New York State Court of Claims

New York State Court of Claims

BELLAMY v. THE STATE OF NEW YORK, #2000-010-066, Claim No. 91248


Claimant could not recover for alleged unauthorized autopsy but can recover for unlawful search and seizure..

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):

Cross-motion number(s):

Terry Jane Ruderman
Claimant's attorney:
LOVETT & GOULD ESQS.By: Jane Gould, Esq.
Defendant's attorney:
Attorney General for the State of New YorkBy: Michael Zeytoonian, Deputy Assistant Attorney General
Third-party defendant's attorney:

Signature date:
October 18, 2000
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)

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 State police.
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 MacKenzie[1]
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 arrangements.
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 the body
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 (
see, 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 (see, Banks United Hosp., ___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 suspected]).
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 warrant (
see, 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" (T:31),[2]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, 437 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. at 392-93). The Supreme Court cautioned that a warrantless search must be "strictly circumscribed by the exigencies which justify its initiation" (Id. at 393, citing Terry v Ohio, 392 US 1, 25-26; see also, People v Hodge, 44 NY2d 553, 558; People v Rielly, 190 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, 89 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, supra at 192). Specifically, the Court of Appeals stated:
Damages are 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, Bivens, 403 US, at 410, supra [Harlan, J., concurring])

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.


October 18, 2000
White Plains , New York

Judge of the Court of Claims

He has since been promoted to lieutenant.
All references to the trial transcript are preceded by the letter "T."