New York State Court of Claims

New York State Court of Claims

ROJAS v. THE STATE OF NEW YORK, #2000-014-515, Claim No. 100601, Motion No. M-61461


Synopsis


In a claim for unjust conviction and imprisonment, the claimant's motion to dismiss affirmative defenses is granted in part, and denied in part.

Case Information

UID:
2000-014-515
Claimant(s):
LUIS KEVIN ROJAS
Claimant short name:
ROJAS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
100601
Motion number(s):
M-61461
Cross-motion number(s):

Judge:
S. Michael Nadel
Claimant's attorney:
Profeta & EisensteinBy: Jethro M. Eisenstein
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Janet L. Polstein, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
June 30, 2000
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read on the claimant's motion to dismiss the affirmative defenses in the answer: Notice of Motion, Exhibits annexed, Memorandum of Law; Affirmation in Opposition and Exhibits annexed; Reply Affirmation and Exhibits annexed.


In this claim for Unjust Conviction and Imprisonment brought pursuant to Section 8-b of the Court of Claims Act, the claimant moves to dismiss all of the affirmative defenses in the answer. Pursuant to CPLR 3211(b), a defense may be dismissed if it "is not stated or has no merit."

The State has agreed to withdraw its Second and Sixth Affirmative Defenses, upon being provided with "a copy of the Appellate Division decision reversing claimant's conviction and a Certificate from the Department of Corrections verifying claimant's sentence and incarceration" (Affirmation in Opposition, ¶2), without which, the State argues, the claimant has not satisfied the pleading requirements of Court of Claims Act §8-b(3). In fact, the claim (in ¶6), refers to the reported decision of the Appellate Division in People v Rojas, 213 AD2d 56, which reversed the conviction, and in which it is stated (at 62) that the claimant "was sentenced to concurrent terms of imprisonment . . . , which he is currently serving." The foregoing satisfies the presentation requirements of Court of Claims Act §8-b(3). Lanza v State of New York,130 AD2d 872, at 873 [the statute "does not require any particular type of documentary evidence."]. The claim, in advance of the submission of any additional documentation, is not deficient, with respect to the requirements of §8-b(3). Since, upon the submissions, it is unclear that the Second and Sixth Affirmative Defenses have been withdrawn,[1] they are dismissed as without merit. CPLR 3211(b).

With respect to the remaining affirmative defenses, the State opposes the motion, requesting that it be denied, or that its determination be deferred pending further discovery.

The principal focus of the claimant's motion, and the State's opposition to it, is with respect to the Fifth Affirmative Defense, in which it is asserted by the State that the claim fails to comply with Court of Claims Act §8-b(4) because it fails to "state facts in sufficient detail to permit the court to find that claimant is likely to succeed at trial in proving that (a) he did not commit any of the acts charged in the accusatory instrument or his acts or omissions charged in the accusatory instrument did not constitute a felony or misdemeanor against the state, and (b) he did not by his own conduct cause or bring about his conviction." The Fifth Affirmative Defense thus restates, verbatim, the statutory pleading requirement which, if not satisfied, requires that the Court "shall dismiss the claim, either on its own motion or on the motion of the state." Court of Claims Act §8-b(4).

Given the foregoing language, it may very well be that the Fifth Affirmative Defense is unnecessary, since the statute specifically permits the State to move to dismiss the claim on the stated ground, which it has declined to do at this time. But once the State has asserted the deficiency of the claim by way of affirmative defense, there does not appear to be any reason to preclude the claimant from challenging the merit of that defense.[2] In addition, entertaining such a challenge at an early stage in the proceeding is entirely consistent with the purpose of subdivision (4), as reflected in the expectation of the drafters of the statute that "most cases will not survive a motion to dismiss. The few exceptions will be the ones appropriate for a full hearing on the claim of innocence." Report of the Law Revision Commission, 1984 McKinney's Session Laws, ch 1009, at 2930. See, also, Acosta v State of New York, ___ AD2d ___, 704 NYS2d 594.

In its opposition to the claimant's motion, the State requests that the Court defer its determination until discovery has been completed. But determination of the claimant's motion to dismiss this defense depends upon whether the defense has merit. If the claim states facts in sufficient detail to permit the Court to find that he is likely to succeed at trial, then the defense does not have merit, and it should be dismissed. If the claim does not state facts in sufficient detail to permit the Court to so find, then the defense has merit, and it may not be dismissed. Thus, determination of the claimant's motion need not await further discovery, since it is ultimately dependent upon the sufficiency of the claim (§8-b[4]), not the adequacy of the claimant's proof (§8-b[5]).

The claimant was convicted of murder in the second degree, and related crimes, in connection with a fatal shooting which occurred on November 18, 1990 in Manhattan. His conviction was reversed by the Appellate Division, on the grounds of ineffective assistance of counsel and improper police arranged identification procedures. Upon retrial, he was acquitted.

It is not necessary to restate, in detail, the circumstances of the crime, the claimant's apprehension, or the particulars of the substantiation he alleges in support of his claim of innocence. Essentially, he alleges that he has an alibi, based upon a police officer's testimony and "911" police tapes, which places him a half mile from the shooting when it occurred. The claim also alleges, in detail, the infirmities of several eyewitness identifications. All of the foregoing is set forth in detail in his claim. Additionally, even more detail of the circumstances surrounding the claimant's identification and his arrest, including his alibi, (much of which was not adduced at the claimant's first trial) is provided in the fifteen page decision of the Appellate Division, which focused on what that Court stated to be "certain exculpatory evidence, overlooked by counsel, which, had it been investigated and provided to the jury, may well have proved [his] innocence." People v Rojas, supra, at 57. The factual recitation in an appellate reversal can satisfy a claimant's burden of stating facts in sufficient detail to establish he is likely to succeed at trial. Grimaldi v State of New York, 133 AD2d 97.

Contrary to the argument of the State, documentary proof of innocence is not required to satisfy §8-b(4). Britt v State of New York, 260 AD2d 6, 19-20; Lanza v State of New York, supra, at 873. Nor does the Court accept the State's argument that the claim consists of conclusory assertions of innocence.

The Court concludes, therefore, that the claim states facts in sufficient detail to permit it to find that the claimant is likely to succeed at trial in proving that (a) he did not commit any of the acts charged in the accusatory instrument, and (b) he did not by his own conduct cause or bring about his conviction. The Fifth Affirmative Defense is without merit; the claimant's motion to dismiss it is granted.

The Third Affirmative Defense alleges that the "injuries or damages allegedly sustained by claimant were brought about by his own conduct which caused or brought about his conviction." The Fourth Affirmative Defense alleges that the "injuries or damages complained of were caused in whole or part by claimant's own culpable conduct or the culpable conduct of others for whom the State of New York has no responsibility."

In apparent response to the claimant's position that the Fourth Affirmative Defense (culpable conduct) is an inappropriate defense to a claim brought pursuant to §8-b, the Attorney General indicates that the defense is asserted in connection with the claimant's burden of proving that he did not by his own conduct cause or bring about his conviction. (Affirmation in Opposition, ¶7). With respect to both the Third and Fourth Affirmative Defenses, the Attorney General explains they were asserted to preserve that issue for trial. (Affirmation in Opposition, ¶6).

Neither the Third nor Fourth Affirmative Defense is a proper affirmative defense, the pleading of which is required with respect to "all matters which if not pleaded would be likely to take the adverse party by surprise or would raise issues of fact not appearing on the face of a prior pleading . . . ." CPLR 3018(b). It is the claimant's burden of proof at trial to establish by clear and convincing evidence that "he did not by his own conduct cause or bring about his conviction." Court of Claims Act §8-b(5)(d). There is no pleading required of the defendant to preserve the issue for trial. The Third and Fourth Affirmative Defenses are, at best, unnecessary. While it has been noted that "[i]n the absence of prejudice there is no reason to permit a motion to strike affirmative matter" (2 Weinstein-Korn-Miller, NY Civ Prac ¶3018.14), these two Affirmative Defenses do not raise any affirmative matter which has not already been placed at issue by the statutory prerequisites to obtaining a judgment pursuant to Court of Claims Act §8-b..

Finally, the First Affirmative Defense alleges that the claim fails to state a cause of action. Having concluded, supra, that the claim satisfies the requirements of subdivisions (3) and (4) of Court of Claims Act §8-b, it is clear that the claim states a cause of action. Nonetheless, under controlling authority, Riland v Todman & Co., 56 AD2d 350, the defense of failure to state a cause of action is not subject to a motion to dismiss it. See, also, Pump v Anchor Motor Freight, Inc., 138 AD2d 849, 851 ["the pleaded defense of failure to state a cause of action is harmless surplusage and a motion to strike it should be denied as unnecessary"].

In accordance with the foregoing, the claimant's motion is granted to the extent that the Second, Third, Fourth, Fifth and Sixth Affirmative Defenses in the Answer are dismissed; the claimant's motion to dismiss the First Affirmative Defense in the Answer is denied.


June 30, 2000
New York, New York

HON. S. MICHAEL NADEL
Judge of the Court of Claims



[1] The status of the withdrawal by the State of the two Affirmative Defenses, is unclear, inasmuch as it was conditioned upon receiving a copy of a certificate of incarceration, which has not been submitted.

[2] Indeed, one might speculate that the language of the statute ["If the Court finds after reading the claim that claimant is not likely to succeed at trial, it shall dismiss the claim, either on its own motion or on the motion of the state." §8-b(4)] could lead a claimant to conclude that, in the absence of the Court having acted to dismiss the claim, that the Court had in fact passed upon the sufficiency of the claim.