New York State Court of Claims

New York State Court of Claims

COMBO v. STATE OF NEW YORK, #2000-006-960, Claim No. 103255, Motion No. M-62709


Synopsis


Claimant's motion to precede as a poor person and assignment of counsel, pursuant to CPLR § 1101 and 1102 is denied.

Case Information

UID:
2000-006-960
Claimant(s):
CALVIN COMBO
Claimant short name:
COMBO
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
103255
Motion number(s):
M-62709
Cross-motion number(s):

Judge:
EDGAR C. NeMOYER
Claimant's attorney:
CALVIN COMBO, PRO SE
Defendant's attorney:
HONORABLE ELIOT SPITZER
ATTORNEY GENERAL OF THE STATE OF NEW YORK
By: Thomas G. Ramsay, Esq.Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
December 13, 2000
City:
Buffalo
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

This is claimant's motion for an order of this court granting him permission to proceed as a poor person and for the assignment of counsel pursuant to CPLR §§ 1101 and 1102. In deciding this motion the court has read and reviewed the following papers:
  1. Claimant's combined notice of motion and affidavit sworn to October 4, 2000 and filed October 20, 2000 in support of the motion.
  1. Claim verified October 11, 2000 and filed October 20, 2000.
  1. Order of Honorable Susan Phillips Read, Presiding Judge of the Court of Claims, dated and filed November 1, 2000.

This claim appears to assert three causes of action, two of which occurred at Attica Correctional Facility. The first cause of action seems to be one for unjust conviction and imprisonment pursuant to Court of Claims Act § 8b. Claimant alleges he was convicted of burglary in the third degree, and sentenced to two consecutive four year terms on September 5, 1995. This conviction was reversed by the Appellate Division, 4th Department on May 10, 2000, and the indictment was remanded for a new trial. According to claimant, he was found not guilty after the second trial on his indictment. Claimant alleges he was unjustly convicted and imprisonment for 5½ years. If the facts are as stated by claimant, one wonders why claimant continues to be incarcerated.

The two remaining causes of action set forth in the claim are ones for alleged assaults upon claimant by correction officers on June 19, 1997 and February 7, 2000.

By this motion, claimant seeks an order of the court assigning counsel to represent him, and further states that he is unable to pay the cost, fees and expenses necessary to pursue his claim. The issue of the cost and fees associated with filing a claim in the Court of Claims has already been resolved by the order of Honorable Susan Phillips Read, Presiding Judge of the Court of Claims, dated and filed November 1, 2000. In that order, claimant's filing fee was set at $15.00 with no initial payment of the reduced fee required.

The court has reviewed claimant's combined notice of motion and affidavit to proceed as a poor person, and finds them to be without merit. The claimant states that he is unable to pay the costs and fees associated with the prosecution of this action, but prosecution of this matter in this court does not require the claimant to pay any costs or fees. The only costs associated with serving a notice of intention to file claim and filing and serving a claim consist of postage and, perhaps, photocopying expenses. In his statement and petition, the claimant alleges that he has neither income or any property of value. However, the court is aware that the defendant provides five free first-class stamps to inmates weekly and will advance an inmate up to $20 for legal mail postage, if the inmate has insufficient funds (7 NYCRR 720.8[b][c]; 721.4[a]; 721.5[a]). Based upon these regulations, an inmate should have adequate means to serve his/her notice of intention to file claim and/or serve and file his/her claim and any other papers related to the claim in compliance with the Court of Claims Act. In the event an inmate is unable to afford the cost of photocopying, it would not be unreasonable for an inmate to transcribe by hand multiple copies of his/her notice of intention to file claim and/or claim and other related papers for the purpose of filing and serving same.

Claimant has not set forth any specific facts as to the attempts he has made to obtain counsel on his own behalf or any attempts he may have made to seek aid from the various legal services available to prisoners. Furthermore, it does not appear to the court that it would be justified in exercising its discretion in appointing counsel for the claimant. Matter of Smiley, 36 NY2d 433; Stephens v State of New York, 93 Misc 2d 273.

Accordingly it is,

ORDERED, that the motion of the claimant to proceed as a poor person and for the assignment of counsel is hereby DENIED.


December 13, 2000
Buffalo, New York

HON. EDGAR C. NEMOYER
Judge of the Court of Claims