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
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
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
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
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
Both Kinousis and Hoyt were deceased at the time of this
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.
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
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
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
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.
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.”
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.
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
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
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.
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
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).
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.
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
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
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
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.”
court added that Mr. Valaoras pled to four separate burglaries that included any
unknown burglaries, which Justice Roman characterized as “a very unusual
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).
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.
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
, 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.
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).
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,
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
, 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.
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
Accordingly, the claim is dismissed.
LET JUDGMENT BE ENTERED