Notice of Cross-Motion, Affidavit of Russell E. Maines, Esq., with Exhibits A-U
(including Affidavit of Shirley Ann Turner [Kinge] as Exhibit A, Affidavit of
Kevin Williams as Exhibit B and Affidavit of Keith L. Eggleston as Exhibit
Claimant's Memorandum of Law 6
Defendant's Reply Memorandum of Law 7
Affirmation of Russell E. Maines, Esq., Claimant's Reply Memorandum of
Defendant's Post-Argument Memorandum of Law 10
Claimant's Supplemental Memorandum of Law 11
Claimant filed this claim with the Clerk of the Court of Claims, seeking
damages from the State after it had been revealed that certain members of the
New York State Police had tampered with evidence in criminal case proceedings
against her which had resulted in her conviction.
By way of background, in December 1989 the Harris family of four was brutally
murdered in Dryden, New York, and their home was then set on fire. Following an
intensive investigation, claimant's son Michael Kinge, was identified as the
prime suspect in these brutal crimes. As law enforcement officials attempted to
arrest him, however, Michael Kinge shot himself, officers returned fire, and he
died as a result of these wounds. During the course of the investigation,
claimant was also viewed as a suspect in some of the crimes connected to these
murders. On February 7, 1990 claimant was arrested and charged with various
crimes related to the murder, arson, and use of stolen credit cards belonging to
the Harris family. Claimant was subsequently tried and convicted of third
degree arson, first degree burglary, hindering prosecution in both the first and
second degree, second degree forgery, and fourth degree criminal possession of
stolen property. She was sentenced to a term of imprisonment on January 30,
1991. Thereafter, in 1992, it was revealed that certain members of the New York
State Police had fabricated evidence in this matter, as well as in other State
Police criminal investigations. Based upon this misconduct, claimant's judgment
of conviction was vacated on August 25, 1992, and the indictment against her was
dismissed on November 9, 1992. Claimant had filed a notice of intention with
the Clerk of the Court of Claims on September 21, 1992, and subsequently filed
her claim on November 8, 1993.
Defendant previously brought a motion seeking to dismiss each and every cause
of action set forth in the claim
. By an Order
dated February 17, 1999 this Court dismissed several of the aspects of the claim
upon various grounds, leaving three causes of action, to wit: (1) unjust
conviction premised upon Court of Claims Act § 8-b, (2) malicious
prosecution, and (3) negligent supervision.
Discovery has been completed, and defendant now seeks an order granting it
summary judgment dismissing these three remaining causes of action. In her
cross-motion, claimant seeks an order granting her summary judgment on the
negligent supervision cause of action.
Pursuant to CPLR Rule 3212(b), summary judgment shall only be granted when,
"upon all the papers and proof submitted, the cause of action or defense shall
be established sufficiently to warrant the court as a matter of law in directing
judgment in favor of any party." On a motion for summary judgment, therefore,
the movant must present evidentiary facts sufficient to establish that party's
right to judgment as a matter of law. Once a movant has established a prima
facie showing of entitlement to judgment, the opposing party must then
produce evidentiary proof in admissible form demonstrating the existence of a
material question of fact (Zuckerman v City of New York, 49 NY2d 557;
Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065).
The Court will therefore examine each of the three remaining causes of action
under this standard to determine if any such material facts exist.
Pursuant to Court of Claims Act § 8-b, individuals can be awarded damages
against the State if they are wrongly convicted of a crime or crimes, and can
demonstrate their innocence. A claimant, however, faces a heavy burden in order
to prevail on such a claim. To obtain a judgment, a claimant must prove by
clear and convincing evidence that (1) he or she has been convicted of one or
more crimes and has served all or any part of the sentence imposed; (2) the
judgment of conviction has been reversed or vacated and the indictment dismissed
pursuant to certain statutorily enumerated grounds; (3) he or she did not commit
any of the crimes charged; and (4) he or she did not cause or bring about his or
her conviction (Court of Claims Act § 8-b). The requirements of the
statute are to be strictly construed (Torres v State of New York, 228
Pursuant to Court of Claims Act § 8-b(4), the Court must dismiss a claim
for unjust conviction and imprisonment when, after reading the claim, it finds
that the claimant is not likely to succeed at trial.
Based upon the papers submitted on this motion, as well as claimant's own
admissions, it has been firmly established that claimant used a credit card
belonging to a member of the Harris family, and that she signed the name of one
of the victims when making several purchases with this credit card. In this
Court's opinion, there is no question that she in fact committed acts for which
she was charged within the original indictment. Therefore, it is not possible
that claimant will be able to prove her innocence at trial by clear and
convincing evidence of each and every count of said indictment, and cannot
prevail on this cause of action.
At oral argument on this motion, the Court questioned claimant's counsel at
length as to the facts of this cause of action, and the Court was under the
impression that claimant intended to voluntarily discontinue this cause of
action. The parties, however, were apparently unable to agree on the specific
terms of a dismissal based upon consent. In any event, based upon the papers
submitted, claimant's prior admissions, and the Court's reading of the claim,
claimant's cause of action for unjust conviction under Court of Claims Act
§ 8-b must hereby be dismissed.
A claimant is faced with a heavy burden in establishing a cause of action based
upon malicious prosecution. A claimant must establish that (1) a criminal
proceeding was commenced or continued by the defendant against the claimant, (2)
the proceeding was terminated in favor of the accused, (3) there was an absence
of probable cause, and (4) the defendant acted with actual malice (Broughton
v State of New York, 37 NY2d 451, 457, cert denied sub nom.
Schanbarger v Kellogg, 423 US 929).
Defendant seeks to dismiss this cause of action contending that despite the
fabricated fingerprint evidence, there existed sufficient probable cause to
justify the arrest and prosecution of claimant.
As mentioned above, claimant's judgment of conviction in this matter was
vacated in 1992, after it was revealed that State Police Investigator David
Harding admitted (following an internal investigation) that he had fabricated
fingerprint evidence in this case.
By way of background, during the course of the original criminal investigation
of the Harris family murders, Investigator Harding reported that he had
identified claimant's fingerprints on a gasoline can found at the Harris home,
thereby placing her at the murder scene and implicating her in the cover-up of
the four murders. During the internal investigation conducted by the State
Police of Investigator Harding
in 1992, it was
revealed that this evidence had been completely fabricated by him. There can be
no question that such strong evidence was the significant factor connecting
claimant to this horrendous crime.
Despite this fabricated evidence, however, the State contends that there
existed sufficient other evidence which independently established probable cause
and justified the prosecution of claimant. Specifically, defendant relies
heavily upon claimant's admission that she obtained a credit card (in the name
of a Harris family member) from her son shortly after the crimes occurred, and
then immediately used the card for numerous purchases throughout the area.
Defendant also maintains that there was additional other circumstantial evidence
tending to place claimant at the scene of the crime and implicating her in the
cover-up. For example, State Police investigators believed that the murderer
had returned to the home following the four murders, in order to set the fire to
cover-up the crime, and that the house was cleaned in an attempt to remove all
implicating evidence prior to setting it on fire. State Police then learned,
during the course of their investigation, that claimant had worked for the
individual who had developed the area in question, and that she cleaned houses
for a living, indications that she had both the expertise, and a knowledge of
the area, to assist her son in the cover-up. Furthermore, the State Police had
obtained a statement from a witness who had observed the Harris family van being
operated by a black male with an older black female passenger at the time in
question. These additional factors, defendant contends, when taken together,
are sufficient to establish probable cause and thereby defeat any claim for
Claimant contends, on the other hand, that the fingerprint evidence was the
only evidence placing claimant at the Harris family home and, without this
evidence, there was insufficient evidence to establish probable cause to justify
the criminal proceedings against her.
Claimant is also correct in her position that the lack of probable cause, at
any point in the criminal proceedings, can provide the basis for a claim of
As a result, claimant contends that at a minimum, even if her use of the credit
card was sufficient evidence for the State Police to initially view her as a
suspect, probable cause dissipated during the course of the investigation and
proceedings when the State Police relied solely upon the fingerprint evidence in
continuing her prosecution.
In this regard, claimant relies heavily upon an extensive interrogation
conducted of claimant by two State Police officers when she first became a
suspect in these crimes. Following this interrogation, one of the officers
remarked that except for the fingerprint evidence to the contrary, he would have
accepted claimant's statements as trustworthy.
Claimant also relies upon findings reached in the investigation of the evidence
scandal conducted by a Special Prosecutor.
Following Mr. Harding's admissions that he had fabricated evidence in criminal
matters, Nelson E. Roth, Esq., was appointed as a Special Prosecutor to conduct
an investigation into evidence tampering by members of the State Police.
Pursuant to his duties, he prepared a "Confidential Report to the Honorable
George E. Pataki", containing the results of his investigation. Claimant relies
upon findings in this report indicating that the only significant evidence tying
claimant to the events in the family residence were the fingerprints found on
the gasoline can.
Additionally, claimant points out that the witness identification of the black
male and the older female passenger in the family vehicle was recanted, during
Based on the foregoing, it is the opinion of this Court that questions of
material fact exist as to whether probable cause existed both to commence legal
proceedings against claimant, as well as to continue legal proceedings against
her after her arrest. These material questions of fact cannot now be resolved
on this motion for summary judgment.
Defendant, however, also contends that claimant cannot succeed on her malicious
prosecution cause of action, since the State cannot be held vicariously liable
for the felonies which were committed by its employees in this instance.
Recently, in a claim which also involved the fabrication of evidence, this
Court determined that the State could not be held liable for the actions of
State Police officers in fabricating evidence, solely through the doctrine of
. In that case,
this Court found that the actions by members of the State Police in fabricating
the fingerprint evidence constituted such a gross departure from acceptable
police conduct that they did not further the State's interests, they were not
commonly done by such employees within the normal scope of employment, and were
not generally foreseeable by the State. As a result, the State could not be
held liable for those acts of its employees solely
through the doctrine
of Respondeat Superior
Based on this determination in the Prentice claim, defendant contends that the
State cannot be found liable for malicious prosecution, even if probable cause
is lacking. In its decision on the Prentice claim however, the Court had
determined that liability could not be imposed solely on the doctrine of
Respondeat Superior. Such a finding, however, even if also found
applicable herein, does not, in and of itself, preclude claimant from
establishing her cause of action for malicious prosecution. There were several
other members of the State Police who played an integral part in this
investigation, and questions of fact remain as to what actions were taken, or
should have been taken, by these individuals.
Accordingly, it is the opinion of this Court that sufficient questions of fact
remain which preclude this Court from granting summary judgment to the State on
this cause of action.
Both parties seek an order of summary judgment from this Court with regard to
the cause of action for negligent supervision.
Initially, defendant contends that this cause of action is essentially a claim
for negligent prosecution, a cause of action which is barred as a matter of
public policy. In its prior order of February 9, 1999, referenced above (see
Motion No. M-56122), this Court had specifically addressed this issue and
dismissed any aspect of the claim seeking damages for negligent investigation,
which can be considered the equivalent of negligent prosecution. The Court,
however, retained a cause of action alleging negligent training and supervision,
and determined that such a cause of action was not barred as a matter of public
Defendant further contends that claimant may not maintain this action in the
absence of an actionable underlying tort. The obvious response to this argument
is that this Court herein has determined that claimant may proceed to trial with
her cause of action based upon allegations of malicious prosecution, and
therefore, at trial, may also present proof in furtherance of the negligent
supervision cause of action as well.
Accordingly, it is
ORDERED, that Motion No. M-66691 is hereby GRANTED, in part, and DENIED, in
part; in accordance with the foregoing; and it is further
ORDERED, that the cause of action asserting a claim for unjust conviction under
Court of Claims Act § 8-b is hereby DISMISSED; and it is further
ORDERED, that Cross-Motion No. CM-66986 is hereby DENIED.