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Supreme Court, Appellate Division, Second Department, New York.

Leroy BROWN, Appellant, v. STATE of New York, Respondent.

Decided: May 26, 1998

Before ROSENBLATT, J.P., and RITTER, KRAUSMAN and LUCIANO, JJ. Dienst & Serrins, LLP, New York City (Christopher L. Sallay, of counsel), for appellant. Dennis C. Vacco, Attorney General, New York City (Peter H. Schiff, Laura Etlinger, and John McConnell, of counsel), for respondent.

In a claim to recover damages for personal injuries, the claimant appeals from a judgment of the Court of Claims (Ruderman, J.), dated July 15, 1997, which, upon a decision of the same court dated June 13, 1997, upon the defendant's motion pursuant to CPLR 4404(a) for judgment as a matter of law, made at the close of trial on the issue of liability only, dismissed the claim on the merits.

ORDERED that the judgment is affirmed, with costs.

The claimant, Leroy Brown, was shot by a New York State Park Police Officer during the course of his arrest for possession of cocaine.   Testimony at a trial on the issue of liability revealed that the officer observed Brown lunging at a fellow police officer with what appeared to be a handgun.   The Court of Claims granted the defendant's motion for judgment as a matter of law dismissing the claim.

 A New York State Park Police Officer may discharge his or her firearm only in self defense or in defense of another in accordance with Penal Law § 35.30 (see, New York State Office of Parks and Recreation Manual of Conduct art. X § 10.3.1).   Pursuant to Penal Law § 35.30(1)(c), an officer may not use deadly physical force upon another person unless he or she reasonably believes that the use of deadly physical force is necessary to defend him or herself or another person from what the officer reasonably believes to be the use or imminent use of deadly physical force (see, People v. Wesley, 76 N.Y.2d 555, 561 N.Y.S.2d 707, 563 N.E.2d 21;  People v. Goetz, 68 N.Y.2d 96, 506 N.Y.S.2d 18, 497 N.E.2d 41).   Here, the determination of the Court of Claims that the defendant had proved the elements of defense of another was supported by a fair interpretation of the evidence (see, Tomaiko v. State of New York, 211 A.D.2d 782, 622 N.Y.S.2d 99;  Taran v. State of New York, 186 A.D.2d 794, 589 N.Y.S.2d 74).   Thus, the claim was properly dismissed.


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