Court of Appeals — Malicious Prosecution: Grucci v. Grucci

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New York State Court of Appeals

Malicious Prosecution

Decision to Prosecute — Authenticating an Audiotape

Grucci v. Grucci
No. 196
Memorandum

Background: After the defendant wife sued the plaintiff for divorce, the plaintiff was charged with harassing the defendant. Within a year, the plaintiff was charged with violating that order by making repeated harassing phone calls. He was acquitted due to the defendant’s inconsistent testimony concerning the alleged threats. The plaintiff commenced an action for malicious prosecution against the defendant. At the close of trial, the jury concluded that the defendant had not initiated the prosecution.

Ruling: The Court of Appeals affirmed. The court found that an audiotape of a conversation between the defendant and another individual was properly excluded. Notwithstanding her admission that she wasn’t afraid of the plaintiff, there had to be a proper authentication to be admissible. There had been no attempt to authenticate the audiotape as genuine. Finally, the assistant district attorney testified at the trial that the decision to prosecute was his and his alone.

Arthur V. Graseck Jr. for the appellant; Timothy Hill for the respondent