Defendant's Pre-Answer Motion to dismiss 8-b claim.
|Claimant(s):||NATHANIEL T. GRADY|
|Claimant short name:||GRADY|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||ALTON R. WALDON, JR.|
|Claimant's attorney:||Thomas T. McVann, Jr., Esq.|
|Defendant's attorney:||Hon. Eliot Spitzer, Attorney General
By: Susan J. Pogoda and Janet L. Polstein, Assistant Attorneys General
|Third-party defendant's attorney:|
|Signature date:||April 1, 2003|
|Official citation:||6 AD3d 308 (1st Dept 2004)|
|See also (multicaptioned case)|
The following documents were reviewed by the Court on this motion: Defendant's Notice of Motion, Defendant's Affirmation with annexed Exhibits A-E, Claimant's Opposing Affirmation, Claimant's Opposing Affidavit, Claimant's Memorandum in Opposition with annexed Exhibits 1 and 2, Defendant's Reply Affirmation with annexed Exhibits A and B and the filed Verified Claim.
Defendant, the State of New York, brought this motion seeking an Order pursuant to Civil Practice Law and Rules (CPLR) R 3212 and Court of Claims Act (CCA) § 8-b dismissing the Claim. Claimant, Nathaniel T. Grady, opposes this motion.
Claimant filed his Verified Claim on December 9, 1999, in which he asserted a claim based on CCA § 8-b, the unjust conviction and imprisonment portion of the CCA. Claimant states that in October 1984 he was indicted in Supreme Court Bronx County on 42 counts charging that he had raped, sodomized and sexually abused six children, all three years of age, at the Westchester-Tremont Community Day Care Center. At the time of the alleged crimes, claimant was the newly appointed pastor to the Westchester United Methodist Church, which leased space to the Westchester-Tremont Community Day Care Center. At his criminal trial, claimant concedes that four of the children ultimately identified claimant as the person who attacked them. At the end of his criminal trial, the jury concluded that claimant had sexually assaulted five of the six children. Claimant was convicted on 19 of the 21 counts submitted to the jury. On May 1, 1986, the criminal court imposed consecutive aggregate sentences of three to nine years for a total sentence of fifteen to forty-five years in prison. On October 12, 1994, claimant filed a writ of habeas corpus with the United States District Court, Southern District of New York, based on an alleged violation of his Sixth Amendment right to effective assistance of counsel. On June 24, 1996, the District Court conditionally granted claimant's petition for a writ of habeas corpus. The District Court found that claimant was deprived the effective assistance of appellate counsel due to his former lawyer's failure to raise the duplicity of the indictment on direct appeal. Thus, the District Court held that the writ would be granted if claimant was not permitted to appeal his conviction and present his claim based on duplicity under Criminal Procedure Law (CPL) § 200.30 to the Appellate Division. On July 13, 1996, claimant was released on bail from the Fishkill Correctional Facility and was never imprisoned again. On September 23, 1997, the Appellate Division, First Department reversed claimant's conviction and dismissed the indictment against him.
CCA § 8-b(3) sets out certain criteria which a claimant must establish by documentary evidence in order to present a claim for unjust conviction and imprisonment. Defendant argues that the claim should be dismissed since claimant has failed to establish that the reversal of his conviction and the dismissal of the indictment fall within one of the enumerated grounds listed under CCA § 8-b(3)(b). Claimant contends that the judgment of conviction was reversed and the indictment was dismissed on two grounds which comply with the requirements of CCA § 8-b(3)(b): (I) the application of the statute on which the indictment was based violated both the United States Constitution and the New York State Constitution; and (II) that the court lacked all jurisdiction to have prosecuted claimant. The relevant portions of CCA § 8-b(3)(b) require claimant to establish by documentary evidence that, under subsection (ii)(A), the criminal conviction was reversed and the accusatory instrument dismissed based on paragraph (a), (b), (c), (e) or (g) of subdivision one of § 440.10(1) of the CPL or, under subsection (ii)(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."(1)
Defendant initially takes the position that the Federal District Court reversed claimant's conviction. However, the plain language of the District Court decision states that the Court would grant claimant's writ of habeas corpus unless claimant was permitted to appeal his conviction and present his claim based on duplicity under CPL § 200.30 to the Appellate Division. Claimant did appeal his conviction to the Appellate Division and in an Order dated September 23, 1997, the Court granted claimant's motion for summary reversal of his conviction and dismissal of his indictment. The Order of the Court is a terse three paragraph unreported decision which simply states, in pertinent part, "As the People correctly concede, dismissal of the indictment is required (People v Keindl, 68 NY2d 410)."
Claimant's first contention is that the application of the statute on which the indictment was based violated both the United States Constitution and the New York State Constitution, thus satisfying CCA § 8-b(3)(b)(ii)(D).
However, the Federal District Court reviewing claimant's writ of habeas corpus conditionally granted his petition unless claimant was permitted to appeal his conviction to the Appellate Division. Arguably, the Appellate Division dismissed claimant's indictment based on the failure of the indictment to comply with the requirements of CPL § 200.30. It is this Court's opinion that a faulty indictment in violation of a section of the CPL does not equate to an unconstitutional application of a statute in accordance with CCA § 8-b(3)(b)(ii)(D). When the Legislature enacted the Unjust Conviction and Imprisonment Statute it purposely refused to recognize CPL § 440.10(1)(h) as a sufficient predicate to bringing a claim. Subsection (h) allows a court to vacate a judgment which was obtained in violation of a right of the defendant under the Constitution of this State or of the United States. Thus, the Legislature recognized a distinction between an unconstitutional application of a statute and the range of constitutional rights encompassed under CPL § 440.10(1)(h). If this Court were to adopt claimant's position then CCA § 8-b(3)(b)(ii)(D) would essentially serve as a catch-all for a variety of perceived constitutional violations which more properly fall within CPL § 440.10(1)(h). Clearly, that was not the intent of the Legislature when it specifically prohibited claims premised on CPL § 440.10(1)(h) (Fudger v State of New York, 131 AD2d 136 [3d Dept 1987]). As has been repeatedly stated by courts reviewing this statute, this Court is bound to strictly construe the Unjust Conviction and Imprisonment Statute (Reed v State of New York, 78 NY2d 1 ; Groce v State of New York, 272 AD2d 519 [2d Dept 2000]). Application of the statute must be narrowly construed and in keeping with this strict standard this Court must find that claimant has failed to demonstrate, by documentary evidence or otherwise, that his claim falls within CCA § 8-b(3)(b)(ii)(D). Further, this Court finds that the facts presented before it in this matter more properly fall under the umbrella of rights covered by CPL § 440.10(1)(h).
Claimant's alternative position is that his claim satisfies CCA § 8-b(3)(b)(ii)(A) in that the indictment was defective thus depriving the criminal court of jurisdiction and falling within CPL § 440.10(1)(a). This raises the question as to whether a duplicitous indictment constitutes a jurisdictional defect or rather a due process violation which more appropriately falls within CPL § 440.10(1)(h). As claimant's counsel should be aware this issue was raised by claimant before Criminal Court Justice Fried during claimant's motion to vacate his conviction, pursuant to CPL § 440.10 (see People v Grady, NYLJ, April 16, 1991, at 24). At that time claimant argued, inter alia, that the indictment was void for duplicity and that a duplicitous indictment deprives a court of jurisdiction. id. Interestingly, claimant brought that motion pursuant to CPL § 440.10(1)(a) and CPL § 440.10(1)(h). id. The Criminal Court denied claimant's motion pursuant to CPL § 440.10(2) due to claimant's unjustifiable failure to raise the issue as part of his direct appeal. id. Claimant urged the Criminal Court to circumvent the statutory procedural bar claiming that a duplicitous indictment deprived the court of subject matter jurisdiction. id. Justice Fried declined to do so reasoning that
"an indictment, even if duplicitous (CPL § 200.30), though defective and subject to dismissal (CPL § 210.20), if it cannot be cured by amendment (CPL § 210.25), or by a bill of particulars (CPL § 200.95; People v. Davis, supra at 38), is not jurisdictionally infirm. See, People v. Caban, 129 A.D.2d 721 (2nd Dept., 1987); People v. Branch, 73 A.D.2d 230, 234 (2nd Dept., 1980); and People v. Nicholson, 98 A.D.2d 876 (3rd Dept., 1983). Indeed, in Nicholson, the Third Department analyzed People v. Fremd, 41 N.Y.2d 372 (1977), where the Court of Appeals declined to rule on whether a particular count was 'defective or void for duplicity', since there was no cross-appeal, and concluded that 'the necessary implication is that an objection based upon duplicity is not jurisdictional in nature.' Nickolson, supra at p. 876-7. Neither People v. Romero, 147 A.D.2d 358 (1st Dept., 1989) nor People v. Jones, - A.D.2d -, N.Y.L.J. 3/1/91, p.23, col. 3 (1st Dept.) hold that a duplicitous indictment is jurisdictionally defective. Both cases were decided on direct appeal, and although it appears that the duplicitous claims were not preserved for appellate review, the appellate court exercised its interest of justice jurisdiction to entertain the issue. Cf., People v. Stamen, - A.D.2d - 558 N.Y.S.2d 175 (2nd Dept. 1990); and People v. Tice, 147 A.D.2d 776, 778 (3rd Dept. 1989), lv. den. 74 N.Y.2d 748 (1989) declining to consider an unpreserved Keindl claim." id.
The Criminal Court also found unpersuasive claimant's
"contention that the Court of Appeal's statement in People v. Davis, supra, that a count in an indictment which charges more than one offense is 'void for duplicity,' stands for the proposition that a duplicitous indictment is a nonwaivable jurisdictional defect. Indeed in Davis, the Court in addressing a duplicitous indictment stated that such 'defect may be cured by reference to a bill of particulars supplementing the indictment.' Davis at p. 38. Thus, clearly, the Court was not using the word 'void' to mean a jurisdictional defect that deprives a court of the very competence to proceed but rather a defect that renders an indictment insufficient, although curable." id.
Claimant's appeal of Justice Fried's decision was denied by the Appellate Division in People v Grady, (175 AD2d 980 [1st Dept 1991]), and his application for leave to appeal was dismissed by the Court of Appeals in People v Grady, (78 NY2d 1127 ). Claimant offers nothing new to the arguments previously raised before Justice Fried. The additional cases cited by claimant do not speak to the issue of a duplicitous indictment.
Therefore, this Court finds that the appropriate section to which a duplicitous indictment pertains is CPL § 440.10(1)(h). Hence, claimant has failed to meet his burden of establishing that his claim satisfies CCA § 8-b(3) and thus his claim must be dismissed.
More importantly, even assuming, arguendo, that claimant had satisfied the requirements of CCA § 8-b(3), this Court finds that claimant has also failed to satisfy the stringent standard of a CCA § 8-b(4) review. Defendant had alternatively argued that the action should be dismissed since the claim does not comply with CCA § 8-b(4). Section 8-b(4) requires that the claim state facts in sufficient detail to permit the court to find that claimant is likely to succeed at trial in proving that, inter alia, he did not commit any of the acts charged in the accusatory instrument. Additionally, CCA § 8-b(4) directs that "[i]f 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." The Court of Appeals has long held that "suits against the State are allowed only by the State's waiver of sovereign immunity and in derogation of the common law, [and that because of this] statutory requirements conditioning suit must be strictly construed" (Dreger v New York State Thruway Authority, 81 NY2d 721,724 ). Specifically, as previously stated, the Court of Appeals has held that the requirements of the Unjust Conviction and Imprisonment Statute must be strictly construed (Reed v State of New York, 78 NY2d 1 ). Over the years since the statute was enacted, there has been extensive discussion of the standard of review required under CCA § 8-b(4). (Reed v State of New York, 78 NY2d 1 ; Britt v State of New York, 260 AD2d 6 [1st Dept 1999]; Vasquez v State of New York, 263 AD2d 539 [2d Dept 1999]; McFadden v State of New York, 151 AD2d 730 [2d Dept 1989], lv denied 74 NY2d 615 ; Fudger v State of New York, 131 AD2d 136 [3d Dept 1987]). However, even under the most liberal interpretation of the "likely to succeed at trial" standard, claimant's application must be deemed to have failed to meet that standard. This Court does not make that pronouncement lightly and is acutely concerned with the prospect of an innocent person wrongfully imprisoned for a day let alone years. However, claimant, through his Claim, has failed to show that he is likely to succeed at trial.
In his Claim, claimant discusses four other criminal cases from the same venue where individuals were convicted of sexually abusing children and their convictions were subsequently overturned. The case of Alberto Ramos dealt with a situation where the prosecutor withheld exculpatory evidence which is not the case here. The three other cases concerned the matter of a duplicitous indictment. Arguably, the state of the law concerning the CPL requirements pertaining to indictments in these matters was not clearly defined at that time and the Court attaches no implication of prosecutorial malfeasance based only on these indictments. Claimant offers that he was, among other things, an ordained minister and church pastor who was active in youth and day care programs as well as testaments to his good character as proof of his innocence. However, these factors are clearly not enough to satisfy a CCA § 8-b(4) showing of likeliness to succeed at trial. Claimant attempts to point out weaknesses in the criminal case raised against him. Claimant alleges that he lacked the opportunity to commit the crimes yet concedes that every day he would visit the classroom in which the children were attacked. He states that the teachers who were working with the class rarely left the class unattended and when they did it was only for a few minutes. In essence, claimant is admitting that he was at the location of the attacks every day and that the children were left in a classroom which was unattended for some period of time. Claimant concedes that during his criminal trial four of the six children who were sexually abused identified claimant as the assailant. Claimant also concedes that at his criminal trial the victims were able to distinguish the assaults by reference to time and place. The Unjust Conviction and Imprisonment Statute places the burden on the claimant to prove his innocence (see CCA § 8-b). Claimant attacks the credibility of the children, who were the young victims of an assault, and derides the prosecution's case but does not affirmatively put forth sufficient proof evincing his innocence of the crimes for which he was convicted.
Claimant is seeking the opportunity to place his credibility before the Court and to answer all the questions the defendant has for him. However, claimant's self-serving testimony alone without sufficient corroborating evidence showing his innocence is not enough to satisfy the stringent demands of the Unjust Conviction and Imprisonment Statute (Reed v State of New York, 78 NY2d 1 ; Vasquez v State of New York, 263 AD2d 539 [2d Dept 1999]).
Claimant argued in his attempt to fit his claim within § 8-b(3)(b)(ii)(D), that the State Legislature enacted two criminal statutes in 1996, Penal Law § 130.75 and Penal Law § 130.80, expressly creating the crimes of "course of sexual conduct against a child." Consequently, claimant seems to be indicating that his conviction may not have been overturned under today's criminal laws. A reversal of a criminal conviction does not establish innocence of the crimes in question (Britt v State of New York, 260 AD2d 6 [1st Dept 1999]; Vasquez v State of New York, 263 AD2d 539 [2d Dept 1999] citing Reed v State of New York, 78 NY2d 1 , Taylor v State of New York 194 AD2d 113 affd sub nom., Williams v State of New York, 87 NY2d 857 , Nieves v State of New York, 186 AD2d 240 [2d Dept 1992]). In crafting the Unjust Conviction and Imprisonment Statute the Law Revision Commission determined that the linchpin of the statute should be innocence (See, 1984 Report of NY Law Rev Commn, in 1984 McKinney's Session Laws of NY at 2930). "In enacting section 8-b, the Legislature sought to strike a balance between the goals of compensating innocent individuals who had been unjustly convicted and imprisoned, and foreclosing frivolous suits against the State" (Ivey v State of New York, 80 NY2d 474, 479 ). The facts, as presented by claimant, do not establish that he is likely to succeed at trial. Hence, this case does not fall within the ambit of cases envisioned by the Legislature in which compensation was appropriate when it enacted the statute.
Therefore, for the foregoing reasons, defendant's motion to dismiss is granted.
April 1, 2003
New York, New York
ALTON R. WALDON, JR.
Judge of the Court of Claims
1. Claimant concedes and the law is clear that ineffective assistance of counsel is not a predicate for a claim under the Unjust Conviction and Imprisonment statute. See also Britt v State of New York, 260 AD2d 6 (1st Dept 1999); (see also CCA § 8-b(3)(ii)).