New York State Court of Claims

New York State Court of Claims

DUVAL v. THE STATE OF NEW YORK, #2002-013-034, Claim No. 105548, Motion Nos. M-64867, M-65282, CM-65283


An unjust conviction claim is dismissed, as it is unlikely that Claimant will be able to prove his innocence at trial and, in any event, Claimant's uncoerced confession contributed to his conviction.

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):
M-64867, M-65282
Cross-motion number(s):
Claimant's attorney:
Defendant's attorney:
Attorney General of the State of New York
BY: THOMAS G. RAMSAY, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
October 4, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


On June 19, 2002, oral argument was heard and the following papers were read on Claimant's motion to admit an out-of-state attorney (M-65282),[1] Defendant's motion for an order of dismissal (M-64867), and Claimant's cross-motion for an order directing Defendant to answer the claim (CM-65283):
  1. Notice of Motion to Admit out-of-state Attorney, Supporting Affirmation of Michael Warren, Esq., with Attachments and Exhibits
  1. Notice of Motion to Dismiss and Supporting Affirmation of Thomas G. Ramsay, Esq., with Annexed Exhibits
  1. Claimant's Response to Motion to Dismiss with Supporting Affirmation of Gilda Sherrod-Ali, Esq. and Annexed Exhibits
  1. Reply Affirmation in Support of Motion to Dismiss of Thomas G. Ramsay, Esq., with Annexed Exhibit
  1. Additional Reply Affirmation of Gilda Sherrod-Ali, Esq.
  1. Supplemental Affirmation in Support of Motion to Dismiss of Thomas G. Ramsay, Esq.,with Annexed Exhibits
  1. Affirmation in Response to Additional Motion to Dismiss of Gilda Sherrod-Ali, Esq.
  1. Sur Reply Affirmation of Thomas G. Ramsay, Esq.
  1. Filed Papers: Claim
This is a claim for unjust conviction and imprisonment (Court of Claims Act §8-b). In 1973, Claimant was arrested, tried and convicted of first degree manslaughter, murder, first degree robbery, and third degree grand larceny in connection with the death of one Timothy Hayworth.[2] Claimant was sentenced on December 31, 1973, and his criminal conviction was subsequently affirmed (People v Duval, 46 AD2d 739). On April 5, 1999, however, Monroe County Court Judge David D. Egan granted Claimant's CPL 440.10 motion and vacated the conviction, holding that the prosecution had failed to disclose exculpatory material at the time of the original trial (see, People v Rosario, 9 NY2d 286).[3] Claimant was later retried, and this time he was acquitted.

This claim was filed within two years after the acquittal. A
n unjust conviction claim may be maintained by an individual whose original conviction was reversed or vacated for any reason, not just the reasons enumerated in Court of Claims Act §8-b(3)(b)(ii), if that individual was subsequently retried and acquitted (Ivey v State of New York, 80 NY2d 474). Defendant argues, however, that Claimant has failed to meet the requirements of another part of the statute, Subdivision 4:
The claim shall state facts in sufficient detail to permit the court to find that claimant is likely to succeed at trial in proving that (a) he 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 against the state, and (b) he did not by his own conduct cause or bring about his conviction.... If the court finds after reading the claim that claimant is not likely to succeed at trial, it shall dismiss the claim, either on its own motion or on the motion of the state. [emphasis supplied]
Claimant contends that he performed none of the acts of which he was accused and, further, that his action in confessing to the crime and in claiming that he knew the location of a vital piece of evidence were not voluntary and, thus, as a matter of law did not contribute to his conviction.

Judicial Estoppel

Defendant asserts that Claimant is judicially estopped from attempting to prove that he was innocent of the acts charged because, after his conviction and incarceration, he acknowledged his guilt before a tribunal on two occasions. At Parole Board hearings held on May 9, 1995 and on May 1, 1997, Claimant admitted that he was responsible for Hayworth's death and that he had been attempting to rob him at the time. Defendant argues that "[u]nder the doctrine of judicial estoppel, or estoppel against inconsistent positions, a party is precluded from adopting a position directly contrary to or inconsistent with an earlier assumed position in either the same proceeding or in a prior proceeding" (Ramsay Affirmation, ¶23).

Defendant's characterization is correct as far as it goes. For the doctrine of judicial estoppel to apply, however, the party who is to be precluded from taking an inconsistent position must have been successful in the earlier proceeding, and there must have been some type of judicial ruling, recognition or implicit approval of the position originally taken (57 NY Jur 2d, Estoppel, Ratification and Waiver, §54).
First, the doctrine seeks to preserve the sanctity of the oath by demanding absolute truth and consistency in all sworn positions. Preserving the sanctity of the oath prevents the perpetuation of untruths which damage public confidence in the integrity of the judicial system. Second, the doctrine seeks to protect judicial integrity by avoiding the risk of inconsistent results in two proceedings.
* * *

By focusing on the rationales behind judicial estoppel, the elements of the doctrine become clear. First, the party against whom the estoppel is asserted must have argued an inconsistent position in a prior proceeding; and second, the prior inconsistent position must have been adopted by the court in some manner.

(Bates v Long Is. R.R. Co.
, 997 F2d 1028, 1038 [2d Cir.], cert denied 510 US 992.)

In the instant case, neither party has indicated whether Claimant's statements to the Parole Board were made under oath and, more to the point, his statements did not bring him any success in those proceedings. Nor were they adopted, expressly or implicitly, by the tribunal. Consequently, judicial estoppel does not apply in this situation.

Collateral Estoppel

Defendant's next argument is that Claimant is collaterally estopped from asserting his innocence because that issue was ruled on, on the merits, in an earlier Federal Court action. In that action, Claimant sued a newspaper reporter for, among other things, writing false information in a published article. In the article, the reporter had referred to Claimant as "beginning to understand his homosexuality which he admits led to murder." The Federal action was resolved by a voluntary stipulation of withdrawal to which the parties executing the document agreed that "this dismissal will result in a final adjudication on the merits and that no other actions may be brought in this or any other Federal Court."
Collateral estoppel, together with its related principles, merger and bar, is but a component of the broader doctrine of res judicata which holds that, as to the parties in a litigation and those in privity with them, a judgment on the merits by a court of competent jurisdiction is conclusive of the issues of fact and questions of law necessarily decided therein in any subsequent action.

(Gramatan Home Investors Corp. v Lopez, 46 NY2d 481, 485.) The doctrine applies if the issue in question was "raised, necessarily decided and material in the first action," and if the party "had a full and fair opportunity to litigate the issue in the earlier action" (Parker v Blauvelt Volunteer Fire Co., 93 NY2d 343, 349). In this instance, the question of Claimant's guilt or innocence of the murder charges was neither raised, "necessarily" decided, nor even material to the Federal action, because that action related to the reporter's right to publish information obtained in a conversation with Claimant and his accuracy in doing so. Collateral estoppel is inapplicable here.

Pleading Requirements for Court of Claims Act §8-b

Subdivisions (5)(c) and (5)(d) of the statute requires that the Claimant prove by clear and convincing evidence that "he did not commit any of the acts charged in the accusatory instrument" and that "he did not by his own conduct cause or bring about his conviction." Subdivision (4) provides that if, after reading the claim, the court finds that the Claimant "is not likely to succeed at trial" in proving each element of the cause of action, the claim shall be dismissed.

Establishing Claimant's Innocence

A claimant's subsequent acquittal on retrial cannot meet the burden of establishing that a claimant is likely to succeed in proving his innocence at trial in the Court of Claims. "The People's inability to satisfy their burden of proof at the criminal trial is simply not equivalent to the requirement of Court of Claims Act § 8-b(4) that claimant state facts sufficient to support a finding that she is likely to succeed in proving that she did not commit the acts with which she was charged" (Reed v State of New York, 78 NY2d 1, 9; see also, Piccarreto v State of New York, 144 AD2d 920). In Reed (supra), the claim stated, without elaboration, that claimant "did not commit any of the acts charged in the aforesaid indictment" and there was a statement in her attorney's affirmation that the conviction had been reversed because of insufficient evidence of her guilt. The attorney referred to this as the "functional equivalent of an acquittal and thus tantamount to being found innocent," but the Court rejected this argument, adding:
Our reading of the plain language of the statute is further buttressed by the legislative history of Court of Claims Act § 8-b, particularly the report of the Law Revision Commission. As the Commission noted, "the mere statement that one's conviction has been reversed or vacated will not establish a prima facie case. In addition to the fact of reversal or vacating, it will still be necessary to state facts which will establish innocence; failure to do so will result in dismissal of the claim." (1984 Report of NY Law Rev Commn, 1984 McKinney's Session Laws of NY, at 2929.) The Commission anticipated that most claims would not survive a motion to dismiss (id., at 2930). It acknowledged that putting the burden of proof on claimant "places one in a difficult position" of proving a negative, but the Commission believed it was appropriate to do so (id., at 2931).
(Reed v State of New York, 78 NY2d 1, supra at 10.)

In reviewing the pleadings and supporting papers, the Court must accept, for purposes of this motion, that Claimant would be able to succeed in proving every factual statement that could arguably support the conclusion that he committed none of the acts with which he was charged (Dozier v State of New York, 134 AD2d 759; Grimaldi v State of New York, 133 AD2d 97). It is then necessary to determine whether, if proven, those facts would make it likely that he would succeed in convincing the trier of fact that he did not commit any of the acts charged.

Timothy Hayworth, a visitor from out of town, was assaulted, robbed, and left to die of his wounds at approximately 2:00 a.m. on May 25, 1973 in the area behind 214 West Main Street in Rochester. Two days later, on May 27, Claimant was asked to go to police headquarters for questioning and he did so voluntarily several times. The first time was around 2:30 a.m., when he was approached by a police detective at Nick Tahou's Restaurant. He returned to the police station, as directed, at 7:00 a.m. and then again at 9:00 p.m. On that occasion, Claimant was taken into custody and, at 3:10 a.m on May 28, he was placed under arrest. Later testimony by one of the police officers conducting the questioning established that as late as 1:30 a.m., and perhaps later, Claimant was continuing to maintain his innocence.

At 10:30 a.m. that morning, he signed a confession. He did this, it is alleged in the instant claim, only because he was physically coerced into doing so and after being confronted with two witnesses, Jon Jackson and Wayne Wright, who were also (allegedly) coerced into making statements that implicated Claimant and his alleged confederate, Betty Tyson. Tyson herself had signed a confession to her part in the murder (also allegedly under compulsion). Jackson, Wright and Tyson all subsequently changed their statements and said, instead, that they never saw Claimant with the victim. Sometime after signing his confession, Claimant informed police that he knew the location of the victim's wallet and went with them to the home of Tyson's boyfriend, where they searched unsuccessfully for the wallet. It is alleged now that he went through these motions in order to avoid further beatings and abuse.

Claimant's account of his actions during the early morning hours of May 28 is summarized by his attorney in a footnote on page 8 of the claim:
At approximately 2:00 A.M., Claimant was at Nick Tahou's Restaurant with Betty Tyson. He had a conversation with Tyson at her car, and proceeded into Nick Tahou's to purchase a can of soda and cigarettes for Tyson. As he went inside the restaurant, he saw Jon Jackson and Wayne Wright with four white men. One of the white men gave him [Claimant] 50 cents to buy the soda and cigarettes. When he returned to Tyson's car, the Claimant saw one of the white men talking to Tyson. Tyson departed with the man to turn a trick. After Tyson departed, Claimant proceeded into Nick's Tahou's [sic] Restaurant with Jackson and Wright.

Claimant's counsel indicates that this account came from Claimant's October 1973 trial testimony (Claim, Exhibit 18), but counsel for Defendant asserts -- with no subsequent denial from Claimant's counsel -- that that testimony in question was actually from a Huntley hearing held that same month (Ramsay Affirmation, Document 2, ¶42). In that testimony, Claimant also stated that he was with Tyson and had given her the cigarettes and pop at about 2:10 a.m., after which time she left with a trick and he accompanied Jon Jackson ("Twiggy") to the Holiday Inn for a 2:30 a.m. assignation with a businessman.

In the portion of a transcript identified as Claimant's trial testimony (id, Exhibit C), however, he made no mention of having seen Tyson at Nick Tahou's at 2:00 a.m., stating only that around that time he went to Tahou's to meet Jackson and Wright and almost immediately departed with Jackson ("Twiggy") to the Holiday Inn for the 2:30 a.m. trick. In this account, he placed the conversation with Tyson about getting pop and cigarettes at approximately 3:40 a.m. or 3:45 a.m., after he had returned to Tahou's a second time.

The confession signed by Claimant on May 28 (Ramsay Reply Affirmation, Document 4, Exhibit A) has Claimant sitting with Tyson in a car in front of Tahou's, and then going inside to get her pop and cigarettes, at 2:00 a.m. When he returned with those items, a man (the victim) was talking to Tyson and agreed to purchase the services of two "girls," Tyson and Claimant. He stated that they were gone from Tahou's for a period of 15 or 20 minutes, during which time they had sex with the man and beat and robbed him. According to this confession, he and Tyson then went back to the restaurant and, after Tyson gave Claimant $40 from the victim's wallet, he went into the restaurant and met up with Jackson and Wright.

The Court has not been presented, in any of the numerous submissions made on this case, with a contemporaneous personal affidavit or other statement from Claimant in which he affirmatively recounts the facts that he intends to prove at trial of this action to establish his innocence. While such an affidavit may not be required in all instances, the cases on which Claimant relies establish that "the actual specificity required must be a sui generis determination based on the particular situation presented" (Moses v State of New York, 137 Misc 2d 1081, 1084); that the Court must be presented with factual allegations "of such a character that if believed would clearly and convincingly establish the elements of the claim" (id); and that a claimant's burden cannot be met by evidence that is "loose, equivocal or contradictory" (id). In Moses, the Court held that "more than a one-sentence assertion of innocence is required to satisfy the pleading requirements of the statute and justify a trial" (id., at 1085). In the instant case, in light of the contradictory accounts of events presented by Claimant himself at the time of the crime, at the Huntley hearing, and in the original trial, more is required than a one-sentence summary of one of those accounts, which comes from Claimant's counsel and not Claimant himself. In these circumstances, that is simply insufficient to establish a high probability that at trial Claimant will be able to prove by clear and convincing evidence that he was entirely innocent of the crime charged (see also, Lluveras v State of New York, 136 Misc 2d 171, 175 ["absence of any sufficiently detailed facts of the circumstances of the alleged crimes and claimant's innocence of them precludes finding compliance with" the pleading requirement].)

The Effect of Claimant's Confession

Claimant's confession was presented to the jury that convicted him in October 1973, and it is reasonable to assume that it played a significant role in convincing them to convict him. Giving an uncoerced confession of guilt, even though it is untrue and illegally obtained, has been recognized as behavior that contributes to a person's own conviction and thus prevents him from recovering under the unjust conviction statute (Ausderau v State of New York, 130 Misc 2d 848 affd on op below 127 AD2d 980, lv denied 69 NY2d 613). In fact, "falsely giving an uncoerced confession of guilt" is one of the examples of such conduct given by the Law Revision Commission when the statute was originally enacted (1984 Report of NY Law Rev Commn, 1984 McKinney's Session Laws of NY, at 2932, ¶3).

Counsel for Claimant argues that Ausderau is inapplicable here because in this instance Claimant's confession was coerced, but that is not a determination that this Court can make. That issue has already been considered and ruled upon, after a hearing, by a coordinate court with jurisdiction to make such determinations. On October 9, 1973, at the conclusion of the Huntley hearing, Monroe County Court Judge Donald J. Mark concluded, among other things, that Claimant's oral admissions made on the morning of May 28, 1973 "were made voluntarily and that he was not under the influence of fear produced by threats, coercion or force" (Ramsay Supplemental Affirmation, Exhibit A, 6th page). The conduct of that Huntley hearing was later challenged by Claimant and upheld by the United States District Court for the Western District of New York in a habeas corpus proceeding (id., Exhibit B).

At the second trial, the confession was offered and received into evidence without any objection from Claimant, although he continued to maintain that it had been coerced. I cannot make the leap urged by Claimant's counsel and conclude that, by finding Claimant not guilty, the second jury necessarily found that the confession had been coerced. Setting aside the issue of whether such a jury determination would "overrule" the prior ruling, the members of the jury may simply have concluded that the confession was untrue, whether or not it had been coerced. In the circumstances presented here, the voluntariness of Claimant's confession is not something that this Court has the power to determine anew. Because the confession was previously held to be voluntary and because presentation of the confession at Claimant's first trial inevitably contributed to the jury's decision to convict him, his action for unjust conviction could not succeed.

Claimant's motion to admit an out-of-state attorney (Motion No. M-65282) is granted; Defendant's motion for an order of dismissal (M-64867) is granted and the claim dismissed; and Claimant's cross-motion for an order directing Defendant to answer the claim (CM-65283) is consequently denied.

October 4, 2002
Rochester, New York

Judge of the Court of Claims

  1. [1]Motion No. M-65282 was granted on June 19, 2002, prior to oral argument of the instant motions.
  2. [2]The Grand Jury indictment (Claim, Exhibit 2) contained five counts: manslaughter, felony murder, robbery resulting in serious injury, robbery using a dangerous instrument, and grand larceny.
  3. [3]Judge Egan's decision is annexed as Exhibit B to document 7.