New York State Court of Claims

New York State Court of Claims

GREEN v. THE STATE OF NEW YORK, #2002-016-040, Claim No. 103718, Motion Nos. M-64011 , CM-64124


Unjust conviction claim dismissed as unlikely to succeed at trial.

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:
Patricia Weiss, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Albert E. Masry, AAG
Third-party defendant's attorney:

Signature date:
April 15, 2002
New York

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant by this motion seeks summary judgment against, or dismissal of, the claim of Gary Alan Green. For his part, claimant cross-moves for summary judgment on liability, requesting also that several of the affirmative defenses be stricken. Underlying these contending motions is Mr. Green's claim under the Unjust Conviction and Imprisonment Act of 1984, §8-b of the Court of Claims Act.

On April 6, 1996, Green was arrested during a traffic stop by police officers of the Village of East Hampton. He was charged with two crimes, both misdemeanors: i) aggravated unlicensed operation of a motor vehicle in the second degree (Vehicle and Traffic Law §511.2); and ii) resisting arrest (Penal Law §205.30). Green was convicted after a jury trial in the Justice Court of the Town of East Hampton, sentenced to a term of imprisonment and probation, and was released after being incarcerated for over five weeks (def affirm, exh A [¶13 of the claim]). The convictions were reversed on October 24, 2000 by Appellate Term, ruling that there were insufficient factual allegations (i.e., non-hearsay) supporting the informations which served as the accusatory instruments, citing People v Alejandro, 70 NY2d 133, 517 NYS2d 927 (1987). The decision of Appellate Term was not a decision on the merits and in no way implicated innocence of the crimes charged. Def affirm, exh D.

This narrative properly begins nearly six months before claimant's April 6, 1996 arrest. While driving on October 13, 1995, Green was stopped by the police and refused to take a blood alcohol test. Under section 1194 of the Vehicle and Traffic Law, such refusal results in the immediate suspension of the driver's license pending a hearing to test whether the traffic stop was proper and the officer gave clear warning as to the consequences of the refusal. If so, a minimum six-month revocation is imposed.

The hearing was conducted on October 26, 1995 and Green attempts to place in issue whether he ever received the results of that hearing by mail. Nonetheless, claimant submitted a letter from the Department of Motor Vehicles dated November 3, 1995, which provided in part that: "Our records show that the suspension(s) on your driver license record has been cleared and you may be eligible to reapply for a driver's license... you need to apply in person at a motor vehicle office to have a new license issued..." Green's Affidavit, exh 1.

At the time, he undeniably did not have a license to drive. In his Affidavit (¶5), describing what happened when he went down to the local DMV office on November 15, 1995:
I told the DMV employee Anna Patterson about the revocation hearing that occurred about 3 weeks earlier and discussed my answer to the questions, answering "yes" that my license had been suspended or revoked and "no" I had not since been issued a new license.
After waiting for what claimant recalls as 15 to 20 minutes, Ms. Patterson presented him with what he enclosed as exhibit 3 to his Affidavit. Dated that day, November 15, 1995, it is in two parts. Part one is entitled at the top, "INTERIM LICENSE." This is the only portion with a signature line, and Green signed it. Just above his signature is a line reading: "EXPIRES: 02/13/96." The second part is the Record of Conviction and at the top is the line: "Expiration Date: 8/04/00"

The parties expended some effort on whether claimant actually received what defendant maintains was a revocation notice resulting from the October 26, 1995 hearing. It is unnecessary to reach this issue. Claimant, as noted, concedes that as of his November 15, 1995 personal appearance in an office of DMV, he had no driver's license and when stopped by the police on April 6 submitted what was given to him on November 15.

The license issued on November 15 contained an expiration date some 90 days later on February 13, 1996 just above his signature. Claimant's assertion that this license, denominated as an interim one, would actually be good for another four years and nine months simply because the record of convictions stub contains an August, 2000 expiration date does not take him outside the purview of the crime of aggravated un-licensed operation of a motor vehicle in the second degree - - involving an individual operating "a motor vehicle upon a public highway while knowing or having reason to know " that his or her license has been revoked, suspended or otherwise withdrawn by the DMV. (Vehicle and Traffic Law §511.1 [a]).[1] Claimant supplies no authority to argue otherwise.

Under §8-b.5(c) of the Court of Claims Act, a claimant seeking redress for unjust conviction and imprisonment must, among other things, prove by clear and convincing evidence that he did not commit any of the acts charged in the accusatory instruments, which Mr. Green will unquestionably be unable to do for the charge of unlicensed vehicular operation. Claimant thus cannot show a likelihood of success at trial, and consequently, per subdivision four of §8-b, his claim must be dismissed. See Britt v State of New York, 260 AD2d 6, 699 NYS2d 323 (1st Dept 1999).
Accordingly, and having reviewed the submissions of the parties[2], the motion of defendant (M-64011) for summary judgment is granted, the cross-motion (CM- 64124) of claimant is denied, and the claim of Gary Alan Green (no. 103718) is dismissed.

April 15, 2002
New York, New York

Judge of the Court of Claims

[1] This crime in the second degree is the same as in the third degree, but has been increased a degree for a second-time offender. V & T §511.2

[2] Submissions reviewed: 1) from defendant, a Notice of Motion together with an Affirmation and exhibits A through L, and a Reply Affirmation containing exhibits A through D. 2) from Claimant, a Notice of Cross Motion including a Memorandum of Law with one exhibit, and Claimant's Affidavit with exhibits 1 through 4; and following oral argument of these motions on January 14, 2002, copies of the two misdemeanor Informations submitted by letter dated January 26, 2002.