New York State Court of Claims

New York State Court of Claims

WOOD v. THE STATE OF NEW YORK, #2001-010-029, Claim No. 97218


Synopsis



Case Information

UID:
2001-010-029
Claimant(s):
WILLIAM M. WOOD The Court has, sua sponte, amended the caption to reflect the only proper party defendant.
Claimant short name:
WOOD
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The Court has, sua sponte, amended the caption to reflect the only proper party defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
97218
Motion number(s):

Cross-motion number(s):

Judge:
Terry Jane Ruderman
Claimant's attorney:
GERINGER & DOLANBy: John T. McNamara, Esq.
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General for the State of New YorkBy: John Healey, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
May 1, 2001
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
On the night of October 22, 1996, two State troopers directed
claimant to pull his car to the side of Starridge Road, Putnam County. After administering field sobriety tests, claimant was advised that he was under arrest. Claimant was sprayed twice in the face with pepper spray and the troopers administered physical force to handcuff claimant. Claimant was admitted to the hospital the next day with two bruises across his back and arm, which were each the approximate size of a flashlight. He also suffered a fractured rib and a punctured lung. He remained hospitalized for a week. Claimant contends that the troopers used excessive force. The troopers deny hitting claimant. The trial of this claim was bifurcated and this Decision pertains solely to the issue of liability.
Claimant, a sales person in his early forties who is married and the father of two sons, has been employed at Arroway Chevrolet in Katonah for 14 years. After work on October 22, 1996, at about 8:20 p.m.,
claimant and a co-worker went to the Crossroads Café to eat dinner and watch the World Series. Claimant, who was 6'4" tall and weighed 195 pounds, testified that he had a cheeseburger and two pints of beer before driving home. He proceeded approximately one and a quarter miles and was driving southbound on Starridge Road, when he noticed flashing lights in his rearview mirror. Claimant pulled over onto what appeared to be a privately maintained lawn. The terrain of the shoulder, which is not paved, varies.
New York State Trooper John Hennigan, who was 6'2", 195 pounds and had been a trooper for two years, approached the driver's side of claimant's car carrying a 14 to 15 inch flashlight. State Trooper Michael Christy, who was 5'11", 175 to 180 pounds and had been a trooper for almost two years, approached the passenger side of claimant's car carrying a 10 to 12 inch mag light. Hennigan testified that he smelled alcohol on claimant's breath and asked claimant about his knowledge of the speed limit and his food and alcohol intake.
Claimant replied that he had consumed two beers. As requested, claimant exited his car. Christy then administered field sobriety tests.
The testimony of claimant and the troopers differs significantly.
Claimant testified that he performed all the sobriety tests successfully, except that he could not recite the letters of the alphabet backwards. Christy denied asking claimant to recite the letters backwards. Claimant testified that he blew into the alco-sensor and was advised by Hennigan that he was under arrest. Hennigan stated that claimant refused to blow into the alco-sensor. Christy testified that claimant was initially cooperative during the field sobriety tests, but he refused to take the alco-sensor test and then launched into a tirade.
Claimant maintains that he said nothing and did nothing when he was told he was under arrest; nonetheless, within five seconds, Christy sprayed claimant in the face with pepper spray. Claimant then lifted his hands to his eyes and asked what was happening. Claimant stated that, without any provocation, he was sprayed again within the next 30 seconds. The spray created a burning sensation and irritated claimant's sinuses and breathing. Claimant then felt a handcuff on his left wrist and his arm pulled behind his back as he was pushed with great force. Claimant tripped and landed on the ground. He felt two blows to the back of his head, as if he had been hit with a fist. Claimant's right arm was pulled behind his back and he was cuffed. As he lay face down with one of the troopers on his back, claimant felt two blows to his back and right arm from what seemed to be a hard object like a flashlight or a bat. He was then pulled up from the ground and pushed face down onto the hood of his car. Claimant asked what they were doing and was told that he was in a lot of trouble. Claimant was placed in the rear of the troopers' car while they waited for a tow truck to take claimant's car. Claimant's body ached all over, his face was burning, and he had difficulty breathing.
According to the troopers, claimant was argumentative, condescending, arrogant, uncooperative and disrespectful. When
claimant was advised that he was under arrest and directed to put his hands behind his back, he refused and just stood there. Hennigan did not recall claimant making any verbal threats. Christy repeated that claimant was under arrest and again directed claimant to put his hands behind his back. Claimant did not comply. Christy testified that claimant refused to put his hands behind his back and appeared aggressive, although Christy admitted that claimant did not do anything physically. Christy testified that he grabbed claimant around his shoulder to bring him to the hood of his car. Hennigan did not recall whether any contact was made with the hood of claimant's car. According to Christy, he and claimant were facing down toward the car when Hennigan came to assist. The troopers stated that claimant then turned his body and began flailing his arms with punching motions. At Hennigan's direction, Christy sprayed claimant in the face with pepper spray, but claimant continued flailing his arms and grabbed Christy's shirt and tie. Hennigan testified at trial that he saw claimant rip Christy's tie off his neck; however Hennigan testified at his examination before trial that he had learned such information from Christy and not through observation. Christy testified that he fell forward on claimant and they both dropped to the ground and that Hennigan may have also fallen on claimant. Christy administered a second burst of pepper spray. Hennigan estimated that it took a total of five to ten minutes to subdue and handcuff claimant. Christy could not recall the length of time. Hennigan stated that he was not armed with a nightstick during the struggle and he did not remember if he had his flashlight with him or if he had returned it to the patrol car. Christy did not remember where his flashlight was during the struggle. Both Hennigan and Christy denied ever striking claimant. Claimant was placed in the rear of the patrol car and, according to the troopers, claimant continued to be verbally combative, but he was calm at the barracks.
Claimant testified that at 12:30 a.m., he was transported to the State police barracks. He did not complain to anyone at the barracks about the troopers' conduct because he was fearful and did not trust the other troopers. Claimant registered a .10 blood alcohol count on the Breathalyzer test and was charged with violations of Vehicle and Traffic Law § 1192.2 (Driving While Intoxicated); Vehicle and Traffic Law § 1180(d) (Speeding); and Penal Law § 205.30 (Resisting Arrest). Shortly after 1:00 a.m. he was released and went home by taxicab.
Claimant testified that when he arrived home, he felt sore and had trouble breathing. Janine Wood, claimant's wife, testified that she observed that claimant was walking slowly, his breathing was labored, and his speech was normal. In the morning, claimant's wife photographed the bruises on claimant's back and right triceps (Exs. 10-14). The photographs depict two long bright red bruises extending from claimant's back onto his right arm. She also photographed his clothes which had fresh grass stains (Exs. 3-9, 18).
The next day,
when claimant retrieved his car, he noticed several new dents on the hood (Exs. 15-17). That afternoon, claimant was admitted to Northern Westchester Hospital. Claimant's wife took additional photographs of claimant in the hospital (Exs. 1-2). Claimant remained hospitalized for a week, while he was treated for a broken rib and a punctured lung.
On November 13, 1996,
claimant appeared in the Town of Southeast Town Court on the charges arising out of the incident. He pled guilty to a violation of Vehicle and Traffic Law § 1192.1 (Driving While Ability Impaired), paid a $30.00 fine and a $25.00 surcharge in satisfaction of the pending charges.
John J. Hogan, an assistant district attorney in Putnam County for 12 years, testified that in 1996 he was assigned to the Southeast Town Court and handled 800 to 1000 cases a year in that court. Hogan had no specific recollection of the charges brought against claimant. Hogan testified that it was the standard policy to offer a
defendant, who had no prior convictions and was charged with Driving While Intoxicated, a reduced charge of Driving While Ability Impaired. Such plea bargains were routine, unless a more serious charge, e.g., an assault, was involved. Hogan testified that, upon review of his file, there was no indication that a police officer had been the subject of any physical force by claimant.
The police are authorized to use force that is objectively reasonable under the prevailing circumstances; liability will attach, however, when the force employed is excessive (
see, Wester v State of New York, 247 AD2d 468). As aptly pointed out by defendant:
[d]etermining whether a police officer wielded excessive force requires a fact-specific analysis in which an array of factors may be relevant, including the nature of the officer's intrusion, the severity of the crime, whether the suspect posed an immediate threat and whether the arrest was actively resisted. [citations omitted] The court must be cautious not to impose upon the strenuous and often dangerous circumstances encountered by police on the streets a standard unduly colored by the calm of the Judge's chambers

(Passino v State of New York, 175 Misc 2d 733, 736, affd 260 AD2d 915). Upon listening to the witnesses testify and observing their demeanor as they did so, the Court finds that claimant's account of the incident was most credible. Claimant's testimony was forthright and sincere and his recollection was clear. The troopers, on the other hand, appeared hesitant and calculating in their testimony and their recollections were vague.
While the use of pepper spray has been held reasonable under certain circumstances, those circumstances were not present in the instant case (
see, Passino v State of New York, supra). In Passino, cited by defendant, the circumstances were as follows. Claimant was agitated, had kicked in the door of the State police barracks, and defiantly placed his hands in his pockets when he was advised that he had to be handcuffed. The trooper twice asked claimant to remove his hands before the trooper touched claimant's elbow in an unsuccessful attempt to make claimant comply. The trooper then showed claimant the pepper spray and warned that claimant's uncooperative behavior would result in its use. The trooper made three more verbal requests for compliance before resorting to the pepper spray.
In contrast to the
Passino case, Christy's own testimony was that claimant was cooperative and complied with all field sobriety tests until he was asked to blow into the alco-sensor. Christy's testimony that claimant appeared aggressive, even though he did not do anything physical, is not convincing. It is also noted that Hennigan testified that he did not recall claimant making any verbal threats. The Court is mindful that police stops pose a highly dangerous risk to officers and, in the analysis of the encounter, the Court must consider the situation as it was perceived by the officers when the incident was unfolding. With that in mind, the Court carefully observed the size and demeanor of the two troopers in comparison to claimant. The troopers' testimony that claimant was initially cooperative and then suddenly launched into a tirade, began flailing his arms, and that a violent struggle ensued, was not believable. It is also beyond belief that, given that claimant was twice sprayed in the face, it took the troopers five to ten minutes to subdue claimant. Among other things detracting from the troopers' credibility, was the photographic evidence of the two bruises on claimant's back and arm (Exs. 10-14) coupled with the troopers' denial that they ever struck claimant. While the troopers' testimony established that they had approached claimant's car, each carrying a long flashlight, neither trooper could recall whether they possessed their flashlights during the alleged struggle with claimant. The troopers flat denial of striking claimant was belied by the photographic evidence depicting two similarly shaped bruises across claimant's back and arm which were each the approximate size of the troopers' flashlights.
This case is unlike
Higgins v City of Oneonta, 208 AD2d 1067, upon which defendant relies. In Higgins, the plaintiff had been dismissed from the police force following a disciplinary hearing, had a known long standing hostility toward police, had made verbal threats and had attempted to escape from police custody. In dismissing the claim, the Court noted that plaintiff sought no medical treatment and alleged only that he suffered "red marks" on his back and neck (Id. at 1070). The Court concluded, "[i]n light of defendants' belief that plaintiff was dangerous and given the absence of visible injuries, we concur with Supreme Court's finding that plaintiff's excessive force claim lacks merit" (Id. at 1070-71). In the instant case, claimant was not known to have any hostility toward police; and did not make any verbal threats. Claimant also suffered more than just red marks and was hospitalized for one week where he was treated for a broken rib and a punctured lung.
In sum, the Court finds that the troopers, who had been on the force for approximately two years, acted overly aggressive and used excessive force (
cf., Arnold v State of New York, 108 AD2d 1021).
Accordingly, defendant is 100 percent liable.

Upon filing of this Decision, the Court will set the matter down for a trial on the issue of damages as soon as practicable.

All motions not heretofore ruled upon are DENIED.

LET INTERLOCUTORY JUDGMENT BE ENTERED ACCORDINGLY.



May 1, 2001
White Plains, New York

HON. TERRY JANE RUDERMAN
Judge of the Court of Claims