This decision follows the trial of the claim of Octavio Ortiz under the Unjust
Conviction and Imprisonment Act of 1984, which is codified as § 8-b of the
Court of Claims Act (the "Act"). On the evening of September 28, 1979, there
was a melee outside a small
grocery store in the Bushwick section of Brooklyn. Shots were fired and two
persons who had been working in the store were hit. Antonio Rodriguez was
wounded, and Jose Guerrero was killed.
Ortiz was arrested at his home some two months
after the shooting, when he was pointed out to police by the deceased's brother,
Manual Guerrero, who owned the store. Ortiz was convicted of murder in the
second degree, assault in the first degree and criminal possession of a weapon
II on a judgment rendered February 9, 1981 upon a jury verdict, and a sentence
of imprisonment was imposed. In 1986, the Second Department granted him a new
trial because of prejudicial comments of the prosecution. People v
, 125 AD2d 502, 509 NYS2d 418. Ortiz was found not guilty when retried
At the trial in this Court, the parties agreed that the testimony from the two
prior criminal trials would be admitted into evidence (court exhibits 1 and
In the 1980 criminal trial and the Court of Claims trial, Ortiz testified and he
called to the stand his wife Maria and his sister-in-law, Ana Flores. In the
criminal retrial, Ortiz rested without calling any witnesses. Manual Guerrero
testified for the prosecution in each of the criminal trials, and was the
defendant's only witness in the §8-b trial. The testimony of Rodriguez and
Thomas Vergara from 1980 was read into the record in the second criminal
* * * *
To prevail under §8-b of the Act, Ortiz must prove his innocence of all of
the counts of the
indictment, not just those of which he had been
The six counts can, for our
purposes, be encapsulated fairly: Ortiz had a loaded firearm in his possession
that September night and fired it, or intended to use it unlawfully against
Reviewing the record of the three trials, the evidence opposing and supporting
the claim is as follows:
The Evidence in Opposition to Ortiz' Claim
Guerrero testified at all three trials that he saw Ortiz fire the shots.
Guerrero had been familiar with Ortiz because he had come into his store
regularly prior to the shooting and, by claimant's own admission, had been in
the store just hours before the incident. Guerrero, who had recently purchased
the store, ran it with the help of his brother, cousin Antonio and another
- Thomas Vergara was not sure that Ortiz fired a shot, but
testified "[h]e had a gun" (ct exh 1, 229). Vergara was familiar with Ortiz,
having gone fishing with him; and claimant so conceded.
Vergara knew him by
the nickname, Colorado.
- Ortiz' credibility has been placed at issue by
inconsistencies in his statements; he offered two versions of his whereabouts
According to Detective Luis Gonzales, on the night of the shooting,
Ortiz told him that he had gone to Guerrero's store at 6 p.m to buy some beer,
went home to watch the fights on television and did not leave his apartment
again that evening.
At the criminal trial, when asked on cross-examination, "...[y]ou knew that
that was a lie, didn't you...?", he responded that the "...only lie I said was
that I hadn't gone out of the house."-- meaning he told the basic truth that
"...I was not involved..." in the shooting (ct exh 1, 471). Ortiz contended he
told the police what he did so he could go home.
(ii) Subsequently, at each of his three trials, Ortiz conceded he was at or
near the scene at the time of the shooting because
he was walking toward his mother-in-law's house to pick up his wife and two of
their children and happened to meet them on the opposite side of the street from
In this version, the timing does not quite work, and the circumstances appear
exceptional. At his first criminal trial, Ortiz stated that he began watching
boxing when the program began, noting that "[i]n the T.V. guide it had been
announced to be at eight... [t]he fights began at eight o'clock [that] night."
(ct exh 1, 457 & 419). The New York Times
for September 28, 1979 gives an 8 p.m. starting time (def exh A). The
entry lists three fights; in all likelihood there were more:
Ortiz recalls Sugar Ray Leonard knocking out his opponent in the first round,
and that Roberto Duran's bout lasted ten rounds. When asked if the Young vs
Dokes and Gomez vs Mendoza fights went ten rounds, Ortiz did not deny that these
two matches (in addition to the three in the
) were on TV, but could not remember how long they lasted. Ortiz
stated that he left his house before the heavyweight title fight between Larry
Holmes and Earnie Shavers was over, explaining, "...I had to go. It wasn't
interesting for me further. It was easy. It was an easy fight." (ct exh 1,
What this boxing history shows is how difficult it would have been for Ortiz,
beginning at 8 p.m., to have seen four fights plus four or five rounds of the
Holmes-Shavers fight and still be able to make it outside a few blocks away at
about 9 p.m or even 9:30. Ortiz asserted he was there before the shooting;
Officer Arthur Maisano testified in both criminal trials that at 9:45 p.m. the
107th Precinct received a call of gunfire at an 804 Knickerbocker Avenue
location, the address of Guerrero's store. Claimant recognized the timing
problems by the time of his Court of Claims trial: blurring his return time to
"I went over to my house...[f]rom 9 to 10 o'clock at night"; and
"the exact time I do not remember...the boxing match was about to start at 7".
Maria Ortiz could recall discussing at least one of the fights with her husband
-- "[i]t was a very interesting fight"-- but admitted she never discussed any
other fights with him and was largely unfamiliar with his activities.
Moreover, the broader purposes of claimant's movements raise questions,
although a narrative that is too pat may lack the feel of authenticity, and
§8-b.1 of the Act permits "due consideration to difficulties of proof
caused by the passage of time."
Ortiz testified at his 1980 trial that Friday, September 28, 1979 was a day off
from his job at a bread factory.
According to Ortiz, at around noon, he, wife Maria and two of their children
went to the house of Mrs. Ortiz' mother, which was within walking distance.
Claimant could not recall any other occasion prior to September 28, 1979 when he
accompanied Maria to her mother's house. Ortiz stated he had just started at
the bread factory a few weeks before in mid-September, but his wife testified he
had begun work in July.
Late in the afternoon, Ortiz went back to watch the fights in his apartment
making, as noted, a 6 p.m. stop at the Guerrero store. At around 9 o'clock, he
headed back to his mother-in-law's house to pick up his wife and children, but
they and Maria's sister, Ana Flores, had already left and were on their way
home. According to Maria Ortiz, there was a fight near the grocery store. She
saw her husband on the opposite side of the street, crossed over and went home
with him. Her sister turned around and walked back to her mother's house.
Claimant's meeting his wife in this fashion appears highly coincidental, and it
is surprising that Maria would walk into the area of the disturbance with her
two children, one of whom was an infant in a carriage.
Moreover, claimant's wife testified that her husband did not call her
before he left their house, and she did not know when he would be picking her
At the civil trial, Flores testified she never saw claimant on the
street that night or at her mother's house, although she remembered arriving at
her mother's house fairly late – by 7 or 7:30 p.m. However, at the first
criminal trial, Flores said she saw Ortiz and her sister at their mother's house
at 5:30 in the afternoon and later saw him on the street at about 9:20 p.m.
The Evidence in Support of Ortiz'
At trial, Guerrero testified that he was looking out the window of his store
and saw a man with the nickname of Spice Ham, or some variant thereof, hand
Ortiz a gun. The two were talking for a few minutes after which Spice Ham left.
Ortiz held onto the gun for several minutes and then fired two shots -- one in
the air, the other into the store, which struck the two employees, killing Jose
- But at the time of the shooting on September 28, 1979, Manuel Guerrero
told the police when asked if he saw who had done it, "I don't know nobody." A
few weeks later he told Detective Gonzales that the subject pulled out a gun
and shot into the store; it was at best unclear whether there was a handoff
from Spice Ham or anyone else.
- Guerrero explained his silence
until mid-October to have been the result of fear. When he went to the Dominican
Republic to bury his brother, he discussed the matter with his family, and then
determined to go to the police. He also indicated he was worried the grocery
store would be more difficult to sell if he became involved with the police.
- Furthermore, the physical circumstances of Guerrero's identification
of Ortiz were less than ideal. He was stocking one of the refrigerators in his
store and was three to five feet from a window which was partially blocked by
some advertising signs. It was night, although a street lamp was, by virtually
all accounts, lit across the street near the fire hydrant where the shooter was
located, some 50 feet away. Between Guerrero and the gunman were upwards of 20
-- probably closer to 50 -- people, congregating at or near the street in front
of the grocery, a few of whom were smashing a car, which was parked in front of
the store. Rocks were being thrown at the windows of the apartment above
Guerrero's store because of some kind of domestic dispute involving two women
who had run into the store for their safety. One of the women was reportedly
struck by her husband, Raphael Depora, who bore the nickname of Apache.
- Guerrero and his family had run the grocery for a short while, and he
acknowledged he was just beginning to familiarize himself with his customers as
of September 28. Moreover, his cousin who was wounded arguably had a better
view standing in the doorway, and Antonio did not come forward, even though
Guerrero recalled that Ortiz was holding the gun for up to five minutes.
With all this going on, Guerrero claimed to have kept his gaze fixed on the
gun in Ortiz' hand -- a fairly long period, but people in extremis
tend to have an exaggerated sense of time.
- No ballistics evidence
connected Ortiz to the shooting. Nor was evidence offered that claimant owned a
gun; however, that is less significant if the source of the gun was another
person. No motive for Ortiz to shoot into the store was ever supplied. If one
of the women who lived above Guerrero's store was a target of the rock throwers,
then perhaps the shooter was aiming at the second floor apartment and not the
grocery below. In any event, it is not necessary to show that the gun was
intentionally aimed into the store inasmuch as in an Unjust Conviction action,
the claimant must prove his innocence of all charged criminal acts.
the shooting, Ortiz continued to shop at the grocery, however, he may have
thought Guerrero did not know of his involvement if in fact he was the shooter.
Guerrero, who at the time of the shooting only knew claimant by his nickname,
learned that Colorado was Octavio Ortiz from "[a] very special friend."
Guerrero has not, up through the recent civil trial, revealed the identity of
such individual. Claimant suggests, not unreasonably, that Guerrero is
protecting someone who told him that Ortiz shot his brother and that Guerrero
never saw the incident himself. Or for that matter, not only did Guerrero not
see the incident, but the "special friend" is a nonexistent one.
Vergara, who was at the scene of the commotion on Knickerbocker Avenue, saw
Ortiz talking with Spice Ham and testified, hardly definitively, that he saw him
give Ortiz "...something...[that] [c]ould have been [a] gun." Vergara, who had
been convicted of receiving stolen property, added that, "everybody was
Then in response to the prosecution asking "[w]hat about the
defendant," said, "[h]e probably shot, too. He had a gun." At one point he
testified, using the street names of other persons, "It could have been Batman
shooting. Batman was shooting at Apache's father" (ct exh 1, 228, 229, 232).
Vergara went on to contend there was shooting all around which had stopped
before Ortiz fired his gun
, but no other witness recalled such other gunfire.
* * * *
In trying to determine whether Ortiz committed any criminal acts, as the forum
shifts from the criminal to the civil, the burden of proof changes
significantly. In this Court, the claimant must prove his innocence of the acts
charged in the indictment by clear and convincing evidence, which the Court of
Appeals has described as a "heavy burden."
Reed v State of New York
, 78 NY2d 1, 11, 571 NYS2d 195, 200 (1991).
Clear and convincing evidence is evidence which satisfies the trier of fact that
it is "highly probable" that what the party with such burden contends happened
is what actually occurred (§1:64 of the Pattern Jury Instructions - Civil).
Such proof cannot be loose, equivocal, contradictory or open to opposing
Ivey v State of New York
, 80 NY2d 474, 591 NYS2d 969 (1992) is a leading
case upholding recovery by an §8-b claimant that turned on witness
. Ivey was able to prove his
innocence of a murder and robbery arising from a gas station holdup by the
clear and convincing standard: (i) a new witness came forward who presented
strong evidence that her friend was the culprit; and (ii) testimony was
presented of "four disinterested witnesses" whose physical description of the
perpetrator differed markedly from that of Ivey. There was also the "supporting
testimony of [Ivey's] alibi witnesses," but there is no detail in the Court of
Appeals decision or reported below (80 NY2d at 481-82; 591 NYS2d at 973).
As the above explication of the evidence shows, the clear and convincing
evidentiary standard has not been met. Accordingly, the claim of Octavio Ortiz
; all motions not previously ruled on are denied.