of 40th Street and Second Avenue; that "Simultaneously as I was
firing I saw flashes out of the corner of my eyes, and I realized
that the anticrime unit was there, Detectives McComiskey and
O'Brien and Langan had pulled up and were also firing." (Tr. 224)
McComiskey testified that he was in the right front passenger
side of the unmarked police car driven by Officer Langan down
Second Avenue at about 41st Street when he heard the radio call
"shots were fired," that he drew his revolver, saw a flurry of
activity in the corner of 40th Street and Second Avenue, that he
saw the uniformed officer chasing an unknown male from 39th to
40th Streets along Second Avenue, and saw the unknown male make a
left up onto 40th Street; that the car then made a screeching
halt, that as McComiskey exited the car he saw Soba carrying the
sawed-off shotgun come up and McGoey, who was at the building
line, turn to face Soba and that he could see McGoey firing at
Soba. At this point McComiskey testified that "Soba did a
complete 90-degree turn and faced me. I fired all six shots in my
revolver." (Tr. 256-7).
McComiskey stated his reasons for firing were "Well, he was as
close as you can get, I felt, to me, and when he turned in my
direction and I seen that very large hole in that very large
shotgun, I thought I was dead, and as I was firing my gun, I was
waiting to see the flash from his gun." (Tr. 259)
McComiskey also testified that the splitsecond after McGoey
stopped firing, he fired his six shots at Soba. (Tr. 263)
McComiskey testified that all the shots were fired in a period of
about four seconds. (Tr. 263).
O'Brien testified he was in the car with McComiskey and Langan
and as the car approached 40th Street he saw McGoey and Soba
pointing guns at each other about 8 to 10 feet apart; that as he
exited the car McGoey discharged his weapon at Soba; that at that
point Soba turned and pointed the sawed-off shotgun in O'Brien's
direction and he discharged two shots at which point Soba fell.
The standard for awarding judgment notwithstanding the verdict
is the same as the standard applied to a motion for a directed
verdict. Vander Zee v. Karabatsos, 589 F.2d 723 (D.C.Cir.
1978), cert. den., 441 U.S. 962, 99 S.Ct. 2407, 60 L.Ed.2d 1066
(1978). That standard is whether the evidence presented is such
that, without the court weighing the credibility of the witnesses
or considering the weight of the evidence, a reasonable person
could have reached only one conclusion, different from that
reached by the jury. Stubbs v. Dudley, 849 F.2d 83 (2d Cir.
1988), cert. den., 489 U.S. 1034, 109 S.Ct. 1095, 103 L.Ed.2d
230 (1989); Bohack Corp. v. Iowa Beef Processors, Inc.,
715 F.2d 703 (2d Cir. 1983); Mattivi v. South African Marine Corp.,
"Huguenot", 618 F.2d 163 (2d Cir. 1980). The Court must view the
evidence "in a light most favorable to the non-moving party
(giving the non-movant the benefit of all reasonable inferences)"
and considering whether "the jury's findings could only have been
the result of sheer surmise and conjecture or (2) there is such
an overwhelming amount of evidence in favor of the movant that
reasonable and fair minded men could not arrive at a verdict
against him." Mattivi, supra, at 167-68.
The key evidence here is conflicting testimony as to the actual
shooting which is difficult to reconcile. In considering it,
however, the location of the building line in reference to the
witnesses is important. Soba turned left out of the bar (Tr.
108-111) and up Second Avenue on the sidewalk towards 40th
Street. This puts the building line on his left. McGoey testified
he was at the 40th Street and Second Avenue building line
utilizing it for cover, looking around the corner down 40th
Street (Tr. 234). Soba agreed that McGoey was located there (Tr.
71-73). McGoey's testimony made clear that, as he faced Soba,
Second Avenue was to his left (jury box in relation to witness
box in Courtroom 444), and that at the time of the shots Soba was
"parallel to me" (Tr. 237). The testimony is uniform
that the two men were 8 to 10 feet apart at the time of the
The significant difference in the testimony is that Soba
claimed he turned counterclockwise, thus away from McComiskey and
O'Brien, when the shot hit him in the shoulder (Tr. 168-69),
whereas the police officers all testified that he turned
clockwise towards McComiskey and O'Brien. (Tr. 238, 257, 298).
Dr. William Stahl, Vice Chairman of the Department of Surgery
at New York Medical College, testified that the hospital records
showed that the plaintiff was injured by six bullets:
1. lower part of the thigh on the right leg;
2. upper part of abdominal wall in front
3. through the left shoulder;
4. left forearm;
5. left forearm;
6. left forearm.
The doctor's testimony did not corroborate the sequence of the
shots. Because of the force of bullets from 8 to 10 feet away,
however, the doctor's testimony did tend to corroborate Soba's
testimony as to how his body turned because four of the five
bullets of a non-superficial nature hit him in the left side.
In the light of this evidence, the Court concludes the jury,
while accepting McGoey's testimony that he fired in self-defense,
rejected the testimony of McComiskey and O'Brien that they fired
in self-defense. Since McComiskey and O'Brien did not testify
that they were firing to protect McGoey and indeed, testified
that Soba was threatening them and no longer facing McGoey, that
issue need not be addressed in this opinion.
Having concluded that there was sufficient evidence for the
jury to reject McComiskey and O'Brien's testimony that they fired
in self-defense with Soba's sawed-off shotgun pointed at them, it
was permissible for the jury to infer that their testimony was
developed to cover a failure on their part to act properly. The
jury would also be entitled to make deductions about the use of
excessive force, particularly if it concluded that Soba's back
was to McComiskey and O'Brien, that he had been wounded at least
three times by McGoey, and he had turned counterclockwise from
McGoey and was no longer a threat to him. The jury had more than
ample opportunity to assess Soba's credibility during his lengthy
cross-examination. Under these circumstances, the Court may not
usurp the jury's role of weighing the credibility of witnesses or
the weight of the evidence presented. See Stubbs, supra.
In view of the jury's disbelief in the defendants' testimony
and other evidence, the jury could have reasonably inferred that
McComiskey and O'Brien acted maliciously or wantonly, with the
result that defendants are not entitled to qualified immunity.
Harlow v. Fitzgerald, 457 U.S. 800, 816-817, 102 S.Ct. 2727,
2737, 73 L.Ed.2d 396 (1982). Furthermore, the award of no
punitive damages does not vitiate that finding. Instead, it shows
that the jury's determination was a deliberate one of awarding
compensatory damages to a felon but nothing more.
Accordingly, the Court concludes there was sufficient evidence
to support the jury's verdict and the motion for a directed
verdict, for judgment notwithstanding the verdict and for a new
trial is denied. See Continental Ore Co. v. Union Carbide &
Carbon Corp., 370 U.S. 690, 697-98, 82 S.Ct. 1404, 1409-10, 8
L.Ed.2d 777 (1962); Mattivi v. South African Marine Corp.,
"Huguenot", 618 F.2d 163 (2d Cir. 1980); Berner v. Commonwealth
Pacific Airl., Ltd., 346 F.2d 532, 535-36 (2d Cir. 1965), cert.
den., 382 U.S. 983, 86 S.Ct. 559, 15 L.Ed.2d 472 (1966).
IT IS SO ORDERED.
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