Albanese v. State of New York

2024 NY Slip Op 30889(U)

• Court: New York Court of Claims
• Decided: February 23, 2024
• Docket: Claim No. 126866
• Status: Unpublished

Opinion

Albanese v State of New York 2024 NY Slip Op 30889(U) February 23, 2024 Court of Claims Docket Number: Claim No. 126866 Judge: Linda K. Mejias-Glover Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. FILED: NYS COURT OF CLAIMS 03/20/2024 10:39 AM CLAIM NO. 126866 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 03/20/2024 FI LED MAR 2 0 2024 STATE OF NEW YORK COURT OF CLAIMS STATE COURT OF CLAIMS ALBANY, N.Y. RENATO ALBANESE, Claimant, DECISION

-v-

STATE OF NEW YORK, Claim No. 126866

Defendant.

BEFORE: HON. LINDA K. MEJIAS-GLOVER Judge of the Court of Claims

APPEARANCES: For Claimant: ANDREW F. PLASSE & ASSOCIATES, LLP. By: Andrew F. Plasse, Esq.

For Defendant: LETITIA JAMES, ATTORNEY GENERAL By: Elaine Driscoll, Esq. Assistant Attorney General

A trial on the sole issue of liability was conducted before this Court on February 7, 8 and

9, 2023, via Microsoft Teams, upon the consent of all parties and counsel. Claimant called two

witnesses to testify, and the Defendant called three witnesses to testify.

The Claim alleges, on or about October 14, 2014, at approximately l :30 pm, at Sing Sing

Correctional Facility (hereinafter, "Sing Sing CF") Correction Officer Antonio Ocasio

(hereinafter, "Officer Ocasio") advised Claimant to put his hands on the wall. Claimant a complied,

however Officer Ocasio hit him in the right side of his head and pushed him to the ground.

Thereafter, Officer Lassiter joined in, kicking and punching Claimant, and put his knees and body

weight into Claimant's lower back. The Claim further alleges that Claimant sustained serious

injuries as a result, and he was placed into the Special Housing Un it ("SHU"). Defendant, the State

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of New York, denies all allegations of negligence and asserts that the Claimant 's own actions

caused his injuries.

The following exhibits were entered into evidence at the time of trial: Claimant 's Exhibits

I, 2, 4 and 5, and Defendan t's Exhibits A, C, D, E, and F.

RELEVANT TESTIMON Y

Claimant Renato Albanese

At the time of trial Claimant testified from Batavia Federal Detention Center (T 1 • 17-18). 1

Mr. Albanese testified that on the day of the incident, October 14, 2014, Claimant was an

incarcerated person housed at Sing Sing CF, specifically in the B block on Victory Gallery (Id.).

He described the B block as a housing gallery located in the southeast comer, housing

approximately 64 to 68 incarcerated persons (Tl. 19). Claimant testified that at approximately

1:00pm he was taken to the infirmary, located at the 710 gate, to take his daily medication (Tl 21,

27). Claimant testified that he was taking "psychotic medication", and pain medication for his

lower back. He testified that he would go to the infirmary three times a day to take those

medications (Tl. 21-22). Claimant testified that he has a prior existing injury to his right hand

from an accident he had prior to his incarceration, but which required surgery while incarcerated

at Sing Sing CF. As a result of the surgery, he incurred fifty stitches in his right hand, and received

physical therapy thereafter (Tl. 22-24).

Claimant testified that to attend commissary, the protocol was that after taking his

afternoon medication, he would ask the officer at the door ifhe could go to commissary, the officer

would let him out of the door, and he would make a right and proceed to commissary (Tl. 28). He

testified that on the day of the incident, he had an interaction with Officer Ocasio about going to

1 "Tl." shall refer to Trial Transcript Page of February 7, 2023, trial date.

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commissa ry. Claimant further testified that this was his first interaction with Officer Ocasio (Tl.

29).

Claimant testified that thereafter , Officer Ocasio was cursing at him, instructed him to get

up against the wall, and began kicking his legs (Tl. 30). Claimant went on to testify that Officer

Ocasio started taking things out of Claimant 's pockets and began punching him on the side of his

head (Id.). Claimant began screaming and yelling causing other incarcerat ed persons in their lines

to stop and look back (Id.). He testified that Officer Ocasio said, "don't look - you keep going to

the - to the group." (Id.). At that time, Officer Lassiter came running over from A block and

Claimant testified that Officers Lassiter and Ocasio began beating him down to the floor (Id.).

Claimant further testified that Officer Ocasio had his knee on Claimant 's back and both officers

handcuffe d him and dragged him to the infirmary (Id.). Claimant testified that he did not resist in

any way (Tl. 31).

Claimant testified that once he reached the infirmary, he was placed in a room and seen by

both a nurse and his mental health counselor (Tl . 33). He stated that after the incident, he spoke

with Sergeant Panzarell a in Italian and told the Sergeant what had occurred (Id). He testified that

Sergeant Panzarell a advised Claimant that he was going to be transporte d to the SHU under 24-

hour suicide watch (Tl. 33-35). Claimant further testified that after a disciplina ry hearing was

held, he was found guilty of assault on the staff and sentenced to six months in the SHU (Tl. 35-

37).

On cross-exa mination, Claimant testified that he lied to Officer Ocasio in order to get to

commissa ry quickly and testified that "[y]es, at first I told him that I was from A [b]lock and then · I said no, I'm from B [b ]lock, and he told me to shut the fuck up and sit down." (Tl. 42). He further

testified that he filed a grievance following his disciplina ry hearing and did not mention Officer

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Lassiter therein (Tl. 44, 48). Claimant testified that the Office of Special Investigation ("OSI")

interviewed Claimant in relation to his grievance and found his allegations were unsubstantiated

(Tl. 49-50). He further testified that the injury sustained to his right hand, as well as his mental

health diagnosis, predate his incarceration at Sing Sing CF (Tl. 52-53).

Lawrence Parker 2 Lawrence Parker testified that he was incarcerated at Sing Sing CF from 2012 to 2018 (T2.

65). He testified that he first met Claimant in 2012 when he arrived at Sing Sing CF (T2. 66). He

testified that in October 2014 he worked as a porter at Sing Sing CF (T2. 65).

On the date of the incident, Mr. Parker testified that he was working as a porter, sweeping

and mopping (T2. 68). He estimated that the incident involving Claimant took place at about 11 :00

am (T2. 69). He testified that he knew the three correction officers involved in the incident (Id.).

He said he observed Claimant being kicked, slapped, and punched in the face. (Id.). Mr. Parker

testified that he heard one of the officers stating, "I'm going to kick your ass, white boy." (T2. 70).

Mr. Parker further testified that he saw Claimant with his hands on the wall, as he was

being searched and instructed to get on the wall (Id.). He went on to testify that "one officer went

in his cell. Two officers had him on the wall. They told him face the wall. He had his hand on the

wall, and they was in a conversation. And then the next thing I know one of the officers punched

him in the back of the head. His face hit the wall, barn. He turned around, and when he turned

around that's when they start beating on him and kicking him." (Id.). During this time, Mr. Parker

observed Claimant with his hands over his face, not fighting back, and that after about fifteen

minutes, he was handcuffed and taken off the block (T2. 71).

On cross-examination, Mr. Parker testified that at the time of the incident, he lived in B

2 "T2." shall refer to Trial Transcript Page of February 8, 2023, trial date.

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block, on V Gallery, and was housed four cells away from Claimant (T2. 74). He testified that he

played spades and chess with Claimant, and they went to recreation together (T2. 75-76).

Defendant's Motion to Dismiss

Claimant rested and Defendant made a motion to dismiss Claimant's wrongful confinement

cause of action . After oral argument, the Court granted Defendant' s motion to dismiss Claimant's

wrongful confinement cause of action and instructed the parties to proceed on Claimant's assault

cause of action . Thereafter, Defendant proceeded to call its first witness.

Correction Officer Antonio Ocasio, Jr.

Officer Ocasio testified that at the time of the incident, he had been a correction officer for

the Department of Corrections and Community Service (DOCCS) for twenty-six and a half years,

starting his career in September 1996 at Sing Sing CF (T2. 83). He testified that on the day of the

incident, he was the Medical Escort Officer in the A block at Sing Sing CF (T2. 85). He further

testified that as the Medical Escort Officer he "would escort the [incarcerated individuals] that had

call-outs for blood work, [incarcerated individuals] that were in routinely every day for

medications such as for diabetes, [and] other things." (T2. 85-86). On October 14, 2014, Officer

Ocasio was working Tour 2, the 6:00 am to 2:00 pm day shift (T2. 86). He testified that he did not

recall an incident with an incarcerated individual on the date of the incident, nor would anything

refresh his recollection (Id.).

Officer Ocasio was shown a memorandum dated October 14, 2014, from Officer Ocasio to

Sergeant Panzarella (Exhibit C) (hereinafter, the "Memorandum"), which stated the following:

On the above date and approximate time of 1:35p.m. I was escorting a group of [incarcerated individuals] back from the facility E.R. when [incarcerated individual] Albanese, R 09A5144 requested to go to the commissary building. I denied his request and directed him to return back to his block and be escorted by his commissary escort. [Incarcerated individual] Albanese 09A 5144 then swung his right fist striking me in the right side of my face cheek area. I then struck [incarcerated individual] Albanese one time to his right cheek with a closed fist

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using my right hand. [Incarcerated individual] Albanese then attempted to grab both of my shoulders using both of his hands. I then struck [incarcerated individual] Albanese one time behind his right ear with a closed fist using my right hand. I then grabbed [incarcerated individual] Albanese in bear hug type hold using both of my arms and applied downwar d pressure taking him to the floor. Then using my body weight, I pinned him to the floor. No further force was used. Then I was directed by [Sgt. Panzarella] to release my hold and report to the facility E.R. for medical assessment.

Officer Ocasio testified that "to/from" memoran da are used when instances of use of force

occur, to request a day off/vacation, or to explain something (T2. 89). Officer Ocasio testified that

during the entirety of his career, he has been interviewed by OSI approxim ately two times, which

were deemed unsubstantiated. He testified that he has never had a grievance against him

substantiated nor has he been docked or disciplined for miscondu ct (T2. 90). Officer Ocasio further

testified that prior to the date of the alleged incident, he did not know Claimant and never had an

interaction with Claimant (T2. 91).

On cross-exa mination, Officer Ocasio testified that he did not recall ifhe missed time from

work because of the subject incident (T2. 91-92). He did not recall if Officer Lassiter was with

him on October 14, 2014 (T2. 92). He further testified, after reviewing the Memoran dum (Exhibit

C), that he did not recall any details about the incident contained therein nor did he recall preparing

the Memoran dum (T2. 93-94). Officer Ocasio testified that he did not recall going to the infirmary

after the incident nor going to Phelps Hospital thereafter (T2. 94-95). Officer Ocasio was shown

Exhibit F, a Misbehav ior Report dated October 14, 2014, and Exhibit E, an Unusual Incident

Report dated October 14, 2014, neither of which refreshed his recollection of the details of the

incident (T2. 96-99).

Correction Officer Matthew Ruquet

Officer Ruquet testified that he has been employed by DOCCS as a correction officer at

Sing Sing CF since August 2018 (T2. I 05). He testified that he has been a Weapons Training

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Officer since December 2021 (T2. 105-106), and his duties as a Weapons Training Officer include

providing year-round trainings on use of force to all security officers on staff, including correction

officers (Id.). He further testified that all correction officers receive annual training on use of force,

including on the proper way to use force, when force is prohibited, and when force is permitted

(T2. l 07). He specifically testified that use of force is permitted "in self-defense , defense of a third

party, or to protect property, to enforce compliance with the lawful direction, [to] quell a

disturbance, or prevent an escape." (T2. I 08).

Officer Ruquet testified that DOCCS policies and procedures permit a correction officer

to strike an incarcerated individual to defend him or herself (T2. I 09). He further testified that the

use of force ends when mechanical restraints are applied, and "force is no longer necessary to ...

contain the situation and de-escalate the situation (T2. 110). Officer Ruquet testified that DOCCS

policies and procedures make no distinction between the appropriate use of force and an

incarcerated individual's age or size (T2. 111).

On cross-examination, Officer Ruquet testified that he has no personal knowledge of the

incident involving Claimant, nor has he spoken to Claimant (T2. 116). He testified that DOCCS

Directive 4944 requires correction officers to write use of force reports after they use force on an

incarcerated individual (Id.).

Captain Mario Panzarella

Captain Mario Panzarella testified that he has been employed by DOCCS since 2006,

currently as a Captain, at Shawangunk Correctional Facility (T3 3. 125). He testified that in October

2014, he worked as a Sergeant at Sing Sing CF (Id.), that his responsibilities as Sergeant were to

manage the housing unit he was assigned to and the staff who worked the unit (Id.), and that he

3 T3." shall refer to Trial Transcript Page of February 9, 2023, trial date.

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worked the Tour Two shift from 7:00 am to 3:00 pm, assigned to A block (T3. 125-126). He

testified that he and Claimant would speak in Italian from time to time and that they never had an

altercation (T3. 126).

He testified that his first involvement in the incident was responding to the "area," "a small

hallway that separates the main correctional facility from the medical unit." (T3. 127). Captain

Panzarella responded within 10 or 15 seconds and observed Officer Ocasio laying on top of

Claimant and directed Officer Ocasio to "let him go." (T3. 127-128). He directed Officer Lassiter

to put Claimant in restraints and advised Officer Ocasio to report to medical to be assessed (Id.).

Captain Panzarella then escorted Claimant to medical (T3. 129). He observed that Claimant had a

mark on his head behind his ear but was not bleeding (Id.).

Captain Panzarella was then shown the Use of Force Report dated October 14, 2014,

(Exhibit G) prepared by him and reviewed by Lieutenant Pinker, (T3. 130-131) in which he

described the events leading up to the application of force as follows: "[incarcerated individual]

Albanese 09A5 l 44 swung his right hand and punched Officer Ocasio with a closed fist to the right

side of his face cheek area." (Id.). Captain Panzarella recalled that after the incident, Claimant

stated that he wanted to go to commissary, said "he was sorry," and asked Captain Panzarella "if

[he] can make this whole thing go away" (T3. 132).

On cross-examination, Captain Panzarella testified that the incident happened between A

block and the hospital clinic at Sing Sing CF (T3. 134). He testified that he could not see the area

in which the incident occurred because it was "around the bend" (T3 .134-135). He advised that he

was aware of the 710 bypass gate and described it as being located on the inside of the facility and

visible from A block (T3. 135-136). He further testified that when he was notified that the 710

personal alarm was pulled, which "gets transmitted to what we call central base and base will

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notify the area of where that particular alarm has been activated. " (T3. 136). Captain Panzarella

testified that neither Officer Lassiter nor Officer Ocasio was the 710 officer on the day of the

incident. (T3. 137).

Captain Panzarella was shown the Employee Accident/Injury Report dated October 14,

2014 (Exhibit A), which he testified is required to be filled out if an injury is sustained (T3. 142),

and which describes the injuries sustained by Officer Ocasio during the incident with Claimant.

He read the "findings " portion of the report which stated "bruise to R side of cheek just to the R

eye & some swelling. Bruising & swelling of the R knuckles & very limited range of motion unable

to write his own statement due to swelling of same hand." Captain Panzarella was then shown the

Memorandum (Exhibit C) and testified that it was typed and usually prepared on the computer

located in the administration part of the build ing (T3. 145). He was then shown Exhibit D and was

asked whether the Memorandum was drafted on October 14, 2014, if Officer Ocasio was

transported to the hospital after the incident, which occurred at 1:35pm, and his shift was over at

3:00pm (T3. 146-147). Captain Panzarella testified that although Officer Ocasio's tour of duty was

over at 3:00pm, he was required to stay and complete all paperwork necessary, as long as he did

not sustain any serious injury (T3. 147). Captain Panzarella also testified that Claimant made no

complaints to him that Officer Lassiter had physically touched him and therefore, Officer Lassiter

was not required to issue a use of force report (T3. 148-149).

On re-direct, Captain Panzarella clarified that in October 2014, an officer who applied

mechanical restraints to a compliant incarcerated individual was not required to complete a use of

force report or a "to/from " memorandum regarding the incident (T3. 149-150).

The defense then rested, the Court heard closing statements, and decision was reserved.

LAW AND ANALYSIS

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"Battery is the unjustified touching of another person, without that person's consent, with

the intent to cause a bodily contact that a reasonable person would find offensive; '[a]ssault

involves putting a person in fear of a battery' " (Rivera v State of New York, 34 NY3d 383, 389

[2019], quoting Jeffreys v Griffin, l NY3d 34, 41 n 2 [2003]; see also Silipo v Wiley, 138 AD3d

1178, 1182 [3d Dept 2016]; Baste in v Sotto, 299 AD2d 432, 433 [2d Dept 2002]). There is no

requirement, however, that the contact be intended to cause harm (see Relf v City of Troy, 169

AD3d 1223, 1226 [3d Dept 2019]). In the prison environment, the use of force is specifically

permitted "in self defense, or to suppress a revolt or insurrection [and] . . . to maintain order, to

enforce observation of discipline, to secure the persons of the offenders and to prevent any such

attempt or escape" (Correction Law§ 137 [5]). As set forth in 7 NYCRR § 251-1.2 (b), "[w]here

it is necessary to use physical force, only such degree of force as is reasonably required shall be

used ."

Assessment of the degree of necessary force requires consideration of the particular

circumstances confronting officers at the time the force was applied (see Diaz v State ofNew York,

144 AD3d 1220, 1222 [3d Dept 2016]; Koeiman v City ofNew York, 36 AD3d 45 I [1st Dept 2007],

Iv denied 8 NY3d 814 [2007]; Bazil v State of New York, 63 Misc 3d 1216 [A], *3 [Ct Cl 2019]).

Only when the force used was "unreasonable or excessive under the circumstances or in violation

of any policy or procedure of [the State]" may liability for assault and battery be imposed (Bush v

State of New York, 57 AD3d 1066, 1066 [3d Dept 2008]). The State is not immune from liability

for an assault and battery when an officer, acting within the scope of his or her employment, uses

more force than is necessary to perform his or her duty (see Arteaga v State ofNew York, 72 NY2d

212, 220-221 [1988]; Jones v State of New York, 33 NY2d 275 [1973], rearg dismissed 55 NY2d

878 [1982]).

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In situations involving an incarcerated individual's allegations of use of excessive force by

a correction officer, such as here, the Claimant has the burden of proving his case by a

preponderance of the credible evidence (see Rinaldi & Sons v Wells Fargo Alarm Serv., 39 NY2d

191 [1976]; Weinberger v New York State Olympic Regional Dev. Auth., 133 AD3d I 006 [3d Dept

20 I 5]). Here, as in most such cases, in determining whether the use of force against Claimant was

'"more than necessary under all the circumstances,' the court's assessment of the credibility of the

testimony, and the extent to which the other evidence bears on that assessment of credibility, is

crucial (see Lewis v State ofNew York, 223 AD2d 800 [3d Dept l 996]; Davis v State ofNew York,

203 AD2d 234 [2d Dept 1994]; Hintonv City ofNew York, 13 AD2d 475 [1st Dept 1961])." (Davis

v State ofNew York, UID No. 2013-029-009 [Ct Cl, Mignano, J., Apr. 24, 2013]. Moreover, such

assessment must be made with due consideration of the '"formidabl e tasks ' of maintaining order

and security in correctional facilities and protecting the safety of [incarcerated individuals] and

employees." (Arteaga v State ofNew York, 72 NY2d at 217).

DECISION

Based upon the credible testimony and evidence presented at trial, the Court finds that the

use of force exerted by Officer Ocasio on Claimant was unreasonable and excessive given the

circumstances. At trial, the Court heard no credible testimony regarding Claimant's alleged assault

on Officer Ocasio. Although Defendant presented to/from memoranda and notwithstanding the

disciplinary measures taken against Claimant, the Court is not convinced that Officer Ocasio was

forthright then or at trial. At trial, Officer Ocasio had no independent recollection of the incident

and the Court, therefore does not credit his testimony.

With respect to the training given to correction officers, Officer Ruquet credibly testified

that all officers receive annual training on use of force, including on the proper way to use force,

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when force is prohibited, and when force is permitted. He specifically testified that use of force is

permitted "in self-defense, defense of a third party, or to protect property, to enforce compliance

with the lawful direction, [to] quell a disturbance, or prevent an escape."

It is this Court's opinion that Officer Ocasio either was unaware of the principles applicable

to the use of force as set forth in the statute and regulations or he intentionally disregarded those

principles when he punched Claimant with a closed fist in the head or when he laid on top of him

until told to "get off of him". Here, there was no testimony that Officer Ocasio made any attempt

to avoid the use of physical force or that the severity of force by him on Claimant was necessary

and reasonable given the circumstances. It is this Court's opinion that even if Claimant did punch

Officer Ocasio, there was no need for the additional use of force exerted on Claimant by Officer

Ocasio, after Claimant was restrained.

The Court finds after consideration of all the evidence, that there was no justification for

the excessive and unreasonable use of force against Claimant on the date in question, that no

culpable conduct on Claimant 's part contributed to the events and that Defendant must answer in

damages.

Only motions not previously decided are hereby denied.

The Clerk of the Court is directed to enter interlocutory judgment in accordance herewith

and a damages trial will be scheduled as soon as practicable.

Dated: February 23, 2024 j~J'L f<-~ ~-~ Hauppauge, New York LINDA K. MEJIAS -GLOVE R, Judge of the Court of Claims

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