New York State Court of Claims

New York State Court of Claims

MOORE v. THE STATE OF NEW YORK, #2004-028-511, Claim No. 106228, Motion No. M-67470


Synopsis


Case Information

UID:
2004-028-511
Claimant(s):
DERRICK MOORE a/k/a LLOYD MOORE
Claimant short name:
MOORE
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
106228
Motion number(s):
M-67470
Cross-motion number(s):

Judge:
RICHARD E. SISE
Claimant's attorney:
TRACIE A. SUNDACK & ASSOCIATES, L.L.C.BY: Tracie A. Sundack, Esq.
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Janet PolsteinAssistant Attorney General
Third-party defendant's attorney:

Signature date:
March 9, 2004
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

In reaching its decision on the instant motion to dismiss the claim, the Court has considered the following papers:


(1) Notice of Motion to Dismiss dated September 29, 2003 and filed on October 1, 2003;
(2) Affirmation in Support by Assistant Attorney General Janet Polstein dated September 29, 2003 and filed on October 1, 2003, together with Exhibits "1-6" (hereinafter referred to as the "Polstein Affirmation");

(3) Affirmation in Opposition of Tracie A. Sundack, Esq., dated October 22, 2003 filed on October 27, 2003.

Filed papers: Claim no. 106228 dated May 24, 2002 and filed on June 17, 2002.

The claim herein alleges that the Claimant was wrongfully convicted and imprisoned for a period of approximately two years.

On November 4, 1999, the Claimant Derrick Moore a/k/a Lloyd Moore, was tried and convicted of four counts of grand larceny in the fourth degree, and three counts of criminal possession of stolen property in the fourth degree. He was also found guilty of one count of criminal possession of a controlled substance in the seventh degree. The Claimant was granted a conditional discharge on the narcotics conviction, but was sentenced to two concurrent terms of two to four years on the grand larceny and stolen property conviction. On February 28, 2002, the Appellate Division First Department reversed his conviction.

The Defendant moves to dismiss on the grounds that the Claim fails to state a cause of action upon which relief may be granted; and that the Claim fails to comply with the statutory requirements of Section 8-b of the Court of Claims Act (Notice of Motion, p 1 [unpaginated])[1].

The attorney for the Claimant argues that the statute must be liberally construed and that in any event the Claim complies with all of the enumerated statutory requirements (Affirmation in Opposition, pp 2-10 [unpaginated]).

At the outset, it should be noted that in enacting Court of Claims Act §8-b, the Legislature created a new cause of action; therefore, the statute must be strictly construed (see Fudger v State of New York, 131 AD2d 136).

The first ground stated in the moving papers is that the Claim fails to meet the requirements of Court of Claims Act §8-b (5)(c)(d) which provides:
5. In order to obtain a judgment in his favor, claimant must prove
by clear and convincing evidence that:
(c) he did not commit any of the acts charged in the accusatory
instrument ... and

(d) he did not by his own conduct cause or bring about his

conviction.


Here Claimant was originally charged and convicted of four felony counts of grand larceny and three felony counts of criminal possession of stolen property and a misdemeanor count of possession of a controlled substance. The seven felony counts were dismissed, but the misdemeanor count was affirmed. Accordingly, the Claimant has failed to meet the burden on this issue. The fact that Claimant was sentenced to a conditional discharge on the misdemeanor count, as argued by Claimant's attorney, does not satisfy the language of the statute requiring that he prove that he did not commit any of the acts alleged in the accusatory instrument (see Paris v State of New York, 202 AD2d 482).

The next ground stated in support of dismissal is that Claimant's criminal indictment was not vacated on a statutory enumerated ground as required by Court of Claims Act §8-b (3) (Polstein Affirmation, pp 3-4). After reviewing the language of the Appellate Division and the appropriate case law, the Court finds that the dismissal of the indictment was on an enumerated ground, in that it was predicated upon the Appellate Division's Order reversing the conviction wherein it set forth the basis for its reversal. That basis was that the accusatory instrument was not supported by the evidence (see CPL 470.20(3)).

The next basis for dismissal is that the Claim fails to contain sufficient factual details that would permit the Court to find that the Claimant was likely to succeed at trial pursuant to Court of Claims Act §8-b(4) (Polstein Affirmation, pp 4-5).

The attorney for the Claimant contends that the documentary evidence, the Appellate Division decision, submitted with the Claim is enough to satisfy the Claimant's burden of proving at trial that he did not commit any of the acts charged and that his conduct did not bring about his conviction.

In its decision, annexed to the Claim, the Appellate Division discussed the evidence submitted by the prosecution to support its case. The Court pointed out that it was legally insufficient to prove the Claimant's guilt beyond a reasonable doubt. However, the burden of proof, which now rests upon the Claimant, is different. He must prove by clear and convincing evidence that he did not commit the acts alleged in the accusatory instrument, and that he did not contribute to his conviction.

The Appellate Division decision recites that the Claimant might have found the wallet after it was discarded by another. It also notes that Claimant was allegedly found riffling through the wallet and discarding items from it. It also notes that he found the wallet outside the 110th Street station and then spoke to the token clerk, a friend of his, for 30 or 45 minutes – he did not give the wallet to the token clerk as found, lost property. While these actions do not compel an inference of guilt beyond a reasonable doubt, they are some evidence that the Claimant committed acts that led to his conviction. Were these facts to remain unexplained, the Court is unable to say that the Claimant is likely to prevail at trial on this issue. Accordingly, the Court agrees with the Defendant on this issue.

Finally, the defendant argues that the Claimant has failed to submit the documentary evidence required by Court of Claims Act §8-b(3) (Polstein Affirmation, pp 5-6).

The attorney for the Claimant argues that the papers annexed to the Claim satisfy the requirements of the Court of Claims Act §8-b(3) (Affirmation in Opposition, pp 7-8), the Court agrees.

Court of Claims Act §8-b(3) requires that the Claimant must establish by documentary evidence that he was convicted of one or more felonies; that he was sentenced to a term of imprisonment, of which he has served all or part; and that his judgment of conviction was reversed or vacated, and that the accusatory instrument was dismissed on certain grounds; or if a new trial was ordered, he was acquitted. Here the annexation of the Appellate Division decision to the Claim fulfills those requirements.[2]

Based upon the totality of the Court's findings, the Defendant's Motion to Dismiss this claim is granted.



March 9, 2004
Albany, New York

HON. RICHARD E. SISE
Judge of the Court of Claims




[1]Page references are provided by the Court for use of reference as the papers were not numbered.

[2] Except as found in this decision.