With no explanation, chose the best option from "A", "B", "C" or "D". thus the claims against them were properly dismissed. V. Dismissal of the Malicious Prosecution Claim The District Court dismissed the malicious prosecution claim because the allegedly malicious prosecution had not terminated in McGee’s favor, as required by New York law. We agree. The prosecution against McGee terminated when, pursuant to N.Y. CPL § 170.30(l)(a), the accusatory instrument was dismissed as facially insufficient to state a claim for witness tampering. A55-56. We have held that a dismissal under CPL § 170.30 for facial insufficiency is “not a decision on the merits, an essential element of a cause of action for malicious prosecution.” Breen v. Garrison, 169 F.3d 152, 153 (2d Cir.1999); see also MacFawn v. Kresler, 88 N.Y.2d 859, 644 N.Y.S.2d 486, 666 N.E.2d 1359 (1996) (<HOLDING>). McGee relies upon Smithy-Hunter v. Harvey in

A: holding that a claim dismissed as malicious under the ifp statute should be with prejudice
B: holding that a claim for malicious prosecution is not available when a prosecutor makes an independent determination of whether to pursue criminal charges
C: holding that the defendant could not be liable for malicious prosecution where the plaintiff presented no evidence suggesting that defendants conspired with influenced or even participated in the prosecutors decision to bring charges against him
D: holding that action could not form the basis of a malicious prosecution claim where criminal information was dismissed as insufficient to support the charges without prejudice and the prosecutors did not amend or refile
D.