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COURT OF CLAIMS OF NEW YORK Claim No. 47817 1969.NY.40461 <>; 299 N.Y.S.2d 510; 59 Misc. 2d 337 February 18, 1969 EDWARD ORMAN, CLAIMANT,v.STATE OF NEW YORK, DEFENDANT Mandel & Permutt and Kramer Dillof, De Blasio & Meagher (Thomas F. Meagher of counsel), for claimant. Louis J. Lefkowitz, Attorney-General (William T. McCue of counsel), for defendant. Caroline K. Simon, J. Author: Simon

Caroline K. Simon, J.

Author: Simon

 On the morning of December 22, 1966, claimant, in this action for negligence of the State of New York, was traveling by subway from his home in Far Rockaway to his office in midtown Manhattan. His usual mode of travel was by car, but on this particular morning his wife required the car's use to transport lamps and other breakables to the new home to which they were moving the following day.

At about 7:45 a.m., Mr. Orman changed trains at the Broadway and Nassau Street station from the Independent to the Lexington Avenue line. He testified that he walked up the stairs leading to the east side train. As he reached the top landing of the flight of steps he heard a loud report and simultaneously felt sharp pain in the lower center of his back. He fell down. Police were summoned. Mr. Orman was taken to Beekman Downtown Hospital where the injury was diagnosed as a gunshot wound with resultant paraplegia of both limbs.

As a result of police investigation and interrogation of bystanders who had caught glimpses of a suspect, on January 19, 1967 a patient of Central Islip State Hospital who had been on home leave since December 12, 1966, was arrested. Thereafter he was indicted by a Grand Jury. The patient was represented by counsel, according to the police sergeant present there and a witness at this trial. He has not been brought to trial, due to his admission to Matteawan State Hospital in Beacon, New York.

The claim, timely filed with the Clerk of the Court of Claims and in the Department of Law on March 3, 1967, alleges negligence of the Central Islip authorities in permitting a patient to leave the premises for a home visit as the proximate cause of Mr. Orman's injuries. It seeks $1,000,000 as damages for personal injuries and suffering, plus medical and hospital expenses undetermined at the time of filing.

The claim has neither been tried, nor assigned, nor brought before any other court or tribunal for determination.

At the commencement of the trial, the Attorney-General objected to the introduction of any evidence pertaining to the identity or the apprehension of the suspect, on the theory that he was under indictment and that his civil rights in any subsequent trial would be in jeopardy should evidence now be introduced in a civil action that would pertain to his guilt or innocence. As precedent for this position, Lewis v. Roux Trucking Corp. (222 App. Div. 204) and Zara Contr. Co. v. State of New York (22 A.D.2d 415) were cited.

The court recognizes that the rights of an accused are and ought to be zealously protected by every safeguard afforded in our system of jurisprudence, based as it is on common law, case law and statute. The cases cited by the State, however, relate to the disclosure of prior criminal proceedings in a pending civil action whereas the Attorney-General's objection in the instant matter is based upon the possible use of testimony in a civil court proceeding as a basis for a future criminal trial.

Our rules of evidence require the accused to have an opportunity to cross-examine; they prevent the admission of any testimony against one who is not a party to the proceeding; and such testimony may be objected to as inadmissible in the later trial, even if no objection had been interposed in the earlier action. Because of these safeguards the court followed the path illuminated by Judge Fuld in Fleury v. Edwards (14 N.Y.2d 334, 341): "Absent some strong public policy or a clear act of pre-emption by the Legislature, rules of evidence should be fashioned to further, not frustrate, the truth-finding function of the courts in civil cases."

In the interest of justice and in order to permit claimant to have his day in court, testimony by the police assigned to the criminal case was admitted over the State's objection.

A sergeant on radio patrol stated that he received a call at 7:45 a.m. that "shots were fired" at the Broadway and Nassau Street subway station. He reported to the scene, the entrance being on the south side of Fulton Street, and saw claimant in a prone position. He asked Mr. Orman whether he could get up, and was told that he could not. He ordered the ambulance in which claimant was removed to Beekman Downtown Hospital. A police "Aided" card was filled out by a patrolman at his direction, and was stated by the sergeant to be a competent report of the sequence of events, made in the regular course of business and required to be so made.

A detective assigned to the case testified that, as part of his regular and required procedure, he interviewed claimant in the hospital and also interrogated the three witnesses whose names had been listed on the police "Aided" card. From the descriptions given him, he deduced that the assailant might be a patient on leave from a mental hospital in the area. He contacted such institutions, investigated the replies he received, and learned that one patient answering the description given to him had been on home leave from Central Islip State Hospital at the time of the shooting.

He stated that one other witness had telephoned the police to inform them that he had seen the assailant. The detective said he obtained a photograph which this witness identified. Together, they visited Central Islip State Hospital and, according to the detective, this witness there confirmed the identity of the suspect by viewing him and inspecting and recognizing clothing worn by him on the day of the shooting.

The detective, armed with a search warrant, then visited the home of the suspect's parents, and found in the son's bedroom two newspapers, one of which contained an account of the Orman shooting, and the other an unrelated account of the killing of a subway change booth clerk by a mental patient a few days later. The detective stated that he also found there a subway route ...

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