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NY Appellate Court Remands Proceedings in Dog Bite Case


On 3 September 1987 at approximately 1:00 a.m., defendant encountered the complainant, on St. Mark’s Place in Manhattan. Complainant, who was an acquaintance of defendant, angrily confronted him about $5.00 which she and a friend had given him to procure “pot” for them a month earlier. A New York Injury Lawyer said the complainant accused defendant of having neither returned with the marijuana nor refunded the money. Defendant denied the accusation, claiming that he had in fact returned, but had been unable to find complainant.

Immediately prior to being stopped on the street by complainant, defendant had been riding a bicycle with his dog, a pit bull terrier, leashed at his side. As the disagreement escalated, complainant became so enraged that she picked up defendant’s bicycle, which he had dismounted and left at the curb, and threw it into the street.

Conflicting evidence were presented as to the exact point in the dispute when the dog, agitated by the commotion and shouting, lunged at complainant and began to bite her foot (dog bite, injury).

The assault charge brought against defendant was predicated on the theory that he had deliberately loosened the leash to enable the dog to reach complainant. Both complainant and a second prosecution witness testified to that effect but their versions of the incident conflicted, with the witness stating that complainant had thrown the bicycle after an initial attack by the dog (dog attack or animal attack), which precipitated defendant’s releasing the dog to lunge a second time. A Suffolk County Personal Injury Lawyer said the complainant, on the other hand, had testified to solely one attack, which came after she had thrown the bicycle.

Defendant denied any intentional action when testifying in his own behalf, claiming that the dog had seized complainant’s foot when defendant moved to retrieve his bicycle as complainant was coming back to the sidewalk after throwing it.

While the herein case presents little more than a credibility contest centering on whether defendant intentionally permitted the dog to attack complainant, an examination of the record persuades us that the prosecutor’s summation was so highly inflammatory and interspersed with improper commentary and invective as to have unduly prejudiced defendant and denied him a fair trial. The inflammatory rhetoric escalated as the summation continued, with the prosecutor ultimately resorting to gruesome analogies; neither were the prosecutorial improprieties limited to dramatic expressions of pain and brutality. The closing statement also mischaracterized the defense by accusing defense counsel of claiming, in an oblique way, that defendant was justified in setting a pit bull terrier on a woman. When defense counsel objected to this comment, as he had on several occasions throughout the prosecutor’s summation, an apparently incredulous court responded, “You’re saying that’s the defendant’s position?”. Although the defense objection was sustained and a curative instruction was given, the prosecutor persisted in this vein, telling the jury that, “It’s not oblique, ladies and gentlemen, the suggestion to you that somehow complainant got what she deserved” and adding that this was “the only issue in the case, the only question that you have when you go into that jury room”.

An NYC Personal Injury Lawyer said to reiterate, summation is not an unbridled debate in which the restraints imposed at trial are cast aside so that counsel may employ all the rhetorical devices at his command. There are certain well-defined limits. Above all counsel should not seek to lead the jury away from the issues by drawing irrelevant and inflammatory conclusions which have a decided tendency to prejudice the jury against the defendant. The repeated appeals to passion and sentiment and the other myriad of improper comments which comprised the prosecutor’s summation in the matter before us served to deprive defendant of a fair trial Accordingly, the judgment of assault in the second degree is reversed is reversed, on the law, and as a matter of discretion in the interest of justice, and a new trial is directed. The judgment convicting defendant of attempted robbery in the third degree rendered upon Indictment to run concurrently with the sentence imposed in the assault charge is vacated, on consent, as having been induced by the promise of concurrent sentencing, and the matter remanded for further proceedings.

The responsibility in taking care of animals as pets extends to making sure that the public is safe when it’s around such animal. When injuries result from an attack of the animal, the owner is liable. Know more of your rights in situations similar to the herein mentioned case. Whether you have been injured because of a dog bite, car accident, or medical malpractice incident, contact Stephen Bilkis and Associates for guidance and a free consultation.

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