09 June 2005


A judge refuses to dismiss a criminal case because the defendant has filed a civil case against the officer who broke her arm in three places and caused nerve damage.


Anonymous said...

Disturbing yes. Uncommon no. Prosecuting attorneys will almost always do what they can to protect their law enforcement peers. For unfathomable reasons, other than they are fellow law enforcers, they will protect the most egregious outlaws in uniform and require a dismissal of the civil suit as part of a dismissal or otherwise reasonable plea agreement.


Look at the statute of limitations and file after the disposition. Ain’t too hard for anyone who passed the bar to figure out. In a perfect world it would not be so. In the real world it is probably “per se” malpractice to do otherwise.

Ted Woerthwein
Woerthwein & Miller
1400 Three First National Plaza
70 West Madison Street
Chicago, Illinois 60602
(312) 654-0001
(866) 525-9460 FAX

Indefensible said...

Ah Ted, were it only that easy.

Two salient facts: First the case is nearly three years old. Justice moves slowly in The Bronx.

Second, in NY in order to sue the city, you must file a notice of claim within 90 days of the incident.

It's an outrageous case and Judge Ralph Fabrizio should be ashamed of himself.

Anonymous said...

I'm I the only one who's stunned that an attorney would blog, in his own name, and call out (again by name) a judge that he's appearing in front of, describing him as "insufferable" and saying that he makes him want to vomit?

Mister DA said...

Interesting. New York's code of criminal procedure (section 170.40)allows a trial judge to dismiss a case where a conviction of the accused would result in injustice. The motion is named after a 1973 case. People v Clayton, 342 NYS2d 106. See this article:


for more details. The part about Clayton motions starts about four or five paragraphs down.

Anonymous said...

I've read about this issue, and the original post. Everyone seems very willing to presume that the judge in this case was doing something egregious by refusing to dismiss the case because of the civil suit pending. What the original poster did not say, nor suggest, is that he was seeking dismissal on the merits. The post talks about seeking dismissal in the interests of justice and the poster references medical reports and letters from the community as evidence. What is the "justice" he was looking for was the dismissal of a criminal complaint against a really nice woman who had been hurt very badly by the arresting officer. In that case wouldn't it be appropriate for the judge to say we are going to let this really nice woman who has been hurt really badly resolve that issue in her civil case and we will decide here, in her criminal case, whether she committed the crime she was charged with.

Tom McKenna said...

Anonymous-- you just don't get it, do you? The defense lawyer knows he's dealing with a corrupt, incompetent judge. The lady was injured during an incident of some kind involving the police. She's suing them, so they MUST be guilty. They injured her, so in her criminal case, she MUST be innocent. This incompetent boob of a judge just can't see the logic in all this. Can't you?

Anonymous said...

The issue isn't whether or not she's guilty. The issue is whether or not the judge should rely on an extrajudicial factor (re: the pending civil case) when determining whether or not to dismiss the case.

The judge's duty is not to protect the city from liability. The judge's duty is to determine whether or not probable cause exists such that the case should proceed to trial; or whether pursuant to NY law, he should dismiss the case.

Ken Lammers said...

Ted Woerthwein said...

Sorry about that. It's always [difficult] when you go from the "law" to reality. Our rules are a year against the City. Virtually every case is resolved within that time.

Mister DA said...

The fact is, if you look at the section of the NY code of procedure, injuries suffered by the defendant and/or misconduct by the police (or prosecutors) is only one of a long list of factors the judge is to consider. The little I've read on this somewhat distinctive NY issue indicates that these motions are rarely granted. About on a par with JNOV after jury verdicts of guilty in my State. That is to say, about once every other blue moon.