New York State Court of Claims

New York State Court of Claims

DAVID W. v. THE STATE OF NEW YORK, #2004-033-060, Claim No. 106125, Motion No. M-67012


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):

James J. Lack
Claimant's attorney:
Harry H. Kutner, Jr., Esq.
Defendant's attorney:
Eliot Spitzer, New York State Attorney GeneralBy: Janet L. Polstein, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
June 24, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


This claim arises from the alleged unjust conviction of David W. (hereinafter "claimant") pursuant to Court of Claims Act §8-b. Claimant moves for partial summary judgment on the issue of liability pursuant to CPLR §3212[1].
Defendant opposes claimant's motion and cross-moves for summary judgment and seeks dismissal of the claim.[2] The defendant argues that claimant's conviction was not reversed or vacated under one of the enumerated grounds specified under Court of Claims Act §8-b(3) and that he contributed to his own conviction.

According to the claimant, he was convicted of the felony charge of Sodomy 2o and Sexual Abuse 1o. He was sentenced to 90 days jail time and five years probation. Claimant states that while he was on probation, the Sexual Offender Registration Act was enacted. This Act requires the classification and registration of all persons convicted of a sexual offense involving a minor. Claimant was assigned a level 3 classification.[3] Claimant indicates that he agreed to register, but objected to the classification that he was assigned. Thereafter, claimant was arrested and charged with a misdemeanor in violation of Correction Law §§168-g and 168-I for failing to register. Claimant alleges that he was convicted of this crime and was incarcerated from November 24, 1997 to February 25, 1998 and from March 24, 1998 through October 16, 1998. Claimant appealed this conviction to the Appellate Term. The Second Department affirmed the claimant's conviction (183 Misc 2d 38). However, the Court of Appeals reversed claimant's conviction and dismissed the misdemeanor information (95 NY2d 130). The Court of Appeals held that defendant was denied his due process rights to challenge his classification prior to it being assigned.

Summary judgment is a drastic remedy which deprives a party of its day in court and should not be granted where there is any doubt as to the existence of a material issue of fact (Moskowitz v Garlock, 23 AD2d 943; Epstein v Scally, 99 AD2d 713). The Court's function is to determine if an issue exists. In doing so, the Court must examine the proof in a light most favorable to the party opposing the motion. Summary judgment may only be granted if movant provides evidentiary proof in admissible form to demonstrate that there are no questions of fact (Winegrad v New York Univ. Med. Center, 64 NY2d 851; Wanger v Zeh, 45 Misc 2d 93, aff'd 26 AD2d 729). Once the movant has demonstrated a prima facie entitlement to summary judgment as a matter of law, the burden shifts to the opposing party to submit evidentiary proof in admissible form sufficient to create an issue of fact or demonstrate an acceptable excuse for his failure to submit such proof (Alvarez v Prospect Hosp., 68 NY2d 320). Mere conclusions, speculation or expressions of hope are insufficient to defeat the motion (Amatulli v Delhi Constr. Corp., 77 NY2d 525).

In order to sustain an action pursuant to Court of Claims Act §8-b, the following elements must be met:
  1. Claimant must establish by documentary evidence:
a. abthe facts of his criminal conviction;
b. abthat claimant was sentenced to a term of imprisonment and;
c. abthat claimant served all or part of the sentence;

  1. Claimant must show that his judgment and conviction has been reversed or vacated and the accusatory instrument was dismissed pursuant to one of the grounds enumerated in Court of Claims Act §8-b(3);
  1. The claim must state in sufficient detail facts permitting the court to find that the claimant is likely to succeed at trial in proving that he did not commit any of the acts charged in the accusatory instrument or that the acts did not constitute criminal conduct; and
  1. Claimant must show that, through his own conduct, he did not contribute to his own conviction.
(Court of Claims Act §8-b(5); see also Grimaldi v State of New York, 133 AD2d 97; Lanza v State of New York, 130 AD2d 872).

The Court will examine each of the elements as it applies to claimant. In examining the first element, claimant has failed to establish, through documentary evidence, that he was convicted of the crime for which he seeks relief; he was sentenced to a term of imprisonment; or he served all or part of his sentence. The Court notes that claimant does append certain documents to his claim and to the instant motion. However, they do not satisfy the burden imposed on claimant. Claimant attached the request for his registration as a level 3 sex offender (claimant's motion Exhibit 1) and a statement of incarceration for the claimant by the Suffolk County Sheriff's Department (claimant's motion Exhibit 2). There is no certificate of conviction of the claimant for the misdemeanor he seeks relief from pursuant to the Corrections Law. Claimant's Exhibit 2 is an uncertified document addressed to "To whom it may concern" from the Suffolk County Sheriffs's Department. It indicates that claimant was incarcerated in the Suffolk County Jail from March 24, 1998 to October 16, 1998 and from November 24, 1997 to February 25, 1998. There is no indication on this uncertified document of the crime for which claimant was incarcerated.

In reversing claimant's criminal conviction and dismissing the misdemeanor information, the Court of Appeals held that "procedural due process requires that this defendant, on probation when SORA went into effect, should have received notice and an opportunity to be heard before his SORA risk level determination was made" (95 NY2d at 133). The statute, as written at the time, failed to afford claimant his due process rights, however, the Court of Appeals stopped short of holding the statute unconstitutional. The Court of Appeals did not relieve the claimant of the burden of following the statute, rather it imposed a duty on the probation department to afford claimant an opportunity to challenge his initial risk level assessment.

Therefore, it is the finding of this Court that claimant has failed to show that his conviction was reversed or vacated pursuant to one of the grounds enumerated in Court of Claims Act §8-b(3).

The Court will examine the last two elements outlined above together. In his affidavit, claimant indicates that he agreed to register (claimant's affidavit ¶6). However, because of his objection to his classification, claimant did not register as a sex offender pursuant to the Correction Law. It is clear that claimant committed the acts which contributed to his conviction.

From the evidence before the Court, it is clear that claimant failed to demonstrate a sufficient showing to shift the burden to the defendant. Claimant has not presented evidence, in admissible form, to demonstrate his entitlement to summary judgment as to liability.

Conversely, defendant has shown that it is entitled to summary judgment. If the claimant had merely failed to establish the first element of unjust conviction, the Court would hold that an issue of fact exists and deny both parties' motion for summary judgment. However, claimant is unable to establish any of the elements to prove unjust conviction. Pursuant to the Court's holdings in the instant motion, it is legally impossible for claimant to prevail at trial. The Court grants defendant's motion for summary judgment and dismisses the claim.

Based upon the foregoing, claimant's motion for partial summary judgment is denied. The defendant's cross-motion for summary judgment is granted and the claim is dismissed. The Clerk of the Court is directed to enter judgment accordingly and close the file.

June 24, 2004
Hauppauge, New York

Judge of the Court of Claims

[1]The following papers have been read and considered on Claimant's Notice of Motion for Summary Judgment: Notice of Motion for Summary Judgment dated June 20, 2003 and filed June 26, 2003; Affidavit in Support of Motion of David W. with annexed Exhibits 1-7 sworn to June 19, 2003 and filed June 26, 2003; Affirmation in Support of Motion for Summary Judgment of Harry H. Kutner, Jr., Esq. dated June 20, 2003 and filed June 26, 2003; Affirmation in Opposition to Claimant's Motion for Summary Judgment and In Support of Defendant's Cross-Motion of Janet L. Polstein, Esq. with annexed Exhibits 1-5 dated September 3, 2003 and filed September 5, 2003; Attorney's Affirmation in Reply of Harry H. Kutner, Jr., Esq. dated February 10, 2004 and filed February 11, 2004; Attorney's Supplemental Reply Affirmation of Harry H. Kutner, Jr., Esq. dated February 11, 2004 and filed February 11, 2004.
[2]Defendant's cross-motion was not a formal cross-motion filed with the Clerk's office. However, the Court has considered it as a cross-motion. Claimant did respond to the cross-motion as if it were formally filed.
[3]A level 3 classification is the highest threat classification and requires lifetime registration.