                            State of New York
                     Supreme Court, Appellate Division
                         Third Judicial Department
Decided and Entered: November 3, 2016                     521379
________________________________

NOEMI DIAZ, as Administrator
   of the Estate of FRANLLER
   VILLANUEVA, Deceased,
                    Appellant,
      v                                       MEMORANDUM AND ORDER

STATE OF NEW YORK,
                    Respondent.
________________________________


Calendar Date:   September 9, 2016

Before:   McCarthy, J.P., Egan Jr., Devine, Clark and Aarons, JJ.

                               __________


      Rodman & Campbell, PC, New York City (Michael J. Hutter of
Powers & Santola, LLP, Albany, of counsel), for appellant.

      Eric T. Schneiderman, Attorney General, Albany (Frank Brady
of counsel), for respondent.

                               __________


Devine, J.

      Appeal from a judgment of the Court of Claims (Schaewe,
J.), entered September 18, 2014, upon a decision of the court in
favor of defendant.

      Franller Villanueva (hereinafter decedent) commenced this
action against defendant alleging that, as is relevant here,
State Trooper Michael Woytach used excessive force during a
pursuit of decedent in which Woytach shot decedent three times
and left him paralyzed from the neck down. The Court of Claims
conducted a trial on the issue of liability, after which it found
that the use of force was objectively reasonable under the
circumstances presented and dismissed the claim. This appeal
                               -2-                521379

ensued.1

      Claimant acknowledges on appeal that the shooting occurred
in the course of a pursuit that was "based upon reasonable
suspicion that [decedent] was engaged in criminal activity" (see
People v Woods, 98 NY2d 627, 628 [2002]). That pursuit occurred
during the early morning hours of July 19, 2008, when the State
Police and other law enforcement agencies responded to a report
that a bar patron in the Village of Endicott, Broome County was
armed. It was subsequently reported that the man had left the
bar on a bicycle. Decedent was the man in question and was, in
fact, armed with a loaded semi-automatic pistol. After a
bystander identified him as such, Woytach and another state
trooper attempted to question decedent. Decedent fled on his
bicycle, prompting Woytach's colleague to pursue him on foot and
Woytach to do so in their patrol vehicle. Woytach eventually cut
decedent off and caused him to collide with the patrol vehicle,
which led to a brief foot chase.

      The shooting occurred before any of the other pursuing
officers could catch up, and this is where the accounts of
Woytach and decedent diverge. Woytach testified that decedent
produced a pistol during the foot chase and began holding it in
his right hand, prompting Woytach to unholster his own sidearm
and order decedent to stop or show his hands. Decedent began to
turn his right shoulder and raise the pistol toward Woytach who,
believing himself to be in mortal peril, opened fire and struck
decedent twice in the left leg and then in the neck. Decedent
fell on his stomach after the paralyzing shot to his neck, after
which Woytach kicked the pistol away from decedent's right hand.
In contrast, decedent testified that the pistol was secured in
his waistband at all times and that it would have been suicidal
for him to pull a pistol on an armed state trooper.2 Decedent


     1
        Decedent died during the pendency of the appeal and, upon
the parties' stipulation, the administrator of his estate was
substituted as claimant.
     2
        Decedent's pistol was loaded and the safety was off when
he was shot, but a round was not in the firing chamber. Claimant
                              -3-                521379

further stated that he was turning to the left in an effort to
barricade himself in his nearby residence when Woytach shot him
in the back without provocation. Decedent offered no explanation
as to how the pistol ended up several feet away from him, as he
testified that the gun remained in his waistband when he fell and
did not claim that Woytach or any other officer moved him to
retrieve it.

      Defendant may be held liable for injuries where an officer
in its employ "used excessive force in the course of an arrest,
investigatory stop or other prearraignment seizure," and those
claims "are analyzed under the 4th Amendment [of the US
Constitution] and its standard of objective reasonableness"
(Passino v State of New York, 260 AD2d 915, 916 [1999], lv
denied 93 NY2d 814 [1999]; see Plumhoff v Rickard,      US    ,
   , 134 S Ct 2012, 2020 [2014]; Shirvanion v State of New York,
64 AD3d 1113, 1114 [2009]). There is no question that, if the
pursuing "officer has probable cause to believe that the suspect
poses a threat of serious physical harm, either to the officer or
to others, it is not constitutionally unreasonable to" terminate
the pursuit of that suspect with deadly force (Tennessee v
Garner, 471 US 1, 11 [1985]; accord Brosseau v Haugen, 543 US
194, 197-198 [2004]). The Court of Claims found decedent's
various accounts of what transpired to be "replete with
inconsistencies and evasion," credited the testimony of Woytach
that decedent displayed a pistol and tried to aim it at Woytach,
and determined that the use of deadly force was objectively
reasonable under those circumstances. Claimant argues that other


argues that it strains credulity to believe that decedent pulled
a gun on a state trooper that could not be fired without first
racking the slide. Decedent had not possessed the pistol for a
long period of time and, while he gave a strained explanation as
to how he learned about firearms from "com[ing] across some guns"
while wandering around in the woods, he also acknowledged that he
had never seen his pistol fired by others or tried to fire it
himself. As a result, while decedent knew by the time of trial
that his loaded pistol could not have immediately been fired, his
testimony was far from clear as to whether he was aware of that
fact at the time of the shooting.
                              -4-                521379

trial evidence cast doubt upon Woytach's account and, "[w]hen
reviewing a determination after a nonjury trial, this Court
independently considers the weight of the evidence and may grant
whatever judgment is warranted by the record, all while deferring
to the trial judge's factual findings, especially where those
findings are based on credibility determinations" (Smith v State
of New York, 121 AD3d 1358, 1358-1359 [2014]; see Medina v State
of New York, 133 AD3d 943, 944 [2015], lv denied 27 NY3d 905
[2016]). Inasmuch as our review reveals that the credibility
determinations and factual findings of the Court of Claims were
supported by "a fair and reasonable interpretation of the
evidence," however, we perceive no reason to disturb the judgment
(Smith v State of New York, 121 AD3d at 1359 [internal quotation
marks and citations omitted]).

      Claimant points to the testimony of a pathologist who
reviewed decedent's medical records and opined that decedent was
shot from behind in the legs and was "leaning slightly forward
. . . to the left" when he was subsequently shot in the neck.
Woytach testified that he opened fire when decedent turned his
right shoulder and began to raise his weapon, which could lead
one to expect that decedent had been turning to the right when
shot. That being said, decedent was still running and had just
begun to twist his right shoulder when Woytach opened fire, and
there is no reason to believe that his legs had also shifted
direction. Decedent continued to move forward as best he could
despite having been shot twice in the left leg, and only
collapsed after being shot a third time in the neck. In other
words, decedent was shot from behind after he moved his right
shoulder and raised the gun, moved forward on a hobbled left leg
and, while he was doing so, was shot again in the neck. There is
nothing obviously incompatible between that sequence of events
and the evidence suggesting that decedent had moved his upper
body somewhat to the left by the time he was shot in the neck.
Thus, after independently considering the trial evidence and
according deference to the trial court's finding that Woytach was
a credible witness, we agree with the Court of Claims that
Woytach did not use excessive force (see Passino v State of New
York, 260 AD2d at 916; see also Brothers v Akshar, 383 Fed Appx
47, 49 [2d Cir 2010]; Salim v Proulx, 93 F3d 86, 91-92 [2d Cir
1996]).
                        -5-                  521379

McCarthy, J.P., Egan Jr., Clark and Aarons, JJ., concur.



ORDERED that the judgment is affirmed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
