New York State Court of Claims

New York State Court of Claims

MARTINEZ v. THE STATE OF NEW YORK , #2004-028-532, Claim No. 106265, Motion Nos. M-67817, CM-67982


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):
Claimant's attorney:
Defendant's attorney:
BY: Janet L. PolsteinAssistant Attorney General
Third-party defendant's attorney:

Signature date:
April 30, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


In reaching its decision on the instant motions, the Court has read and considered the following papers:

(1) Notice of Motion, dated December 16, 2003 and received on December 22, 2003;

(2) Affirmation in Support of Oscar Michelen, Esq., dated December 2, 2003 and filed on December 22, 2003 together with Exhibits "A-I" (hereinafter referred to as the Michelen Affirmation);

(3) Memorandum of Law, dated December 9, 2003 and filed on December 22, 2003;

(4) Notice of Cross-Motion, dated January 30, 2004 and filed on February 3, 2004;

(5) Affirmation of Assistant Attorney General Janet L. Polstein, dated January 30, 2004 and filed on February 3, 2004 together with Exhibits "A-H" (hereinafter referred to as Polstein Affirmation);

(6) Affirmation of Oscar Michelen, Esq. In Reply and in Opposition, dated February 2, 2004 and filed on February 3, 2004 (hereinafter referred to as "Michelen Reply Affirmation").

Filed papers: (1) Claim, No. 106265 dated June 20, 2002 and filed on June 24, 2002; and (2) Answer dated July 25, 2002 and filed on July 26, 2002.

The instant Claim arises from the Claimant's arrest and conviction of the homicide of Rudolph Marasco. The Claimant's motion seeks summary judgment on the issue of liability, or in the alternative, permitting the amendment of the Claim, nunc pro tunc, and the dismissal of various affirmative defenses (Notice of Motion, p 1 [unpaginated]). The State cross-moves to dismiss the Claim alleging that it fails to comply with Section 8-b(3) and (4) of the Court of Claims Act (Notice of Cross-Motion, p 1 [unpaginated]).

The Claim states that Mr. Martinez was tried and convicted of murder in the second degree and criminal possession of a weapon in the second degree on or about September 10, 1986 (Claim, p 1 [unpaginated]). He was sentenced to 25 years to life on the murder charge, and 1 ½ to 4 ½ years on the weapons charge. He was incarcerated until June 13, 2002, when his conviction was reversed and vacated. A copy of the minutes of the hearing are annexed to the Claim.

The State argues that the Claimant has failed to provide the appropriate documentary evidence required by the statute (Notice of Cross-Motion, p 2) and that, therefore, the Motion must be denied and the Claim dismissed. The Claimant's Motion seeks, inter alia, to amend the Claim and provide any missing documentation (Notice of Motion, p 1 [unpaginated]).

The State relies on the wording of the statute which provides in pertinent part:

"3. In order to present the claim for unjust conviction and imprisonment, claimant must establish by documentary evidence that: he has been pardoned upon the ground of innocence of the crime or crimes for which he was sentenced and which are the grounds for the complaint; or (ii) his judgment of conviction was reversed or vacated and the accusatory instrument dismissed, or, if a new trial was ordered, either he was found not guilty at the new trial or he was not retried and the accusatory instrument dismissed; provided that the judgment of conviction was reversed or vacated, and the accusatory instrument was dismissed, on any of the following grounds: (A) paragraph (a), (b), (c), (e) or (g) of subdivision one of section 440.10 of the criminal procedure law ..." Court of Claims Act §8-b (3) (b) (i)

The Defendant also relies on two Court of Claims cases for the proposition that a jurisdictional defect cannot be corrected by an amendment, i.e., Long v State of New York, Claim No. 106274, Decision and Order filed September 3, 2003 (Sise, J.); and Collin Woodley v State of New York, Claim No. 98161, Decision and Order filed June 24, 2002 (Patti, J.). The Court finds both cases distinguishable. In the Long case, the Court found that the defective verification by the claimant's attorney could not be cured by submission of a new verification by the claimant, because the time for filing such a verification had expired. Long v State of New York, supra at p 8. In the Woodley case, Judge Patti granted the motion to dismiss because the original vacatur of the claimant's conviction and dismissal of the indictment did not expressly state the grounds for vacating the conviction and the subsequent order of the Court stated that while the ground for vacating was made upon newly discovered evidence, the ground for dismissal of the charges was in the interest of justice and not based upon the innocence of the defendant. Woodley v State of New York, supra at pp 6-7.

Both of the above-cited cases are, therefore, distinguishable. However, the above-quoted section still requires the submission of documentation. Therefore, the issue before the Court is whether the documentation may be supplied by amendment. The Court finds that they may not. Once a claim is found to be jurisdictionally defective, it may not be resurrected by an amendment seeking to cure the jurisdictional defect. Ferrer v State of New York, 172 Misc 2d 21; Grande v State of New York, 160 Misc 2d 383.

Accordingly, the motion to amend must be denied. Claimant may, as of right, file and serve a claim which satisfies the statute providing the statute of limitations has not run.[1]

Turning to the State's final argument, that the Claimant's papers have not demonstrated by clear and convincing evidence that he is likely to succeed on the trial of the Claim, the Court rejects this argument. The requirements of Court of Claims Act §8-b(4) was promulgated in order to prevent a claim from being submitted that had little or no chance of success. Here the Claimant has submitted the confession of another man, Charlie Rivera, for the killing of which he had been convicted. That confession was substantiated by Mike Marino, an accomplice of Mr. Rivera. In addition, the attorney for the Claimant has established a motive for Mr. Rivera's actions – something that was lacking in Mr. Martinez's case. He also has shown that Mr. Rivera was aware of certain facts concerning the murder that were unknown to the general public, thereby supplementing his confession.

The State has argued that Mr. Rivera had failed a lie detector test and that much of Mr. Martinez's supplemental exhibit was not in admissible form – conveniently neglecting to state that Mr. Rivera's failure to pass the lie detector test may also not be admissible.

Although the statutory pleading requirements of §8-b(4) are to be strictly construed (see e.g. Vasquez v State of New York, 263 AD 539) and place a heavy burden upon claimant, Torres v State of New York, 228 AD2d 579), it only requires "clear and convincing evidence" that there is a likelihood of success – not a certainty.

Therefore, based upon the Court's findings, it grants the State's Cross-Motion to Dismiss, without prejudice, and denies Claimant's Motion to amend the Claim, nunc pro tunc, and to dismiss the affirmative defenses and to grant summary judgment.

April 30, 2004
Albany, New York

Judge of the Court of Claims

[1] In Long v State of New York, supra the statute had run, in the instant case it has not.