This is the decision following the liability trial of Denise Harris who claims that she was subject to excessive force when arrested for disorderly conduct in Bronx Supreme Court, Criminal Term on June 9, 2010.

Ms. Harris was in the Bronx courthouse to attend a bail remand hearing for her partner, Willia Sykes. When Ms. Sykes' case was called, claimant, who had been sitting in the back of the courtroom, decided to move closer, and took a seat in the second row. Claimant testified that the next thing that happened was she was asked to leave the courtroom by Court Officer Antonio Bolorin, stating that she had done nothing to cause her removal.

Officer Bolorin, who has since been promoted to sergeant, had a different recollection:

"[T]here's a female [who] looked like she was going to be remanded . . . and I guess someone that was with her got up and I told her, you know, You have to sit down.' And the person sat down for maybe a few seconds or so, got back up and I said, Miss, you have to stay seated, and now you're gonna have to leave.' "

Then, according to Bolorin's testimony, Harris went to stand in the back; he told her she could not do that either and directed Harris to leave the courtroom. The officer said that claimant [*2]then went to the vestibule area between two sets of double doors and tried to look into the courtroom through a door window. Harris testified that she never stayed in the vestibule area and was in the hallway "outside and stood there behind the double doors to see what was going on with the case because like I mentioned, they wanted to remand her [Sykes] off her bail."

It would seem difficult to get much of a view through the windows in two sets of double doors however directly aligned. But in any event, the narrative up to this point is for the purposes of background: Ms. Harris' arrest for disorderly conduct was upheld after a trial before Judge Vincent Quattrochi on November 23, 2010 (def exhs A and B). A failure to respond to directives from a court officer to refrain from actions that have disrupted or can disrupt court operations will support an arrest for disorderly conduct. See for example, a recent decision by this Court, Lazarus v State of New York (40 Misc 3d 1236 [Ct Cl 2013]).

Following Judge Quattrochi's decision, the sole issue remaining for trial here was whether excessive force was used; an otherwise lawful arrest must be effected with the appropriate level of force (Raefski v State of New York, UID No. 2004-016-040 [Ct Cl, Marin, J., July 21, 2004]).

As a general proposition, arresting officers can graduate the amount of force they use in response to the subject's actions^[FN1], and Officer Bolorin testified that at least two times, Harris said, "[y]ou can't f - - - ing arrest me," and then when the officer was trying (with his partner) to put cuffs on her, "she kept pulling away." But on balance here, the Court concludes that the officer (or officers) went too far and exceeded the minimum amount of force necessary to subdue the claimant, who stood five feet, four inches and weighed 125 or 130 pounds.

What we have is a two-witness trial, with each side portraying rather differently what happened. To prevail, claimant must prove her case by a fair preponderance of the credible evidence. One element to add to the equation is that Officer Bolorin's then partner, Officer Howard Smith, was the second officer on the arrest. On the Unusual Occurrence Report that was submitted by Bolorin, in the space for the name of any witnesses, one is listed - - Howard Smith (cl exh 1). Officer Smith was available (he was still working in the court system) and had non-cumulative information that would have been expected to be favorable to the defendant. Because Smith was not called by defendant, claimant is entitled to an adverse inference therefrom (PJI 1:75; Matter of Allen v Black, 275 AD2d 207 [1st Dept 2000]).^[FN2]

Harris had three prior felony convictions, although the last was in 1999, as well as several misdemeanor convictions. Such can generally be used to question credibility in a civil trial (Dance v Town of Southampton, 95 AD2d 442 [2d Dept 1983]). With that said, there was no false front on claimant's persona. Just about every time in her life Denise Harris came into court, something bad happened to her; to this trier of fact, she was not particularly looking to return to court even on a claim of her own for money damages.

While her absorption with what was happening to her partner and consequent [*3]obliviousness to how she may have been acting in the courtroom might tend to undercut Harris' overall credibility, the evidence on excessive force has to be evaluated on its own. Her focus on Ms. Sykes (telling Bolorin, "I have to be here to receive, to get her property") may have made Harris slow to respond or even understand what the officer was directing her to do - - and claimant undoubtedly would have come across to Bolorin as a person with some rough edges. Harris contended at her criminal trial that Bolorin said the following, which, if accurate, would show the officer's frustration and exasperation with her: "He said the next time somebody tells you to [do] something you're going to f - - - ing do it" (def exh B, p. 6).

Harris was insistent about what happened, and made no effort to soften her testimony in this matter. On direct examination, after telling Bolorin that she must be there to receive Sykes' property, she stated that, "[n]ext thing I know, the court officer slapped me into the wall and was very, very aggressive with me for no reason." On cross-examination, the following exchange occurred:

Q. Now, is it fair to say that by your own admission that you never actually got out in the hallway, you stayed in the vestibule?

A. I can't remember but I was outside and the man came and slammed my face in the wall.

In her trial for disorderly conduct she repeatedly made reference to the level of force that was applied to her: "I step outside and I have witnesses and when I got outside them doors this officer here took my hand and did all this and he slammed me in the wall" (def exh B, p. 6). A few lines later, she stated, "Well he took my face slammed it in the wall," and then again, "He slammed my face in the wall."

Obviously, repeating something does not necessarily add to its veracity, but here it supports Harris' demeanor at trial - - unscripted and anything but pat. An example thereof is her comment on Judge Quattrochi. While her lawyer sensibly and correctly noted that her November 23, 2010 conviction for disorderly conduct was settled law, that did not stop claimant from describing the judge as "very nasty. He didn't want to hear anything."

To support its position that the amount of force used was not excessive, defendant points to the incident report and the criminal trial transcript, neither of which refer to any complaints of pain or injury (cl exh 1, def exh B), and also notes that Harris was not seen at St. Barnabas Hospital until 6 p.m. that night. The time on the Unusual Occurrence Report is 12:05 p.m.

But claimant's response in her testimony, reasonably credible in the Court's view, was that she left the courthouse at about 1 p.m., went to St. Barnabas where they had her "sit and wait," after which she was not seen by a doctor until 6 p.m. Granted, given claimant's reference, if not emphasis, on having her face slammed into the wall, she did not mention treatment for any head injury, facial cuts or bruises.^[FN3]

In view of the foregoing, the Court finds the State of New York fully liable for any injury suffered by claimant Denise Harris that was caused by the application of excessive force when arrested on June 9, 2010. A trial on the matter of damages will be scheduled by the Court. [*4]

LET INTERLOCUTORY JUDGMENT BE ENTERED ACCORDINGLY.

New York, New York

November 25, 2013

ALAN C. MARIN

Judge of the Court of Claims