The court read and considered the following papers on claimant's motion for
partial summary judgment and a further order dismissing the affirmative
defenses, and defendant's cross-motion for dismissal: Notice of Motion,
Affirmation and Exhibits; Notice of Cross-Motion, Affirmation and Exhibits,
Affirmation in Reply and in Opposition.
This claim, arising under Court of Claims Act §8-b, results from
claimant's conviction of murder and weapons possession on September 10, 1986 and
his resulting incarceration, and the subsequent reversal of the conviction and
dismissal of the indictment on June 13, 2002. Claimant moves for partial
summary judgment on the issue of liability. Defendant cross-moves for dismissal
and/or summary judgment.
Claimant had previously filed a claim based on the subject events (Claim No.
106265) and defendant moved to dismiss the claim for failure to comply with
Court of Claims Act §§8-b(3)
(4). The court (Ct Cl, Sise, J., unreported decision and order dated April 30,
2004, UID No. 2004-028-532) granted the motion to dismiss to the extent that it
was based on section 8-b(3), agreeing with the defendant that claimant "failed
to provide the appropriate documentary evidence required by the statute"
), but noting that "Claimant may, as of right, file and serve a claim
which satisfies the statute providing the statute of limitations has not run"
The instant claim was served on
May 28, 2004 and filed on June 1, 2004, within the applicable limitations period
According to the documentary evidence that is now before the court, a
post-conviction investigation conducted by the Queens County District Attorney
uncovered evidence that claimant was actually innocent of the crime and another
person, who had confessed, was responsible. The assistant district attorney
summarized the investigation and stated that they were "satisfied to pretty much
a certainty that Mr. Martinez was the wrong person and once that occurred, we
approached the court to try to get an order to produce to bring Mr. Martinez
back to this court and so that this court could appoint an attorney to represent
him so an attorney can make the appropriate motions" (transcript of proceedings
before Hon. Steven W. Fisher, Supreme Court, Queens County, Indictment No.
2287/85, June 13, 2002, p 10). The People joined in the motion to vacate the
conviction and dismiss the indictment. The court commended the district
attorney's office for pursuing the matter and, after questioning the assistant
district attorney about some of the specific reasons for the conclusion that
claimant was the wrong man, concluded: "I will certainly accept your factual
determination" (id. p 12-13). The conviction was then vacated and the
In November 2003, Justice Fisher signed an order, upon request of claimant's
counsel, clarifying that the basis for the dismissal of the indictment was
Criminal Procedure Law §440.10(1)(g), a ground that will support a claim
pursuant to CCA 8-b. Although the typed order states that the conviction was
vacated, and the indictment dismissed, pursuant to both CPL §440.10 (1)(g)
and CPL §440.10(1)(h), the two references to the latter subdivision were
stricken from the order by Justice Fisher before he signed it, leaving
§440.10(1)(g) as the sole ground. Apparently, the order was typed the way
it was because the original notice of motion requested that the conviction be
vacated pursuant to both CPL §440.10(1)(g) (newly discovered evidence) and
CPL §440.10(1)(h) (violation of constitutional rights). Nevertheless, the
papers in support of that motion do not mention any issue of a violation of
claimant's constitutional rights, nor does the transcript of the proceedings
before Justice Fisher reflect any discussion of claimant's constitutional
rights. The court will accept the order at face value, particularly since the
conclusion that the sole basis for Justice Fisher's actions was that newly
discovered evidence indicated that claimant was innocent of the crimes for which
he had been convicted is entirely consistent with the findings contained in the
transcript of the June 13, 2002 proceeding.
What is at issue on defendant's cross-motion is claimant's compliance with CCA
§8-b(3), the requirement that "in order to present the claim," a claimant
must submit, with the claim, documentary evidence establishing that the
conviction was vacated and the indictment dismissed on a ground recognized in
the statute. The court finds that claimant has satisfied this requirement. Of
course, the statute also provides that, in order to obtain a judgment, a
claimant must establish by clear and convincing evidence that his conviction was
vacated and the indictment dismissed on a specified ground (CCA §8-b).
The court's finding that the submitted papers are sufficient to establish
compliance with subdivision (3) of the statute (and subdivision  which
requires that the court find that claimant is likely to succeed at trial in
meeting his burden of proof) does not affect claimant's trial burden under
subdivision (5), nor does it preclude defendant from submitting proof, and
argument, on this point at trial.
Subdivision (5) further requires that, in order to obtain a judgment, claimant
must establish that he did not commit any of the acts charged in the indictment
and that he did not by his own conduct cause or bring about the conviction. A
finding that a claimant has established these requirements by clear and
convincing evidence requires in most, if not all, claims arising under this
statute, a trial in which all of the evidence may be fully evaluated and all
relevant witnesses examined and cross-examined in open court so that their
credibility may be weighed. The court's finding upon initial review that
claimant appears "likely to succeed at trial" (CCA §8-b) is not
equivalent to claimant meeting the burden of proof that subdivision (5) imposes.
While there may be some hypothetical cases in which a claimant could satisfy
this burden by submitting papers on a summary judgment motion, this is not one
of those cases.
Accordingly, claimant's motion for summary judgment and defendant's
cross-motion for an order of dismissal are both denied, and claimant's motion to
strike the first and second affirmative defenses is granted.