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Benny Warr, pushed out of wheelchair by cops in 2013, seeks new trial

A man who was shoved out of his wheelchair by Rochester police eight years ago during an arrest is seeking a new trial.

A jury awarded Benny Warr a dollar for his lawsuit against the Rochester Police Department two years ago. His lawyer says that trial had several problems, however.

Police said Warr, who uses a wheelchair because one of his legs is amputated, was asked to leave a bus stop on the 500-block Jefferson Avenue on May 1, 2013. Rochester Police were using a tactic known as “clearing the block” as part of Operation Cooldown under former Police Chief Jim Sheppard. The idea was to get people off corners in high-crime areas during crime spikes.

Officers asked Warr to leave the block, and he went across the street to a bus stop. Officers asked him to leave again. He refused and police said he then resisted arrest and yelled obscenities. Footage from street cameras and smartphones showed that Officers Joseph Ferrigno and Anthony Liberatore pushed over Warr’s wheelchair. Ferrigno used a knee strike, and Liberatore used an elbow strike and kicked him. 

Warr’s attorney Charlie Burkwit said Warr was hospitalized after suffering broken ribs and a concussion after his head hit the pavement. 

The jury said Ferrigno and Liberatore were justified in arresting Warr on charges of disorderly conduct and resisting arrest, and his arrest did not constitute an assault or battery. The jury did find Liberatore used excessive force against Warr.

In a presentation to a three-judge panel with the Second Circuit of the Court of Appeals on Wednesday, Burkwit pursued a new trial, citing problems with Judge Miram Payson allowing witnesses -- in particular, police officers -- to describe “the character of the neighborhood” as a high-crime area. Payson denied Burkwit’s motion for a new trial last March. 

Burkwit also objected to City Attorney Spencer Ash’s conduct during the trial and said he wants Ash barred from any retrial. Burkwit said Ash introduced an unredacted medical record into evidence that indicated that Warr had been incarcerated. 

“(Payson) allowed Mr. Ash to question Mr. Warr about prior arrests, but she barred him from mentioning the crime in which he was arrested or mentioning the crime for which he was arrested or whether he was convicted or served time in jail,” Burkwit said after the hearing. “I objected and the judge told him, he could not show that to the jury and the very next day, he showed it to another witness.”

Ash did not respond to a request for comment after the hearing.

Payson sanctioned Ash for the maneuver at the time, saying that he did it on purpose. Ash told the Second Circuit panel that he disagreed but didn’t challenge it because of his respect for Payson. 

Judge Joseph Bianco questioned whether this violation is a big deal since Payson allowed evidence saying that Warr was arrested multiple times.

“How much additional prejudice would there be if someone was arrested four or five times?” Bianco asked. “The implication would be that he might have spent time in jail for one or more those arrests. I don’t think it would be shocking. The jury might infer that on their own. We have to measure the impact of that. Although (Ash) was wrong, did it really make a difference?”

Judge Barrington Parker Jr. focused on Ash, saying he did not like the tone of his briefs and presentation during the trial. 

“I’ve been at this work now for 25 years, and I was a federal district court judge before I sit where I sit and we see these (types of) cases with some frequency,” said Parker. “And I have just never seen a trial in this circuit that reflects what I saw when I was reading these briefs and reviewing these records. It was just mayhem. It was just, in some respects, a free-for-all. This is not what we are. This is not what the traditions of this circuit and the federal courts are all about.”

Ash responded by defending himself, the trial and the jury’s decision.

“This case represents half of my legal career,” Ash said. “My office trusted me to represent four clients in one of the most highly publicized cases in the region in decades and I did my very best. I fell short on some aspects. I’m embarrassed by that. I’ve apologized to the court. Judge Payson was worthy of that apology. But I do think the trial was well-run, and I think the jury verdict should be upheld.”

The judges have not ruled yet. At least two of the three must agree to grant a new trial.If granted as requested, the proceeding would focus on compensatory damages.

James Brown is a reporter with WXXI News. James previously spent a decade in marketing communications, while freelance writing for CITY Newspaper. While at CITY, his reporting focused primarily on arts and entertainment.
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