New York State Court of Claims

New York State Court of Claims

SWAIN v. THE STATE OF NEW YORK, #2001-015-535, Claim No. 100137


Claim seeking damages for unjust conviction and imprisonment act (Court of Claims Act § 10-b) dismissed based on claimant's failure to prove innocence of crime of criminal possession of controlled substance 5th degree by "clear and convincing evidence."

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):

Claimant's attorney:
Iseman, Cunningham, Riester & Hyde, LLPBy: Michael Cunningham, Esquire
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Paul Cagino, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
July 13, 2001
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)

This decision follows the March 7, 2001 trial of the claim of Edward Swain under the Unjust Conviction and Imprisonment Act of 1984, codified as § 8-b of the Court of Claims Act. The claim was filed within two years of the Appellate Division, Third Department's reversal of claimant's conviction for criminal possession of a controlled substance in the fifth degree and the dismissal of the underlying indictment (
see, Court of Claims Act § 8-b(7)).
On October 27, 1993 claimant was convicted following a jury trial of criminal possession of a controlled substance in the fifth degree (a Class D felony).[1]
Pursuant to a judgment of the Supreme Court, Albany County, (Harris, J.) rendered November 18, 1993 claimant was sentenced as a second felony offender to an indeterminate prison term of 3 ½ to 7 years. Claimant served the entire minimum sentence and was released on parole on October 7, 1996. Due to delays in the prosecution of his appeal his release significantly predated the July 17, 1997 issuance of the Appellate Division, Third Department's decision unanimously reversing the judgment of conviction on the law and dismissing the indictment.
People v Swain, 241 AD2d 695, 696-697 the Appellate Division set forth the facts pertinent to its decision stating:
Defendant's sole contention on appeal is that his conviction should be overturned because it is not supported by legally sufficient evidence that he had constructive possession of the drugs seized. In assessing the legal sufficiency of the evidence, 'the court must determine whether there is any valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the jury on the basis of the evidence at trial' (People v Bleakley, 69 NY2d 490, 495; see, People v David, 234 AD2d 787, 790). In making this assessment, the evidence must be viewed in the light most favorable to the prosecution (see, People v Manini, 79 NY2d 561, 568-569; People v Contes, 60 NY2d 620, 621; People v Johnson, 209 AD2d 721, 722, lv denied 84 NY2d 1003). Based upon our review of the record we find that the evidence was insufficient for the jury to conclude that defendant exercised dominion and control over the drugs seized from the apartment (see, People v Edwards, 206 AD2d 597, 598, lv denied 84 NY2d 907; People v Brown, 188 AD2d 930, 931; People v Hill, 182 AD2d 1087, 1088, lv denied 80 NY2d 895; cf., People v Thomas, 205 AD2d 838, 839-840).

The detectives who participated in the raid testified that defendant was the only person in the apartment at the time they entered and that he was found fully clothed lying face down on the bed in the bedroom. They described the apartment as small and indicated that rooms were in close proximity to one another. They stated that no drugs were found in the bedroom or on defendant's person, but that crack cocaine was found on top of the television set and in a video game machine in the living room. In addition, the detectives stated that a search of the apartment did not reveal any personal property belonging to defendant, but that they did recover a utility company bill in another individual's name. Absolutely no evidence was presented to establish that defendant was an occupant of the apartment or that he regularly frequented it. Because 'it is settled that one's mere presence in an apartment or house where contraband is found does not constitute sufficient basis for a finding of constructive possession' (People v Edwards, supra at 597; see People v Headley, 74 NY2d 858 859; People v Scott, 206 AD2d 392, 393-394; People v Dawkins, 136 AD2d 726, 727), we conclude that the conviction cannot stand upon the proof presented at trial.
The legislative purpose underlying a statutory unjust conviction cause of action is set forth in Court of Claims Act § 8-b(1) which provides "[t]he legislature intends by enactment of the provisions of this section that those innocent persons who can demonstrate by clear and convincing evidence that they were unjustly convicted and imprisoned be able to recover damages against the state". Section 8-b is designed to strike a "balance between the competing goals of compensating those unjustly convicted and imprisoned and preventing the filing of frivolous claims by those who are not actually innocent" (
Moses v State of New York, 137 Misc 2d 1081, 1084). To succeed upon such a cause of action, the claimant must prove by clear and convincing evidence that he did not commit the crime, and did not bring about his conviction by his own conduct (Court of Claims Act § 8-b[5]). The clear and convincing evidence standard is more demanding than the ordinary preponderance of the evidence standard applicable in most civil actions in that a claimant must satisfy the trier of fact that it is "highly probable" that his version of the events is what actually happened (1A NYPJI 3d 1:64), and that burden is not met by evidence which is "loose, equivocal or contradictory" (Moses v State of New York, supra; Backer Mgt. Corp. v Acme Quilting Co., 46 NY2d 211, 220, quoting Southard v Curley, 134 NY 148, 151).
As to the first requirement, "the ‘linchpin' of the statute is innocence" (
Ivey v State of New York, 80 NY2d 474, 479). The reversal of a conviction and dismissal of the accusatory instrument based upon the prosecution's failure to prove the charge or disprove a defense beyond a reasonable doubt does not constitute a finding of innocence for purposes of a subsequent civil proceeding such as this in which the burden of proof is placed upon the claimant and the standard of proof required is less exacting than proof beyond a reasonable doubt (see, Reed v State of New York, 78 NY2d 1). Moreover, there is no presumption of innocence in a civil proceeding of this nature (Fudger v State of New York, 131 AD2d 136, 140). Here, claimant's conviction was not reversed because he was proven innocent. Rather, the Appellate Division determined that the evidence was insufficient for the jury to have concluded that the claimant exercised dominion and control over the drugs seized from the apartment and that his mere presence there was not enough to support conviction. A review of the critical evidence offered at trial in this Court is in order.
The proof at trial consisted of claimant's own testimony and that of his former lawyer, Assistant Public Defender Thomas Dulin. Dulin, a member of the Public Defender's Office with approximately fifteen years of legal experience at the time of his 1993 assignment to represent the claimant, acted on behalf of the claimant from shortly after his indictment by the Grand Jury through his conviction on the Class D felony possession charge and acquittal on the Class B felony.

Mr. Dulin's testimony centered on the various plea bargains offered to claimant from the time of his arrest until trial. He testified that claimant faced a minimum mandatory sentence of 12 ½ to 25 years if convicted of the Class B felony in light of claimant's status as a second felony offender. Dulin testified that the records of the Public Defender's Office demonstrated that at one time the prosecution offered one year in the Albany County Jail upon a plea to a Class A misdemeanor. The offer was rejected by the claimant.

The witness testified that claimant had described the events of the night in question including his drinking in the Twilight Lounge, a fight outside the lounge in which claimant sustained facial injuries and an invitation to visit Shawn Steele's apartment at 6 Delaware Street in the City of Albany. Claimant told the witness that he had never been to the apartment prior to that evening and that he did not know drugs were present in the apartment. The witness testified that he never discussed claimant's relationship with Shawn Steele but that at claimant's trial he introduced evidence tending to prove that claimant was not a tenant of record at 6 Delaware Street. The witness admitted that he did not call claimant's girlfriend to testify at the criminal trial in order to prove that, prior to his arrest, claimant had been living with her at another location. Nor did the witness locate and call Shawn Steele to testify on claimant's behalf. The witness stated that an investigator in the Public Defender's Office searched for but was unable to locate Mr. Steele.

Attorney Dulin testified that after a Sandoval hearing (
see, People v Sandoval, 34 NY2d 371) the Court had determined that evidence of claimant's prior convictions (i.e., criminal trespass, petit larceny, criminal mischief, and attempted burglary) would be admissible by the prosecution. As a result, it was decided that the claimant would not be called to testify on his own behalf at the criminal trial.
On cross-examination Dulin admitted that it was not unusual for criminal suspects to assert their innocence of the crimes charged, as claimant did in this case, even when they are guilty of the charges. Nor is it unusual for criminal defendants to refuse plea offers. On redirect the witness testified that claimant never changed his story regarding the events of that evening or his professed innocence. The witness testified that there was no proof directly linking the claimant to undercover drug buys at 6 Delaware Street on the night in question or at any other time.

Claimant testified that on December 15, 1992 he began drinking at noon and continued into the evening hours. He arrived at the Twilight Lounge on Green Street in the City of Albany in the late afternoon or early evening. He alleged that he was intoxicated when he left the Twilight Lounge and was walking along Green Street when words were exchanged with three or four people who were unknown to him. He alleges that a fight ensued which resulted in injuries to his cheek and the bridge of his nose and that the fight was broken up by patrons exiting the lounge, including Shawn Steele. Steele allegedly told claimant he was "messed up" and suggested claimant go to Steele's apartment to "straighten up", "calm down" and "chill out." Claimant alleges that when he arrived at the apartment, which the police described as small, he went directly to the bathroom which was located to his left as he entered the apartment. From there he alleges that he went to the bedroom, which was also located on the left as one enters the apartment. He testified that he laid on the bed and fell asleep until he was awakened by the police shortly after midnight. He asserts that he never went into the living room where the drugs were found and that he never saw crack or other illegal materials in the apartment and was unaware that such items were present.

Claimant was unable to make bail following his arrest and consequently was confined to the Albany County Jail until his release was secured by writ upon the prosecution's failure to obtain an indictment within 45 days of his incarceration

Claimant testified that he rejected the District Attorney's offer of one year in the county jail because he was not guilty of the charges even though he was aware that if convicted of a Class B felony he would be subject to a minimum sentence of 12 ½ - 25 years in prison. Claimant was initially sent to Downstate Correctional Facility and then to other various State facilities where he received drug and alcohol treatment. At one point during his incarceration claimant was released on a work release program but was returned to a State correctional facility after violating the terms and conditions of his release by using cocaine. He served the full 3 ½ year minimum sentence.

On cross-examination claimant admitted that he had a longstanding problem with drug and alcohol abuse, that his drug of choice was cocaine and that he was a cocaine user in December, 1992. Claimant estimated that on the evening in question he left the Twilight Lounge and became involved in the fight between 7:00 and 8:00 p.m. He then went to Shawn Steele's apartment at 6 Delaware Street where he washed up and went to sleep. He alleged that he had never been to 6 Delaware Street
before that evening and that he only knew Shawn Steele from the bar. Despite his admitted drug use claimant denied that he had "done coke" with Shawn Steele and denied any knowledge of an undercover crack sale which, according to Exhibit 3, occurred at 10:07 p.m. on the night of December 15, 1992 at 6 Delaware Street, Apartment 2; a time when claimant admits he was present in the apartment. He also acknowledged on cross-examination that on the night in question he lived four or five blocks away from 6 Delaware Street and that it would have been just as easy for him to have gone to his home on Morton Avenue as it was to go to 6 Delaware Street. Claimant acknowledged that he was alone in the apartment with drugs and cash when found there by police. Claimant alleged that he fell asleep within ten to fifteen minutes of arriving at the apartment and that he was never in the living room and never saw the TV on top of which the police alleged drugs and drug paraphernalia were in plain view. He testified that he did not file charges with the police against his alleged assailants because he did not know who they were. When questioned, claimant denied that the fight was related to a drug deal. Claimant admitted that at his trial on the underlying charges he did not request his lawyer to call as witnesses the Twilight Lounge bartender or the woman with whom he allegedly lived at the time of his arrest. He acknowledged prior convictions for criminal mischief, possession of stolen property and attempted burglary.
The primary evidence offered to establish claimant's entitlement to relief consisted of the claimant's own testimony and, thus, any such determination must necessarily turn upon issues of credibility. It is difficult for the Court to credit the claimant's testimony that as a habitual drug user claimant would have innocently gone to Shawn Steele's apartment, a place under surveillance for drug trafficking, for the sole purpose of washing up after a fight and that while there he did not notice any drugs or any of the paraphernalia used in drug sales including ziploc baggies, manila envelopes, heat sealers, a stamp and a mini torch which allegedly were in plain view and were seized pursuant to the no-knock search warrant executed at the time of claimant's arrest. It is also unlikely, as claimant testified, that Shawn Steele would have allowed a relatively unknown person to occupy his apartment containing a significant quantity of illegal drugs and cash while Steele was not present. It is, therefore, just as likely that claimant and Steele were more than casual acquaintances and that claimant knew of the presence of the illegal drugs and paraphernalia which were seized from the apartment at the time of his arrest. While the proof offered at his criminal trial may have been legally insufficient to establish his constructive possession of a controlled substance beyond a reasonable doubt his somewhat incredible testimony, standing alone, does not meet the clear and convincing evidentiary standard required to establish both his innocence of the charge of possession of a controlled substance in the fifth degree and that he did not by his own actions cause or bring about his conviction as mandated by Court of Claims Act § 8-b (
see, Vasquez v State of New York, 263 AD2d 539). The reversal of claimant's conviction of the charge and the dismissal of the indictment by the Appellate Division is not prima facie proof of innocence and the absence of other facts establishing the claimant's innocence by clear and convincing evidence must result in the dismissal of the claim (see, Vasquez v State of New York, supra; Reed v State of New York, 78 NY2d 1). The provisions of Court of Claims Act § 8-b are to be strictly construed (Fudger v State of New York, 131 AD2d 136, supra) and proof which is "equivocal and open to opposing inferences" is inadequate to sustain the heavy burden of proof required to establish liability (Alexander v State of New York, 168 AD2d 472).
Additionally, claimant's consistent protestations of his innocence and rejection of favorable plea bargain offers testified to by both claimant and his attorney in this case have been found insufficient to establish claimant's innocence for purposes of Court of Claims Act § 8-b (
Hubener v State of New York, Ct Cl, March 26, 1996 [Claim No. 77675] Corbett, J., unreported; Lane v State of New York, Ct Cl, November 18, 1993 [Claim No. 79481] Weisberg, J., unreported).
For the reasons set forth above the Court finds claimant has not sustained his burden of proof on the claim and the claim must, therefore, be dismissed.

The Clerk is directed to enter Judgment in conformity with this decision.

July 13, 2001
Saratoga Springs, New York

Judge of the Court of Claims

[1]The jury acquitted claimant of the charge of criminal possession of a controlled substance in the third degree (a Class B felony).