New York State Court of Claims

New York State Court of Claims

MARTINEZ v. THE STATE OF NEW YORK, #2005-030-911, Claim No. 109422, Motion Nos. M-69024, CM-69353


Unjust conviction claim. Motion to dismiss and claimant's motion for summary judgment both denied.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):
Claimant's attorney:
Sandback, Birnbaum & Michelenby Oscar Michelen, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney Generalby Janet Polstein, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
March 22, 2005
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


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)[1] and (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" (id.), 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" (id.).[2] The instant claim was served on May 28, 2004 and filed on June 1, 2004, within the applicable limitations period (CCA §8-b[7]).

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 indictment dismissed.

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[5]). The court's finding that the submitted papers are sufficient to establish compliance with subdivision (3) of the statute (and subdivision [4] 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[4]) 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.

March 22, 2005
White Plains, New York

Judge of the Court of Claims

[1]CCA §8-b(3) provides, in relevant part: "In order to present the claim for unjust conviction and imprisonment, claimant must establish by documentary evidence that: * * * his judgment of conviction was reversed or vacated, and the accusatory instrument dismissed or, if a new trial was ordered, either he was found not guilty at the new trial or he was not retried and the accusatory instrument dismissed; provided that the judgement of conviction was reversed or vacated, and the accusatory instrument was dismissed, on any of the following grounds: (A) paragraph (a), (b), (c), (e) or (g) of subdivision one of section 440.10 of the criminal procedure law; or (B) subdivision one (where based upon grounds set forth in item (A) hereof), two, three (where the count dismissed was the sole basis for the imprisonment complained of) or five of section 470.20 of the criminal procedure law; or (C) comparable provisions of the former code of criminal procedure or subsequent law; or (D) the statute, or application thereof, on which the accusatory instrument was based violated the constitution of the United States or the state of New York."
[2]Although the motion to dismiss pursuant to CCA §8-b(3) was granted, the court found that claimant had satisfied §8-b(4) – which requires the court to find that a claimant is "likely to succeed" in proving his innocence and lack of contribution to the conviction. On this motion, defendant does not reference §8-b(4), but the court nevertheless agrees with Judge Sise's prior determination.