Uid: 2001-010-035 Claimant(s)



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ROSELL v. THE STATE OF NEW YORK, #2001-010-035, Claim No. 95900
Synopsis
Alleged excessive force used by correction officers to frisk inmate. Claim dismissed.
Case Information


UID:

2001-010-035

Claimant(s):

JOSE ROSELL

Claimant short name:

ROSELL

Footnote (claimant name) :




Defendant(s):

THE STATE OF NEW YORK

Footnote (defendant name) :




Third-party claimant(s):




Third-party defendant(s):




Claim number(s):

95900

Motion number(s):




Cross-motion number(s):




Judge:

Terry Jane Ruderman

Claimant’s attorney:

JORDAN MASIAKOS, ESQ.

By: Ira J. Furman, Of Counsel



Defendant’s attorney:

HON. ELIOT SPITZER

Attorney General for the State of New York

By: Michael Rosas, Assistant Attorney General


Third-party defendant’s attorney:




Signature date:

May 24, 2001

City:

White Plains

Comments:




Official citation:




Appellate results:




See also (multicaptioned case)



Decision


Claimant seeks damages for the personal injuries that he sustained on March 7, 1997, during his incarceration at Tappan Correctional Facility (“Tappan”). Claimant’s ankle was broken during a struggle with correction officers who were attempting to frisk and subdue claimant. The trial of this claim was bifurcated and this Decision pertains solely to the issue of liability.

Claimant testified that on March 7, 1997, he found a one inch single edge razor blade near the bathroom in Building 11. Claimant placed the razor in the brim of his wool hat and proceeded to Building 9, another housing unit, with the intention of “swapping”1 the razor for cigarettes.2 Claimant knew that he was not permitted in Building 9.

Claimant was not able to complete the transaction and headed back to Building 11. En route, he was stopped by two correction officers who directed claimant to put his hands against the wall. Claimant did not comply. After a second command, claimant placed the razor in his cupped right hand and raised his hands above his head and placed them on the wall with his legs spread apart. According to claimant, one of the officers struck claimant’s right hand and claimant thought that the razor was now visible. Fearing a reprimand, claimant turned to the left and ran toward a fence where he planned to discard the razor. Claimant testified that he had a scheduled parole date and was afraid that, if he were found to be in possession of the razor, an extra year would be imposed on his sentence. Claimant never reached the fence because he was stopped by several other correction officers in his path. Claimant then hid the razor in his mouth.

The officers placed claimant face down on the ground and handcuffed him. Claimant repeatedly denied possession of the razor, while the officers exerted pressure to claimant’s back, shoulder, and neck. According to claimant, in an effort to get a responsive answer, an officer grabbed claimant’s right leg and twisted it until it broke. Claimant then spit out the razor and it was retrieved by one of the officers. Claimant was transported to the facility infirmary.

Correction Officer James Minde, who was assigned to Building 9, testified that he had known claimant for one and a half years prior to the incident and was aware that he was housed in Building 11. Minde observed claimant walking out of Building 9, not his assigned housing unit, and, following routine procedure, Minde instructed Claimant to submit to a pat/frisk. Minde was accompanied by Correction Officer Richard Venetozi. Claimant did not comply until he received a second order.

As Minde began to pat down claimant, he observed the partially concealed razor, which is prohibited in the facility. Minde warned Venetozi that claimant had a weapon. Claimant reacted immediately by removing his hands from the wall and spinning around. Minde wrapped his arms around claimant’s leg, while Venetozi placed claimant in a bear hug. Claimant had moved, at most, two to three feet before he was brought down to the ground and handcuffed. Minde denied twisting claimant’s right foot in an attempt to have him reveal the razor. Minde stated that the only injuries claimant had sustained were incurred from the officers’ attempt to subdue claimant and handcuff him.

Correction Officer Richard Venetozi testified that, after claimant suddenly spun around off the wall, claimant became combative and Venetozi was concerned about the weapon. Venetozi grabbed claimant’s upper body in a bear hug as claimant resisted. A struggle ensued and claimant was subsequently placed on the ground. Venetozi held claimant’s upper torso and Minde secured claimant’s legs. Venetozi sustained a knee injury in the scuffle and was treated at Phelps Memorial Hospital.

Correction Officer Bruno St. John testified that he did not assist in placing claimant on the ground, but he did apply the handcuffs. St. John recovered the razor blade. St. John was treated at an outside hospital for back injuries sustained in the struggle.

Upon listening to the witnesses testify and observing their demeanor as they did so, the Court finds that claimant’s version of the incident strains credulity and that the testimony of the correction officers, which sharply disputed claimant’s account of the alleged incident, was forthright and credible. The Court further finds that the force used to subdue claimant, who was armed, attempted to flee, and resisted the officers, was reasonable under the circumstances and not excessive.

Accordingly, defendant’s motion to dismiss, upon which decision was reserved, is now GRANTED.

LET JUDGMENT BE ENTERED DISMISSING CLAIM NO. 95900.

May 24, 2001

White Plains, New York
HON. TERRY JANE RUDERMAN

Judge of the Court of Claims



1All quotations are to the trial notes or audio tapes unless otherwise indicated.

2 Claimant testified that he had previously spoken to an inmate housed in Building 9, whom claimant thought might be interested in trading cigarettes for the razor, even though the inmate purportedly had not expressed an interest in the razor. At his EBT, claimant stated that the other inmate had indicated an interest in weapons (Ex. D, p. 39). When confronted with this discrepancy at trial, claimant maintained that he did not even recall testifying at an EBT.


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