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Amore v. Novarro

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Argued: July 16, 2009

Before: SACK and B.D. PARKER, Circuit Judges, and GOLDBERG, Judge.*fn2

Defendant-Appellant Andrew Novarro, an Ithaca, New York policeman, appeals from that part of a memorandum decision and order dated March 28, 2008, by the United States District Court for the Northern District of New York (Frederick J. Scullin, Jr., Judge) denying his motion for summary judgment on a false arrest claim brought by plaintiff-appellee Joseph Amore under 42 U.S.C. § 1983. The claim is based on Novarro’s arrest of Amore pursuant to New York Penal Law Section 240.35(3), which, on its face, prohibits loitering in a public place for the purpose of soliciting another person to engage in “deviate” sexual behavior.*fn3 Amore alleges that his apprehension constituted a false arrest because the statute, although then officially and unofficially published as currently effective law, had been ruled unconstitutional by the New York Court of Appeals eighteen years before.

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