New York State Court of Claims

New York State Court of Claims

VIGLIOTTI v. THE STATE OF NEW YORK, #2004-009-36, Claim No. 106892-A, Motion No. M-68004


Synopsis


Defendant's motion to dismiss this claim brought under the "Unjust Conviction and Imprisonment Act" was granted, on the basis that claimant had never served any time under his conviction, and therefore would be unable to establish any damages.

Case Information

UID:
2004-009-36
Claimant(s):
JACK VIGLIOTTI
Claimant short name:
VIGLIOTTI
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
106892-A
Motion number(s):
M-68004
Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY JR.
Claimant's attorney:
JACK VIGLIOTTI, Pro Se
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General
BY: Timothy P. Mulvey, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
June 21, 2004
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

Defendant has brought this motion seeking an order dismissing the claim.

The following papers were considered by the Court in connection with this motion:
Notice of Motion, Affirmation, with Exhibits 1,2

"Affidavit of Supporting Back Ground Information", with Exhibit 3


"Supplemental Opposition Motion", with Exhibits 4

Claimant has filed this claim seeking damages under the "Unjust Conviction and Imprisonment Act" set forth in § 8-b of the Court of Claims Act. The claim is based upon a decision by the Appellate Division, Fourth Department, which reversed claimant's prior conviction in Onondaga County Court, following a jury trial, for the crime of bail jumping in the first degree (Penal Law § 215.57). The order of the Appellate Division, Fourth Department reversing claimant's conviction was entered November 13, 2000 (People v Vigliotti, 277 AD2d 890, lv denied 95 NY2d 970).

Following this decision by the Appellate Division, claimant made application to this Court for permission to serve and file a late claim pursuant to Court of Claims Act § 10(6). In this application, claimant sought permission to serve and file a claim not only for unjust conviction and imprisonment, but also for malicious prosecution, abuse of process, prima facie tort, and the alleged violation of due process rights under the State Constitution. This application for late claim relief was denied[1]. In this Decision and Order, the Court determined that late claim relief under § 10(6) of the Court of Claims Act was not available to unjust conviction claims asserted under § 8-b (Hernandez v State of New York, 158 Misc 2d 232). The Court noted, however, that claimant's time to institute a claim under § 8-b had not expired, and that claimant could still, at that time, serve and file a claim, limited to the unjust conviction cause of action, without leave of court. Claimant then served and filed the instant claim, which is now the subject of defendant's motion to dismiss.

Pursuant to the provisions of Court of Claims Act § 8-b, the State has assumed a moral obligation to compensate innocent persons who have been unjustly convicted and imprisoned. If a claimant can establish that he or she was innocent of the crime for which imprisonment was imposed, and that he or she was not through any other misconduct responsible for the prosecution or conviction, the claimant may be entitled to damages. The section was enacted to ensure that such persons had an available means of recovery over and above existing tort remedies. In order to succeed at trial, a claimant must prove his or her claim by "clear and convincing evidence" (Court of Claims Act § 8-b[5]).

In this matter, the facts which provide the basis of claimant's cause of action are not in dispute. After his arraignment on charges of attempted murder, assault, and criminal possession of a weapon, claimant had been released on bail. While on bail, claimant did not appear for a required court appearance, and he was then charged with the additional crime of bail jumping. Thereafter, claimant was convicted of attempted murder in the second degree, assault in the first degree, and criminal possession of a weapon in the second degree, and was sentenced to a term of imprisonment of 12 years, six months to 25 years, on or about September 14, 1998. Claimant was then subsequently convicted of the crime of bail jumping, for which he received a sentence of two to six years imprisonment in September, 1999. The term of imprisonment imposed for the bail jumping conviction was to be served consecutively to the prior sentence claimant had received on the attempted murder, assault and criminal weapons possessions convictions.

When claimant's conviction for bail jumping was reversed, and then dismissed by the Appellate Division, Fourth Department, in November, 2000, it is undisputed that claimant was still serving time under the sentence imposed for the attempted murder, assault, and criminal weapons possessions convictions. Since the bail jumping sentence was to be served consecutively, claimant had not yet served any time on the sentence attributed to the bail jumping conviction.

Defendant therefore contends that this claim for unjust conviction and imprisonment should be dismissed, since claimant never served any portion of the sentence which had been imposed for the bail jumping conviction. Defendant argues that claimant will be unable, as a matter of law, to establish any damages arising from the bail jumping conviction.

While claimant does not contest the fact that he did not serve any time under the sentence imposed for his bail jumping conviction, he nevertheless argues that he was confined continuously from the time he was arrested on the bail jumping charge up to the date he was convicted on the attempted murder, assault, and criminal weapons possession charges. In other words, claimant contends that but for his arrest for bail jumping, he would have remained free on bail up to and throughout his trial on the attempted murder, assault, and criminal weapons possession charges. He therefore seeks damages under the Unjust Conviction and Imprisonment Act for this period of time for which he was confined.

In applying this law, courts must strictly construe its provisions (see Groce v State of New York, 272 AD2d 519). This Court notes that in no less than four instances, the Act makes specific reference to damages resulting from unjust conviction and subsequent imprisonment (§ 8-b[1] "wrongly convicted of crimes and subsequently imprisoned"; § 8-b[2] "convicted and subsequently imprisoned"; 8-b[3][a] "convicted ... and subsequently sentenced ... and has served all or any part of the sentence"; 8-b[5][a] "convicted ... and subsequently sentenced"). This Court therefore finds that to adhere to the explicit legislative intent behind the Unjust Conviction and Imprisonment Act, claims must be limited to those damages arising at the time of conviction and continuing through the end of imprisonment, and that any damages accruing prior to conviction cannot be considered. (Carter v State of New York, 139 Misc 2d 423, affd 154 AD2d 642).

Therefore, even if claimant were to be successful in establishing each and every element of his claim for unjust conviction under § 8-b (a premise not conceded by the defendant), it is readily apparent to this Court that claimant cannot be successful in establishing at trial any damages resulting from such conviction. As a result, this claim should be dismissed pursuant to § 8-b(4).

Therefore, it is

ORDERED, that Motion No. M-68004 is hereby GRANTED; and it is further

ORDERED, that Claim No. 106892-A is hereby DISMISSED.


June 21, 2004
Syracuse, New York

HON. NICHOLAS V. MIDEY JR.
Judge of the Court of Claims



[1] See Vigliotti v State of New York, Claim No. None, Motion No. M-64369, dated September 30, 2002, UID No. 2002-009-44. Unpublished decisions and selected orders of the Court of Claims are available via the Internet at