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VICTOR J. WHITREE v. STATE NEW YORK (05/14/68)

COURT OF CLAIMS OF NEW YORK Claim No. 42764 1968.NY.41592 <http://www.versuslaw.com>; 290 N.Y.S.2d 486; 56 Misc. 2d 693 May 14, 1968 VICTOR J. WHITREE, CLAIMANT,v.STATE OF NEW YORK, DEFENDANT Redman & Snyder (Aaron J. Broder and Jack Shifter of counsel), for claimant. Louis J. Lekfowitz, Attorney-General (James Brenner of counsel), for defendant. Henry W. Lengyel, J. Author: Lengyel


Henry W. Lengyel, J.

Author: Lengyel

 This claim, initially for damages in the sum of $4,000,000, was duly filed. Said damages allegedly arose out of claimant's confinement in Matteawan State Hospital from May 19, 1947 to September 8, 1961.

The first and third causes of action set forth in said claim were dismissed by order of Judge Sidney Squire dated December , 1965. (See Whitree v. State of New York, 48 Misc. 2d 673, affd. 26 A.D.2d 720, mot. lv. to app. den. 18 N.Y.2d 583.)

The second cause of action was predicated on the alleged negligence of the State doctors in providing psychiatric and ordinary medical care to the claimant while an inmate at Matteawan. An interesting facet of said cause of action is the claimant's position that, if proper psychiatric care had been provided, Mr. Whitree would have been released from Matteawan many years before his release was finally accomplished on September 8, 1961. Thus, in effect, although the second cause sounds in tort based essentially on the alleged malpractice of the State doctors, the main item of damage relatable to this cause of action would be the false imprisonment of the claimant for a substantial portion of the 14 years, 3 months and 20 days of confinement.

The fourth cause of action was based on the alleged injuries received by this claimant during his confinement. Said injuries were allegedly caused by beatings inflicted by hospital employees and other patients.

In the second and fourth causes of action, claimant realleged paragraphs 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 17, 18, 19, and 20, all as set forth in the first cause of action. The first and third causes of action were dismissed in Whitree v. State of New York (supra), and the State takes the position that such dismissal is res judicata not only as to the first and third causes of action but also as to the realleged paragraphs in the second and fourth causes of action. Of course, said decision is res judicata as to the first and third causes of action. We also find said decision res judicata on any points of law and fact raised by said realleged paragraphs and which were directly ruled upon in said decision. We are bound by said determinations. (See Nastasi v. State of New York, 275 App. Div. 524, affd. 300 N. Y. 473.) However, as stated by Judge Squire in Whitree v. State of New York (supra, pp. 675-676):

"Although many of these factors which cannot sustain a pleading are alleged in the second cause of action, there are also averments that the defendant was negligent in failing 'to conduct regular treatment and periodic comprehensive examinations of the claimant' and 'in failing to provide ordinary medical care in addition to failing to attend to and to treat the personal injuries which the claimant sustained from beatings he suffered at the hands of fellow patients and attendants in the employ of the defendant at said State hospital.'

"The foregoing is amplified in claimant's bill of particulars, verified by the claimant. * * * "These issues reflect questions of fact which must be resolved at a trial."

Mr. Whitree was born on January 22, 1899 and was 68 years of age on the date of the trial.

On March 25, 1945, he was arrested in the City of New York on the charge of stabbing one John O'Connor. On May 21, 1945, he was indicted for assault second degree, to which he pleaded not guilty on May 24, 1945. On November 15, 1946, he appeared with counsel and pleaded guilty to assault third degree. On December 6, 1946, he was given a suspended sentence by the Court of General Sessions and was placed on probation. It should be noted that he was released on bail in the assault second degree charge on April 13, 1945, and that he appeared at the Court of General Sessions on 18 different dates before withdrawing his plea of not guilty and pleading to the reduced charge. It was Mr. Whitree's testimony at the trial that he was not guilty of the assault second degree but that he finally pleaded guilty to assault third degree because he could not afford to lose so much time from work; and, also could not afford to continue to pay his lawyer for each appearance at the Court of General Sessions. Certainly, this lengthy time between indictment and final disposition causes one to ruminate upon the verity of the statement, "Justice delayed is justice denied."

As stated above, after the plea of guilty, the Court of General Sessions suspended sentence and placed the claimant on probation. The length of probation was not set forth in the record of the Court of General Sessions presented in evidence at the trial. However, we note that "The period of probation may not * * * extend * * * in the case of any * * * defendant convicted of an offense less than a felony * * * beyond three years." (Code Crim. Pro., § 933, as added by L. 1931, ch. 423, repealed by L. 1967, ch. 681.) As assault third degree was a misdemeanor in 1946 (Penal Law, § 245) the period of probation, assuming no violations, could be no longer than three years from December 6, 1946. There was a violation of probation and Whitree was taken into custody on April 7, 1947. On April 29, 1947, he was ordered to Bellevue Hospital for formal psychiatric examination. Assuming no psychiatric problems on April 29, 1947 and a proper arraignment and hearing on that date (Code Crim. Pro., § 935), one of two things could have happened to him. The Court of General Sessions could have revoked his probation and sentenced him on his plea of guilty to assault third degree. Such sentence, depending on the court's findings, could have been for one year under section 245 of the then existing Penal Law; or, for an indeterminate period no longer than three years under section 203 of the then existing Correction Law. (See, also, People ex rel. Montana v. Warden of New York City Penitentiary, 171 Misc. 533.) Of course, the Court of General Sessions could have continued or modified his probation. It could not, however, extend the period of probation beyond the original three years. (People v. Valle, 7 Misc. 2d 125.) Assuming that the Court of General Sessions had utilized section 203 of the Correction Law and arbitrarily utilizing April 29, 1947 as the sentencing date, the maximum term that Whitree could have been confined to jail, assuming sanity, would have ended on April 29, 1950. The above possibilities have been set forth, not in an effort to go behind the commitment order which was valid on its face, but to point up that the claimant was incarcerated for roughly eleven years more than the criminal term he could have received. Such incarceration should be premised upon careful, thoughtful, and informed expert medical basis. We do not find that such was the case in the medical treatment afforded this claimant.

On April 11, 1947, claimant was committed to Bellevue Hospital for observation and on April 29, 1947, the Court of General Sessions directed that Whitree be formally examined by two psychiatrists at said hospital. He was examined by two qualified psychiatrists who duly reported to the Court of General Sessions that he was in such a state of insanity that he was incapable of understanding the charge, or of making his defense. The technical diagnosis was paranoid condition in a chronic alcoholic. On May 15, 1947, he was committed to Matteawan State Hospital by order of the General Sessions Court.

Whitree was transferred to Matteawan State Hospital on May 19, 1947, where he was admitted by Dr. William C. Johnston. A copy of the commitment order, Exhibit "F", accompanied Whitree to the State Hospital and was delivered to Dr. Johnston.

Before we further consider the factual situation presented at the trial, we must determine the effect of court orders dismissing writs of habeas corpus which were granted to Mr. Whitree upon his application. The order dismissing the initial writ of habeas corpus was served upon him on December 20, 1954. The order dismissing the second writ of habeas corpus was served upon him on July 3, 1956. Thereafter, two applications for such writs were denied (May 9, 1957 and February 3, 1959). The third writ of habeas corpus was indefinitely adjourned on April 27, 1959. On March 3, 1961, an application for a fourth writ of habeas corpus was granted. After a hearing, at which Whitree was represented by counsel for the first time, it was determined that he had not been committed in accordance with law and the writ was granted. He was remanded to the Court of General Sessions for further proceedings to determine his mental condition.

In Rosario v. State of New York (42 Misc. 2d 699) it was held that denial of a writ of habeas corpus brought by an inmate of a State hospital for the criminally insane was res judicata on the question of the sanity of said inmate from his date of confinement to the ...


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