Barnes v. City of New York

• Decision Date: 11 July 2002
• Citation: 745 N.Y.S.2d 20,296 A.D.2d 330
• Court: New York Supreme Court — Appellate Division
• Parties: DARRYL BARNES, Respondent,<BR>v.<BR>CITY OF NEW YORK et al., Appellants.

296 A.D.2d 330

745 N.Y.S.2d 20

DARRYL BARNES, Respondent,

v.CITY OF NEW YORK et al., Appellants.

Decided July 11, 2002.

Concur — Mazzarelli, J.P., Ellerin, Wallach, Rubin and Friedman, JJ.

Plaintiff commenced this action against the City of New York and Police Officer Frantz Jerome to recover damages for personal injuries incurred when Officer Jerome shot plaintiff on the night of August 22, 1988. During the trial of this action, defendants sought to introduce evidence that plaintiff was a member of a group known as the "Five Percenters," which espouses a vicious ideological hatred of the police and propounds to its members a protocol to shoot and kill police officers rather than submit to arrest.^[1] The trial court excluded this evidence on the ground that it was collateral and unfairly prejudicial, and the jury resolved factual issues in favor of plaintiff, rendering a verdict for him. We now hold that, contrary to the trial court's view, exclusion of such evidence constituted reversible error requiring that there be a new trial.

The facts surrounding the subject incident are strongly in dispute. Officer Jerome's testimony was that he began pursuing plaintiff after plaintiff, whom the officer observed to be carrying a semi-automatic handgun, disobeyed the officer's order to stop and drop his weapon. According to Officer Jerome, plaintiff fired at him during the ensuing chase, and, subsequently, when plaintiff appeared to be preparing to fire at him again, the officer fired his service revolver. It is plaintiff's contention in this action, however, that, when Officer Jerome shot him, plaintiff had dropped his weapon and was raising his hands in the air. Plaintiff gave testimony to this effect at the hearing held pursuant to General Municipal Law § 50-h and at his EBT, transcripts of which were read into evidence at trial.^[2]

Under the particular circumstances of this case, evidence of this plaintiff's motive would be admissible to show that the plaintiff was likely to act in accordance therewith on this occasion. For example, in a prosecution for the attempted murder of two police officers, where the case was a largely circumstantial one, the Court of Appeals held that testimony that the defendant professed "a vicious ideological hatred for the police," and documents expressing militantly anti-police views that were discovered in his apartment, were admissible to show motive for the shooting (People v Moore, 42 NY2d 421, 428, cert denied 434 US 987; see also, People v Rodriguez, 42 Cal 3d 730, 756-758, 726 P2d 113, 128-129; 1A Wigmore, Evidence §§ 102, 106, 117, 118 [Tillers rev 1983]; Fisch, New York Evidence §§ 240, 241 [2d ed 1977]). Moreover, it is well established that the fact of a person's membership in an antisocial gang, such as the Five Percenters, is admissible as evidence of a motive to engage in wrongful conduct promoted by the gang (see, e.g., People v Herrera, 287 AD2d 579, lv denied 97 NY2d 705; People v Reynolds, 283 AD2d 771, 774, lv denied 96 NY2d 866, 923; People v Perez, 265 AD2d 347, 348, lv denied 94 NY2d 827; People v Tam, 260 AD2d 242, lv denied 93 NY2d 1028; People v Tai, 224 AD2d 328, lv denied 88 NY2d 942).

Evidence of plaintiff's membership in the Five Percenters, under the circumstances presented here, was relevant to show that he had a specific motive to resist any police officer's attempt to arrest him, giving rise to the fair inference that plaintiff was...