Bloom v. Starkey

65 A.D.2d 763, 409 N.Y.S.2d 773, 1978 N.Y. App. Div. LEXIS 13586

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 8, 1978
• Status: Published

Opinion

Motion by petitioner for reconsideration of his petition pursuant to CPLR article 78 to prohibit the respondent from enforcing his orders which (1) directs that petitioner (a defendant in a criminal prosecution pending before him) submit to surgery upon his left thigh for the removal of what purports to be a bullet therefrom, in the event that petitioner consents to pending necessary surgery upon his right eye; (2) directs that the petitioner remain handcuffed throughout all court proceedings so long as there is no juror in the courtroom; and (3) permits the Department of Correction of the City of New York to transport petitioner, to and from Rikers Island Detention to the court, in an allegedly "unsafe and unhealthy” vehicle. Motion granted and upon reconsideration (it now appears that petitioner has again consented to the surgery upon his eye), application granted to the extent of prohibiting the respondent from permitting the surgical removal of the bullet from the petitioner’s thigh, without his consent. The application in all other respects denied and the proceeding with respect to items (2) and (3) dismissed, without costs. In our opinion, the People adduced insufficient evidence upon the evidentiary hearing at Criminal Term to establish that removal of the bullet would not be a major intrusion. Mollen, P. J., Damiani, Gulotta and Margett, JJ., concur; Shapiro, J., concurs in the determination insofar as it dismisses the petition, but dissents and votes to deny the petition and to dismiss it in its entirety. The factual issue was presented to Criminal Term and we would not be warranted in reversing the determination.