New York State Court of Claims

New York State Court of Claims

CORTES v. THE STATE OF NEW YORK, #2005-014-002, Claim No. 108167


Synopsis


Claim for unjust conviction and imprisonment dismissed after trial.

Case Information

UID:
2005-014-002
Claimant(s):
JULIO CORTES a/k/a JULIO CORTEZ
Claimant short name:
CORTES
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
108167
Motion number(s):

Cross-motion number(s):

Judge:
S. Michael Nadel
Claimant’s attorney:
Law Office of Irving AnolikBy Jonathan Strauss
Defendant’s attorney:
Eliot Spitzer, Attorney GeneralBy Assistant Attorney General Janet Polstein
Third-party defendant’s attorney:

Signature date:
April 15, 2005
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
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 [1], [2], [3]), two counts of attempted robbery in the first degree (Penal Law § § 160.15 [1], [2]), attempted robbery in the second degree (Penal Law § 160.10 [1]), 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 [4]) (Exhibit 2).
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).
Norman 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.
Mr. 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 second.”
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 their child.
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 Glenmore Avenue.
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 Avenue,
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 Zapata’s home.
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 Jerome Street.
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 him.
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 permission.
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.
According 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.
The claimant 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.
Lillian Ramos 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.
She 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 occasions.
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 precinct.
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 pregnant.
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.
About ten 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 later.
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.
Robert Louis 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.
Joseph 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 brother.
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.
At 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 questioning.
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 talk.
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 off.
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.
Quinn 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, Exhibit M).
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.
The 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 civil context.
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.
While it 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
New York, New York

HON. S. MICHAEL NADEL
Judge of the Court of Claims