Opinion
# 2014-044-007 Claim No. 117105
07-31-2014
FRANLLER VILLANUEVA v. THE STATE OF NEW YORK
RODMAN & CAMPBELL, P.C. BY: Hugh W. Campbell, Esq., of counsel HON. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL BY: James E. Shoemaker, Assistant Attorney General
Synopsis
After trial, the Court dismissed the claim for use of excessive force by a State Trooper where claimant was shot after fleeing pursuit and then raising gun toward the Trooper.
Case information
| UID: | 2014-044-007 |
| Claimant(s): | FRANLLER VILLANUEVA |
| Claimant short name: | VILLANUEVA |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 117105 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | CATHERINE C. SCHAEWE |
| Claimant's attorney: | RODMAN & CAMPBELL, P.C. BY: Hugh W. Campbell, Esq., of counsel |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL BY: James E. Shoemaker, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | July 31, 2014 |
| City: | Binghamton |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant filed this claim, which originally alleged several causes of action, to recover for personal injuries received when he was shot by New York State Police Trooper Michael Woytach during a pursuit on July 19, 2008. Claimant was rendered a quadriplegic as a result of the shooting. After a summary judgment motion brought by defendant State of New York (defendant), the only remaining cause of action is a claim for use of excessive force in the shooting. A bifurcated trial on the liability portion of the claim was held on June 24 - 25, 2014, in the Binghamton District of the Court of Claims. This decision addresses the issue of liability only.
Villanueva v State of New York, UID No. 2013-044-517 (Ct Cl, Schaewe, J., June 27, 2013).
Claimant's first witness at trial was Village of Endicott Police Department (EPD) Officer Dale Lane. He stated that in the early morning hours of July 19, 2008, he was on duty and had responded to reports of a fight at a bar in Endicott. While there, he received a report that there was an individual with a gun on Washington Avenue near another bar, the Downtown Quarterback. He responded to the location, where he saw claimant on a bicycle, and briefly spoke to him. Claimant said that he and others nearby were waiting for a taxi, and then he rode his bike away. Shortly after that, Lane heard over his radio that the person on the bicycle was the one with the gun. Seeing Trooper Woytach pursuing claimant in his troop vehicle, Lane turned his vehicle around and also began pursuing claimant. Lane described the route he traveled, ending up with Lane spotting Woytach's vehicle pulled partway up onto the sidewalk in the vicinity of 10 Jefferson Avenue. Lane said that as he pulled up, both the lights and siren of Woytach's vehicle were engaged. He said that as he got out of his vehicle, he heard the sound of gunshots, and transmitted over his radio that shots had been fired. He did not see Woytach immediately upon exiting the vehicle. He ran down the driveway of 12 Jefferson Avenue, at which time he heard three more gunshots. He ran around to the front of 10 Jefferson Avenue, where he saw Woytach walking down the driveway of 10 Jefferson Avenue, holstering his weapon. He asked Woytach if he was okay, and Woytach responded that he was, and that claimant had pulled a gun on him. Lane said that he could see Woytach from 10 to 15 feet away because there was a street light nearby which illuminated some of the driveway and street. Lane said that the time between exiting his vehicle and seeing Woytach was less than a minute, and the time from when he ran down the driveway of 12 Jefferson Avenue to the time he saw Trooper Woytach was only a few seconds.
Lane said other officers responded. Lane and EPD Sergeant Tondeur and EPD Officer Leonard approached claimant, who was lying on the ground, to make sure he was still breathing. He said that claimant made a groaning sound, but did not say anything. At the time, Lane noted a silver handgun with a black handle laying on the ground approximately five feet away from claimant. He stated that no one touched any of the evidence, including the gun, while he was on the scene. Lane said he did not have any discussion with Woytach about the gun, and never overheard Woytach tell anyone how the gun came to be in that location. Lane said he never personally saw claimant engaging in criminal conduct.
On cross-examination, Lane identified in photographs and diagrams the location where claimant was lying. He said he did not see Woytach bend over claimant, and stated that Woytach was not near claimant when Lane arrived at the scene.
Claimant then called Trooper Michael Woytach to testify. Woytach stated that he had been a Trooper since 2002. He said his first contact with claimant occurred in the early morning hours of July 19, 2008. He was assisting the EPD with an incident outside the Instinct Lounge, when he heard on the radio scanner that there was a report of a man with a gun on a bicycle outside the Downtown Quarterback bar, which was less than a block away. When Woytach and his partner, Trooper Blanchfield, responded to the report, they saw a man with a cell phone who flagged them down and pointed to a man on a bicycle. Woytach said they approached claimant in the Troop vehicle and attempted to interact with him, but he ignored them. Woytach flashed the vehicle's spotlight on him, and again claimant did not respond. Woytach activated his overhead lights and chirped the siren to get claimant's attention, but he rode away. Woytach and Blanchfield exited the Troop vehicle and pursued claimant on foot. Woytach said he was not a fast runner, and quickly determined that he would not be able to catch claimant on foot. He returned to the Troop vehicle while Blanchfield continued on foot. Woytach notified the County dispatcher that he was pursuing the bicyclist.
This was apparently the individual who made the 911 call to report the man with the gun on a bicycle.
Woytach described the route he took following claimant, ending up on Jefferson Avenue. Claimant was riding his bicycle on the sidewalk, and Woytach drove his vehicle up the driveway of 12 Jefferson Avenue, pulling in front of claimant. He said that claimant collided with the front left quarter panel of the Troop vehicle, rolled across the hood landing on his feet, and kept running. Woytach said the Troop vehicle was at a complete stop when claimant hit it, and also stated that his overhead lights and siren were both on. Woytach said he exited his vehicle while yelling for claimant to stop, but claimant continued to run away, turning up the driveway of 10 Jefferson Avenue. Woytach ran after him. Woytach said that he then observed for the first time that claimant had a shiny, silver handgun in his right hand. Woytach said he again yelled for claimant to stop, and announced that he was a police officer. Woytach said he pulled his own gun from its holster when he observed that claimant was holding a gun. Woytach stated that claimant then began to slow his stride and turn, and Woytach saw claimant start to raise the handgun in Woytach's direction. Woytach discharged his gun six times, and claimant fell face-down onto the driveway. Woytach said that the gun was lying on the driveway a few inches away from claimant's right hand. He approached and kicked it 5 to 10 feet away, out of claimant's reach.
Woytach testified that claimant never completely faced him, but the gun was coming up and starting to point at him. Woytach said he was sure he was going to die at that instant. He said that the muzzle was facing him. He did not know at the time whether claimant had discharged his weapon. He guessed that claimant traveled approximately 10 feet between the time of Woytach's first shot and when claimant fell to the ground. Woytach said he did not see claimant in possession of a weapon until he saw the gun as claimant was running up the driveway. He assumed that the gun was pulled from claimant's right waistband area, but did not actually see it pulled.
Woytach said he never attempted to retreat. He stated that he had a report of a man on a bicycle with a gun. The man hit his Troop vehicle. Woytach said that his goal was to arrest him. He stated that State Police policies did not require him to wait for backup.
Woytach said that after the shooting, he then went to his Troop vehicle and used the radio to call Emergency Medical Services and his supervisor. He said that at that point, the officers present on the scene were EPD Officers Lane and Tondeur and Woytach's partner, Blanchfield.
On cross-examination, Woytach stated that he had been in the armed forces serving as a military police officer prior to becoming a State Police Trooper. He served in both Kuwait and Iraq. During his service, he was trained in firearms and carried two weapons, an M-4 and a 9 millimeter Beretta pistol.
At the time of the shooting, Woytach did not know that claimant resided at 10 Jefferson Avenue. He had no idea where claimant was going. He had never encountered claimant prior to that night. He stated emphatically that he did not shoot until claimant started to raise the gun toward him. Woytach said he firmly believed the claimant was going to shoot him and he was going to be killed. After the shooting, he said he kicked the gun away from where it lay near claimant's hand because he did not know whether claimant was going to be able to get up and start shooting. He said it was a matter of seconds between the time he exited the Troop vehicle to the time he stopped shooting.
Woytach also said that during the course of his duties as a State Trooper, he responds to calls perhaps a dozen times per year regarding a person with a handgun. He said that he would go into those calls assuming that the caller was correct, in terms of taking appropriate precautions. He said that foot pursuits are not particularly common, because generally most people comply with police orders to stop.
Rodney Westbrook, a State Police Investigator, also testified. He arrived at the scene at approximately 4:30 a.m. Westbrook photographed Woytach's firearm and the rest of the scene. Claimant was not at the scene when Westbrook arrived, and Westbrook did not know who had taken photographs of claimant lying on the driveway. He showed the photographs he had taken of claimant's firearm, which had its safety in the "off" position, which he stated meant that it was in the "fire" position. He said there was no bullet in the chamber of the gun, but that the magazine was loaded with six bullets.
Claimant's Exhibits 24G and 24H.
Robert Bennett, another State Police Investigator in the collision reconstruction unit, testified. He prepared a scaled diagram of the scene. He had no conversation with Woytach about the incident. He described the collision between the Troop vehicle and claimant's bicycle as "light-impact."
Defendant's Exhibit D.
All quotes herein are taken from the Court's recording of the proceeding, unless otherwise noted.
Keith Tondeur, a patrol sergeant with EPD at the time of the incident, also testified. He was on duty on July 19, 2008, when he received a report of a man with a gun inside the Downtown Quarterback. He went inside the bar and did not see anyone. He was then advised that the man was outside on a bicycle. He walked out of the bar and saw a male on a bicycle with a Trooper in full pursuit on foot, as well as a Troop vehicle following. He said the bicyclist (claimant) was standing up pedaling, with both hands on the handlebars. Tondeur got into his police vehicle and proceeded to follow, picking up the Trooper (Blanchfield) who had been pursuing claimant on foot. When he arrived on Jefferson Avenue, he saw the Troop vehicle pulled up onto the sidewalk, and claimant's bicycle next to it. He said another EPD vehicle, that of Officer Lane, was already on the scene. As he was pulling up to the Troop vehicle, he heard a report over the radio that shots had been fired. He said he did not hear the shots because his windows were up.
Tondeur stated that he exited his vehicle and ran up to Woytach, who was standing at the northeast corner of the house. Tondeur asked Woytach if he was okay. He did not see Lane. Tondeur saw that claimant needed medical attention, so he assessed the injuries and called an ambulance. While it would normally be appropriate to handcuff a person in this situation, he determined that claimant should not be touched due to the severity of his injuries. He saw an injury to the calf, the femur and the spinal cord.
Tondeur testified that he saw a handgun on the driveway between claimant and the location where Woytach was standing when Tondeur ran up, about five feet from each of them. Woytach did not say anything to Tondeur about the gun. Tondeur took Woytach's weapon and gave Woytach his own gun.
Tondeur sent an EPD officer back to the station, located only a few blocks away, for a camera. He took pictures of everything he could, in order to document the scene. EPD retained the camera as evidence. Upon being asked whether he had taken any photographs of claimant fully clothed, prior to the arrival of EMS, he stated that he was not certain and would have to review the photographs to be sure. He said he had not reviewed the pictures in years.
Tondeur said that there was a street light in front of 10 Washington Avenue. He stated that the illumination was "poor to average." However, he said that he could see that the object lying on the driveway was a gun, and that there was a person on the ground. He stated that no flashlight was necessary to see those things.
On cross-examination, Tondeur stated that he did not have the flashing lights and siren of his vehicle turned on. He said that approximately 20 to 30 seconds elapsed between hearing Lane state over the radio that shots had been fired and seeing Woytach. At that point, Woytach was about 10 feet away from where claimant was lying, and the gun was in between them. The only conversation Tondeur had with claimant was to ask if he could breathe, and claimant responded that it was difficult.
Jonathan Macarak, a paramedic and Advanced Life Support provider for the Union Ambulance Squad, also testified. He stated that his squad responded to a call at approximately 2:30 a.m. on July 19, 2008 that a male had received gunshot wounds. When he arrived on the scene, he assessed claimant's condition. He described claimant as a male, 25 to 30 years old, prone, speaking very short sentences, with multiple gunshot wounds. He testified that the wounds were on the left clavicle into the right side of the neck, and two in the lower left leg. There was no exit wound for the shot to the left clavicle, but he saw major swelling to the right side of the neck and throat. He said that claimant was in critical condition and unable to move. He did not know if anyone took photographs of claimant while he was lying on the driveway.
On cross-examination, Macarak stated that he saw a handgun by claimant's feet, but the scene was secured. He said that police officers cautioned him not to disturb any items lying on the ground. He said that the fire medics were on the scene prior to his arrival. Macarak said he was on the scene from 11 to 13 minutes before claimant was transported to the hospital. Macarak did not know who shot claimant.
Retired Endicott Fire Department medic Joseph McKay also testified. He said that when he responded to the call, there was a heavy police presence. He observed two gunshot wounds in claimant's leg and one in the clavicle area of the shoulder. He tried to get a verbal response from claimant, but "didn't get much" other than that claimant said he could not breathe. He did a quick assessment, removed some of claimant's clothing, and then the ambulance was there. He said he saw the handgun lying on the driveway approximately eight feet away from claimant. He said that it would have taken him no longer than two minutes to respond to the call, given the proximity of the fire department to the scene. He thought the ambulance arrived within five minutes.
Brandon Leonard, another EPD officer, testified that he went to the Downtown Quarterback in response to the call about the man with a gun. He also heard the "shots fired" call. When he arrived at the scene, Woytach and Lane were there, and possibly Tondeur. He got crime scene tape and taped off the area. Paramedics arrived quickly.
Keith Blanchfield, a State Trooper and Woytach's partner, testified that he was on patrol with Woytach that night. He said he saw claimant on the bicycle and began to pursue him on foot but lost him. Tondeur picked him (Blanchfield) up. He did not hear shots being fired. When he and Tondeur arrived on the scene, both Woytach and Lane were standing in the driveway. Blanchfield asked Woytach if he was okay, and Woytach responded that he was. Blanchfield stated that Woytach told him that claimant pointed a pistol at him and he (Woytach) returned fire. Blanchfield acknowledged that he never saw claimant with a gun or engaging in criminal activity. Blanchfield saw the silver handgun lying on the driveway approximately five to seven feet away from claimant. He did not observe Woytach kick it away from claimant. After the ambulance team arrived, Blanchfield held a flashlight on claimant to assist them. He observed the gunshot wound in claimant's back, and said that it was toward the center between the two shoulder blades.
Claimant then testified. He said that he had lived in an apartment on Jefferson Avenue in Endicott for about two months. Prior to that time, he had lived in Monticello, New York for approximately a year and a half, working as a roofer. He was doing roofing work in Endicott as well. He said that on July 19, 2008, he rode his bicycle from his home to the Downtown Quarterback at about 2:00 a.m. to have a drink with a friend. He said he stayed there no more than 15 minutes, and drank one beer. The owner asked him for identification and he left. Claimant was underage at the time.
As he started to ride home on his bicycle, a Trooper tried to stop him. Claimant said he ignored him and kept riding his bicycle. Claimant said he did not respond to the Trooper because he was carrying an illegal firearm and was trying to get away. He said he had purchased the gun - a .380 - "on the street" in Endicott because he did not feel safe where he was living. He testified that he had never fired the gun, and stated that it was "no good." He explained that statement by saying that if the gun was not cocked, pulling the trigger would do nothing. Claimant said he knew how to operate a .380 because when he lived in Monticello "we used to go to the woods . . . and would come across some guns and just shoot them around and that's how I learned." Claimant said he carried his gun at the front of his body, in his waistband and under his belt. He was wearing jeans and a large white shirt that night. He said that his co-workers were aware he owned a firearm. He was carrying the gun that night when he went to the Downtown Quarterback. He stated that he did not take the gun from his waistband from the time he left home through the time he was shot.
Claimant said that the collision between his bicycle and the Troop vehicle was "really bad." After the collision, he started running, making a quick turn and sprinting down the driveway as fast as he could. He said he did not hear Woytach say anything. He said that when he started running he was facing forward. He said he never changed speed and stated he was always facing forward. He asserted that he never raised his arm in any way, and never drew the gun from his waistband. He then said he was starting to turn left to enter his house when he was shot. He stated that it would have been committing "suicide" if he had pulled a gun while running from a State Trooper.
Claimant's testimony on cross-examination was illuminating. He said he moved to Monticello, New York to take a roofing job at the age of 18, after training in the job corps. He said he changed addresses twice while living there, but could not recall either address, nor could he recall the name of the roofing company where he worked.
Claimant was arrested on a felony charge - possession of a controlled substance (crack cocaine) - while living in Monticello. During his arrest, he led police in a high-speed chase. After the chase, the police found drugs in his possession and he admitted they belonged to him. He was charged with possession with intent to sell. He served six months in a local jail.
Claimant was subsequently arrested in Ellenville, New York, and charged with felony criminal possession with intent to sell cocaine. Claimant pleaded guilty to a different charge, which claimant was aware would have resulted in a six-month sentence of shock incarceration in State prison. Claimant did not appear for sentencing, which resulted in the issuance of a warrant for his arrest.
Claimant moved to Endicott, using the alias of Joel Martinez to rent an apartment because of the warrant. During claimant's deposition, he initially denied having used an alias, but later admitted it. At trial, he stated that he initially lied because he was "just nervous" early in the deposition. He said he moved to Endicott because a friend told him there was a job opening. He did not recall the name of his landlord in Endicott. He did not recall the name of the roofing company he worked for, but stated that his boss' name was Mike. He did not know the names of his co-workers. He did not recall the name of the person he allegedly reported to every day. He did not remember the location of any of the jobs he worked.
On July 18, 2008, claimant testified that he stayed home instead of going to work. He initially stated he did not recall if he had a visitor at his apartment that day. During the early morning hours of July 19th, he said he was invited to have a drink at the Downtown Quarterback with a co-worker. He could not remember the co-worker's name. He then said that prior to going to the bar, another co-worker came to his apartment. He could not remember that person's name either. Both of these co-workers (if they were in fact different people, an issue about which claimant seemed unclear) were aware that claimant owned a gun. Claimant stated during his deposition that he had owned the gun for about a month and he did not recall where he had purchased it. On cross-examination, claimant stated he did not recall whether he had bought the gun in Endicott. He was aware that he was prohibited from owning a firearm as a convicted felon.
As set forth previously herein, claimant stated on direct examination that he had purchased the gun "on the street" in Endicott (supra at 11).
Claimant stated that it was a distance of about 4½ blocks from the bar to his home. He thought that the time that elapsed from when he first saw a Trooper outside the bar until he was shot was no more than 10 to 15 minutes. He said he was not aware of any reason for someone to have called the police about him. When the Trooper pointed at claimant, claimant knew he was being directed to stop. He said he fled, both because of the outstanding warrant and because he was in possession of an illegal firearm. He testified that he did not notice that the Trooper chirped his siren, nor did he notice whether the Troop vehicle was flashing its overhead lights. He was aware that one Trooper was chasing him on foot at some point. He knew the Troopers were trying to catch him. After the bicycle and the Troop vehicle collided, he did not feel dizzy or lose consciousness, but instead stated he went "over" the Troop vehicle and started running because he was determined to get away. He was aware that the Trooper (Woytach) was running behind him up the driveway. He said he was shot and he fell on his face. Before he lost consciousness, he knew he was seriously injured and was having difficulty breathing. Nevertheless, he testified that the last thing he remembered under these extreme circumstances was knowing that the gun was still in his waistband.
On redirect, claimant stated that if he had drawn his weapon, it would not have fired. He said he would have to cock it, and then it would work, but he stated that he never pulled the gun from his waist and never attempted to cock it. On re-cross, he stated that he had never shot the weapon.
James Williams testified as claimant's expert. Williams is a former police chief with a Ph.D. in Criminal Justice, an adjunct instructor in Law and Justice Studies at Rowan University in Glassboro, New Jersey, and a self-employed consultant in law enforcement policy, practice, procedure and training, as well as a Certified Chief Police Training Instructor in New Jersey.
Williams testified that he reviewed the discovery material, police reports and photographs, as well as visiting the site of the incident. He opined that if an officer receives a radio communication that a suspect has a weapon, the officer should pursue until the suspect stops, and then take physical custody of the suspect. He stated that officers are authorized to arrest a person if they flee, and should use the reasonable force allowed by law. He opined that claimant's action in fleeing did not pose a threat to Woytach. Interestingly, he stated that there is no threat of physical harm or death when a suspect is fleeing. He acknowledged that officers are trained to fire their weapon first if a person points a gun at them. When asked by claimant's counsel whether it was appropriate for Woytach to shoot claimant if claimant pulled a gun and aimed it at him, Williams responded that Woytach should have sought out cover and "continued the engagement." Williams noted that there was an "extension" to the house - a small covered entrance - at the side of the house where Woytach could have taken cover. However, Williams commented, the location of the shell casings indicated that Woytach ran past this extension while firing. He opined that a reasonably prudent officer would have sought cover.
Williams described how claimant's gun operated, and stated that the gun was not ready to be fired because it was not cocked. He opined that if claimant had been running and turned and lifted his right arm to fire a weapon (claimant was right-handed), his body should have been turned away from the entrance, and the right side of his body would have been more exposed. On the other hand, if claimant had been turning left to enter his apartment, the left portion of his body was more exposed. Williams opined that based on the gunshot wounds on claimant's left side, he was turning to go into his apartment. When asked whether the force used against claimant was reasonable and in accordance with police practice and procedures, Williams stated that claimant was running away and thus removed any immediate threat to Woytach.
On cross-examination, Williams acknowledged that he had never spoken to either Woytach or claimant prior to the trial. He stated that one of the first things that should be done at a crime scene is to take photographs, and he faulted the police investigators for not making an outline of claimant's body where he fell.
When asked whether Woytach could see the building extension where he might have taken cover, given the darkness, Williams replied that it could not have been completely dark as Woytach saw claimant as he was running. He agreed that if Woytach saw the gun in claimant's hand, it was possible that Woytach's attention would be completely drawn to the weapon. Defendant's counsel asked Williams whether Woytach taking cover and continuing the engagement would not have resulted in claimant still being shot, and Williams said it would not have resulted in claimant being shot. Williams said that if he was in Woytach's position, he would have taken cover at the side of the house and continued to engage claimant. Williams admitted that Woytach would not have known that there was no round in the chamber of claimant's gun. Claimant rested his case at the close of Williams' testimony, and defendant moved to dismiss the claim on the ground that claimant had failed to make a prima facie case. The Court reserved decision on the motion.
James Terzian, M.D., testified as defendant's expert. Terzian is the Director of Pathology at Lourdes Hospital in Binghamton and a Clinical Professor of Pathology at the State of New York Upstate Medical University. Terzian is board-certified in pathology. He reviewed claimant's medical records as they pertained to the shooting.
Terzian used various medical images - X Rays and MRI images - to describe the trajectory and entrance of the bullet wounds. Claimant was hit twice in the left leg and once in the upper body. Terzian said that the upper body wound started at the left side of claimant's spine, on his back, and passed through the spine, severing the spinal cord. He opined that to a reasonable degree of medical certainty, claimant was standing upright, leaning slightly forward and to the left when the shot severed his spinal cord. The person who shot him was standing behind him. Terzian stated that claimant would have fallen to the ground immediately when his spinal cord was severed. Defendant rested its case at the close of Terzian's testimony. The Court reserved decision.
As a preliminary matter, at the close of claimant's case claimant's counsel addressed an evidentiary issue. Counsel stated that Sergeant Tondeur testified that he took photographs of claimant on the ground, prior to the arrival of the EMS squad and ambulance, in which claimant was still dressed (much of claimant's clothing was removed by medics in order to treat his injuries). Counsel said that defendant failed to disclose the photographs showing claimant while still dressed. Counsel argued that these photographs would have been particularly relevant to show the location of claimant's gun immediately after the shooting. Counsel requested an inference that any photographs not turned over would have been beneficial to claimant.
Defendant responded that a negative inference could only be drawn if the defendant had engaged in misconduct. Defendant noted that in this instance, the alleged photographs were not taken by defendant, but instead by a member or members of the EPD. Defendant's counsel advised the Court that during the discovery process he had turned over all photographs in his possession, including those received from the EPD. He stated that he had never seen any photographs of claimant on the ground while still clothed.
Despite claimant's counsel's assertion, Tondeur's testimony was actually that he did not recall whether he had taken any photographs of claimant prior to the arrival of the EMS Squad. Nothing has been presented to the Court, other than counsel's incorrect assertion, to indicate that any such photographs were taken, much less that there was any misconduct by defendant. Accordingly, the Court declines to draw any negative inference.
"Claims that law enforcement [personnel] used excessive force in the course of an arrest, investigatory stop or other prearraignment seizure are analyzed under the 4th Amendment and its standard of objective reasonableness" (Passino v State of New York, 260 AD2d 915, 916 [3d Dept 1999], lv denied 93 NY2d 814 [1999]; see also Ostrander v State of New York, 289 AD2d 463 [2d Dept 2001]). "The reasonableness of an officer's use of force must be 'judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight' " (Rivera v City of New York, 40 AD3d 334, 341 [1st Dept 2007], lv dismissed 16 NY3d 782 [2011], quoting Graham v Connor, 490 US 386, 396 [1989]).
In other words, a determination of whether the force used in a particular instance was excessive 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" (Passino v State of New York, 175 Misc 2d 733, 736 [Ct Cl 1998], affd 260 AD2d 915 [3d Dept 1999], lv denied 93 NY2d 814 [1999]). An assessment of witness credibility may be key to resolving factual disputes in such an analysis (Wester v State of New York, 247 AD2d 468 [2d Dept 1998]; Davis v State of New York, 203 AD2d 234 [2d Dept 1994]).
Claimant's testimony, both at trial and in his deposition, was replete with inconsistencies and evasion. He was in no way a credible witness, and had - at best - only a passing acquaintance with the truth. His alleged lack of memory was, at times, astonishing. Many of his statements were blatantly contradicted by obvious facts. For example, if claimant had not shown his gun to someone while at or around the Downtown Quarterback, how could anyone have known he was carrying it in order to be able to report that to the police? His statement that he learned how to operate a .380 by "coming across" guns in the woods at Monticello was certainly interesting, as was his statement that his weapon was "no good" because it had to be cocked in order to be fired. It seems likely that claimant learned that fact on July 19, 2008 in the driveway of 10 Jefferson Avenue, to his dismay.
There has been no contention that claimant suffered any brain injury or memory loss as a result of the shooting.
Conversely, Trooper Woytach was a very credible and articulate witness. He was obviously extremely experienced in dealing with stressful and dangerous situations, due to his extensive military and police training and duties. The Court has no doubt whatsoever that claimant had pulled his gun from his waistband while running up the driveway. Claimant has attempted to intimate that Woytach pulled the gun from the front of claimant's waistband after claimant was shot, in order to justify the shooting. However, if claimant had not already drawn the gun, Woytach would not have even been aware that it was still in claimant's possession after the pursuit. Claimant fell on his face when he was shot, which would have concealed a gun kept in the front of his waistband.
The Court finds that it was objectively reasonable for Woytach to have used deadly force in this situation. Claimant was fleeing the police despite repeated orders to stop, and even after a collision with the Troop vehicle. He drew his gun. He was starting to turn, by his own admission. Woytach logically perceived, in the darkness and stress of the situation, that claimant was starting to lift the gun to fire at him and that his safety was endangered. Any reasonable police officer would have responded similarly under these circumstances. In fact, if Woytach had not shot claimant, it is fairly likely that claimant would have figured out how to operate his weapon and the end results could have been substantially different.
The Court strongly disagrees with Williams' assertion that a fleeing suspect poses no threat to a pursuing officer.
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Based on the foregoing, the Court finds that the force used by Woytach was not excessive under the circumstances present, and the claim is dismissed. Any motions not previously determined are hereby denied. Let judgment be entered accordingly.
July 31, 2014
Binghamton, New York
CATHERINE C. SCHAEWE
Judge of the Court of Claims