New York State Court of Claims

New York State Court of Claims

VAMVAKAS v. THE STATE OF NEW YORK, #2005-014-004, Claim No. 95619


Synopsis


Claim for unjust conviction and imprisonment dismissed after trial.

Case Information

UID:
2005-014-004
Claimant(s):
EVANGELO VAMVAKAS a/k/a EVANGELO VAMVAKO
Claimant short name:
VAMVAKAS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
95619
Motion number(s):

Cross-motion number(s):

Judge:
S. Michael Nadel
Claimant’s attorney:
Mitchell & IncantalupoBy Thomas Incantalupo
Defendant’s attorney:
Eliot Spitzer, Attorney General
By Paul Cagino and Belinda Wagner, Assistant Attorneys General
Third-party defendant’s attorney:

Signature date:
May 2, 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. Evangelo Vamvakas was charged by indictment with burglary in the first degree (Penal Law § 140.30), robbery in the first degree (Penal Law § 160.15), criminal mischief in the third degree (Penal Law § 145.05), criminal possession of stolen property in the fifth degree (Penal Law § 165.40), and possession of burglar’s tools (Penal Law § 140.35). On May 11, 1994, a conviction was rendered on all five counts following a jury trial, and on June 30, 1994, he was sentenced to concurrent terms of imprisonment of 3⅓ to 10 years, 3⅓ to 10 years, 1⅓ to 4 years, 1 year, and 1 year respectively.
Mr. Vamvakas was in custody of the New York City correctional system until his transfer to Groveland Correctional Facility on July 21, 1994, and there he remained in the custody of the State of New York until his discharge on September 19, 1996.
On September 18, 1996, at a hearing pursuant to a CPL 440.10 (Exhibits 17, 18), the Supreme Court, Queens County, vacated the judgment and dismissed the charges against Mr. Vamvakas (Exhibits 7, 8, 18).
The events giving rise to this claim are as follows: On October 4, 1993, Stilianos Kinousis arrived home to his 4th floor apartment located at 31-72 37th Street, Astoria, Queens, to find that his apartment was being burglarized. He testified at the underlying criminal trial (Exhibit 15) that he went to open the apartment door, to find that it could be partly opened because it was off its hinges and locked from the inside with the safety chain. Peering through the crack in the doorway, he observed a burglar inside.
Mr. Kinousis retreated from his apartment door, went down the stairs, and called for his neighbor, Frank Hoyt, to contact the police. As he was making his way back to his apartment he encountered the man whom he had observed in his apartment only moments earlier, standing near the staircase landing. A struggle ensued in the stairwell and carried over outside the building and into the street. The man finally fled the area.
Mr. Hoyt, 78 years old at the time of the incident, testified at the criminal trial that he saw his neighbor holding a man. He described the man as weighing about 130 to 140 pounds, with long scraggly hair, a mustache, thick set eyes, and a prominent nose, and carrying a knapsack. At the criminal trial Mr. Hoyt identified Mr. Vamvakas as the man he had seen that day in the apartment building. He stated that when the police arrived on the scene they did not ask him for a description of the suspect, even though he had told them he witnessed what had occurred (Exhibit 15).
Claimant was arrested several weeks later, on October 27, 1993, and a lineup was conducted at the 114th Police Precinct, at which Mr. Kinousis identified Mr. Vamvakas. Mr. Kinousis stated that the individuals who appeared in the lineup kept their mouths closed, not exposing their teeth, during the entire viewing. Mr. Hoyt did not participate in a lineup identification procedure.
At the criminal trial Mr. Kinousis described the suspect as a white male, with long hair, receding hairline, a bushy mustache, dark eyes and a large nose, who spoke Greek, and carried a knapsack and wore a light shirt and dark slacks. He informed the police that the suspect was about his height, 5' 8". At the criminal trial he identified Mr. Vamvakas as the individual.
Mr. Kinousis, who worked as a dental technician and hygienist, had described the suspect to the police (Exhibit 9) and then later before the Grand Jury (Exhibit 16) as not having his upper front teeth. However, at the criminal trial he testified that he had told the police that the suspect was missing his upper teeth because that was how it appeared to him at the time, but, he added, that he had not really focused on the man’s mouth during the incident.
Both Kinousis and Hoyt were deceased at the time of this trial.
Claimant testified that at the time of the incident he lived in Astoria, Queens, employed as a painter. On October 4, 1993, he was helping a friend paint an apartment. He maintained that he had never entered Mr. Kinousis’s apartment.
Upon Mr. Vamvakas’s arrest he was assigned a Legal Aid attorney, Glenda Callender, with whom he communicated through a Greek-English interpreter, Effie Caragules.
At some point in April 1994, while out on bail, he was arrested, accused of “something about parking meters” and incarcerated in the Queens House of Detention.
[1]
He testified that on April 14 1994, while in jail, another inmate, Nick Valaoras, struck up a conversation with him by asking him if he was also Greek. Claimant told Mr. Valaoras that he was wrongly accused of burglarizing an apartment in Astoria on October 4, 1993, but he did not know the building address. According to claimant, upon hearing this information Mr. Valaoras confided in him that he was the one that had committed the crime that claimant had just described. Claimant explained that Mr. Valaoras actually informed him that the burglarized apartment was located on 37th Street in Astoria. Claimant added that the only reason he knew the date of the crime was because at the time of his arrest the police, while questioning him, informed him of the date.
At the 440 Hearing Mr. Vamvakas noted, “I didn’t know the address because the police did not tell me the address. And I had asked Miss Callender where did this take place and she didn’t tell me where it took place.” He testified that when he spoke to Mr. Valaoras he was “surprised . . . impressed by the fact that he did not have teeth in his mouth.” He further described him as having long black hair parted in the middle, a hook nose, and no facial hair.
At the 440 Hearing claimant stated that it was at the police precinct when the police asked him if he had his own teeth that he first learned that the issue of missing teeth was significant in his case. He showed the police that he had his own teeth, but, according to claimant, the police told him that he resembled someone, and therefore he had to remain at the station. At the time the police did not explain the exact significance of him having his own teeth, but he knew that there must have been a reason why the police had asked him about his teeth.
About one week after his arrest the interpreter informed him that the complainant described the person who committed the crime as having no teeth and speaking Greek.
Claimant testified that during court proceedings held on the criminal matter, he informed the interpreter that he had found the man who committed the crime for which he was being accused. She told him to write the man’s name down and she would pass it along to his lawyer. Claimant stated that the interpreter told him that she gave the name to his lawyer, but she was told that the trial could not be stopped then because the lawyer was positive that claimant would be acquitted because he had his own teeth.
At the 440 Hearing claimant stated that after the first day of trial he told his lawyer that “the man [who committed the crime was] in jail and that something had to be done before a decision [was] rendered.”
Claimant stated that he also told his lawyer the name of the man that he had spoken to in jail on the day that the criminal trial commenced.
Effie Caragules was called to testify by claimant. She stated that at some point during the criminal proceedings, Mr. Vamvakas told her that he was not the one who committed the crime, and that she apprised his lawyer of this information. In her affidavit in support of the motion to vacate judgment (Exhibit G), she stated that during the court proceedings, she informed his lawyer that Mr. Vamvakas told her that he had met the man who committed the crimes for which he was being charged.
Ms. Caragules viewed claimant’s exhibit 20, a piece of paper with writing on it, and testified that the writing was in Greek. She pronounced the Greek word, which started with “B” as “Valaoras.” She explained that the letter “B” in Greek is pronounced like the English “V.”
Glenda Callender was called to testify by claimant. Employed by the Legal Aid Society since 1987, she was assigned to represent Mr. Vamvakas in the underlying criminal matter. She explained that she conceived a plan of defense based on the complaining witness’s description of the perpetrator as not having his front teeth. A dentist was retained to examine Mr. Vamvakas and to testify as to the results of the examination, in which it was established that Mr. Vamvakas had his own teeth. Ms. Callender concluded that Mr. Vamvakas could not have been the perpetrator based on the physical evidence.
Jeffrey Burkes, DDS, testified on Mr. Vamvakas’s behalf at the criminal trial that he determined that Mr. Vamvakas had his natural front teeth.
[2]

Ms. Callender recalled that on one occasion, sometime between January 1994, when the case was transferred from the Kew Gardens Courthouse to the Jamaica Courthouse, and the March 1994 suppression hearings, claimant informed her that he saw someone who looked like him who “probably” committed the crime for which he was charged. However, he did not supply her with details, such as the name or address of the individual. She stressed that Mr. Vamvakas never told her that he discovered the individual who had committed the crime, but only someone who had “probably” committed the crime, and that this assertion was made by claimant on only one occasion.
She did not seek the services of an investigator to further explore the matter. She explained that since she did not have any actual information concerning the individual that Mr. Vamvakas believed may have committed the crime, she was of the opinion that there was nothing for an investigator to investigate. However, she remembered that one day she was in court and she happened to hear the name of a Greek defendant being called. As it was her experience that there were not many Greek defendants in the system at that time, “on a hunch” she decided to approach the attorney representing this defendant and asked him if his client was incarcerated on the date of the crime for which Mr. Vamvakas was accused. She was told by counsel that his client was incarcerated at the time and had nothing to do with the crime. That inquiry was the extent of the action she took with respect to the information claimant had supplied her concerning another man.
Ms. Callender maintained that at no point during her representation of Mr. Vamvakas was she given any information concerning someone called Valaoras (or Balaoras), and only learned of such an individual when she reviewed the 440 motion material prepared by the Fordham School of Law (Exhibit G). She added that the interpreter, during the criminal trial, did not supply her either with information concerning another man that may have committed the crime or with a note with a man’s name on it.
Ms. Callender then testified with regard to an alibi witness. A Notice of Alibi, dated March 11, 1994, was prepared by her (Exhibit F). According to Ms. Callender the alibi witness, Louie Matsopoulos, appeared at court to testify on Mr. Vamvakas’s behalf at the criminal trial, but as a trial strategy decision, she decided not to call him as a witness. The alibi witness would have testified that he let Mr. Vamvakas into an apartment at 2533 23rd Street in order to paint it, but, since the witness would have also testified that he was not with Mr. Vamvakas the entire time, she opted not to elicit his testimony.
Nick Valaoras was called to testify by claimant. On November 4, 1994, Mr. Valaoras entered a plea to four separate burglary indictments and “any unknown burglary or any unknown case of this nature” (People v Nick Valaoras, Exhibit 14).
He stated that he knew claimant from the neighborhood for 15 or 20 years. He did not recall meeting Mr. Vamvakas in the Queens House of Detention or having any conversations with him concerning any crimes. He testified the he did not commit a burglary on October 4, 1993, and denied telling claimant that he had committed the burglary for which claimant was charged.
Mr. Valaoras testified that claimant was trying to implicate him for something he did not do and of which he had no knowledge. He further asserted that claimant offered to share with him the money he would receive as a result of prevailing in his lawsuit against the State of New York.
Claimant testified that he never saw Mr. Valaoras prior to April 1994, when they met in the Queens House of Detention, and that he never offered him money to testify on his behalf.
Andrew Fine of the Legal Aid Society was assigned to represent claimant on the appeal of his conviction. He testified at the underlying 440 Hearing and at this trial on claimant’s behalf. By way of correspondence, claimant informed Mr. Fine of the conversation he had with “Balaros” in jail and that he had informed his lawyer of his discovery on the first day of trial (Exhibits 21, 22).
After receiving this information Mr. Fine had a conversation with Ms. Callender about the matter. At the 440 Hearing he stated that Ms. Callender told him that she recalled having a conversation with Mr. Vamvakas about the issue shortly before trial, and that after the conversation she talked to the attorney who represented the man Mr. Vamvakas claimed committed the crime; the attorney informed her that his client could not have committed the crime. He believed that Ms. Callender did not mention the name of this attorney, or if the attorney represented an individual actually named “Valaoras” or [“Balaoras”]. Fine testified that he also believed that neither Ms. Callender nor the other attorney mentioned the names “Valaoras” or “Balaoras” during the conversation.
James Kousouros, who represented Mr. Valaoras at the time, testified at the 440 Hearing that he did not recall speaking to Ms. Callender about any of her clients. He also noted that “there is really no similarity” in appearance between Mr. Vamvakas and Mr. Valaoras.
As a result of the correspondence with claimant and conversation with Ms. Callender, Mr. Fine retained the services of Joseph Barry, a private investigator to conduct an investigation. Mr. Barry testified on claimant’s behalf at the underlying 440 Hearing and at this trial. He attempted to find information on the name “Balaoras” but uncovered nothing. He conducted a further search on similar sounding names and came across an individual by the name of Valaoras. As a result of his investigation, which included an interview of Mr. Valaoras while he was in prison, he determined that Mr. Valaoras: was not in the city criminal system on October 4, 1993; was, however, incarcerated on April 14, 1994, the day claimant alleges he had contact with Valaoras in the Queens House of Detention; spoke Greek; was convicted of other burglaries; and was missing a number of teeth. During the interview Mr. Valaoras denied knowing claimant and denied committing the crime for which claimant was convicted. Mr. Barry noted that “other than the height” “Mr. Vamvakas looks just like Mr. Volores [sic] take the mustache away” (Exhibit 17).
Based on Barry’s investigation, and conversation with Ms. Callender, Mr. Fine determined that a conflict of interest may have arisen between Mr. Vamvakas and the Legal Aid Society. He contacted the Fordham Law School’s Lincoln Square Legal Services, which agreed to undertake the representation of Mr. Vamvakas.
Queens County Assistant District Attorney [ADA] Peri Kadanoff was called to testify by claimant, and also appeared on behalf of the Queens County District Attorney at the underlying 440 Hearing and proceedings (Exhibits 17, 18). She stated that the District Attorney’s Office conducted an independent investigation, and that, based on the results, the District Attorney consented to vacatur of judgment of conviction and moved for dismissal of the charges against Vamvakas.
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 the indictment was dismissed pursuant to a statutorily enumerated ground; (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.
It is not disputed that claimant has satisfied the first requirement. What remains to be determined is whether claimant has established by clear and convincing evidence that his judgment was vacated and dismissed pursuant to Court of Claims Act § 8-b(3)(b)(ii), that he is innocent, and that he did not cause or bring about his conviction.
Mr. Vamvakas moved to vacate the judgment pursuant to CPL 440.10 (1) (h), based on ineffective assistance of counsel, and requested that the judgment be vacated and other and further relief as the court deemed fit (Exhibit G). However, in the midst of the 440 Hearing the People asked for, and were granted, leave for time to conduct an independent investigation.
Following the investigation, ADA Andrew Zwerling stated that a “multitude of facts which have been provided to the People and which have been corroborated by our own independent investigations” led to the People’s application to consent to vacatur of judgment of conviction, and to move for dismissal of charges against Mr. Vamvakas (Exhibit 18).
ADA Kadanoff went on to explain how the People reached its position, and to present the supporting facts that were the basis of the People’s recommendation to the Court.
She stated that the District Attorney’s Office independently confirmed the fact that Mr. Vamvakas and Mr. Valaoras overlapped in the Queens House of Detention on the date that Mr. Vamvakas indicated, and that they would have had an opportunity to speak to each other. In addition, the District Attorney’s Office independently confirmed that Mr. Valaoras had a long history of burglaries in the Astoria section of Queens, and that he lived approximately six blocks from where the crime was committed. Also confirmed was that Mr. Valaoras did not have his upper front teeth and that Mr. Vamvakas did have his upper front teeth.
ADA Kadanoff stated that the District Attorney’s Office conducted additional photo arrays for the complainant and the eyewitness. The photo array that Mr. Hoyt viewed contained photographs of Mr. Valaoras and some other men, but did not include a photograph of Mr. Vamvakas. ADA Kadanoff explained that a photograph of Mr. Vamvakas was excluded because his photographs showed him with a mustache, while the only photographs available of Mr. Valaoras showed him without a mustache. She stated that to include a photograph of Mr. Vamvakas with a mustache and one of Mr. Valaoras without a mustache would have been “suggestive,” (presumably because the criminal suspect had always been described as a man with a mustache). As a result, the photo array contained photographs of Mr. Valaoras and other men, all of them without mustaches. Mr. Hoyt identified Mr. Valaoras from this photo array as the man who committed the crime.
During this investigation several photo arrays were shown to Mr. Kinousis. The first photo array presented to Mr. Kinousis contained the same photographs Mr. Hoyt viewed a day earlier. Mr. Kinousis indicated that given the passage of time he was only ninety percent certain that Mr. Valaoras was the person that committed the crime, and he also noted that the original suspect had a mustache.
Later that day a second viewing was conducted for Mr. Kinousis, in which he was shown two separate photo arrays: 1) the original photo array from which he picked out Mr. Vamvakas as the criminal (presumably sometime prior to the time he picked Mr. Vamvakas out of the lineup in October 1993); and 2) the photo array from earlier that day where he identified Mr. Valaoras with ninety percent assuredness as the criminal. ADA Kadanoff stated that he looked at both arrays and he “believes now that he had again identified Mr. Vamvakas.” ADA Kadanoff stated that Mr. Kinousis “was very clear in saying that he was short, with Mr. Vamvakas; however, he didn’t have teeth and was taller than the complainant was. And the complainant is five feet ten inches tall. Mr. Vamvakas is approximately five feet six inches tall, and Mr. Valaoras is approximately six feet tall.”
At the close of the People’s proffer, the Supreme Court, Queens County (Roman, J.), stated “the District Attorney’s Office indicated that rather than pursue the issue of ineffective assistance of counsel . . . they felt they wanted to investigate a more threshold question of factual innocence” (Exhibit 18).
The court noted that it was “most unusual to have enough facts come before a District Attorney’s Office for them to launch an investigation and form the opinion that . . . they want to move beyond the original request of the defense but go further and ask for a vacator [sic] of judgment as well as a dismissal of the charges.”
The court added that Mr. Valaoras pled to four separate burglaries that included any unknown burglaries, which Justice Roman characterized as “a very unusual plea disposition.”
The court continued, “this newly discovered information which is really from the District Attorney’s point of view has resulted in sufficient showing for the Court to believe the District Attorney’s Office has reached the right conclusion.” By order dated September 18, 1996, the judgment was vacated and the charges were dismissed against Mr. Vamvakas.
Under Court of Claims Act § 8-b(3)(b)(ii) claimant must establish that his judgment of conviction was reversed or vacated, and the accusatory instrument dismissed on one the grounds stated in CPL 440.10(1)(a), (b), ©), (e), or (g).
Claimant argues that, notwithstanding that the motion to vacate the judgment was brought pursuant to CPL 440.10(1)(h), the conviction was vacated, and the charges were dismissed pursuant to CPL 440.10(1)(g).
[3]
Defendant argues to the contrary.
Claimant asserts that “[t]he record before this Court demonstrate[s] that the information and facts which were relied upon by the court at the 440 hearing was newly discovered within the statutory meaning. The difficulty in obtaining complete information about . . . (Nick Valaoras) demonstrates that even with due diligence claimant . . . could not at trial have produced the information. The testimony of Joseph Barry before this court demonstrates the difficulties faced and the extensive nature of an investigation of this kind” (Claimant’s Post-Trial Brief, pg. 8).
A lower court has no inherent power to set aside a guilty verdict (see People v Carter 63 NY2d 530). The power of a court to set aside a verdict is “created and measured by statute” (People v Schmidt, 216 NY 324, 328; see also People v Jackson, 78 NY2d 638, 647). “Such power may be exercised only when the requirements of the statute have been satisfied, the determination of which rests within the sound discretion of the court” (People v Pugh, 236 AD2d 810, 811, quoting People v Salemi, 309 NY 208, 215, cert denied 350 US 950).
Having indicated that the ground of ineffective assistance of counsel was no longer being pursued, the court when vacating the judgment and dismissing the charges stated that it was newly discovered information that led the District Attorney’s Office to consent to vacatur of the judgment of conviction, and move for dismissal of charges on the basis of factual innocence.
Given the statutory strictures imposed on the hearing court, its finding of newly discovered information, and its ultimate determination, Mr. Vamvakas has established that his judgment of conviction was vacated under CPL 440.10(1)(g), satisfying the requirement of Court of Claims Act § 8-b(3)(b)(ii).
As to the issue innocence, the governing statute places a burden upon claimant to prove his innocence of the acts charged in the indictment by clear and convincing evidence. “The requirements of this statute are to be strictly construed” (Torres v State of New York, 228 AD2d 579, 580).
Clear and convincing has been defined as proof which establishes that it is “highly probable that what he claims is what actually happened” (Ausch v St. Paul Fire and Marine Insurance Co., 125 AD2d 43, 45, citing PJI 1:64). This standard “is significant since ‘it is a higher, more demanding standard than the preponderance standard’ [citation omitted]. Furthermore, the clear and convincing ‘standard serves to “impress the factfinder with the importance of the decision” [citation omitted]’ [citation omitted]. Finally, clear and convincing evidence means evidence that is neither equivocal nor open to opposing presumptions [citations omitted]” (Solomon v State of New York, 146 AD 2d 439, at 440).
While the contradictory and indecisive identifications made by the complainant and the eyewitness may have cast doubt on the People’s ability to establish Mr. Vamvakas’s guilt at the criminal trial, it does not follow that these unreliable identifications establish his assertion of innocence. In the face of Mr. Valaoras’s denials at this trial, the eyewitness’s subsequent identification of Mr. Valaoras is no more viable than his earlier in-court identification of Mr. Vamvakas as the perpetrator. Similarly, the complainant’s subsequent tentative identification of Mr. Valaoras and his later qualified re-identification of Mr. Vamvakas, coupled with his earlier pretrial photo array and lineup identifications of Mr. Vamvakas, serve to underscore the inconclusive nature of claimant’s proof of innocence.
Claimant’s somewhat remarkable story that he encountered the actual perpetrator in jail, who admitted to a burglary which had occurred six months earlier somewhere in Astoria, Queens (which Mr. Valaoras vehemently denied), while possible, nevertheless fails to satisfy the claimant’s burden under the statute.
Accordingly, the claim is dismissed.
LET JUDGMENT BE ENTERED ACCORDINGLY.

May 2, 2005
New York, New York

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



[1].Claimant testified that he had a prior history of only two criminal convictions: passing bad money orders, and stealing parking meters. However, proceedings at the underlying criminal trial indicate that he was convicted of attempted criminal possession of stolen property in the fifth degree, and fraudulently obtaining transportation without pay (Exhibit 15).
[2].Both parties stipulate that Claimant’s Exhibit 11, which had been destroyed, was an X-ray of claimant’s mouth and teeth, and that the X-ray demonstrates that claimant’s front teeth were intact as set forth by Dr. Burkes at the criminal trial.
[3].“New evidence has been discovered since the entry of a judgment based upon a verdict of guilty after trial, which could not have been produced by the defendant at the trial even with due diligence on his part and which is of such character as to create a probability that had such evidence been received at the trial the verdict would have been more favorable to the defendant; provided that a motion based upon such ground must be made with due diligence after the discovery of such alleged new evidence . . . .” CPL 440.10(1)(g)