under the circumstances, for the reasons discussed below). Second, the felony complaint neglects to mention, or even apparently take into account, the several pages of transcripts of the telephone conversations between Plaintiff and Frank Catalano, indicating that Plaintiff was laboring under a genuine misapprehension, caused by his girlfriend at the time, Nicola Disant, that (1) Mr. Catalano had raped Ms. Disant, and (2) the rape, and Mr. Catalano’s romantic interest in Ms. Disant, had resulted in a conflict of interest with regard to Mr. Catalano’s representation of Plaintiff in various other criminal proceedings, warranting (among other desired remedies) a return of the $5,000 retainer that Plaintiff had (allegedly) given Mr. Catalano. Third, the felony complaint (dated July 19, 2002) neglects to mention, or even apparently take into account, the several portions of the Sworn Statement of Ms. Disant (dated July 18, 2002), indicating that (1) Ms. Disant had led Plaintiff to believe that Mr. Catalano had raped her and, (2) Plaintiff was sincerely (although ruthlessly and perhaps coercively) trying to settle out of court various potential civil claims that he believed he legitimately had against Mr. Catalano. Fourth, the felony complaint misleadingly states that, between “June 23, 2002 to July 17, 2002 [Plaintiff] threaten[ed] to cause the criminal charge of RAPE to be brought against FRANK CATALANO if he did not deliver to him $110,000.00 in United States currency.” (Dkt. No. 7, Ex. E [Plf.’s Am. Compl., attaching felony complaint].) In fact, by June 23, 2002, Ms. Disant had already reported the rape to the New York State Police, having reported the rape on June 23, 2002. After that June 23, 2002 report, Plaintiff was (albeit heavy handedly and perhaps coercively) attempting to persuade Mr. Catalano to pay Plaintiff and Ms. Disant money in exchange for Ms. Disant’s withdrawing her complaint and both of them not pursuing various civil claims against Mr. Catalano. While the distinction between these two factual scenarios might at first seem slight, the distinction is significant since a rational fact-finder could conclude that Plaintiff was acting sincerely from the fact that, upon hearing of the alleged rape on June 19, 2002, he immediately brought Ms. Disant to the Guilderland State Police Station on June 20, 2002, to report the rape. At least two federal district court cases from within the Second Circuit have found that a question of fact existed under circumstances that are similar or analogous to those present in the current case. See Richards, 2003 WL 21036365, at *16-17, 2003 U.S. Dist. LEXIS 8037, at *50-52 (“[T]he police may not purposely withhold or ignore exculpatory evidence that, if taken into account, would void probable cause.”) [citations omitted]; Taylor, 2006 WL 1699606, at *4 (“Although the evidence of [the defendant-police officers’] falsification [of the evidence relied on by the grand jury in reaching a determination of probable cause] is certainly not overwhelming, there are enough inconsistencies in the stories of the police at the scene of the arrest and irregularities in the taking of the plaintiffs statement to preclude summary judgment.”). Finally, an additional reason is present for finding that a question of fact exists with respect to Defendant’s alleged bad faith. In his Amended Complaint, Plaintiff alleges that Defendant decided to investigate Plaintiff rather than Mr. Catalano due to Defendant’s friendship with his partner John Dolan (a good friend and former client of Mr. Catalano’s) and/or his friendship with Mr. Catalano. For example, Plaintiff alleges (1) that Frank Catalano told Plaintiff that, because New York State Police Investigator John Dolan was a “good friend[]” and former client of Mr. Catalano’s, “withdrawing ... the charges [of rapé made by Ms. Disant against Mr. Catalano] ... [would be] an easy task,” (2) that Defendant was, during the relevant time period, Dolan’s partner, and (3) that, after Plaintiff and Ms. Disant reported the rape charge to Defendant, Defendant then informed Mr. Catalano of the charge, who started working with Defendant to entrap Plaintiff. I acknowledge that, generally, unsworn allegations are, by themselves, insufficient to create an issue of fact on a motion for summary judgment. However, some of these allegations are sufficiently supported by the record to create an issue of fact. Specifically, the Sworn Affidavit, of Nicola Disant indicates that, when she and Plaintiff initially filed their charge of rape against Mr. Catalano on Thursday, June 20, 2002, at the Guilderland State Police Station, Officer Dolan was present. The presence of Dolan at that initial meeting is conspicuously missing from Defendant’s “Investigation Sheet,” suggesting that some sort of bad faith was, during the relevant time period, harbored by Defendant. This inference of bad faith appears also from that very same “Investigation Sheet,” which seems to indicate that one of the reasons that Defendant arrested Plaintiff on July 18, 2002, was to cause Plaintiffs bail to be revoked in an unrelated criminal proceeding. Moreover, a defendant’s failure in its answer to properly deny a factual allegation contained in the plaintiffs complaint may constitute an admission under Rule 8(d) of the Federal Rules of Civil Procedure, sufficient to preclude the defendant from disputing the asserted fact during a subsequent summary judgment motion. Here, Plaintiff alleged in Paragraph 11 of his Amended Complaint that “Investigator John Dolan ... at all time relevant hereto was defendant William’s [sic] partner.” (Dkt. No. 7, ¶ 11 [Plf.’s Am. Compl.].) Defendant’s response was to “den[y] knowledge or information sufficient to form a belief as to the truth of [the] allegation[ ].” (Dkt. No. 33, ¶ 5 [Def.’s Answer].) I have trouble imagining how Defendant could not have possessed enough knowledge or information upon which he reasonably could have formed a personal belief concerning the truth of Plaintiffs allegation that, during the relevant time period, Mr. Dolan was his partner. It would appear that such knowledge or information was within his control as a New York State Police Officer. To the extent that Defendant was, in his Answer, attempting to deny knowledge or information sufficient to form a belief merely as to the first part of Paragraph 11 of Plaintiffs Amended Complaint, wherein Plaintiff alleged, “[u]pon information and belief, Frank A. Catal[a]no was informed of the reporting by defendant Investigation John Dolan ...,” Defendant’s broad response to that entire paragraph (i.e., including the second half of the paragraph) violates Rule 8(b), which provides that “[d]enials shall fairly meet the substance of the averments. When a pleader intends in good faith to deny only a part or a qualification of the averment, the pleader shall specify so much of it as is true and material and shall deny only the remainder.” Fed.R.Civ.P. 8(b). Under the circumstances, I find that the factual allegation in question should be deemed admitted, for purposes of Defendant’s summary judgment motion. 2. Effect of Probable Cause for Another Crime Although I do not read Defendant’s papers as expressly arguing that Plaintiffs malicious prosecution claim is barred by the fact that probable cause existed to arrest Plaintiff for an offense other than the offense charged, I believe that it is appropriate to briefly discuss such an issue, in the interest of thoroughness and clarity. Unlike the tort of false arrest, the tort of malicious prosecution is not necessarily barred where probable cause existed to arrest a plaintiff for a crime other than for the crime charged. In certain circumstances, a plaintiff may proceed on a claim of malicious prosecution for one crime even where probable cause existed to arrest the plaintiff for another crime. Specifically, the plaintiffs ability to proceed on such a malicious prosecution claim depends on whether the crime charged was distinct from, and more serious than, the crime for which probable cause existed to arrest the plaintiff. See Posr v. Doherty, 944 F.2d 91, 100 (2d Cir.1991) (“[W]e should not allow a finding of probable cause [with regard to the offense of disorderly conduct] to foreclose a malicious prosecution cause of action on charges requiring different, and more culpable behavior [such as resisting arrest and assaulting an officer].”), accord, Allen v. City of New York, 480 F.Supp.2d 689, 715-16 (S.D.N.Y.2007) (“[Plaintiffs] concession [that there was probable cause for corrections officers to arrest him for obstructing governmental administration], however, does not demonstrate that there was probable cause for his prosecution for assault, a distinct and more serious charge.”) (citing Posr, 944 F.2d at 100). “If the rule were [otherwise] ..., an officer with probable cause as to a lesser offense could tack on more serious, unfounded charges which would support a high bail or a lengthy detention, knowing that the probable cause on the lesser offense would insulate him from liability for malicious prosecution on the other offenses.” Posr, 944 F.2d at 100. For purposes of this probable cause inquiry on a malicious prosecution claim, charges may be sufficiently distinct from one another, and of a different level of seriousness, “even if they arose out of the same events occurring on the same occasion.” Reid v. City of New York, 00-CV-5164, 2004 WL 626228, at *5 (S.D.N.Y. March 29, 2004) (citing Posr, 944 F.2d at 100). This is because among the factors relevant to determining whether one offense was sufficiently distinct from, or more serious than, another offense (again, for purposes of this probable cause inquiry) are (1) whether any difference exists between the elements of the two offenses, and (2) whether any disparity exists in the sentencing ranges of the two offenses. See Reid, 2004 WL 626228, at *6 (citing Janetka v. Dabe, 892 F.2d 187, 190 [2d Cir.1989]); Allen, 480 F.Supp.2d at 715-16. Here, the crime charged was attempted grand larceny in the second degree under Sections 110.00 and 155.40(1) of the New York Penal Law. The elements of this offense are (1) an intent to (2) take, obtain or withhold from another person property that (3) has a value in excess of fifty thousand dollars, (4) with an awareness that such taking, obtaining or withholding of property was wrongful, and (5) conduct that tends to effect the commission of such a crime. This offense is a “class D felony.” Class D felonies are punishable by a minimum of between twelve and twenty eight months in prison and by a maximum of seven years in prison. On the other hand, the crime for which probable cause existed was attempted grand larceny in the fourth degree under Sections 110.00, 155.30(6), and 155.05(2)(e) of the New York Penal Law. The elements of this offense are (1) an intent to (2) take, obtain or withhold from another person property, regardless of its value, (3) by extortion, that is, by either (A) compelling or inducing another person to deliver property to himself or to a third person by means of instilling in him a fear that, if the property was not so delivered, the actor or another would expose a secret or publicize an asserted fact, whether true or false, tending to subject some person to hatred, contempt or ridicule or (B) performing an act that would not in itself materially benefit the actor but that was calculated to harm another pers