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Rochester Legal Briefs: March 23, 2001 (12797)

By: Daily Record Staff//March 23, 2001

Rochester Legal Briefs: March 23, 2001 (12797)

By: Daily Record Staff//March 23, 2001


Constitutionality Of Death Penalty Statute

A motion asking the judge to declare the New York State death penalty statutes Penal Law § 127.25 and Criminal Procedure Law (“CPL”) § 400.27 (2001) unconstitutional and dismissing the indictment against him has been denied.

The defense claimed that the laws constitute cruel and unusual punishment in violation of the U.S. Constitution, 8th and 14th Amendments, New York Constitution, Article I, § 5; constitutes disproportionate punishment in violation of the U.S. Constitution 8th and 14th Amendments, New York Constitution, Article I, § 5; invites invidious discrimination against African-American and other cognizable groups causing the arbitrary imposition of the death penalty in violation of the U.S. Constitution, 5th, 6th, 8th and 14 Amendments, New York Constitution, Article I, § 11; and deprives citizens of their fundamental right to life in violation of the U.S. Constitution, 5th, 6th, 8th and 14th Amendments; New York Constitution, Art. I, § 6.

All of the defendant’s arguments are found to be without merit.

“There is no evidence that New York’s death penalty statute has been applied to discriminate against any constitutionally protected class. The statute does not single out a constitutionally protected class, only a specific subclass of murders. People v. Mateo, 175 Misc. 2d 192 unpublished portion, p. 14 (Mon. Cty. Ct. 1997.) Defendant moreover has failed to show that the alleged discriminatory scheme has had ‘a discriminatory effect on him.’ Id. at 292.

People v. John Owens, Ind. # 547/99, Monroe County Supreme Court, Egan, J.


The Fourth Department issued a set of decisions on March 21. Among the cases decided were medical malpractice appeals, two of which concerned the issue of a jury charge.

Medical Malpractice — Jury Charge — “Error In Judgment”

In two separate appeals, the Fourth Department was called upon to consider whether the jury was properly charged. The trial judges in both cases had instructed the jury as to a doctor’s “error in judgment.” Both juries ruled in favor of the doctor, and plaintiffs appealed. In the Monroe County case, a new trial was ordered; in the Erie County appeal, judgment for the defendants was affirmed.

The patient in Monroe County had a postoperative bowel obstruction. The doctor placed stitches near the wound. The plaintiff’s expert and the defense expert testified as to what was the standard of care in this situation, but the testimony of both was different from what the defendant doctor had performed.

Over plaintiff’s objection, Justice Andrew V. Siracuse delivered an “error in judgment” charge. The majority decision of the Fourth Department held that the charge was inappropriate in this case, as it applies only in a narrow category of cases where there is evidence that the doctor considered and chose among several medically acceptable treatment alternatives. The evidence here simply raised the issue whether the doctor deviated from the degree of care that a reason doctor would have exercised under the same circumstances.

Justice Kehoe dissented. Justice Scudder joined in Kehoe’s dissent and wrote a separate memorandum. In part, they asserted that the doctor was not required to expressly state that he considered alternative methods.

Martin v Lattimore Road Surgicenter, Monroe County, no. 2012

In the Erie County case, the appeals court found that the jury charge on “error in judgment” was appropriately given. In this case, the doctor’s decision of whether to ligate the blood vessels during surgery was one of two or more medically acceptable alternatives to control bleeding during an adrenalectomy. Without this jury charge, the jury would have left to conclude that the doctor’s decision to ligate those blood vessels constituted negligence because that decision ultimately resulted in ligation of the renal artery.

Nestorowich v Ricotta, Erie County, no. 2100

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