CORTES v. THE STATE OF NEW YORK, #2005-014-002, Claim No. 108167
Claim for unjust conviction and imprisonment dismissed after trial.
JULIO CORTES a/k/a JULIO CORTEZ
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
S. Michael Nadel
Law Office of Irving AnolikBy Jonathan Strauss
Eliot Spitzer, Attorney
GeneralBy Assistant Attorney General Janet Polstein
April 15, 2005
See also (multicaptioned
Claimant seeks to hold defendant liable pursuant to the Unjust Conviction
and Imprisonment Act of 1984, codified as § 8-b of the Court of Claims Act.
Claimant was charged by indictment with three counts of murder in the second
degree (Penal Law § § 125.25 , , ), two counts of attempted
robbery in the first degree (Penal Law § § 160.15 , ), attempted
robbery in the second degree (Penal Law § 160.10 ), criminal possession
of a weapon in the second degree (Penal Law § 265.03), and criminal
possession of a weapon in the third degree (Penal Law § 265.02 )
It was alleged that on May 24, 1997, on Glenmore Avenue,
Brooklyn, the claimant and Jimmy Zapata acted in concert to commit a robbery of
Angel Cotto, and during the course of the robbery, or the immediate flight
therefrom, the victim was shot and killed by the claimant.
On May 26, 1998,
upon a jury verdict, a judgment was rendered convicting the claimant of murder
in the second degree, and he was sentenced to a term of imprisonment of 21 years
to life (Exhibit 3).
By order of the Appellate Division, Second Department,
that judgment was reversed, and a new trial was ordered (Exhibit 5), which was
to be preceded by a new suppression hearing (Exhibit 6). On March 19,
2003, the claimant was acquitted of all charges in the indictment
(Exhibit 7). He was in custody of the New York State correctional system from
June 16, 1998, until his discharge on April 19, 2002 (Exhibit 4).
Wilson, a New York City police officer for 17 years was called to testify by the
claimant. In the early morning hours of May 24, 1997, he was at 356 Warwick
Street in Brooklyn, one block from his home at 305 Jerome Street. He was off
duty, waiting to go to a party, when he heard what sounded like a gunshot or
firecracker. He walked toward Glenmore Avenue in the direction of the sound,
crouching behind a car as he approached the area.
He saw three men standing
three to five feet apart from each other. Two of the men took a step back, one
kneeled, then slowly lay down on the ground in a fetal position. The man who
was still standing walked to the man on the ground, kneeled down, flipped him
over, and reached for something from his neck. The two men walked down Glenmore
toward Jerome Street, leaving the other man on the ground. Mr. Wilson observed
them for 35 to 40 seconds.
He described them as male Hispanics. The one who
rolled the victim over and took something was stocky, 5' 4" or 5' 5" tall, 18
to 22 years old, wearing a blue puffy jacket. The other was 5' 5" or 5' 6"
tall, slimmer, younger, 17 to19 years old, wearing a tan outfit.
Wilson spoke to a detective at the police precinct, who drove him from the
precinct to the crime scene for a show-up identification of two suspects. He
viewed Cortes and Zapata on Jerome Street, as they stood beside a patrol car.
He told the detective that both men looked similar to the two he had seen
earlier, with the same builds, but neither was wearing the same clothes. He did
not identify Cortes that night because he was not completely sure that he was
one of the men. He gave a recorded statement to the District Attorney, in which
he stated that he saw the suspects’ faces for “a brief
The claimant testified that in 1997 he was 17 years old. At
the time of this trial he was 25 years old. He had no prior convictions and had
never been interrogated before. He lived at 888 Glenmore Avenue, with his
mother, about ten blocks from Jerome Street.
He testified as to his
activities on May 23, which began with meeting his girlfriend Lillian Ramos at
his home at 2:00 p.m. or 3:00 p.m. He had been involved with Ramos for
approximately nine months, and at the time she was two months pregnant with
He was wearing sneakers, jeans, a sweater, tank top, and a
black jean jacket. He was not wearing a watch that day. He did not own a puffy
jacket or a tan outfit. He and Ramos went shopping, then back to his house, and
then to a playground area, 302 Park, where they happened upon Jimmy Zapata and
his girlfriend Amanda. He had known Zapata for about two months and had met
Amanda on four or five prior occasions. He had been to Zapata’s home at
305 Jerome Street on two occasions. While in the park Cortes informed Zapata
that Ramos was pregnant.
The four went to Highland Park. Then they went
to a bodega, stopped at a restaurant, and returned to 302 Park. The group
decided to go the claimant’s cousin Carlos Crespo’s house on
When they arrived, Crespo and his friend Emily were there.
They stayed there “for a while,” but the claimant was unable to say
how long. At some point, Amanda left by herself to go to Zapata’s house.
Then claimant and Zapata left to go to a store, located on Pitkin
where his friend Louis Sierra worked. Claimant would refer to Sierra
as his “cousin,” because of their closeness. He purchased some
loose cigarettes at the store, and invited Sierra to come to Crespo’s
house once he got off work.
The claimant testified that he and Zapata
returned to Crespo’s house. Eventually, he did not recall when, he left
Crespo’s home with Ramos and Zapata to pick up Amanda who was at
On the way to Zapata’s house, as they approached
a cordoned off area on Glenmore Avenue and Jerome Street, they were stopped by
Detective Joseph Quinn, who asked the claimant to come across the street with
him. Zapata and Ramos remained on the other side of the street. According to
the claimant, he and Quinn did not have a conversation on the street, but rather
Quinn requested that he come to the police precinct, but he did not say why.
The claimant and Zapata entered into the back seat of a police car. He was not
frisked before entering the vehicle. At some point he and Zapata were taken to
the corner of Glenmore Avenue and Jerome Street, where a show-up was conducted
with Wilson from a vehicle. He heard Wilson say from the car that he was not
100 percent sure that this was the person who was involved in the shooting. At
the time he was unaware that Wilson and Zapata lived in the same building on
They were then taken to the 75th Precinct, where he and
Zapata were separated. He was put in a small windowless room on the second
floor, and then eventually moved to another windowless room. Quinn informed him
that he had reason to believe he had committed a crime and wanted to know his
whereabouts that day. At this time no Miranda rights were administered to him,
no gun powder residue test was performed on him, and no property was taken from
The door of the room was closed. He was not handcuffed, but he
believed he was not free to leave. At one point, when he tried to leave, a
detective ordered him to “get back in the [expletive] room.” He was
left in the room for a long period of time. He said that while at the precinct
he was not given any food, snacks or drinks. He used the bathroom once,
escorted by a uniformed police officer. He was allowed to smoke without
The detectives told him an Assistant District Attorney (ADA)
was due to arrive, and he would tell her where he had been that day. The
videotape of claimant’s statement to the ADA, made May 24, at 9:40 a.m.
was received into evidence as Exhibit 9. On the tape, after his Miranda
warnings were administered, the claimant recounted his day with essentially the
same information contained in his testimony at this trial. He testified that he
had already told Quinn this version of events eight or nine times before he made
the video statement. He also testified that at no time before this video
statement was made did Quinn hit him or physically threaten him. At this point
he did not request a lawyer. He was not shown any video statement made by
Zapata, and Quinn never told him that Zapata had implicated him.
to the claimant, after he made the video statement to the ADA, Quinn’s
attitude changed, and the detective started to threaten him. Quinn told him
that he would spend the rest of his life in prison if he did not admit to the
crime, that he knew he was lying, and said if he saw him on the street he would
“[expletive] him up.” Quinn left the room and Detective Mullins
entered and told claimant that Quinn has a bad temper, and he was not sure he
could control him. The claimant testified that the detectives threatened that
he would spend the rest of his life if prison, Ramos would be arrested and
charged with murder, and his child would be taken away. They told him to say
that the crime was an accident that occurred as the result of a struggle. When
the detectives told him that Ramos would be charged with murder he did not
inquire as to whose murder.
According to the claimant, at that time he did
not know Ramos was at the precinct. Quinn then told him she was in another room
crying. Quinn took him to the room where Ramos was located, and left the two of
them alone in the room.
According to the claimant, Ramos told him the
detectives had threatened to arrest her and take her child away if she did not
tell them that he committed the crime. He acknowledged that he never actually
observed anyone make threats to Ramos. He said that what she told him and her
distraught condition had a strong impact on him. He told her that he was not
going to let anything happen to her, and that he was going to do whatever the
police wanted him to do. After a couple of minutes Quinn returned him to the
room where he had been, and asked him if he was “ready to do this.”
Quinn gave him pen and paper and told to him to write that there had been a
struggle, and it was an accident. Nothing was said about a murder, and the
claimant maintained that at the time he wrote the statement he did not know
anyone had died. Quinn told him that the judge would be lenient, he would not
go to prison, and his girlfriend would be allowed to leave the precinct if he
followed his advice.
A copy of the claimant’s written, signed
statement, made on May 24, at 2:30 p.m., with a superimposed Miranda card
bearing his initials, was entered into evidence as Exhibit 10. It states, in
relevant part, that he tried to take a chain from a man, and that he
“displayed a gun,” which went off accidentally during a struggle.
It goes on to say that when this happened he was shocked and scared, and he and
Zapata returned to his cousin’s house. The statement was replete with
misspelled words and errors of grammar. He explained that when he wrote the
statement he was scared, tired, confused, and worried about his girlfriend and
their unborn child.
Subsequently, the claimant was to make a second
statement to the ADA. Quinn told him that he should say the same thing on the
video as he had written in his statement. Exhibit 11, is a second videotape
statement made to the ADA on May 24, at 4:55 p.m., in which the claimant did not
restate what was in the written statement, but instead, after being informed of
his rights, requested a lawyer, and further questioning ceased.
testified that he asked for a lawyer because he had been told that Ramos had
been released. He asserted that he had never possessed a gun in his life, and
did not have an altercation on the street that night. The claimant maintained
that he had nothing to do with the murder of Angel Cotto.
testified on the claimant’s behalf. She was 17 in 1997. At the time of
the incident the claimant had been her boyfriend for nine months. She was two
months pregnant at the time, but not visibly so. The claimant is the father of
their daughter, who was born while he was in prison, and who was six years old
at the time of this trial. Ramos continued seeing Cortes after his arrest, and
they were married in 1998, while he was serving his sentence. They were
divorced in early 2004. He pays child support, although he is not legally
obligated to do so.
She had first testified on the claimant’s behalf
at his second criminal trial in March 2003, when they were still married, but in
the process of getting a divorce. On cross examination she acknowledged that
she had a financial interest in this litigation; if the claimant receives
compensation, he would have more money to give her for child support.
met the claimant through his cousin Carlos Crespo, with whom she worked at the
Municipal Building. She met Zapata a few weeks before the incident. She
described the friendship between the claimant and Zapata as not a close one, and
that she and the claimant had seen Zapata and Amanda on fewer than five prior
Her testimony of the events that led up to the time they were
questioned on the street by Quinn was essentially the same as the
claimant’s testimony. She stated that Cortes was wearing jeans, a tank
top, a sweater and a jean jacket, and that he never owned or wore a blue puffy
jacket. She had never seen him with a weapon. She does not remember what
Zapata was wearing.
She testified that the claimant and Zapata left
Crespo’s house for the store where Sierra worked. After about 20 minutes
the two returned to Crespo’s home, exhibiting normal demeanor. She
acknowledged that during this 20 minute interval she did not actually observe
where the claimant and Zapata went or what they did.
When the claimant,
Zapata, and she left Crespo’s they were stopped in the street by the
police. Quinn told her to get into a police vehicle so he could question her
further at the police precinct. She was taken to the 75th Precinct along with
Zapata’s sister and stepfather. She was placed in a room with a bench, no
windows, and no clock.
Quinn asked her to tell him her whereabouts the
whole day, and she did so. Quinn asked her to write it down. Her written
statement, which contains some inconsistencies with her trial testimony, was
entered into evidence as Exhibit 8. She testified that Amanda left
Crespo’s by herself, and then the claimant and Zapata left to go to the
store. However, her written statement says that “Jimmy[,] his girl and
Julio left from [Crespo]’s house to take Jimmy’s girl home,”
and nothing was said about going to the store. Ramos testified that at the time
she wrote the statement she had had no contact with the claimant at the
According to Ramos, Quinn told her that if she did not say the
claimant committed the crime she would go to jail and her baby would be sent to
foster care. She testified that she had told another detective that she was
At some point, the claimant entered the room where she was, at
which time she was crying and was hysterical. She told him what Quinn had said
to her. The claimant told her that he would take care of it.
minutes after the claimant left the room, she was allowed to leave the precinct.
It was daylight when she left. During her time at the precinct she was not
given any food or water.
Carlos Crespo also testified on the
claimant’s behalf. He is the claimant’s cousin, and has known him
his entire life. In May 1997, he lived at 733 Glenmore Avenue. He saw the
claimant on a daily basis, and on May 23, he saw the claimant with Ramos,
Zapata, and his girlfriend (Amanda). It was not unusual for the claimant and
Ramos to spend part of an evening at Crespo’s home. He knew who Zapata
was, but had never spent time in his apartment before. He did not remember
Zapata’s girlfriend’s name.
He had never seen the claimant in a
blue puffy jacket or a tan outfit or with a weapon. Crespo testified that on
that particular day the claimant’s demeanor was normal. He recalled that
the claimant and Zapata left his home to go to a store and returned a short time
At approximately 2:00 a.m. Crespo learned that the claimant had been
arrested. He went to the precinct where he was informed that the claimant was
not there. Crespo stated that the police visited his home the next day and
announced that they knew he had the gun. He told them that he did not, and
invited them to search his house. They searched everywhere and did not find a
gun. He said that the police did not have a search warrant.
Sierra testified on the claimant’s behalf. Known as Louie, he has been a
friend of the claimant for 20 years. He knew the claimant called him his cousin
because they were close friends. Prior to this trial, and although he resided
in New York City at the time of the underlying criminal trials, he had not
testified on the claimant’s behalf at either trial.
On May 23, 1997,
he worked at a 24-hour grocery store at Miller Avenue and Pitkin Avenue. He
worked there six or seven days a week for two years, but did not recall the name
of the store.
He saw the claimant that night, but does not recall what
time, and stated that he did not know the man who was with the claimant. He
stated that the claimant’s demeanor was normal. They had a conversation,
which lasted about a minute, in which they talked about him going over to
Crespo’s house. He specifically remembered seeing the claimant that night
because he was shocked when he later learned what had happened to his friend.
According to Sierra, the claimant did not have a gun, and he had never seen him
with a gun. He was not questioned by the police about this matter.
Quinn, a retired New York City Police Department detective, was called to
testify by the defendant. He served in the police department for over 30 years,
until he retired in December 2001 as a second grade detective. On May 24, at
12:30 a.m., he and Detective John Mullins responded to Glenmore Avenue and
Jerome Street to investigate a crime scene. Upon his arrival there was already
police presence, an ambulance, and a crowd had gathered. A male who was
seriously injured was being attended to by paramedics. Initially, there were no
witnesses to the incident.
A cab pulled up to the crime scene location and
he interviewed the woman who “hurriedly” exited the cab. She
identified herself as Janet Barbosa. As he was speaking with Barbosa , he
noticed three people walking up Jerome Street from the direction of Pitkin
Avenue, who turned out to be the claimant, Zapata, and Ramos. Barbosa indicated
to Quinn that she knew the individuals, and identified Jimmy Zapata as her
Quinn separated the claimant and Zapata, and first spoke to
Zapata. He then spoke to the claimant, who told him he had been at 302 Park,
drinking with his friends. He then spoke to Ramos. As a result of these
conversations he asked the claimant and Zapata to accompany him to the precinct.
According to Quinn, the claimant agreed but wanted his girlfriend to accompany
him. Before they left for the precinct, Wilson arrived in a car and a show-up
was conducted from the car. Wilson was not able to make an identification. At
no point did Quinn ask Wilson to look at mug books. The claimant, Zapata, and
Ramos were placed into the rear of a police vehicle. They were not under arrest
or handcuffed at the time. When they arrived at the 75th Precinct, Barbosa and
the cab driver were also present.
The claimant, Zapata, and Ramos were
placed in separate rooms and Quinn conducted a series of interviews in order to
gather information. Sometime after 1:00 a.m. he interviewed Zapata, and a few
minutes later he interviewed the claimant, who again said that he had been at
302 Park. Quinn spoke to Ramos briefly, but she was unable to answer a question
about the claimant and Zapata leaving the apartment. Quinn said “she
really had nothing.” According to Quinn, Ramos did not tell him that she
was pregnant with the claimant’s child, and she did not appear pregnant to
him. Quinn first learned that she was pregnant when Zapata informed him of her
condition at 5:40 a.m. At 6:15 a.m. Ramos gave him a written statement.
some point, Quinn learned that the only evidence taken from the scene was a
shell casing and the victim’s hat, shirt and a medallion. No physical
evidence connecting the claimant to the crime was recovered.
Prior to the
claimant’s first video statement, Quinn had spoken to him three times for
a total of 25 minutes, both alone and with another detective. The claimant said
he had seen nothing at Jerome Street and Glenmore Avenue, and that the four of
them had been out all night drinking beer at 302 Park. Quinn testified that at
no time did he threaten the claimant.
Quinn stated that the claimant’s
first video statement was essentially the same as what he had told him during
According to Quinn, the claimant asked to see his girlfriend,
and at approximately 10:00 a.m. they were placed in a room together for ten
minutes, with Quinn remaining in the room with them. The two engaged in small
According to Quinn, Ramos did not cry, nor was she hysterical. He did
not threaten to take away her unborn child or arrest her if the claimant did not
cooperate, and he never promised to release Ramos if the claimant did cooperate.
Quinn stated that the first time he learned that the claimant had accused
him of using coercive tactics was during the second criminal trial, and the
first time he learned of allegations that he had made threats to Ramos was at
his deposition in this claim.
Quinn interviewed Zapata again, at which time
Zapata maintained that he was not at the murder scene when it occurred. He then
informed Zapata that there was a witness, a resident of the neighborhood, who
said he had seen Zapata on the street at the time of the incident. In what
Quinn described as a “revelation,” Zapata confessed that he was at
the murder scene with the claimant.
After obtaining a statement from
Zapata, Quinn again interviewed Cortes, confronting him with Zapata’s
statement. At this point the claimant changed his story and admitted that he
was involved in the homicide. The claimant told Quinn that Zapata and he came
out of Zapata’s house, saw someone walking down Glenmore wearing a gold
chain and medallion around his neck, and the claimant told Zapata that he wanted
it. The person said to the claimant that he knew him, the claimant replied he
did not know him. The claimant took out a gun, they struggled and the gun went
Quinn asked the claimant to write down what he had just told him in his
own handwriting. Neither he nor the other detectives threatened him. Quinn
testified that he did not dictate the statement or provide the claimant with any
of the language. After the claimant made the written statement he was informed
that he was going to be arrested, fingerprinted, and transported to criminal
court. Quinn testified that after the claimant made the written statement, he
“seemed relieved that it was done.”
Quinn contacted the District
Attorney’s Office so that another video statement could be taken. The ADA
arrived at the precinct sometime after 5:00 p.m. Another video statement by
Zapata was also taken about the same time.
At some point, Quinn did not
recall whether it was before or after the claimant made his written statement,
the claimant asked him, “if the kid died.” Quinn told him yes, at
which point the claimant lowered his head and his eyes became watery.
first spoke with the Medical Examiner’s Office the following day, on May
25, 1997. He learned that a review of the victim’s body indicated that he
had not been shot at close range, which he agreed was inconsistent with the
claimant’s written statement that there had been a struggle when the gun
fired (Chief Medical Examiner, City of New York, Autopsy Report - Angel Cotto,
Quinn testified at both underlying criminal trials regarding
the claimant’s inculpatory statements.
In order to prevail in a claim
for unjust conviction and imprisonment under Court of Claims Act § 8-b,
claimant must prove by clear and convincing evidence that: (1) he was convicted
of one or more felonies or misdemeanors, was sentenced to a term of imprisonment
thereon, and has served all or part of that sentence; (2) his judgment was
reversed or vacated and, as it pertains to the claim herein, that the claimant
was acquitted upon retrial; (3) he did not commit any of the acts charged in the
accusatory instrument; and (4) he did not by his own conduct cause or bring
about his conviction. The requirements of Court of Claims Act § 8-b are to
be strictly construed (see Torres v State of New York, 228 AD2d 579), and
“the ‘linchpin’ of the statute is innocence” (Ivey v
State of New York, 80 NY2d 474, 479).
It is undisputed that the claimant
has satisfied the first two requirements. At issue is whether the claimant has
established by clear and convincing evidence that he is innocent and that he did
not cause or bring about his conviction.
The testimony of the claimant’s former spouse, Lillian Ramos, and
his cousin, Carlos Crespo, did little to provide him with an alibi. Neither was
able to account for his activities during the time he and Zapata were away from
Crespo’s home. Similarly, the testimony of his friend, Robert Louis
Sierra, who was unable to say what time he saw the claimant that day, when
coupled with the claimant’s inability to establish a time line for the
sequence of events that day, failed to shed light on the claimant’s
whereabouts at the time of the crime.
Consequently, what remains is the
claimant’s self-serving statements, which do not satisfy his burden of
establishing his innocence by clear and convincing evidence (see Vasquez v
State of New York, 263 AD2d 539).
A claimant’s uncoerced
confession, though subsequently shown to be false, is behavior which contributes
to one’s conviction and thus precludes recovery under the statute (see
Ausderau v State of New York, 130 Misc2d 848, affd 127 AD2d 980,
lv denied 69 NY2d 613). It is the claimant’s contention that such
does not apply in this instance because his confession was coerced.
defendant argues that the issue of the voluntariness of the statement was
determined at Huntley hearings conducted prior to the two criminal trials, as a
result of which the statement was used against him at each of those trials. It
is the defendant’s contention that the claimant should be collaterally
estopped from relitigating the issue in this proceeding. The Court rejects this
argument. The finder of fact is not bound by such a pretrial determination at
the subsequent criminal trial (see CPL § 710.70), nor is it in this
The claimant’s and Quinn’s version of the events
that transpired during the confinement are considerably at odds. Therefore,
much of this determination rests on the relative credibility of the witnesses.
It is Quinn’s uncontroverted, and credible, testimony that he first
learned that the claimant accused him of employing coercive tactics during the
second criminal trial, and the first time he learned of allegations that he had
made threats toward Ramos was at a deposition concerning this claim. Claimant
made no attempt to rebut these assertions. Quinn testified that no threats were
made to either the claimant or Ramos.
In support of the claimant’s
position that the statement was coerced, he points to the duration of the
detention, the conditions of the detention, the alleged threats made by Quinn
during the detention, and the apparent inconsistency between the Medical
Examiner’s findings and his written statement of the circumstances
surrounding the firing of the weapon.
The claimant contends that the
contents of his inculpatory statement are Quinn’s and not his own,
subscribed to by him only because he was coerced by Quinn. Other than his own
and Ramos’s assertions of coercion, the claimant relies upon evidence that
the Medical Examiner made the determination that the weapon was not fired at
close range, which is inconsistent with the version of events in the statement
that portrays a struggle over the gun, resulting in its discharge.
is uncontested that the statement is inconsistent with the Medical
Examiner’s conclusion, it does not necessarily follow that Quinn coerced
him into writing the statement. It is not implausible that someone would, on
his own volition and out of self-interest, attempt to mitigate the circumstances
by portraying a victim’s death in a way to make it seem like an accident
or a mistake.
Since the only evidence at this trial which directly connects
the claimant to the criminal acts of which he was accused is the confession
which he maintains was coerced and false, the issues of his innocence and
whether he caused his conviction are inextricably intertwined. The only
evidence that the confession is false is the claimant’s testimony that it
is. The testimony of the claimant, as supported by Ramos, that the confession
was coerced by the threats of the detectives, is contradicted by the testimony
of Quinn. In the end therefore, for the purposes herein, both issues are
resolved by whether the claimant has established, by clear and convincing
evidence, that his confession was coerced. Upon the entire record, the Court
finds that he has not.
The claimant has failed to establish by clear and
convincing evidence that he did not commit the acts charged in the indictment,
and that he did not by his own conduct cause or bring about his conviction.
Accordingly, the claim is dismissed.
All motions not heretofore ruled
upon are denied.
LET JUDGMENT BE ENTERED ACCORDINGLY.
April 15, 2005
HON. S. MICHAEL NADEL
Judge of the Court of Claims