New York State Court of Claims

New York State Court of Claims

MURNANE v. New York, #2000-010-013, Claim No. 89102


Unjust conviction claim dismissed

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):

Cross-motion number(s):

Terry Jane Ruderman
Claimant's attorney:
Defendant's attorney:
Attorney General for the State of New YorkBy: Dewey Lee, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
May 26, 2000
White Plains

Official citation:

Appellate results:
Affirmed - Second Dept., 11/19/01
See also (multicaptioned case)

Claimant seeks damages, pursuant to Court of Claims Act §8-b, for Unjust Conviction and Imprisonment following the reversal of his conviction for the murder of Marjorie Myers Lodes and the dismissal of the underlying indictment. The trial of this claim was bifurcated and this Decision pertains solely to the issue of liability.

The following facts were undisputed:

Marjorie Myers Lodes was killed on Saturday, October 25, 1986, between 2:00 and 5:00 in the morning. She was stabbed 41 times in the face, neck, chest and hand. The police found her body in her backyard.

A "Yonkers Raceway Police" baseball cap and a size 15 bloody sneaker print were found at the crime scene. Claimant wore such a cap and a size 15 sneaker.

A fox hair was found in the Lodes bedroom. Claimant wore a leather jacket with a fox collar and claimant's friend, William Bernal, who often visited the Lodes home had worn claimant's jacket on several occasions prior to the murder.

On October 28, 1986, claimant was arrested and subsequently indicted for the murder.

On July 8, 1987, claimant was found guilty in County Court, Westchester County, of Murder in the Second Degree.

On August 14, 1987, a Judgment of Conviction was entered against claimant and he was sentenced to a prison term of twenty-five years to life.

Claimant was continuously incarcerated from the date of his arrest on October 28, 1986 until April 13, 1992.

On April 6, 1992, the Appellate Division, Second Department reversed claimant's judgment of conviction and dismissed the indictment on the basis of legally insufficient evidence to support the verdict of guilt. This reversal was based on Criminal Procedure Law §470.20(2).

The fingerprints of Marjorie Myers Lodes, her husband Harry Lodes, and those of six unidentified individuals were found in the Lodes home. Claimant's fingerprints were not found at the Lodes home.

On or about June 29, 1992, leave to appeal the Appellate Division's reversal was denied by the Court of Appeals.

An unjust conviction claim was timely commenced within two years after the dismissal of the indictment (Court of Claims Act §8-b[7]).

(see, Claimant's Notice to Admit [Ex. 7]; Defendant's Response to the Notice to Admit [Ex. 8]; Autopsy Report [Ex. 9]; Appellate Division Reversal of Conviction [Ex. 3]).
In 1986, Marjorie Myers Lodes resided with her husband, Harry Lodes, on Rogers Lane in Shenorock, New York. Claimant was 24 years old and had an 11
th grade education. He lived with his parents on Tighe Road, approximately three quarters of a mile from the Lodes home. Claimant's parents owned and operated a delicatessen that was attached to their home. Claimant's friend, John Bernal, Jr., was 19 years old and lived with his family in a house located across the street and two houses away from the Lodes home.
Claimant first met Harry Lodes approximately one month prior to the murder when claimant and John Bernal, Jr. helped Harry Lodes lay gravel in his driveway. Claimant testified that when the driveway was finished, the three men celebrated by snorting cocaine in the Lodes backyard. Claimant testified that he had used other drugs in the past, but had never previously used cocaine. On this occasion, claimant met Marjorie Lodes for the first time; she, however, did not participate in the drug use.

On October 22, 1986, the Wednesday before the murder, claimant, John Bernal, Jr., Bernal's 21 year old girlfriend Deborah Alimonti, and Harry Lodes all snorted cocaine in the Lodes living room. Marjorie Lodes was present, but did not participate in the drug use. Claimant was wearing a leather jacket with a fox collar. Claimant maintains that he never went into the Lodes bedroom.

Claimant testified that on Friday, October 24, 1986, the day before the murder, he was wearing his leather jacket, a shirt, corduroy jeans, and sneakers, but he was not wearing a baseball cap. In the early part of the evening, claimant and his then girlfriend Maria Porta, now claimant's wife, "hung out"in front of the post office (T:213).[1]
They were later joined by Bernal, Jr. and his girlfriend, Deborah Alimonti. Claimant testified that at 12:00 a.m., his girlfriend went home and he, Bernal, Jr. and Alimonti cruised around in Alimonti's car while they all snorted the cocaine that claimant had purchased earlier. According to claimant, at 4:05 a.m. he was dropped off on Tighe Road near his home. He entered his house through the back door, dead bolted the lock and went into the living room where he was joined by his father, Edward Murnane. Claimant testified that they spoke for 30 to 40 minutes and then claimant went outside for a cigarette.
Claimant testified that at 5:15 a.m., he saw Bernal, Jr.'s cousin, Jonathan Totten, standing in front of the post office. Claimant joined Totten. Totten left at 8:00 a.m.; claimant remained until 12:00 noon. Claimant explained that his father was working in the delicatessen and that, because the back door to claimant's residence had been dead bolted, the only way to enter the house was through the delicatessen. Claimant testified that he remained outside the post office because, if he had entered through the delicatessen, his father would have asked claimant to work.

At 12:00 noon, Totten returned to the post office. Claimant and Totten then walked toward Rogers Lane, where they encountered a roadblock. Only Totten was permitted through the blockade to access his residence at the Bernal home. Claimant testified that he later met Totten at approximately 2:00 p.m. and that he advised claimant that the police were looking for him. Claimant proceeded to his girlfriend Porta's house because he "wanted somebody to be with" when the police "caught up" to him (T:230). The police, however, had already arrived at Porta's house, so claimant waited in the woods across the street from the house. Claimant stayed in the woods overnight, hoping that the police would leave the vicinity. On Sunday, there was a light drizzle and everything was wet. Claimant dozed off for an hour under a tractor trailer. At 9:30 p.m., claimant drank a soda. Other than that beverage, he did not consume anything since leaving home on Saturday morning.

Claimant realized that, due to the police presence, he could not contact Porta at home. Claimant then decided to try to contact Porta at her place of employment in Mount Kisco. He walked part of the way through the woods, hitchhiked from Route 100 to Route 35 in Katonah, and walked along the railroad tracks from Bedford to Mount Kisco.

On Monday morning, October 27, 1986, claimant looked for Porta's car at her workplace, but did not see it. He waited for the 7:00 p.m. evening shift, but Porta did not arrive. He returned to the tractor trailer. Claimant testified that he did not sleep Monday night. Thus, his testimony was that he had only one hour of sleep from Friday night until Tuesday.

On Tuesday, October 28, 1986, Porta again failed to arrive at work. At that time, claimant left the woods and walked across the street. He stated, "That's where everything broke loose. *** Helicopters, dogs, cops going right past me" (T:240). Claimant waved at the Bedford police and they apprehended him and took him
to the State police barracks in Somers.
According to claimant, he arrived at the barracks at 11:05 a.m., but was not questioned until 2:00 p.m. He was then questioned for two hours by three State Police Investigators: Brian Kelly, Henry Luttman and Douglas Lamanna.
Claimant maintains that he did not know that Marjorie Lodes had been killed. He was fingerprinted and gave the police his clothing, hair and saliva samples, and provided fingernail scrapings. Claimant also provided the police with a two page signed statement witnessed by Investigators Kelly and Lamanna (Ex. F). The statement read:
Last Saturday, I was sitting in a grove off of Lakeview Drive near Bridge Lane, Shenorock, NY. It was daybreak, I took a nap right in the grove. I was wearing my black leather jacket, blue T-shirt, black striped pants, white Nikes. There was a haze in the sky; morning break. I started walking through the woods, toward Rte 118 to Maximes, to Granite Springs Rd., through the woods, to the tracks, to Yorktown. I got to Yorktown about 10am, Saturday. I went through St. Patrick's Church parking lot; the new church; across three yards into the woods. I walked over a swamp to a development. I laid against a rock to take a nap. I rolled over and got pricked by a knife that was in my inside jacket left pocket. There is a hole in my pocket and the knife was in the lining of the jacket. I took the knife out of my jacket; there was just a little blood on the knife; by the handle. I hid the knife by the rock by the leaves. I ran to the power lines. The knife didn't come from my house. I was scared. I knew I did something wrong. I walked the power lines; Millwood, Chappaqua; Pleasantville. I came back to New Castles; walked Camp Fire Rd., to Douglas St. to Rte. 120 to Rte. 117 to Mt. Kisco. This is what I've been doing for the past three days. I've been sleeping in the woods. I went to Kisco Ave. today, looking for my girlfriend.
* * *

Q-Do you remember me showing you a cap with Yonkers Raceway Police marked on the front?


Q-It [sic] the cap I showed you your cap?


Q-When was the last time you saw that cap?

A-Friday night, I was wearing it.
* * *

Q-When you tell me about last Saturday morning sitting in the grove off of Lakeview Drive, do you remember where you were previously or before coming to that grove?


Q-What do you remember before being in the grove?

A-Being with John Bernal & Debbie, doing a lot of coke [sic] and getting wired.

Q-Had you ever seen the knife that you found in your jacket before?


(Ex. F). Claimant testified, however, that he did not give the police this statement. He maintained that the two pages were presented to him folded and that he did not read them, but he signed them because he believed that they were waivers for the samples he had given.
Claimant stated that the State police left him alone from
4:00 p.m. to 7:00 p.m. and then transported him to the Yorktown police station. Then they returned to the Somers barracks where claimant was questioned for five minutes by a forensic specialist, Investigator Ralph Gagliardi. After 11:00 p.m., claimant was transported to the Town of Somers Court where he was arraigned for Murder in the Second Degree.
Claimant's father, Edward Murnane, was a retired New York City detective. Claimant never contacted his father after being picked up by the police. Claimant testified that, his father had told claimant that, "If I [claimant] ever got in trouble again, not to even talk to him" (T:232).[2]

John Bernal, Jr., claimant's lifelong friend, testified that during the hours before the murder, he and his girlfriend and claimant were driving around from midnight to 4:00 a.m., stopping along the way to "do cocaine" (T:27) After 4:00 a.m., they dropped off claimant and saw him heading toward his home. Bernal, Jr. then proceeded to his own home; en route, he passed the Lodes home and saw the light on and an open front door. He also heard dogs barking. Bernal, Jr. admitted that, prior to the murder, he, his girlfriend and claimant had used cocaine at the Lodes home.

At trial, Bernal, Jr. identified a Yonkers Raceway Police baseball cap as the kind frequently worn by claimant. Bernal, Jr. did not recall ever seeing other people in the Shenorock area wearing a similar hat. However, he was positive that claimant was not wearing the hat on October 24, 1986, the night before the murder. His certainty at trial, is contradicted by his statement given to police on October 26, 1986, i.e., "I don't remember whether he [claimant] was wearing a hat or not" (Ex. B). Bernal, Jr. attempted to explain this discrepancy by stating that he was nervous when he gave the police his statement.

Bernal, Jr.'s girlfriend, Deborah Alimonti,[3]
was subpoenaed to testify on behalf of claimant. She recalled only being questioned by the police about the homicide; she had no other recollection of the events which occurred on October 24-25, 1986. She was confronted with her one page statement given to the police on October 29, 1986 (Ex. 14). The statement detailed her evening with Bernal, Jr., claimant and his girlfriend. Alimonti's statement was consistent with Bernal, Jr.'s trial testimony that claimant, Bernal, Jr., and Alimonti drove around in Alimonti's car while snorting cocaine and that claimant was dropped off near his house at approximately 4:00 a.m. Alimonti's response to questioning about her statement was that if she had signed it, then it must be truthful.
Claimant's father, Edward Murnane, testified that he retired in 1975 after 21 years of employment with the New York City Police Department, 18 of which he served as a detective. In 1976, he began employment with Yonkers Raceway and has been the Director of Security since 1985. In June of 1986, Murnane recruited several youngsters from his town to work at the Annual Westchester County Fair held at Yonkers Raceway. Baseball caps bearing "Yonkers Raceway Police" were distributed to the workers and Murnane later observed the individuals and claimant wearing the baseball caps. Also, from 1976 through 1998, he owned and operated Murnane's Delicatessen which was attached to the family residence.

Murnane testified that on Friday, October 24, 1986, the night before the murder, claimant left the house between 5:30 and 5:45 p.m. Murnane was awakened when claimant returned home the next morning at approximately 4:00 a.m. Murnane observed claimant wearing the same clothes that he had on when he left the house and there was no blood on the clothing. Murnane also testified that claimant was not wearing a baseball cap on October 24th
or October 25th.
At approximately 4:20 a.m., Murnane joined claimant in the living room. At approximately 4:45 a.m., claimant unbolted the back door and went outside to have a cigarette and Murnane went into the delicatessen. At 5:20 a.m., Murnane observed claimant across the street, in front of the post office, speaking to someone. Murnane then rebolted the door.

Later that day, during the afternoon of Saturday, October 25, 1986, two State police officers appeared at the Murnane residence inquiring whether claimant was home. Murnane testified that the officers referred to the murder, which was already the"talk of the town" (T:84). Murnane offered to telephone the police if claimant came home.

On Sunday, October 26, 1986, several State police officers returned to the Murnane residence again looking for claimant and referred to claimant as a murder suspect. Murnane voluntarily took the police throughout the premises and provided them with several articles of claimant's clothing (Ex. 12).

Murnane did not see claimant until after his arrest on Tuesday evening.
Murnane also testified that, despite his willingness and desire to do so, he did not testify at claimant's criminal trial.
Claimant offered the testimony of Eleanor Jazwinski, Abbie Maurer and Mary Engel, presumably to show that claimant was seen in front of the post office and around the neighborhood at 9:00 a.m., 12:20 p.m. and at 2:30 p.m. on the day of the murder, and appeared "fine" (T:172, 182).

The criminal trial transcript of Jonathan Totten's testimony was received into evidence (Ex. N). On the day of the murder, Totten left the Bernal residence at 4:30 a.m. and proceeded to a friend's house on Tighe Road. En route, Totten heard dogs barking and something in the bushes on Rogers Lane. Totten testified that he had no knowledge of claimant's whereabouts at that time and Totten did not provide any testimony corroborating claimant's testimony that he was with Totten in front of the post office. (Ex. N, p. 326).

John Bernal, Jr.'s younger brother, William Bernal, testified that he was 16 years old in 1986. He was very friendly with Marjorie Lodes and went to her home almost every day after school. Bernal testified that he borrowed claimant's leather jacket with the fur collar on several occasions prior to the murder and wore it on October 22, 1986, when he visited Marjorie Lodes at her home. Bernal testified that on October 24, 1986, the night before the murder, he was alone with Marjorie Lodes at her home from 5:15 p.m. until 11:30 p.m. Bernal then went home. At approximately 4:00 a.m., he heard Bernal, Jr. come home and at 5:00 a.m., Bernal heard a commotion outside.

The criminal trial transcript of Dennis Dymek's testimony was received into evidence (Ex. 11). Dymek lived approximately 80 yards from the Lodes home. At 3:42 a.m. on October 25, 1986, he was awakened by dogs barking and a woman screaming, "No, no." Dymek heard nothing further and went back to sleep.

John Canale, who lived diagonally across the street from the Lodes, was subpoenaed to testify on behalf of defendant. Canale and his wife were close friends of the Lodes. On October 24, 1986, the night before the murder, the two couples had intended to go out to dinner. Harry Lodes, however, engaged in other plans. The Canales stopped at the Lodes residence briefly between 8:00 p.m. and 9:00 p.m., to visit Marjorie Lodes before going out to dinner. The Canales returned home from dinner at 11:00 p.m. and noted that the Lodes living room lights were on and the front door was open. Harry Lodes' car was not in the driveway.

At 4:00 a.m., Canale heard dogs barking. At 5:00 a.m., he heard Harry Lodes pulling into his driveway. A minute later, Harry Lodes came to the Canale's home, concerned that Marjorie Lodes was not home. There was no blood on Harry Lodes. Harry Lodes left and returned thirty seconds later; he was screaming that his house was all upset and that he had to help his wife. Canale and Harry Lodes ran to the Lodes residence while Mrs. Canale telephoned the police. Canale observed Harry Lodes in his backyard, trying to drag the bloody body of Marjorie Lodes, which was near the toolshed, toward the house.

The criminal trial transcript of Harry Lodes' testimony was received into evidence (Ex. O). Harry Lodes testified that the day before the murder, he and Marjorie Lodes' sister were named beneficiaries under Marjorie Lodes' life insurance policy. The distribution was 90 percent, 10 percent respectively and Harry Lodes received $1,046.00 under the policy. On the night of the murder, Harry Lodes was not at home; he was at a friend's house and at a gay bar in Yonkers. Harry Lodes returned home to find his front door opened and his wife was not present in the house. Harry Lodes went to the Canale's house looking for his wife. Harry Lodes later found his wife's bloody body in their backyard, near the toolshed.

New York State Police Senior Investigator Henry H. Luttman, employed by the State police for 32 years and a Senior Investigator for the last 11 to 12 years, was assigned to the Lodes case with Senior Investigator Douglas Lamanna. Luttman arrived at the crime scene at 9:00 a.m. on October 25, 1986. Marjorie Lodes' body had already been removed. There was a lot of blood at the scene, especially around the toolshed.

On Tuesday, October 28, 1986, Luttman was notified that claimant had been apprehended and was transported to the Somers barracks. Luttman and Investigator Lamanna proceeded to the barracks and questioned claimant for one to two hours. At some point, Lamanna left the room and Luttman continued questioning claimant. Claimant stated that while he had been sleeping, something kept sticking him; he pulled out a knife with blood on it and knew that he had done something wrong; he then hid the knife. Luttman called Lamanna back into the room and claimant repeated the story which was thereafter incorporated into his written statement (Ex. F). Luttman testified that claimant was given food and a beverage at the barracks, and, while he appeared tired and complained of tick bites, he did not appear confused and was straight forward regarding the information about the knife. Claimant tried to describe where he had slept and disposed of the knife. The investigators took claimant to the supposed area, but they could not find the knife.

The criminal trial transcript of Senior Investigator Douglas Lamanna's testimony was received into evidence and was consistent with Luttman's testimony (Ex. M). Lamanna testified that claimant described the knife as a 10 to 11 inch steak knife which he buried with leaves and grass. When claimant was asked about his activities between the time he left Bernal, Jr. and his girlfriend, until the time he was awakened by the knife, claimant responded, "I feel puzzled, *** I don't remember; I had a blackout" (Ex. M, p. 104). According to Lamanna, claimant could not understand why he could not recall his activities (Ex. M, p. 105). Lamanna testified that before claimant signed his typed statement, Lamanna read the statement to claimant and gave him an opportunity to make any corrections.

New York State Police Investigator Ralph Gagliardi, employed by the New York State Police for 22 years and promoted to Senior Investigator in 1987, testified that he responded to the crime scene and observed that Marjorie Lodes' body had been dragged from the toolshed toward the house. Gagliardi photographed a bloody footprint on a board located behind the toolshed and adjacent to the fence (Exs. P1, P2). Gagliardi also noticed blood on the other side of the fence and on the adjoining property. Gagliardi took some measurements, collected fingerprints from the Lodes residence and gathered other evidence.

On October 28, 1986, Gagliardi photographed claimant at the Somers barracks and obtained claimant's finger and palm prints. Gagliardi also took samples of claimant's hair and saliva and examined the clothing that claimant had been wearing when he was arrested.

Anthony Orloski, a New York State Technician Supervisor, testified that in 1986 he was a Senior Laboratory Technician and had testified as an expert in microscopy (the study of hairs, fibers, trace evidence, microscopic matters) in claimant's criminal trial. Orloski determined that one fox hair was found on the Lodes bedroom rug and that the fur on claimant's leather jacket was fox. Orloski explained, however, that the test could not specify whether the hairs were from the same fox. Claimant's hair samples did not match the hairs taken from the Lodes bedroom and living room rugs. None of the victim's hair or carpet fibers from the Lodes home were found on any of the samples taken from claimant and nothing of evidentiary value was found in claimant's fingernail scrapings (Ex. 6, p. 2).

Linda Duffy, a forensic scientist employed by the Westchester County Department of Laboratories and Research, testified as an expert in forensic serology in claimant's criminal trial and testified in the instant case. She explained that forensic serology is the examination of physical evidence for bodily fluids such as blood, semen and saliva. In October 1986, she analyzed Marjorie Lodes' blood for type, genetic markers and enzymes. Duffy then performed a visual and chemical analysis of claimant's clothing; there was no evidence of blood on any of the items including the inside pocket and lining of claimant's jacket. She also stated that there was no indication that either claimant's sneakers or shirt had been cleaned.

The criminal trial transcript of Frederick Drummond's testimony was received into evidence (Ex. R). Drummond, a Senior Forensic Scientist with the Westchester County Department of Laboratories and Research, was the supervisor of the serology laboratory. Drummond held two certificates in blood splatter analysis, had processed over one hundred crime scenes, and had taught footwear analysis to many police agencies and colleges.

In connection with claimant's criminal prosecution, Drummond examined claimant's size 15 Convention Nike sneakers that he was wearing when he was apprehended and two sets of new Convention Nike sneakers, size 14 and 15. The new sneakers were used to compare the two sizes to claimant's sneakers. Drummond made visual and photographic comparisons between claimant's left sneaker and the bloody imprint found on the board next to the toolshed which appeared to be a left footprint. Drummond reported similarities in design and spacing; however, due to the nature of the bloody imprint on a rough surface, there were no individualizing characteristics discerned which would indicate that the footprint was in fact claimant's and not some other size 15 Nike sneaker (Ex. 6, p. 23; Ex. R, pp. 859-60).

The criminal trial transcript of David Hume's testimony was received into evidence over claimant's objection (Ex. Q). Hume was Nike's production planner and did inventory control. He estimated that Nike's east coast distribution center, which covered 16 states, had distributed approximately 900 pairs of size 15 Convention sneakers from April 1984 to September 1986. He also testified that Nike made the Sky Force model which had the exact same tread design as the Convention (Ex. Q, pp. 986-87). He could not estimate how many Sky Force sneakers were distributed from the center during the relevant time frame nor could he estimate how many counterfeit copies of the sneakers had been distributed.

To prevail on a claim of unjust conviction and imprisonment under Court of Claims Act § 8-b, claimant must prove by clear and convincing evidence that: (1) he was convicted of one or more felonies or misdemeanors, was sentenced to a term of imprisonment thereon, and has served all or part of that sentence; (2) his judgment was reversed or vacated pursuant to a statutorily enumerated ground; (3) he did not commit any of the acts charged in the accusatory instrument; and (4) he did not by his own conduct cause or bring about his conviction. The requirements of Court of Claims Act § 8-b are to be strictly construed (
see, Torres v State of New York, 228 AD2d 579) and "the ‘linchpin' of the statute is innocence" (Ivey v State of New York, 80 NY2d 474, 479).
In the instant case, it is undisputed that claimant has satisfied the first two requirements. Thus, the remaining issues are whether claimant has established, by clear and convincing evidence, his innocence and that he did not cause or bring about his conviction. As the Court of Appeals stated in
Reed v State of New York (78 NY2d 1, 11), the task facing a claimant who brings an unjust conviction claim "is certainly not a simple one." The Court of Appeals noted that, "[w]hile the Legislature specified that courts should ‘give due consideration to difficulties of proof caused by the passage of time, the death or unavailability of witnesses, the destruction of evidence or other factors not caused by such persons' (Court of Claims Act § 8-b[1]), it also allocated to claimants the heavy burden of proving their innocence by clear and convincing proof" (Id.).
The clear and convincing evidence standard is more demanding than the preponderance standard which is ordinarily required in a civil trial and requires a quantum of proof establishing a high degree of probability (
see, Fisch on NY Evidence §1090 at 614 [2nd ed]; PJI Civil 1:64). The proof cannot be "loose, equivocal or contradictory" (Backer Mgt. Corp. v Acme Quilting Co., 46 NY2d 211, quoting Southard v Curley, 134 NY 148,151). It is also noted that merely because claimant's conviction was reversed does not establish his innocence (see, Reed v State of New York, supra at 7 [acquittal is not the equivalent of innocence]; Vasquez v State of New York, 263 AD2d 539 [reversal of criminal conviction does not establish innocence]).
Claimant does not contend that his statement was coerced, rather he maintains that he never gave the police a statement. Specifically, claimant testified that the two pages were given to him folded and that he signed them only because he believed that they were waivers. Upon listening to claimant testify and observing his demeanor as he did so, the Court finds that claimant's account was not credible.[4]
The two page statement comprises five inches of single space typing on each page, bears claimant's signature on the signatory line at the bottom of each page, is signed by claimant at the end of the typed text with the date and time next to his signature, and a correction in the text is initialed by claimant. Thus, the Court finds that claimant did indeed give the police such statement and that such statement was not coerced.
The testimony of claimant's lifelong friend, John Bernal, Jr. and Bernal, Jr.'s former girlfriend, Deborah Alimonti, did little to provide claimant with an alibi on the morning of the murder. Both witnesses, admitted drug users, were less than candid in their testimony. Bernal, Jr. testified at trial that he was certain that claimant was not wearing a baseball cap on the date in issue. Bernal, Jr., however, was then confronted with his statement that he gave police on the day after the murder, i.e., "I don't remember whether he [claimant] was wearing a hat or not" (Ex. B). Bernal, Jr.'s attempt to explain his certainty at trial, 13 years after the event, as compared to his uncertainty the day after the event, was not convincing to the Court. Alimonti had also given the police a statement in 1986. She testified at trial, however, that she had no recollection of the events which occurred on October 24 and October 25, 1986, other than the police questioning her about the murder. She flippantly stated that if she signed a statement, then it must be truthful. Considering that she spent that evening with a friend who was subsequently charged with murder and found guilty, the Court finds it highly unlikely that, even years later, she has no recollection of the night in question. The Court accorded Alimonti's testimony no weight.

While Edward Murnane appeared to be more credible than the other witnesses presented by claimant, at best, Murnane could only approximate the times regarding claimant's comings and goings. Additionally, as to Murnane's testimony that claimant was not wearing a baseball cap on October 24 or October 25 of 1986, he only saw claimant when he left the house in the early evening on October 24, 1986 and when he returned in the early morning on October 25, 1986. Murnane's testimony is inconclusive as to whether claimant was wearing a baseball cap during the intervening hours. Claimant's statement to the police admits that he was wearing the baseball cap on the night of the murder (Ex. F).

The Court also did not find the testimony of Eleanor Jazwinski, Abbie Maurer and Mary Engel, that claimant was seen in the neighborhood on the afternoon of the murder and appeared fine, to be of any significance. Claimant admittedly was avoiding the police because he knew that they were looking for him. Moreover, the testimony of Jonathan Totten does not corroborate claimant's testimony that he was with Totten in front of the post office, after the murder, at 5:15 a.m. To the contrary, Totten testified that he had no knowledge of claimant's whereabouts that morning. To the extent that Totten does not mention meeting claimant at the post office, Totten further discredits claimant.

The Court is mindful that the scientific evidence was inconclusive as to whether the baseball cap found at the scene and the size 15 bloody sneaker print were in fact claimant's and whether the fox hair found in the Lodes bedroom came from claimant's fox collared jacket. However, while the absence of such evidence was insufficient to establish guilt beyond a reasonable doubt, it does not lead to the conclusion that claimant has established his innocence by clear and convincing evidence (
see, Reed v State of New York, 78 NY2d 1, supra; Vasquez v State of New York, 263 AD2d 539, supra).
Upon review of all the evidence presented, the Court finds claimant has failed to carry his "heavy burden" (
Reed v State of New York, supra, at 11) of demonstrating that it was highly probable that he did not murder Marjorie Lodes (see, Taylor v State of New York, ___AD2d___, 698 NYS2d 294 [court did not credit testimony of alibi witnesses and found that claimant did not establish innocence by clear and convincing evidence]; Vasquez v State of New York, supra [claimant's self-serving testimony did not meet burden of clear and convincing evidence of innocence]).
The remaining issue is whether claimant has established by clear and convincing evidence that he did not, by his own conduct, cause or bring about his conviction. The purpose of this requirement is to "ensure that one is not rewarded for his own misconduct" (1984 McKinney's Session Law, Ch. 1009, pp. 2899, 2932;
see, Moses v State of New York, 137 Misc 2d 1081). The Law Revision Commission Report lists five examples of conduct which would preclude a claimant from recovering under the statute: giving an uncoerced confession of guilt, removing evidence, attempting to induce a witness to give false testimony, attempting to supress testimony and concealing the guilt of another (see, 1984 McKinney's Session Law, Ch. 1009, p. 2899, 2932). The list was intended to be illustrative and other conduct may form the predicate for denying a claimant recovery (see, Coakley v State of New York, 150 Misc 2d 903, 910, affd 225 AD2d 477).
Clearly, an uncoerced confession precludes a claimant from recovery (
Ausderau v State of New York, 130 Misc 2d 848, affd 127 AD2d 980 [confession, though untrue and illegally obtained, was not coerced and was a contributing factor in claimant's conviction]). As discussed supra, this Court did not credit claimant's testimony regarding his signed two page statement and finds that claimant's statement was not coerced.[5] Claimant admitted wearing the baseball cap on the night of the murder and stated that he woke up in the woods and found a knife with a little blood on it inside the lining of his jacket; he "knew [he] did something wrong;" he "hid" the knife and remained in the woods for three days (Ex. F). At his criminal trial, claimant's statement was the "chief evidence" against him (see, People v Murnane, 182 AD2d 646). Moreover, it is not disputed that claimant knew that the police were looking for him and flight is evidence of consciousness of guilt (see, People v Yazum, 13 NY2d 302; Fisch on NY Evidence §238 at 140 [2nd ed], citing People v Reade, 13 NY2d 42). Accordingly, this Court finds that, given claimant's statement to the police and his conduct of hiding in the woods for three days while he knew that the police were looking for him, claimant has failed to establish, by clear and convincing evidence, that he did not cause or bring about his conviction (see, Rogers v State of New York, 181 Misc 2d 683 [claimant denied recovery where claimant established innocence by clear and convincing evidence, but failed to establish that he did not by his own conduct cause or bring about his conviction]; see also, Williams v State of New York, 87 NY2d 857).
Defendant's motion to dismiss, upon which decision was reserved, is now GRANTED.


May 26, 2000
White Plains, New York

Judge of the Court of Claims

[1] All numbers preceded by the letter "T" refer to the respective pages of the trial transcript.
[2] In 1982, claimant was convicted, after a plea of guilty, to Attempted Robbery. In 1984, claimant was convicted, after a plea of guilty, to a misdemeanor assault. In 1980, he was convicted of criminal mischief, a misdemeanor. He had also been convicted twice for Driving While Intoxicated. Claimant further acknowledged he had a prior alcohol problem and had been in several detoxification rehabilitation programs. Claimant described himself as a recovering alcoholic.
[3] Deborah Alimonti has since married and is now known as Deborah Wright.
[4]Claimant's criminal history also detracted from his credibility (see, Fisch on NY Evidence §459 [2nd ed]).
[5]Similarly, there was no finding by the Appellate Division that the statement had been coerced or was otherwise inadmissible.