New York State Court of Claims

New York State Court of Claims

WOODLEY v. THE STATE OF NEW YORK, #2002-013-024, Claim No. 98161, Motion No. M-65047


Claim for unjust conviction and imprisonment (Court of Claims Act §8-b) is dismissed on the ground that part of the underlying conviction was vacated and two counts of the indictment were dismissed pursuant to CPL 210.40 ("in the interest of justice"), which is not one of the statutory provisions enumerated in Section 8-b.

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:
Defendant's attorney:
Attorney General of the State of New York
BY: JANET L. POLSTEIN, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
June 10, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


On May 20, 2002, oral argument was heard and the following papers were read on Defendant's motion for an order of dismissal or, alternatively, for an order of preclusion:
  1. Notice of Motion and Supporting Affirmation of Janet L. Polstein, Esq. ("Polstein Affirmation"), with Annexed Exhibits
  1. Affirmation in Opposition of Harry H. Kutner, Jr., Esq. ("Kutner Affirmation"), with Memorandum of Law
  1. Reply Affirmation of Janet L. Polstein, Esq. ("Polstein Reply Affirmation")
  1. Filed Papers: Claim; Answer
This is a claim for unjust conviction and incarceration (Court of Claims Act §8-b). Claimant was originally indicted for two counts of criminal sale of a controlled substance (Counts 1 and 3), which related to a "buy" that took place on September 16, 1988, and two counts of criminal possession of a controlled substance (Counts 2 and 4), which related to another incident that occurred on October 26, 1988 (Claim, Exhibit 1). At the criminal trial, an audiotape record of the October 26 incident was introduced into evidence, and one of the undercover officers identified the seller's voice as Claimant's. The audiotape related only to the October 26, 1988 incident, but the police officer present during both sales testified at Claimant's criminal trial that the same person sold drugs to him on September 16.

Claimant was subsequently convicted of the criminal sale counts (1 and 3)[1] and sentenced to concurrent, indeterminate terms of incarceration of ten to twenty years. He was then incarcerated on these charges from August 17, 1990 to March 12, 1998. His release in March 1998 came about after another individual, Jeffrey Houpe, identified the voice on the police tape as his own and confessed to selling and possession of controlled substances in the area at the time in question. Houpe also successfully passed a lie detector test.

Claimant's criminal convictions were vacated and the indictments dismissed by an order of Justice Michael F. Mullen, Suffolk County Supreme Court, dated March 12, 1998. Claimant had moved to vacate the judgment because of newly discovered evidence (Criminal Procedure Law [CPL] 440.10[g]). Upon consideration of the submissions on that motion, Justice Mullen issued the following directive:

IT IS HEREBY ORDERED that Counts Three and Four of Indictment 727-89 are dismissed pursuant to Criminal Procedure Law Section 440.10(g), and

IT IS FURTHER ORDERED, ... that Counts One and Two of Indictment 727-89 are dismissed in the interest of justice pursuant to Criminal Procedure Law Section 210.40.

This civil action for unjust conviction and imprisonment was brought by Claimant after dismissal of the charges against him.

Defendant now moves for an order dismissing this claim on the ground that because the dismissal of the indictment is based in part on CPL 210.40 (the interest of justice), it cannot support a cause of action under Court of Claims Act §8-b. In order to institute such a claim, Section 8-b(3)(b)(ii) of the statute requires that the claimant be pardoned upon the ground of innocence or 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 judgment of conviction was reversed or vacated, and the accusatory instrument was dismissed on any of the following grounds: [emphasis supplied]

The enumerated grounds are as follows:

A. CPL 440.10(1)(a) - lack of personal or subject matter jurisdiction

CPL 440.10(1)(b) - duress, misrepresentation, or fraud

CPL 440.10(1)(c) - false evidence

CPL 440.10(1)(e) - incapacity of defendant

CPL 440.10(1)(g) - newly discovered evidence

B. CPL 470.20(1) - reversal, if based on one of the grounds in (A), and a new trial

CPL 470.20(2) - reversal on grounds of legal insufficiency and entire accusatory instrument must be dismissed

CPL 470.20(3) - modification of judgment for legal insufficiency and dismissal of one count, if count dismissed was sole basis of imprisonment

CPL 470.20(5) - reversal or modification as against the weight of the evidence, accusatory instrument must be dismissed

C. comparable provisions of former Code of Criminal Procedure

D. the criminal statute, or application thereof, violated the state or federal constitutions

The Court of Appeals has held that an action for unjust conviction may be maintained where a conviction is reversed for any reason -- even if it is not one of the grounds enumerated in the statute -- as long as the criminal defendant is subsequently retried and acquitted (Ivey v State of New York, 80 NY2d 474, 479-480 ["Although an acquittal is not, ipso facto, equivalent to a determination of innocence, generally or for purposes of this remedial statute [citation omitted], it is a useful and relevant indicator of innocence, just as the grounds enumerated in the proviso clause are" (accord Rivers v State of New York, 152 Misc 2d 332, 334 ["While this clause can be read as requiring that the reversal have been under one of the statutes listed therein even after an acquittal on retrial, case law has held to the contrary"] and Ferrer v State of New York, 136 Misc 2d 218, 222 affd on opn below 136 AD2d 487 [lst Dept] ["reversal or vacatur on a specified ground is required only when there is also a dismissal"]).

Where, however, there has not been a retrial and acquittal, a conviction must be reversed or vacated on an enumerated ground for any unjust conviction claim, and courts may not even consider the issue of innocence in such a situation. In Tyson v State of New York (182 Misc 2d 707, affd on opn below 280 AD2d 934, lv denied 96 NY2d 714), Judge Donald J. Corbett, Jr. provided extensive background of the statute's development to show that the Legislature specifically selected the enumerated grounds as those that were most clearly indicative of innocence.

On the other hand, there is a conflict between the Appellate Divisions as to whether a Section 8-b claim can be maintained when the judgment of conviction is reversed or vacated on one of the grounds enumerated in the statute, but the accusatory instrument is then dismissed "in the interest of justice" or for some other unapproved ground. In Dozier v State of New York (134 AD2d 759), the Third Department held that where a conviction was vacated on an "approved" ground, the "statutory requirement concerning the disposition of the conviction and underlying charge" has been satisfied and, thus, that a subsequent dismissal of the accusatory instrument in the "interests of justice" does not bar a Section 8-b claim. The First Department has adopted a similar approach, holding that "the enumerated grounds refer only to the vacatur (or reversal), and the subdivision is satisfied as long as the dismissal is "clearly predicated" on the prior order vacating the judgment" (Coakley v State of New York, 225 AD2d 477, citing to Dozier (supra). In contrast, the Second Department requires that both the vacatur (or reversal) and the dismissal be on one of the enumerated grounds. In Stewart v State of New York (133 AD2d 112, lv denied 72 NY2d 807), that court dismissed a Section 8-b claim because, among other reasons, it failed to contain information establishing that the "accusatory instrument was dismissed on any one of the limited grounds enumerated under Court of Claims Act §8-b(3)(b)." This holding has been interpreted as requiring that "the dismissal on remand, regardless of the basis for the reversal at the appellate level, must also have been on one of the enumerated statutory grounds" (Gordon v State of New York, 141 Misc 2d 242, 247; see also Pough v State of New York, 153 Misc 2d 490, [Stewart requires that the basis for the dismissal must also satisfy Section 8-b(3)(b)(ii)]).

The instant claim arose in the Second Department, and Defendant argues that the cases cited above are absolutely controlling and require that this claim be dismissed. In opposing the motion, counsel for Claimant is, in effect, urging this Court to adopt the approach taken in the First and Third Departments. Were this issue clearly before me, it would be tempting to do so, for, as former Judge Gerard M. Weisberg observed in Gordon v State of New York (141 Misc 2d 242), the statutory language is most reasonably read "as providing that if the reversal or vacating was on approved grounds, the subsequent dismissal at the trial court level could have been for any reason."

That issue may not be reached, however, depending on the precise grounds on which Justice Mullen vacated Claimant's conviction and dismissed all four counts of the indictment. The March 12, 1998 order did not expressly state the grounds for vacating the conviction, and it can easily be read to hold the entire judgment of conviction vacated on an approved ground. The order recites that the ruling is made in response to Claimant's (or, in that proceeding, Defendant's) "Motion to Vacate Judgment pursuant to Criminal Procedure Law Section 440.10(g)" and states that the District Attorney joined in the application. The ground for dismissal of the indictment was given and is quoted above. If, in fact, the conviction was vacated on an approved ground, at least in the First and Third Departments, it would be necessary to inquire further to determine if the dismissal "in the interest of justice" was predicated on the newly discovered evidence.

It turns out, however, that the March 1998 order was not the final word on the relevant issue in this case. In connection with oral argument on this motion, a subsequent ruling by Justice Mullen came to light, one that conclusively disposes of the claim. This order was issued on March 16, 2001 in response to Claimant's motion for "renewal, reargument or resettlement" of the March 1998 order. Specifically, Claimant sought to change the language of that earlier order "to read that the counts involving the September transaction were dismissed because the defendant was ‘innocent' of that crime." In describing the background of the application, Justice Mullen explained the basis for the original vacatur and dismissal of charges as follows:

At the point this evidence [of Houpe's complicity in the October crime] was discovered, defendant had been incarcerated for more time than he would have received had he been convicted of only one transaction. Both sides agreed that an equitable, and perhaps creative, means of releasing defendant from custody had to be fashioned.

In an effort to craft an appropriate remedy, the People proposed a hybrid vacatur/dismissal in the interest of justice application. Ultimately, pursuant to that application, the counts of the indictment involving the October sale were dismissed by the aforementioned order of this Court, essentially on the grounds that evidence had come to light which created a probability that the verdict would have been different. Those counts involving the September incident were also dismissed, but on the ground that defendant had served a longer sentence than he would have had he only been convicted of that crime, i.e., in the interests of justice. [Emphasis supplied.]

Claimant's argument that the language of the original order should be changed was characterized by Justice Mullen as seeking "exoneration by implication," because during the criminal proceeding the District Attorney had argued forcefully that both the September and October crimes had been carried out by the same person. In opposition to the 2001 motion, however, the District Attorney pointed out that the two separate crimes involved different witnesses and that descriptions given by the buyers were different. In other words, the prosecutors did not concede that Claimant was innocent of the September crime. Noting that the motion under consideration did not empower the court to make new findings of fact in order to reach a determination as to guilt or lack of guilt, Justice Mullen denied the motion to resettle his earlier order.

In short, while Claimant's conviction relating to the October 1988 crime was vacated because of newly discovered evidence, the decision to dismiss the charges relating to the September 1988 crime was not predicated on any likelihood of innocence but, rather, on the fact that, even if he were retried and convicted on that charge, he had already served the maximum sentence that could be imposed. There is no division of authority as to whether a dismissal on this ground can give rise to a claim for unjust conviction: it cannot (see Pough v State of New York, 153 Misc 2d 490, 494, supra, affd 203 AD2d 543 [dismissal on the ground that the maximum sentence has been served "does not evidence innocence" and would not support a claim even under the more lenient rule]).

Defendant's motion is granted and the claim is dismissed.

June 10, 2002
Rochester, New York

Judge of the Court of Claims

  1. [1]Counts 2 and 4 were merged into the more serious offenses by operation of law.