New York State Court of Claims

New York State Court of Claims

Ortiz v. THE STATE OF NEW YORK, #2000-016-087, Claim No. 79875


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):

Alan C. Marin
Claimant's attorney:
Stanley Weinberg, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Janet L. Polstein, AAG
Third-party defendant's attorney:

Signature date:
October 16, 2000
New York

Official citation:

Appellate results:

See also (multicaptioned case)

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 Ortiz, 125 AD2d 502, 509 NYS2d 418. Ortiz was found not guilty when retried in 1989.
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 2).[1]
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 trial.

* * * *

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 convicted.[2] 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 another.
Reviewing the record of the three trials, the evidence opposing and supporting the claim is as follows:

The Evidence in Opposition to Ortiz' Claim
- Manuel 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 relative.
- 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 that night:
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 the grocery.
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 television page for September 28, 1979 gives an 8 p.m. starting time (def exh A). The Times entry lists three fights; in all likelihood there were more:
Q. So was it fair to say that there were three fights that were on that night? A. I believe there were ...[f]our or five, something like that (ct exh 1, 420 & 461).
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
Times) 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, 463-64).
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 up. 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' Claim
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 Guerrero.

- 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 may 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.
- After 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.
- Thomas 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 shooting." 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 inferences.[3]
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 testimony[4]. 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 is
dismissed; all motions not previously ruled on are denied.

October 16, 2000
New York, New York

Judge of the Court of Claims

[1] Only witness testimony was submitted from the second trial; no colloquy, etc. is contained in court exhibit 2.
[2] "[H]e 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..."§8-b.5(c) of the Act. See ct exh 1 for the six counts of the indictment: pages 565, 568-69, 572-73, 576-77, 581 and 582-83, respectively.

[3] George Backer Management Corp. v Acme Quilting Co., Inc., 46 NY2d 211, 220, 413 NYS2d 135, 139 ( 1978) cited in Victor Ortiz v State of New York, (Ct Cl 1999, cl no 96390, O'Rourke, J); Alexandre v State of New York, 168 AD2d 472, 563 NYS2d 635 (2d Dept 1990) app dismissed 77 NY2d 925, 569 NYS2d 603 (1991). Consider Vasquez v State of New York, 263 AD2d 539, 693 NYS2d 20 (1999) lv denied 94 NY2d 754, 701 NYS2d 340 (1999), in which the Second Department reversed a Court of Claims ruling that a claimant had satisfied her evidentiary burden under §8-b.

[4]Rather than scientific evidence. See Kotler v State of New York, 255 AD2d 429, 680 NYS2d 586 (2d Dept 1998) and Coakley v State of New York, 225 AD2d 477, 640 NYS2d 500 (1st Dept 1996).