New York State Court of Claims

New York State Court of Claims

FULLER v. THE STATE OF NEW YORK, #2003-016-069, Claim No. 107483, Motion No. M-66723


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):

Alan C. Marin
Claimant's attorney:
Sobel, Ross, Fliegel & Suss, LLPBy: Slavko Ristich, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Susan J. Pogoda, Esq., AAG
Third-party defendant's attorney:

Signature date:
September 4, 2003
New York

Official citation:

Appellate results:

See also (multicaptioned case)


This is defendant's motion to dismiss the claim of Danny Fuller. In his claim, Mr. Fuller alleges that "[t]he defendant State of New York, through its agents and employees and the New York County District Attorney committed a Constitutional Tort in retrying Claimant [Danny Fuller] in violation of the Fifth Amendment of the United States Constitution, Article 1 §6 of the New York State Constitution and settled principles of double jeopardy . . ." Claim, ¶16. Specifically, Fuller alleges that on November 26, 1996, "the District Attorneys office of Robert M. Morgenthau prosecuted [claimant] on two counts of robbery and two counts of assault." Claim, ¶6. On that date, he was convicted of assault in the third degree and acquitted of the robbery charges. As to the second degree assault charge, the jury was unable to reach a verdict. Fuller was sentenced to a term of one year on the third degree assault charge and served such sentence. Claim, ¶¶6-8.

On June 3, 1997, Fuller was retried and convicted on the second degree assault charge as to which the jury had previously been unable to reach a verdict. On June 17, 1997, he was sentenced to 3 ½-7 years on such second degree assault conviction. Claim ¶¶10-11.

On July 5, 2001, the Court of Appeals held that pursuant to CPL 300.40(3)(b), Fuller's conviction of third degree assault deemed him acquitted of the second degree assault charge and his retrial on the second degree charge was thus prohibited under principles of double jeopardy. See People v Fuller, 96 NY2d 881, 730 NYS2d 773 (2001). See also Claim, ¶¶13 and 14.
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Fuller does not couch his claim in terms of §8-b of the Court of Claims Act (the Unjust Conviction and Imprisonment Act of 1984). Defendant, however, argues that it is effectively such a claim and that it should be dismissed because, among other things, Fuller remains convicted of the third degree assault charge. Fuller's §8-b claim must fail because he is unable to prove that he did not commit any of the acts charged in the accusatory instrument (subds. 4 and 5(c)). See, e.g., Paris v State of New York, 202 AD2d 482, 609 NYS2d 71 (2d Dept 1994).

Claimant cites Brown v State of New York, 89 NY2d 172, 652 NYS2d 223 (1996), arguing that his claim is not made pursuant to §8-b of the Act, but rather is a constitutional tort claim.

A cause of action for a state constitutional violation under Brown is a "narrow remedy." Martinez v City of Schenectady, 97 NY2d 78, 83, 735 NYS2d 868, 871 (2001). In Martinez, the Court of Appeals noted that Brown's remedy addresses two interests, the private right of redress of citizens harmed by constitutional violations, and the public interest that future violations be deterred. With regard to Fuller's private interest, as in Martinez, he "has not distinguished [his] case from that of any criminal defendant who has been granted . . . reversal of a conviction . . . [Claimant] has shown no grounds that would entitle [him] to a damage remedy in addition to the substantial benefit [he] already has received from dismissal of the indictment and release from incarceration." 97 NY2d at 84, 735 NYS2d at 872. With regard to the public interest in this case, no deterrence interest has been shown to obtain.

In addition, as defendant argues, claimant may have an alternative remedy such as false arrest or malicious prosecution, which under Augat v State of New York, 244 AD2d 835, 666 NYS2d 249 (3d Dept 1997), lv denied 91 NY2d 814, 676 NYS2d 127 (1998) would preclude him from maintaining a constitutional tort claim. See also Remley v State of New York, 174 Misc 2d 523, 665 NYS2d 1005 (Ct Cl 1997) and Vigliotti v State of New York, Ct Cl dated September 30, 2002 (unreported, motion no. M-64369, UID No. 2002-009-44,, Midey, J.).

In view of the foregoing, having reviewed the parties' submissions[1], IT IS ORDERED that motion no. M-66723 be granted and claim no. 107483 be dismissed.

September 4, 2003
New York, New York

Judge of the Court of Claims

  1. [1]The following were reviewed: defendant's notice of motion with affirmation in support and exhibit A; claimant's affirmation in opposition with exhibits 1-4; and defendant's reply affirmation.