On Friday, December 2, 1994, Robert Turci, a quadriplegic of 20 years, died at
the home he shared with his mother, the claimant herein, and claimant's husband.
Claimant seeks damages for an allegedly unauthorized autopsy performed on Turci
and an allegedly unlawful search and seizure conducted of her son's room by
Defendant maintains that the State police were authorized to perform the autopsy
and justified to treat the home as a crime scene, where, as here, there was an
unattended death and there was no religious objection to an autopsy. The claim
was heard in a unified trial.
Claimant testified that her son was almost completely paralyzed as the result
of a gunshot wound he sustained in 1974 at the hands of a police officer. Turci
required round the clock care and, for approximately one and a half years prior
to his death, was attended in claimant's home by a home health aide.
Claimant arrived at work on December 2, 1994, only to be advised that her son
had died. She returned home where a Putnam Valley policeman was waiting for
her. She entered her son's ground floor room. The Putnam County Coroner, Dr.
John Zarcone, now deceased, arrived at the home. Claimant knew Zarcone who, in
the early years after Turci's accident, had prescribed medication for Turci.
Zarcone examined the decedent and advised claimant that Turci had respiratory
problems and that an autopsy was not necessary.
Claimant went upstairs and called the Curry Funeral Home to make arrangements.
Upon hearing loud flashbulbs from downstairs, claimant returned to her son's
room. State Police Investigator Ulric
had arrived on the scene and was opening Turci's dresser drawers and looking
through his personal belongings. Claimant inquired of MacKenzie's activities
and asked him to stop. MacKenzie identified himself as a police officer.
Claimant then voluntarily gave MacKenzie the medication that her son had been
taking and MacKenzie continued to search the room.
Turci's remains were subsequently taken to the funeral home and, later that
day, claimant and her daughter went to the funeral home to make the necessary
arrangements. Claimant wanted to have the funeral on Saturday, December 3,
1994, but was advised that there would be a delay because the State police had
ordered an autopsy. MacKenzie told claimant that an autopsy was necessary to
determine the cause of death because he suspected foul play. Claimant testified
that she was upset because a police officer had shot her son, rendering him a
quadriplegic, and now another police officer was disrupting her plans for her
son's funeral. Claimant expressed her opposition to an autopsy and to having
the funeral delayed. Nonetheless, the autopsy was performed and, because the
Catholic Church prohibits funerals on Sunday, a wake was held on Sunday and the
funeral was held on Monday.
MacKenzie testified that on December 2, 1994, he entered claimant's residence
between 9:00 and 9:30 a.m. and proceeded to Turci's room. Putnam Valley Police
Officer Nikisher, the home health aide, and claimant were present in the
deceased's room. MacKenzie investigated the matter as a homicide. MacKenzie
explained that every death is treated as a homicide, until proven otherwise.
The immediate surrounding area is considered a crime scene, which, MacKenzie
maintained, gave him the authority to search the drawers without a warrant.
MacKenzie explained that he undertook the search to ascertain whether there was
any substance that might have caused Turci's death.
MacKenzie defined an unattended death as one where there is no physician in
attendance at the time of the death or where the decedent has not been under the
care of a doctor immediately prior to the death. In either circumstance, there
is no standard operating procedure. Each case is handled individually as
determined by the investigator assigned.
MacKenzie was aware that the coroner had already made a pronouncement of
Turci's death and was prepared to sign a death certificate without an autopsy.
Nonetheless, MacKenzie concluded that an autopsy was warranted based on several
factors. Turci, who had not been seen by a treating doctor since May of 1993,
looked emaciated and his feet appeared unhealthy. His room was very orderly
which created the suspicion that it had been cleaned to cover-up criminal
activity. Additionally, rolling papers were found at the scene. MacKenzie was
aware that Turci had been a quadriplegic for a long time and considered the
possibility of a mercy killing. He also noted that the family wanted a quick
funeral without articulating any religious objection to an autopsy.
MacKenzie expressed his concerns to Zarcone, indicating that there had been no
attending physician and that there was the possibility that something had been
introduced into Turci's system to cause his death.
MacKenzie recommended to his supervisor and Putnam County District Attorney
Kevin Wright that an autopsy be performed despite the coroner's willingness to
sign a death certificate without an autopsy. MacKenzie related his observations
and suspicions. According to MacKenzie, his supervisor and the District
Attorney agreed with MacKenzie's determination to request an autopsy. The
coroner told MacKenzie of claimant's opposition to an autopsy. However, the
coroner did not object to the autopsy and he made the necessary
The Court finds that Zarcone performed the autopsy pursuant to his authority
under Public Health Law § 4210 which provides that, "[t]he right to dissect
of a deceased person exists *** (2) [w]hen the dissection is performed by or at
the direction of (a) a coroner who is a physician licensed to practice medicine
in this State *** and is performed in the course of an investigation within the
jurisdiction of the officer performing or directing the dissection ***." County
Law § 673(1) provides that "the coroner has jurisdiction to investigate the
death of every person dying within his county, or whose body is found within the
county, which is or appears to be: *** (c) A death occurring in a suspicious,
unusual or unexplained manner; *** (e) A death while unattended by a physician
The fact that Zarcone was initially willing to sign the death certificate
without an autopsy does not detract from his authority to perform an autopsy
after MacKenzie's intervention. First, the coroner has broad discretion in
performing an autopsy. Second, there were two valid bases for conducting an
autopsy, i.e., one, Turci's death occurred while unattended by a physician and
two, there were reasonable grounds to suspect that Turci's death may have been
occasioned by the criminal act of another (
, Brown v Broome County
, 8 NY2d 330 [coroner has broad
discretion in performing an autopsy and such discretion is generally upheld
where it is apparent that there is reasonable ground to suspect a possibility of
criminality or suicide]). Additionally, there was no religious objection to the
autopsy; therefore claimant does not fall within Public Health Law § 4210-c
Limitations to dissection or autopsy
, Banks United
, ___AD2d___[1st Dept, Sept. 14, 2000][Medical Examiner had authority
to conduct autopsy where no religious objection had been raised];
Harris-Cunningham v Medical Examiner of N. Y. County
, 261 AD2d 285
["compelling public necessity" is required only when there is a religious
objection]). Moreover, even if a religious objection had been raised, there was
a "compelling public necessity" to perform the autopsy, as defined by the
statute, i.e., (2)(i) that the dissection is essential to the conduct of a
criminal investigation of a homicide, as defined in section 125.00 of the Penal
Law, of which the decedent is the victim" (see
, Zaslowsky v Nassau
County Public Gen. Hosp.
, 27 Misc 2d 379 [autopsy may be ordered, without
the consent of the next of kin, where a crime is
In the instant case, Turci was a young person, who had not been seen by a
treating doctor for more than a year and a half prior to his death. He appeared
emaciated and his feet looked unhealthy. There were rolling papers found at the
scene. MacKenzie testified that the room appeared to have been cleaned to
cover-up criminal activity and the family wanted a hasty funeral. Under these
circumstances, it was reasonable for MacKenzie to suspect the possibility of
foul play and to investigate the death as a homicide.
MacKenzie, however, was not authorized to search Turci's drawers without a
, NY Const, art I, § 12). MacKenzie's assertion at trial, that
he had authority to search the drawers without a warrant because "it was a crime
scene being investigated as a homicide"
has no basis in law. The United States
Supreme Court has specifically rejected the notion of a homicide-scene exception
to requirements for a search warrant (see
, Mincey v Arizona
US 385, 392-93). Under the emergency doctrine, however, when the police come
upon the scene of a possible homicide, they may make a "prompt warrantless
search of the area to see if there are other victims or if a killer is still on
the premises *** [a]nd the police may seize any evidence that is in plain view
during the course of their legitimate emergency activities" (Id.
392-93). The Supreme Court cautioned that a warrantless search must be
"strictly circumscribed by the exigencies which justify its initiation"
at 393, citing Terry v Ohio
, 392 US 1, 25-26; see
, People v Hodge
, 44 NY2d 553, 558; People v Rielly
AD2d 695). MacKenzie's suspicion, that the room had been cleaned to cover-up
some criminality, did not present an exigent situation which would permit a
warrantless search of the drawers (see
, People v Taper
, 105 AD2d
813). MacKenzie should have secured the area while a warrant was obtained to
search the drawers (see
, People v Cohen
, 87 AD2d 77, affd
58 NY2d 844; People v Dancey
, 84 AD2d 763).
The Court is mindful of the difficulty claimant faced in articulating the
damages she suffered from the unlawful search conducted by MacKenzie in her home
after her son, who had been rendered a quadriplegic by a police officer's
bullet, had died. It is not surprising that claimant's testimony, on the issue
of damages, focused on the autopsy and the fact that the funeral had to be
delayed until Monday, rather than the unlawful search. She testified that she
missed "probably a couple of months" (T:140) from work at her family-owned deli.
She also testified that, during this time period, she was sick with bronchitis
for two weeks. The deli, however, did not close. Claimant also missed work at
her part-time job as a real estate agent.
Claimant did not specify any amount of lost wages by either testimony or other
evidence. Claimant did not seek any care from a psychiatrist, psychologist or a
counselor. Nonetheless, the Court of Appeals has recognized a damage remedy in
favor of those harmed by police abuse of the constitutional protections from
unlawful search and seizure (see
, Brown v State of New York
NY2d 172). Indeed, the Court of Appeals recognized that damages are a necessary
deterrent for such misconduct because, where claimants are not charged with any
crime, exclusion has no deterrent value (Brown v State of New York
at 192). Specifically, the Court of Appeals stated:
a necessary deterrent for such misconduct. The remedies now recognized,
injunctive or declaratory relief, all fall short. Claimants are not charged
with any crime *** and thus exclusion has no deterrent value. Claimants had no
opportunity to obtain injunctive relief before the incidents described and no
ground to support an order enjoining future wrongs. For those in claimants'
position "it is damages or nothing" (see
, 403 US, at 410,
Based upon the evidence presented, the Court finds that an award of $3,500.00
is appropriate as a necessary deterrent to the State police for violating
claimant's constitutional rights.
LET JUDGMENT BE ENTERED ACCORDINGLY.