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.
28, 1986, claimant was arrested and subsequently indicted for the
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,
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).
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
An unjust conviction claim was timely commenced within two years
after the dismissal of the indictment (Court of Claims Act
, 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
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
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
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
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
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-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
Q-What do you remember before being in the
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
(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"
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
Bernal, Jr.'s girlfriend, Deborah
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
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
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
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 (
, 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),
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 (
, 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
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
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
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.
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 (
, Reed v State of New York
, 78 NY2d 1, supra
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
, at 11) of demonstrating that it
was highly probable that he did not murder Marjorie Lodes (see
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
[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.
, 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
, 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
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
Court did not credit claimant's testimony regarding his signed two page
statement and finds that claimant's statement was not
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
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
LET JUDGMENT BE ENTERED DISMISSING CLAIM NO.89102.