Barnes v. City of New York

• Decision Date: 26 July 2007
• Docket Number: 9969.
• Citation: 2007 NY Slip Op 06260,840 N.Y.S.2d 582,44 A.D.3d 39
• Parties: DARRYL BARNES, Respondent-Appellant, v. CITY OF NEW YORK et al., Appellants-Respondents.
• Court: New York Supreme Court — Appellate Division

44 A.D.3d 39

840 N.Y.S.2d 582

2007 NY Slip Op 06260

DARRYL BARNES, Respondent-Appellant, v. CITY OF NEW YORK et al., Appellants-Respondents.

9969.

Appellate Division of the Supreme Court of the State of New York, First Department.

July 26, 2007.

Michael A. Cardozo, Corporation Counsel, New York City (Julian L. Kalkstein and Larry A. Sonnenshein of counsel), for appellants-respondents.

Pollack, Pollack, Isaac & DeCicco, New York City (Brian J. Isaac and Robert M. Simels of counsel), for respondent-appellant.

OPINION OF THE COURT

SULLIVAN, J.

This case, involving a claim of excessive force by a police officer in a shooting that left plaintiff paralyzed, presents a clash of dramatic, diametrically opposed accounts of the incident. The appeal follows a verdict in plaintiff's favor against the City and the police officer.

An earlier verdict in plaintiff's favor was reversed by this Court (296 AD2d 330) because of the improper exclusion of evidence of plaintiff's membership in the Five Percenters, a gang known for its anti-white, anti-police attitude, whose members believe in avoiding arrest at any cost. At the retrial, the pretrial deposition testimony of the police officer, defendant Jerome, was read into evidence by plaintiff's counsel. Jerome testified that on August 22, 1988 he was off duty when he and a date got out of his car and two men, one of them plaintiff, walked between them. When Officer Jerome, a recent Police Academy graduate, saw that plaintiff was carrying a gun, he identified himself as a police officer and ordered plaintiff to drop the gun.

Plaintiff responded, "____ you." The officer instructed his date to call the police and began to follow the two men, who separated. Jerome continued to follow plaintiff, screaming at him to stop and identifying himself as a police officer. At one point, plaintiff suddenly turned, pointed the gun he was carrying, a semiautomatic, at the officer and fired, causing the officer to dive to the ground. As the officer, with his gun now drawn, closed in on the fleeing plaintiff, the latter "suddenly turned around and scooped down in a combat position." Unable to see the location of the gun plaintiff was carrying and fearing for his life, Officer Jerome fired at plaintiff as he closed in, believing that he fired only once. Actually, he fired three rounds from his gun "simultaneously." The forensic evidence showed that Officer Jerome had fired his last shot at or near contact range. Plaintiff and the officer then began to struggle. When Jerome raised plaintiff's right hand in the air, he observed the gun, which he eventually succeeded in kicking away. The officer was able to overpower plaintiff. A police car eventually responded. The officer gave his gun to a responding patrol officer who, after asking how many times he had fired, told Jerome that there were three spent shells in the gun.

When asked if he had fired from four to six feet away, Jerome explained that he had fired as he was closing in on plaintiff. Having previously stated that he fired from five to eight feet away, Officer Jerome explained that he had estimated the distance and did not know the exact distance. Jerome's testimony from the first trial—essentially the same as his deposition testimony except that when asked how many times he had fired, he said three—was read into evidence. Jerome also testified at the first trial that when plaintiff began to turn, he could see the gun. When the officer started to rush toward plaintiff, he began to fire and did so until he reached plaintiff.

The responding officers recovered a TEC-9 gun at the feet of plaintiff, who was lying on the ground, as well as two spent shell casings. The gun, similar to an Uzi, was loaded with 13 live rounds and the two casings. The bullets recovered from the gun wielded by plaintiff had hollow points, a type that would explode upon impact, thereby causing more injury than the normal bullet. The police also vouchered some of plaintiff's clothing, including a black jacket and bloodstained shirt. The black jacket had a bullet hole seven inches from the bottom and 10 inches from the right seam. The forensic report reflected that the powder burn around the hole in the jacket indicated that the gun was fired at a maximum of 12 inches from the jacket. A Police Department "criminalist," upon examining the jacket and shirt, determined that the muzzle of the gun, when fired, was in or near contact with the jacket and shirt. The report showed that Officer Jerome's weapon had been discharged three times. A neurosurgeon who examined plaintiff at the time found an entrance wound at the left side at the level of T-8 vertebrae and an exit wound at the level of T-12. The neurosurgeon testified that, based on the hospital records, plaintiff was shot through the spinal cord and suffered immediate paralysis.

Prior to trial, recognizing the necessity of putting plaintiff's case to the test of cross-examination and anticipating that plaintiff's counsel would seek to avoid such a confrontation, as he had done successfully at the first trial, the City requested and was granted a competency hearing to determine whether plaintiff understood the nature of an oath and had the capacity to give a correct account of the incident, especially in light of his claims of having sustained various mental disorders, including psychosis, as a result of the shooting. Plaintiff called a board certified psychiatrist, as did the City, whose expert visited plaintiff at Lincoln Park Subacute and Rehabilitation Center in New Jersey, where he was a resident. After hearing from both experts, the trial court determined that plaintiff was competent, able to understand the nature and obligation of the oath and with the capacity to give his version of the incident.

Plaintiff's psychiatrist later testified on his behalf at trial. After reviewing plaintiff's extensive medical records, he concluded that plaintiff suffered from bipolar disorder and depression. At times, he testified, plaintiff's illness progressed to the point that he was psychotic. When treated with antipsychotic medication, however, his psychosis could be relieved. The doctor confirmed that the cause of bipolar disorder is unknown. Record entries at Lincoln Park show plaintiff to be alert and responsive, cooperative with fellow patients, but manipulative.

The City read into evidence the testimony of Dr. Paul Carroll, a clinical psychologist who had testified at earlier hearings related to this matter. He was never able to determine why plaintiff has a schizo-affective disorder. Asked if the shooting and paralysis that followed could be the cause of plaintiff's psychiatric disorder, Dr. Carroll answered: "[T]he diagnosis of schizo-affective disorder is not a diagnosis that relates to a physical condition such as paralysis or shooting."

James Hernandez, a professor of criminal justice at California State University, testified as to the nature and character of a gang called the Five Percenters, of which plaintiff was identified as a member. The gang's name reflects its view that five percent of the population consists of African-American men who have achieved self-knowledge. The gang, he testified, had a strong tendency to avoid arrest at all costs, and a strong anti-white, anti-police, as well as an "assaultive" and aggressive attitude. "They didn't feel that they were subject to the laws," Hernandez testified.

Notwithstanding that plaintiff was found fit to testify at trial, plaintiff's counsel requested that the trial court allow him to read to the jury selected portions of a transcript of plaintiff's testimony given at a General Municipal Law § 50-h hearing held on September 15, 1989. The court permitted the reading of such testimony over the City's objection that such transcript can be read in lieu of a plaintiff's testimony only if the requirements of CPLR 3117 have been met (Claypool v City of New York, 267 AD2d 33, 35 [1999]), which, the City argued, had not been shown.

When the court noted that plaintiff was in a state hospital in New Jersey, the City's attorney stated it was his understanding that plaintiff was not committed and was allowed to leave. In fact, he had left the facility in the past. Counsel argued that plaintiff's attorney was simply refusing to produce plaintiff and "would not," as opposed to "could not," produce him. He also noted that while plaintiff had not voluntarily gone to the hospital in New Jersey, he was now voluntarily staying out of the state. Plaintiff's attorney made no attempt to dispute these statements. The trial court ruled that the section 50-h testimony was admissible. In justifying its ruling, the court, without any basis in the record therefor, stated:

"He's not committed but he is also—he was declared a danger to himself and others, I trust, by the Courts of the State of New York and for that reason he was confined to a mental institution, not released, and the mental institution that he was confined to sought to forward him to an institution in Jersey where he can get the proper treatment."

Thus, plaintiff was excused from testifying and his 50-h hearing testimony was read to the jury.

Plaintiff's version of the incident, as he testified at his 50-h hearing, is as follows. On August 22, 1988, at about 8:30 P.M., he took a cab with his friend, Radcliff, to meet a girl, Adelia, whom he had met a few days earlier. Plaintiff and Radcliff traveled to 170th Street and Ogden Avenue in the Bronx. Although he had known Radcliff for two years, plaintiff was unable to recall his first name or where he lived. After arriving at their destination, plaintiff went to the corner to telephone his friend, Bobby, last name unknown. When he concluded his phone conversation, he found Radcliff in an argument with "some guy." The argument got loud and, as the other man began reaching for a gun, Radcliff punched him in the face. The gun fell to the ground and plaintiff, after...