New York State Court of Claims

New York State Court of Claims

BARRERAS v. THE STATE OF NEW YORK, #2001-014-518, Claim No. 102864, Motion No. M-62379


Synopsis


Defendant's motion to dismiss a claim brought pursuant to Court of Claims Act §8-b is granted because the claimant's conviction was not reversed on one of the grounds specified in the statute.

Case Information

UID:
2001-014-518
Claimant(s):
HECTOR BARRERAS
Claimant short name:
BARRERAS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
102864
Motion number(s):
M-62379
Cross-motion number(s):

Judge:
S. Michael Nadel
Claimant's attorney:
Breschel, O'Shea & Rubin, LLPBy: David C. Breschel
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Susan J. Pogoda, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
March 27, 2001
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read on the defendant's motion to dismiss the claim: Notice of Motion, Affirmation in Support and Exhibits annexed; Affirmation in Opposition and Exhibits annexed; Reply Affirmation


The principal ground on which the defendant bases its motion seeking dismissal of the claim, brought pursuant to Court of Claims Act §8-b, is that the reversal of the claimant's conviction was not on any of the grounds specified in §8-b(3)(b)(ii), which provides that in order to present a claim under §8-b, the claimant must, inter alia, present documentary evidence that
his judgment of conviction was reversed or vacated, and the accusatory instrument dismissed or, if a new trial was ordered, either he was found not guilty at the new trial or he was not retried and the accusatory instrument dismissed; provided that the judgement of conviction was reversed or vacated, and the accusatory instrument was dismissed, on any of the following grounds: (A)paragraph (a), (b), (c), (e) or (g) of subdivision one of section 440.10 of the criminal procedure law; or (B)subdivision one (where based upon grounds set forth in item (A) hereof), two, three (where the count dismissed was the sole basis for the imprisonment complained of) or five of section 470.20 of the criminal procedure law; or (C)comparable provisions of the former code of criminal procedure or subsequent law; or (D)the statute, or application thereof, on which the accusatory instrument was based violated the constitution of the United States or the state of New York.
The Appellate Division reversed the claimant's conviction on the law, granted the claimant's suppression motion (which had been denied by the trial court), and remanded the matter for further proceedings. People v Barreras, 253 AD2d 369. Because the reversal was pursuant to CPL 470.20(1), the claimant must establish by documentary evidence that the reversal was based upon one of the grounds specified in paragraphs (a), (b), (c), (e) or (g) of CPL 440.10(1).[1]

In its opinion the Appellate Division concluded that the police did not have probable cause to search the car in which contraband was found, nor had the claimant voluntarily consented to the search. Thus, it is apparent from the Appellate Division opinion (the only documentary evidence in the record which relates to the reasons for the reversal), that the reversal of the claimant's conviction was based upon the grounds set forth in paragraph (d) of CPL 440.10(1): "Material evidence adduced by the people at a trial resulting in the judgment was procured in violation of the defendant's rights under the constitution of this state or of the United States."

There is nothing in the Appellate Division's opinion which supports the claimant's contention that the reversal was based upon the false testimony of a police officer which the prosecutor knew, or should have known, was false, and thus based upon grounds set forth in paragraphs (b) or (c) of CPL 440.10(1).

The reversal of the conviction was not based upon grounds set forth in §8-b(3)(b)(ii). The defendant's motion is granted; the claim is dismissed.


March 27, 2001
New York, New York

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




[1]It is not alleged by the claimant that he was retried and acquitted, in which case the claim could be presented regardless of the grounds upon which the conviction was reversed. Ivey v State of New York, 80 NY2d 474.