MANGANIELLO v. CITY OF NEW YORK

of law on the ground that he was entitled to qualified immunity.

In an exhaustive discussion in Manganiello II, thoroughly annotated with citations to the trial transcript, the district court rejected each of Agostini's contentions and denied the motion. Based principally on the evidence described in Part I.A. above, the court found that "Manganiello provided enough evidence at trial that a reasonable juror could conclude that Agostini . . . failed to make a complete and full statement of facts to the District Attorney, misrepresented or falsified evidence, withheld evidence or otherwise acted in bad faith." Manganiello II, 2008 WL 5159776, at *2 (internal quotation marks omitted). The Court concluded that the jury reasonably found that Manganiello had "successfully rebutted the presumption of probable cause that was created by the grand jury indictment." Id. at *5. The district court ruled that that evidence was also sufficient to permit the jury to find that probable cause was actually lacking.

The court found that there was likewise sufficient evidence of the other elements of a malicious prosecution claim. It found that "there was enough evidence for the jury to reasonably conclude that Agostini commenced or initiated the criminal prosecution" because he "provided the District Attorney's office with all the information that led to the authorization for Manganiello's arrest" and "signed the felony complaint." Id. at *6. As to malice, the court noted that "`[m]alice may be shown by proving that the prosecution complained of was undertaken from improper or wrongful motives, or in reckless disregard of the rights of the plaintiff,'" id. at *7 (quoting Pinsky v. Duncan, 79 F.3d 306, 313 (2d Cir. 1996)). It found that the jury could have found malice on the part of Agostini from the lack of probable cause, see Manganiello II, 2008 WL 5159776, at *7, as well as from Agostini's harsh treatment of Manganiello at the time of his initial arrest and Agostini's evident pique at being instructed to release Manganiello at that time, see id. at *10-*11.

With respect to Agostini's motion for judgment as a matter of law on the ground of qualified immunity, the district court again noted the jury's findings that Agostini had misrepresented the evidence to prosecutors, or had withheld material evidence or information from the prosecutor, or had given testimony to the grand jury that was false or materially misleading " and knew that he was making a material misrepresentation or omission or giving false testimony," Manganiello II, 2008 WL 5159776, at *8 (emphasis in original). The court concluded that, in light of these facts, "it would not have been objectively reasonable for Agostini to believe that his actions or omissions" did not violate Manganiello's "clearly established constitutional rights. Put another way, there could be no disagreement among officers of reasonable competence that [Agostini's] conduct was unlawful." Id.

Agostini also moved, in the alternative, for a new trial on various grounds. As discussed in Part III below, the district court denied that motion as well.

On appeal, Agostini pursues his contentions that he was entitled to judgment as a matter of law on the grounds of qualified immunity or insufficient evidence to prove the claim of malicious prosecution, and, alternatively, that he is entitled to a new trial. For the reasons that follow, we find none of his contentions persuasive.

II. THE DENIAL OF JUDGMENT AS A MATTER OF LAW

In order to prevail on a § 1983 claim against a state actor for malicious prosecution, a plaintiff must show a violation of his rights under the Fourth Amendment, see, e.g., Murphy v. Lynn, 118 F.3d 938, 944 (2d Cir. 1997), cert. denied, 522 U.S. 1115, 118 S.Ct. 1051, 140 L.Ed.2d 114 (1998); Rohman v. New York City Transit Authority, 215 F.3d 208, 215 (2d Cir. 2000), and must establish the elements of a malicious prosecution claim under state law, see, e.g., Murphy v. Lynn, 118 F.3d at 944; Russell v. Smith, 68 F.3d 33, 36 (2d Cir. 1995); Janetka v. Dabe, 892 F.2d 187, 189 (2d Cir. 1989). To establish a malicious prosecution claim under New York law, a plaintiff must prove "`(1) the initiation or continuation of a criminal proceeding against plaintiff; (2) termination of the proceeding in plaintiff's favor; (3) lack of probable cause for commencing the proceeding; and (4) actual malice as a motivation for defendant's actions.'" Murphy v. Lynn, 118 F.3d at 947 (quoting Russell v. Smith, 68 F.3d at 36); see Broughton v. State, 37 N.Y.2d 451, 457, 373 N.Y.S.2d 87, 94, 335 N.E.2d 310, cert. denied, 423 U.S. 929, 96 S.Ct. 277, 46 L.Ed.2d 257 (1975).

In considering a motion for judgment as a matter of law, the district court

" must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence. . . . Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge. . . . Thus, although the court should review the record as a whole, it must disregard all evidence favorable to the moving party that the jury is not required to believe."

Zellner v. Summerlin, 494 F.3d 344, 370 (2d Cir. 2007) (" Zellner") (quoting Reeves v. Sanderson Plumbing, 530 U.S. 133, 150-51, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (other internal quotation marks omitted) (emphases in Zellner"). We review a district court's denial of a motion for judgment as a matter of law de novo. "In so doing, we apply the same standard[s] that [are] required of the district court." Zellner, 494 F.3d at 371. Under these standards, Agostini plainly was not entitled to judgment as a matter of law.

A. Probable Cause

Although the existence of probable cause must be determined with reference to the facts of each case, in general "[p]robable cause to arrest exists when the officers have knowledge of, or reasonably trustworthy information as to, facts and circumstances that are sufficient to warrant a person of reasonable caution in the belief that an offense has been or is being committed by the person to be arrested." Zellner, 494 F.3d at 368 (citing, e.g., Dunaway v. New York, 442 U.S. 200, 208 n. 9, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979); Wong Sun v. United States, 371 U.S. 471, 479, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Brinegar v. United States, 338 U.S. 160, 175-76, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949)). Probable cause may also exist where the officer has relied on mistaken information, so long as it was reasonable for him to rely on it. See, e.g., Hill v. California, 401 U.S. 797, 803-04, 91 S.Ct. 1106, 28 L.Ed.2d 484 (1971). However, "the failure to make a further inquiry when a reasonable person would have done so may be evidence of lack of probable cause." Colon v. City of New York, 60 N.Y.2d 78, 82, 468 N.Y.S.2d 453, 455, 455 N.E.2d 1248 (1983). The existence of probable cause must be determined by reference to the totality of the circumstances. See, e.g., Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).

"[T]he existence of probable cause is a complete defense to a claim of malicious prosecution in New York," Savino v. City of New York, 331 F.3d 63, 72 (2d Cir. 2003), and "indictment by a grand jury creates a presumption of probable cause," id. That presumption may be rebutted only "by evidence that the indictment was procured by `fraud, perjury, the suppression of evidence or other police conduct undertaken in bad faith.'" Id. (quoting Colon v. City of New York, 60 N.Y.2d at 83, 468 N.Y.S.2d at 456, 455 N.E.2d 1248). Where there is some indication in the police records that, as to a fact crucial to the existence of probable cause, the arresting officers may have "lied in order to secure an indictment," and "a jury could reasonably find that the indictment was secured through bad faith or perjury," the presumption of probable cause created by the indictment may be overcome. Boyd v. City of New York, 336 F.3d 72, 77 (2d Cir. 2003). "Like a prosecutor's knowing use of false evidence to obtain a tainted conviction, a police officer's fabrication and forwarding to prosecutors of known false evidence works an unacceptable `corruption of the truth-seeking function of the trial process.'" Ricciuti v. N.Y.C. Transit Authority, 124 F.3d 123, 130 (2d Cir. 1997) (" Ricciuti") (quoting United States v. Agurs, 427 U.S. 97, 104, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976)).

As set out in Part I above, the jury in the present case found that Agostini had engaged in at least one of those forms of misconduct and had done so knowingly. We see no error in the district court's ruling that there was ample evidence to support the jury's findings. The evidence described above included, for example, Agostini's misrepresentation in one of his DD5s that, after Manganiello responded to a report of a disturbance at 1700 Metropolitan on February 12, 2001, prior to the shooting of Acosta in the basement of that building, no one had seen Manganiello leave the building. In fact, a DD5 prepared by Martinez, and given to Agostini as leader of the investigative team, reported that two NYPD officers who had also responded to that disturbance stated that Manganiello left the building with them.

In addition, although there was evidence that Manganiello had informed Agostini of two prior instances in which Acosta had been assaulted or threatened by members of the Bloods or by other local thugs, Agostini's DD5 on his interrogation of Manganiello stated that when he asked Manganiello "if anyone he knows has any problems with" Acosta, "Manganiello would not answer." (Plaintiff's Exhibit 33.)

Agostini apparently made no effort to follow up on the information Manganiello gave him. The record also indicates that Agostini made only the most superficial and credulous of inquiries of the taxi passenger who had been overheard telling someone he had been present at the shooting and had seen the shooter. And the jury could infer that Agostini coerced a false statement about Manganiello from Booth in exchange for not reporting Booth to the organized crime bureau.

Further, it was permissible for the jury, on the evidence before it, to find that Agostini used Alston to inculpate Manganiello with no concern whatever for whether Alston's statements were truthful. It was clear that Agostini promoted Alston to the ADA as a witness against Manganiello despite knowing that Alston had already lied to him about Manganiello at least once; and it was clear that Agostini in his paperwork — some of which was sent to the ADA and would have been subject to discovery by Manganiello prior to the criminal trial — did not mention Agostini's belief that Alston was "playing games." In addition, given Alston's angry criticism of Agostini for interviewing Baker without Alston being present and Alston's insistence that any future alleged witness not be interviewed by Agostini in Alston's absence, the jury was entitled (a) to disbelieve Agostini's testimony that he had no suspicion that Alston was planning to continue fabricating evidence, and (b) to infer that Agostini did not inform the ADA of Alston's insistence because Agostini knew that if the ADA were aware of it she would question the veracity of statements thus procured.

In sum, looking at the evidence as a whole, the jury could permissibly infer that Agostini was determined simply to make a case against Manganiello, and that in order to do so Agostini refrained from making inquiry into other possible suspects, ignored evidence that was inconsistent with his belief that Manganiello was guilty, declined to inform the ADA of, or to document, any exculpatory evidence or inconsistencies in the statements of witnesses who agreed to inculpate Manganiello, secured one statement inculpating Manganiello by agreeing not to disclose the witness's known criminal activities to the proper authorities, and included in some of Agostini's own reports supposedly factual statements adverse to Manganiello that were contradicted by persons having first-hand knowledge of the facts. The evidence amply supported the jury's finding that Agostini had engaged in misconduct and supported the conclusions both that the presumption of probable cause created by the grand jury indictment was rebutted and that probable cause was lacking.

B. Other Elements of Malicious Prosecution

Agostini also contends that he was entitled to judgment as a matter of law on the basis that Manganiello failed to establish that Agostini had caused the initiation or the continuation of the criminal proceeding and failed to establish that Agostini had acted with actual malice. Again, we disagree.

To initiate a prosecution, a defendant must do more than report the crime or give testimony. He must "play[] an active role in the prosecution, such as giving advice and encouragement or importuning the authorities to act." Rohman v. New York City Transit Authority, 215 F.3d at 217 (internal quotation marks omitted). A jury may permissibly find that a defendant initiated a prosecution where he "fil[ed] the charges" or "prepar[ed an] alleged false confession and forward[ed] it to prosecutors." Ricciuti, 124 F.3d at 130. Here, there was sufficient evidence from which the jury could infer that Agostini, inter alia, actively elicited inculpatory statements from witnesses such as Alston and Booth, whose veracity in making such statements was circumstantially suspect; that Agostini forwarded those statements to the ADA; that Agostini was in touch with the ADA at least once a week; and that Agostini signed the felony complaint on which Manganiello was ultimately rearrested. This sufficed to satisfy the initiation-or-continuation element.

Finally, we also agree with the district court that the evidence was ample to permit an inference that Agostini proceeded against Manganiello with malice. First, "[a] lack of probable cause generally creates an inference of malice." Boyd v. City of New York, 336 F.3d at 78; see, e.g., Ricciuti, 124 F.3d at 131; Lowth v. Town of Cheektowaga, 82 F.3d 563, 573 (2d Cir. 1996). Further,

malice may be shown by proving that the prosecution complained of was undertaken from improper or wrongful motives, or in reckless disregard of the rights of the plaintiff.

Pinsky v. Duncan, 79 F.3d 306, 313 (2d Cir. 1996) (internal quotation marks omitted); see also Lowth v. Town of Cheektowaga, 82 F.3d at 573 (malice may be proven by showing that the prosecutor had "a wrong or improper motive, something other than a desire to see the ends of justice served" (internal quotation marks omitted)).

Malice on the part of Agostini could easily be inferred in light of the evidence in the present case of, inter alia, Agostini's apparently myopic focus on Manganiello, to the exclusion of all other suspects; Agostini's otherwise seemingly inexplicable false statements about Manganiello's conduct that were contrary to the reported first-hand knowledge of others; Agostini's willingness to coerce an inculpatory statement from one unwilling person in exchange for not reporting that person's known criminal activities; and his willingness to have Manganiello indicted on the basis of testimony of another person who was known to have lied to Agostini at least once in this very matter and who was evidently willing to intimidate others into falsely providing the evidence Agostini sought. The jury was entitled to find that Agostini's adherence to the view that Alston, in producing Damon, had given Agostini the "right" information (Tr. 248), while Agostini admitted that Alston had "asked Damon to lie about Anthony Manganiello" ( id. at 330), was reflective of, in the words of Lowth, "something other than a desire to see the ends of justice served."

It was also understandably difficult for the jury to fathom an appropriate explanation for Agostini's misrepresentation, in the course of the criminal proceeding, of the contents of the note he had found in Manganiello's locker. To testify that Manganiello's note stating "I pray every day I will never have to kill someone" instead said "I feel like killing somebody" (Tr. 266-67) cannot be viewed as better than a reckless disregard of Manganiello's rights. Although that statement was made after the initiation of the criminal proceeding, the jury was entitled, especially in light of the other evidence as to Agostini's conduct of the investigation, to view that misrepresentation as indicative of Agostini's state of mind all along.

C. Qualified Immunity

A government official sued in his individual capacity is entitled to qualified immunity (1) if the conduct attributed to him was not prohibited by federal law, see, e.g., County of Sacramento v. Lewis, 523 U.S. 833, 841 n. 5, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998); Siegert v. Gilley, 500 U.S. 226, 232, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991); or (2) where that conduct was so prohibited, if the plaintiff's right not to be subjected to such conduct by the defendant was not clearly established at the time it occurred, see, e.g., Harlow v. Fitzgerald, 457 U.S. 800, 817-19, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982); or (3) if the defendant's action was "objective[ly] legal[ly] reasonable[] . . . in light of the legal rules that were clearly established at the time it was taken." Anderson v. Creighton, 483 U.S. 635, 639, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987) (internal quotation marks omitted). . . .

Munafo v. Metropolitan Transportation Authority, 285 F.3d 201, 210 (2d Cir. 2002). Only the third aspect of the qualified immunity doctrine was genuinely at issue in the present case, for "[f]reedom from malicious prosecution is a constitutional right that has long been clearly established." Kinzer v. Jackson, 316 F.3d 139, 143 (2d Cir. 2003).

"Whether a defendant officer's conduct was objectively reasonable is a mixed question of law and fact." Zellner, 494 F.3d at 367. The factfinder must determine any disputed material facts, and on the basis of the facts permissibly found, the court must decide "whether it was objectively reasonable for the officer to believe that his conduct did not violate a clearly established right, i.e., whether officers of reasonable competence could disagree as to the lawfulness of such conduct." Id.

Although a mere mistake in the performance of an official duty may not deprive the officer of qualified immunity, the doctrine does not shield performance that either (a) was in violation of clearly established law, or (b) was plainly incompetent. See, e.g., Hunter v. Bryant, 502 U.S. 224, 229, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991) ("The qualified immunity standard `gives ample room for mistaken judgments' by protecting `all but the plainly incompetent or those who knowingly violate the law.'" (quoting Malley v. Briggs, 475 U.S. 335, 343, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986))). With respect to both the legal question and the matter of competence, the officials' actions must be evaluated for objective reasonableness. Thus, the doctrine shields officers from suit for damages if "`a reasonable officer could have believed'" his action "`to be lawful, in light of clearly established law and the information [he] possessed.'" Hunter, 502 U.S. at 227, 112 S.Ct. 534 (quoting Anderson v. Creighton, 483 U.S. 635, 641, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)). That is, "[e]ven if the right at issue was clearly established in certain respects . . . an officer is still entitled to qualified immunity if `officers of reasonable competence could disagree' on the legality of the action at issue in its particular factual context." Walczyk v. Rio, 496 F.3d 139, 154 (2d Cir. 2007) (quoting Malley, 475 U.S. at 341, 106 S.Ct. 1092).

In the present case, given the jury's findings that Agostini misrepresented the evidence to the prosecutors, or failed to pass on material information, or made statements that were false, and engaged in such misconduct knowingly, and given the ample evidentiary support for those findings, the district court correctly concluded that no reasonable officer could have believed Agostini's actions to be lawful. Agostini's motion for judgment as a matter of law based on qualified immunity was properly denied.

III. DENIAL OF THE MOTION FOR A NEW TRIAL

Agostini contends that the district court should at least have granted him a new trial, arguing principally that the court (a) erroneously instructed the jury that it was permitted to draw an inference adverse to Agostini as to the contents of the missing criminal case file, (b) inappropriately curtailed defense counsel's summation, (c) failed to find the jury's verdict excessive, and (d) improperly interrupted the questioning of the witnesses and made inappropriate comments during the trial.

The district court's denial of a Rule 59 motion for a new trial is reviewed for abuse of discretion. See, e.g., AMW Materials Testing, Inc. v. Town of Babylon, 584 F.3d 436, 456 (2d Cir. 2009). A district court has abused its discretion if it has (1) "based its ruling on an erroneous view of the law," (2) made "a clearly erroneous assessment of the evidence," or (3) "rendered a decision that cannot be located within the range of permissible decisions." Sims v. Blot, 534 F.3d 117, 132 (2d Cir. 2008) (internal quotation marks omitted). For the reasons that follow, we find no basis for reversal here.

A. The Adverse Inference Instruction

As discussed in Part I.A. above, the case file in Manganiello's criminal proceeding disappeared prior to his trial and was never found. The court in the present case gave the jury an instruction that stated, in part,

[i]f you find that a party could have produced documents or other evidence in this lawsuit, and that such evidence was at one time within that party's control or in his or her custody, and that this evidence would have been relevant in deciding facts in dispute in this lawsuit, you are permitted, but not required, to infer that the evidence, if produced, would have been unfavorable to that party.

(Tr. 782-83 (emphasis added).) Agostini contends that this instruction should not have been given, arguing principally that Manganiello did not establish that Agostini had custody or control over the homicide file when it was lost or misplaced, or that Agostini had an obligation to preserve the file at that time, or that the files were destroyed with a culpable state of mind, or that the missing documents were relevant. We disagree.

The suggestion that none of the missing documents would have been relevant here is belied by the various discrepancies, discussed in Parts I.A. and II.A. above, among versions of the conduct attributed to Manganiello. For example, the record contains DD5s indicating divergent statements by Cobb, the only witness whose testimony — consistent with most of the DD5 on Martinez's interview of Cobb — placed Manganiello in the basement at the time of the shooting. Yet from Martinez's DD5 on his interview with Perez, it is inferable that Cobb did not tell Perez, the first officer to question him at the scene of the crime, that the basement door had burst open seconds after the shot and that he saw Manganiello emerge from the basement, for it seems inconceivable that Perez would not have included that information when he was interviewed by Martinez. And it seems unlikely that Cobb would have failed to describe such a startling sequence of events to Perez immediately after the incident if the incident was as Cobb eventually described it to the grand jury. The handwritten notes made prior to the preparation of the various DD5s may have contained clarifying information that was not incorporated in the DD5s, including information as to the provenance of the variations in the versions given by Cobb.

The contention that Agostini had no obligation to preserve the case file is frivolous. The case file had been committed to his custody as the leader of the investigative team, and Agostini admitted at trial that it was his responsibility to preserve the evidence until the time of trial ( see Tr. 235-36; see also id. at 612 (similar testimony of the ADA)). Agostini's contention that the case file — which he left under his desk or on top of a locker — was not under his control amounts to no more than an inappropriate attempt to abdicate his responsibility for its preservation. Although Agostini testified at trial that he had removed the case file from a room in which such files were normally kept because that room was being "clean[ed] . . . out" ( id. at 242), he gave no reason for not putting the case file in some other safe place — other than his explanation that the papers were in a box, and the box itself was too large to fit into a secure file cabinet ( see id. at 241-42; ( id. at 242 ("It was just too big of a box.")).

In addition to instructing the jury that it could, but was not required to, draw an inference that missing files would have contained information adverse to the party who had and lost them, the court told the jury that

[i]n deciding whether to draw this inference, you should consider whether the evidence that was not produced would merely have duplicated other evidence already introduced. You may also consider whether the party has offered a reason for not producing this evidence, and whether that reason was explained to your satisfaction.

(Tr. 783.) We see no error or abuse of discretion in the giving of these instructions.

B. The Exhibits and the Defense Summation

Agostini complains that the district court improperly allowed Manganiello to interrupt the defense summation and prevented defense counsel from making points to the jury with regard to certain DD5s, marked for identification as defendants' exhibits "P-2" and "Z-7." The record reflects an unusual amount of confusion among the parties and the court but reveals no error by the court and no prejudice to Agostini.

During the trial, the court had admitted in evidence a number of documents offered by the defendants. Thereafter, in a colloquy not characterized by clarity, defense counsel stated, "your Honor, defendants would just enter into evidence the remaining DD5s which have yet to be entered into evidence, which I can read if your Honor requires" (Tr. 326); the court responded, " We will just get a list later" (id. (emphasis added)); and Manganiello's attorney said, "For the record, Judge, we stated the objections that were previously stated" ( id.). Defense counsel did not, however, supply the court with a list as requested by the court ( see id. at 765-66), and "P-2" and "Z-7" were not among the documents shown in the trial transcript to have been admitted in evidence before the commencement of summations.

During his summation, defense counsel asked the jury to consider "P-2" and "Z-7," and Manganiello objected on the ground that they had not been admitted in evidence. As asking the jury to consider documents that are not in evidence is improper, the court instructed defense counsel not to refer to "P-2" and "Z-7" and stated that those documents would not be given to the jury unless and until there was a determination that they were admitted in evidence. ( See id. at 705-07.)

Following the completion of summations, the court determined, in conference with the parties, that in fact it had not admitted "P-2" and "Z-7" during the testimony of any witness, as no witness had mentioned them and they had not been shown to any witness; and it had not admitted them as part of defense counsel's proposed admission of DD5s in bulk because defendants had not submitted to the court the required list of such documents. Nonetheless, given the confusion, the court decided at the post-summation conference to admit "P-2" and "Z-7" in evidence. Accordingly, when the jury asked to see those documents during its deliberations, they were given to the jury.

Agostini complains that the court did not also allow defense counsel to reopen his summation to review those documents with the jury. Such a matter is committed to the discretion of the trial court, and we see no abuse of discretion here. "P-2" and "Z-7" apparently had not been admitted in evidence at the time of the summations, and the defense bears some or all of the responsibility for the confusion as to whether they were in evidence and for the fact that they were not. It was well within the court's discretion to decline to allow the defense summation to be reopened.

C. The Challenge to the Amount of the Jury's Verdict

Agostini contends that the jury's award of $1,426,261 in compensatory damages was excessive and that the district court should have ordered a remittitur or a new trial. We are unpersuaded, as a jury's damages award may not be set aside unless "`the award is so high as to shock the judicial conscience and constitute a denial of justice,'" O'Neill v. Krzeminski, 839 F.2d 9, 13 (2d Cir. 1988) (quoting Zarcone v. Perry, 572 F.2d 52, 56 (2d Cir. 1978)).

The record in the present case included evidence that Manganiello, age 38 at the time of his arrest — and age 42 by the time he was acquitted — had, among other things, been discharged from his job at the Parkchester, been discharged from his part-time job as a state park policeman, and been stripped by the City of his special patrol officer certifications; and he was past the age at which he could reenter the police academy to re-earn such certifications. Further, in the wake of his arrest, Manganiello, who had had no prior history of psychiatric problems, became agoraphobic and subject to frequent panic attacks, dizziness, and nausea. Dr. Rehana Latif, the psychiatrist who treated Manganiello during the seven years between his arrest and the trial in the present case, diagnosed Manganiello with post-traumatic stress disorder and major depression, and she testified that the severe stress caused him to have a chemical imbalance. Dr. Latif testified that the chemical imbalance

ha[d] permanently disabled him and his prognosis is poor to fair. (Tr. 679, 680-85.) She further testified that Manganiello is unable to pursue any work because his cognitive functioning, emotions, concentration, understanding and energy levels are too impaired. (Tr. 679, 680, 684.)

Manganiello II, 2008 WL 5159776, at *18; see also id. ("Dr. Latif testified that Manganiello suffered from moderate to severe panic attacks, which caused him to be unable to function in any capacity or to work. (Tr. 675-77.)"). Manganiello's "expert economist[] calculated Manganiello's pecuniary losses conservatively." Manganiello II, 2008 WL 5159776, at *19. The economist (a) calculated that Manganiello's lost past earnings amounted to $377,000; and (b) assuming that Manganiello would have retired at age 61.5, and discounting future lost earnings to present value, calculated Manganiello's lost future earnings to be $829,000. Id. The court noted that defendants had not presented any evidence to rebut the testimony of either the psychiatrist or the economist. The court noted that "Manganiello was also entitled to recover the $110,000 in attorneys' fees that he paid for his criminal defense, which he would not have had to pay but for the malicious prosecution." Id.

Thus, the court found that the record supported an award of more than $1,310,000 in pecuniary losses, and that that sum, as well as the remainder of the jury's award, approximately $116,600, for the wrongful incarceration and humiliation, was

in line with the awards in the cases cited by Agostini. See, e.g., Gentile v. County of Suffolk, 926 F.2d 142, 153 (2d Cir. 1991) (affirming award of $150,000 for pain and suffering, several days of false imprisonment, psychological trauma, loss of job opportunities and attorneys' fees). See also Papa v. City of New York, 194 A.D.2d 527, 532, 598 N.Y.S.2d 558 (N.Y.App.Div. 1993) (lost earnings calculated to be over $3 million in malicious prosecution case).

Manganiello II, 2008 WL 5159776, at *19.

Given the evidence, we see no error in the district court's conclusion that the jury's verdict was not so large as to shock the judicial conscience.

D. Allegedly Prejudicial Comments by the Court

Finally, Agostini contends that during the trial, the court made prejudicial comments or asked questions that may have had the effect of bolstering the testimony of witnesses for Manganiello and suggesting to the jury that the court favored the plaintiff's case. A "court must strive for `that atmosphere of perfect impartiality which is so much to be desired in a judicial proceeding'. . . . and must be especially cautious and circumspect in language and conduct during a jury trial." Santa Maria v. Metro-North Commuter R., 81 F.3d 265, 273 (2d Cir. 1996) (quoting Glasser v. United States, 315 U.S. 60, 82, 62 S.Ct. 457, 86 L.Ed. 680 (1942)). "[A]sking numerous and probing questions of witnesses is unquestionably proper," although the "trial judge should limit questioning to inquiries necessary to clarify ambiguities, correct misstatements, or obtain information necessary to make rulings." Shah v. Pan American World Services, Inc., 148 F.3d 84, 98 (2d Cir. 1998) (internal quotation marks omitted), cert. denied, 525 U.S. 1142, 119 S.Ct. 1033, 1034, 143 L.Ed.2d 42 (1999). Reversal may be appropriate if the judge has expressed his "opinion on an ultimate issue of fact in front of the jury or [has argued] for one of the parties," id. (internal quotation marks omitted). Nonetheless, "[i]n reviewing a challenge to a trial judge's conduct, we determine not whether the trial judge's conduct left something to be desired," but rather, in light of the record as a whole, "whether the judge's behavior was so prejudicial that it denied [a party] a fair, as opposed to a perfect, trial." Id. (internal quotation marks omitted); see, e.g., United States v. Rosa, 11 F.3d 315, 343 (2d Cir. 1993), cert. denied, 511 U.S. 1042, 114 S.Ct. 1565, 128 L.Ed.2d 211 (1994); United States v. Manko, 979 F.2d 900, 905-06 (2d Cir. 1992), cert. denied, 509 U.S. 903, 113 S.Ct. 2993, 125 L.Ed.2d 687 (1993).

We see no basis for reversal here. Although the court asked questions and made comments, our review of the record persuades us that the court was attempting to gain clarification for the jury and to prevent the trial from becoming bogged down in repetitious or inappropriate advocacy. And the court so informed the jury. In denying Agostini's motion for a new trial on this ground, the district court, after discussing the above principles governing the conduct of a trial judge, noted in part that

[a]ll the questions that this Court posed to witnesses were for clarification and due to the fact that, in the case of Agostini, his testimony was frequently contradictory and ambiguous and appeared less than candid and forthcoming. In any event, the jury was thoroughly instructed that they were not to draw any inferences from the Court's questions:

I also ask you to draw no inference from the fact that upon occasion I may have asked questions of certain witnesses. Such questions were only intended for clarifications or to expedite matters and certainly were not intended to suggest any opinion on my part as to the verdict you should render or whether any of the witnesses may have been more credible than any other of the witnesses.

Manganiello II, 2008 WL 5159776, at *14 (quoting Tr. 772). The court also instructed the jury to draw no inferences from the court's rulings:

During the trial, I have been called upon to make rulings on various questions. Those rulings are not evidence and need not be considered by you. Procedural matters are matters of law and, although you may have been curious about them, you should not consider them.

The rulings I have made during the trial are not any indication of my views of what your decision should be.

(Tr. 772.)

We have no doubt that the court's cautionary instructions were heeded. The jury returned a finely tuned verdict in which it found that three of the five defendants it was considering had not engaged in malicious prosecution of Manganiello, and that of the two defendants who had, only Agostini had done so knowing that he was engaging in misconduct. We have examined the record and are persuaded that the trial court's comments, questions, and rulings did not deny Agostini a fair trial.

CONCLUSION

We have considered all of Agostini's contentions on this appeal and have found them to be without merit. The judgment of the district court is affirmed.