New York State Court of Claims

New York State Court of Claims

MORALES v. THE STATE OF NEW YORK, #2005-030-920, Claim No. 105766, Motion Nos. M-68891, CM-69306


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:
Randa D. Maher, Esq. and Jeffrey G. Pittell, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney Generalby Janet L. Polstein, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
June 22, 2005
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The court read and considered the following papers on defendant's motion to dismiss the claim for failure to state a cause of action and failure to comply with the pleading requirements of Court of Claims Act §8-b and claimants' cross-motion for summary judgment on the issue of liability: Notice of Motion, Affirmation and Exhibits; Notice of Cross-Motion, Affirmation and Exhibits; Claimants' Memorandum of Law; Defendant's Reply Affirmation and Exhibits; Claimants' Reply Memorandum of Law.

This claim, seeking damages for unjust conviction and imprisonment pursuant to Court of Claims Act §8-b, arises from claimants' conviction on December 22, 1988 for the murder of Jose Antonio Rivera. The claim alleges that claimant Ruben Montalvo was incarcerated from December 22, 1988 through July 26, 2001 and that claimant Jose Morales was incarcerated from December 15, 1988 through July 24, 2001, the date of the decision of United States District Judge Denny Chin in Morales v Portuondo (154 F Supp 2d 706 [US Dist Ct, SD NY] [hereinafter referred to as "Morales I"]) granting Morales's petition for a writ of habeas corpus. The findings contained in that decision, in Judge Chin's subsequent decision determining the scope of relief to be granted (Morales v Portuondo, 165 F Supp 2d 601 [US Dist Ct, SD NY] [hereinafter referred to as "Morales II"]), and in the Order and Judgment of the Supreme Court, Bronx County (Wittner, J. Indictment No. 6589/87; December, 2001) vacating the judgments of conviction against the claimants and dismissing the indictment, are dispositive of the issues raised on defendant's motion to dismiss the claim.

The relevant facts underlying the subject murder, the claimants' trial and the post-trial proceedings that led to claimants' incarceration and, ultimately, their exoneration are set forth in detail in Judge Chin's decision in Morales I. In brief summary:
The murder was a brutal one. A man was beaten and stabbed to death by a group of teenagers. Just days after the trial, as Morales and Montalvo were about to be sentenced, another teenager, Jesus Fornes, told at least four individuals – a priest [Father Towle], Montalvo's mother, Morales's attorney [Servino], and a Legal Aid attorney [Cohen]– that he and two other individuals had committed the murder and that Morales and Montalvo were innocent.

Fornes's statements were never heard by a jury. Fornes invoked his Fifth Amendment privilege against self-incrimination and refused to testify at a post-trial hearing on a motion to set aside the verdict. The priest from whom Fornes had sought spiritual guidance did not reveal the statements because they were made as part of an informal confession. The Legal Aid attorney from whom Fornes had sought legal advice did not reveal the statements because he was prohibited by the attorney-client privilege from doing so. Although Fornes's statements to Montalvo's mother and Morales's attorney were presented to the state court at a hearing on the motion to set aside the verdict, the state court denied the motion, refusing to order a new trial because it concluded that Fornes's statements were inadmissible hearsay. (Morales I, 154 F Supp 2d 706, 709-710).
After claimants were unsuccessful in pursuing their contention – that a new trial should have been held at which Fornes's statements should have been admitted – through the state appellate process as well as, initially, in the federal court, the United States Court of Appeals for the Second Circuit remanded Morales's petition for habeas corpus to the District Court, with instructions to determine whether the trial court's ruling that Fornes's statements were inadmissible hearsay and insufficient to justify a new trial violated Morales's right to due process of law. Judge Chin's decision in Morales I ensued.

After extensive discussion of the facts and the applicable law, including People v Robinson (89 NY2d 648), in which the Court of Appeals recognized that the right to due process of law sometimes required the consideration of what would otherwise be inadmissible hearsay, Judge Chin concluded that "Fornes's statements bore sufficient indicia of reliability and trustworthiness to make them admissible" (Morales I, at 726). The statements made to Servino and Maria Montalvo should have been admitted as declarations against penal interest, and the "trial court erred when it refused to order a new trial based on the evidence of Fornes's statements to [them]" (id., 728). Judge Chin further found that the statements to Father Towle were not barred by the clergy-penitent privilege (CPLR 4505), as did, ultimately, Father Towle and the Archdiocese. With respect to the statement made to the Legal Aid attorney, Judge Chin concluded:
Fornes spoke to Cohen to obtain legal advice, but he was merely repeating what he had already told three other people, including Morales's lawyer and Montalvo's mother. Fornes wanted to continue to help Morales and Montalvo, but Cohen advised him that he would probably only hurt himself without helping Morales and Montalvo at all. Fornes was undoubtedly speaking the truth when he told Cohen that he had committed the murder and that Morales and Montalvo were not present. Fornes has been deceased for some four years now, while two apparently innocent men have spent nearly thirteen years in prison for a crime that he committed. Under these remarkable circumstances, the attorney-client privilege must not stand in the way of the truth. Fornes's statements to Cohen are admissible (id., 731)
Judge Chin next considered whether the failure to order a new trial was harmless error:
Considering first Fornes's statements to Mrs. Montalvo and Servino alone, I conclude that the trial court and Appellate Division erred in holding that the evidence would not have made a difference to the jury. Indeed, Morales was prevented from introducing a powerful piece of exculpatory evidence. It is likely that the omitted evidence, evaluated in the context of the entire record, would have created a "reasonable doubt that did not otherwise exist." See Jones [v Stinson], 229 F.3d at 120 (quoting Justice v. Hoke, 90 F.3d 43, 47 (2d Cir.1996)).
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Finally, if Fornes's statements to Father Towle and Cohen are included, it is difficult to imagine that any reasonable jury could find Morales guilty beyond a reasonable doubt. Fornes told four different people on four separate occasions under circumstances that provided considerable assurances of reliability that he was involved in the murder and that Morales and Montalvo were not. The driving force behind Fornes's decision to come forward and to place himself at risk was the guilt he felt because two innocent young men had been convicted of, and were in prison for, the crime that he committed. It is precisely this motivation that gives his statements the ring of truth, even so many years later (id., 731-732).
Based on these findings, Judge Chin granted Morales's petition for a writ of habeas corpus. Montalvo's petition for the same relief was pending, as was Morales's motion, in Supreme Court, Bronx County, to vacate the conviction on the grounds that Fornes's confession to Father Towle constituted newly-discovered evidence that would have exonerated him at a new trial. Judge Chin directed further submission on the question of the scope of relief. He concluded:
In the extraordinary circumstances of this case, I conclude that the proper remedy--the only just remedy--is the unconditional discharge of both Morales and Montalvo. Their convictions must be vacated and the District Attorney's Office precluded from re-trying them, for the following reasons. First, on the record before the Court, no reasonable jury could convict Morales or Montalvo of murder; indeed, the evidence strongly suggests that they are innocent. Second, Morales and Montalvo have been severely prejudiced by the passage of time; they have "served extended and potentially unjustified periods of incarceration" and their ability to defend against the charges in any new trial has been hampered, at least in some respects. In addition, certain aspects of the District Attorney's Office's handling of this matter are troubling (Morales II, 165 F Supp 2d 601, 609).
Prior to the hearing before Judge Chin on July 16, 2001, at which Father Towle, Anthony J. Servino, Esq., Stanley Cohen, Esq. and Maria Montalvo testified, (Claimants' Exhibit "L"), Morales made application (via a Notice of Motion to Vacate Conviction Under CPL 440.10[g] & [h], Claimants' Exhibit "C"), to the Supreme Court to vacate his conviction on the ground that Fornes's confession to Father Towle constituted newly discovered evidence. Subsequent to Judge Chin's decisions, the Bronx County District Attorney consented to the joining of Ruben Montalvo on the motion and in an Order and Judgment dated December, 2001, Justice Wittner found and determined as follows:
Accordingly, for the reasons stated in the Opinions of the Honorable Denny Chin, United States District Court Judge for the United States District Court for the Southern District of New York, dated July 24, 2001 and September 27, 2001, it is hereby,


1. The judgments of conviction of May 18, 1989 against defendants Jose Morales and Ruben Montalvo are hereby vacated, and the above captioned indictment is hereby dismissed, pursuant to C.P.L. § 440.10(1)(g).

2. The Bronx District Attorney's Office is hereby barred from re-trying defendants for the murder of Jose Antonio Rivera pursuant to the judgment of the United States District Court for the Southern District of New York (Chin, U.S.D.J.), dated October 30, 2001. (claimants' Exhibit "B").
Court of Claims Act §8-b "was enacted to provide redress to innocent persons who prove by clear and convincing evidence that they were unjustly convicted and imprisoned" (Ivey v State of New York, 80 NY2d 474, 479). As relevant here, §8-b(3) provides that in order to "present" the claim, claimants must show that the judgment of conviction was reversed on one of the grounds enumerated in the statute; in this case, one of the subdivisions of Criminal Procedure Law §440.10 (Motion to Vacate Judgment) that CCA§8-b(3) provides will support an unjust conviction claim. The essence of defendant's motion to dismiss the claim is the contention that the claimants' convictions were reversed on a ground that will not support such a claim.

As provided in CCA §8-b(3), reversals based on CPL §440.10(1) (a), (b), (c), (e) or (g) will support an unjust conviction claim. Those paragraphs encompass reversals based (a) on lack of jurisdiction, (b) fraud on the part of the prosecutor, (c) evidence known by the court or prosecutor to be false, (e) incapacity of the defendant, or (g) newly-discovered evidence. Reversals premised on paragraphs (d) evidence adduced in violation of defendant's constitutional rights, (f) improper conduct not appearing on the record, or (h) judgment was obtained in violation of a defendant's constitutional rights cannot give rise to such a claim.

Here, the order and judgment vacating claimants' convictions and dismissing the indictment (Claimants' Exhibit "B"), after incorporating by reference the findings of Judge Chin in Morales I and Morales II, explicitly states that the judgments of conviction "are hereby vacated, and the above captioned indictment is hereby dismissed, pursuant to C.P.L. §440.10(1)(g)", i.e., newly-discovered evidence. Notwithstanding defendant's contention that the statute (CCA §8-b) must be strictly construed, notwithstanding that the entire thrust of Judge Chin's findings was that claimants had been deprived of their right to a fair trial because of the failure to allow them to present newly-discovered probative evidence, and notwithstanding that Justice Wittner readily appreciated that such was the basis for Judge Chin's granting claimants' applications, resulting in her granting claimants' relief pursuant to CPL §440.10(1)(g), defendant argues that Justice Wittner's order was confusing, superficial, internally inconsistent and perfunctory and requests that this court determine that the dismissal was not for the reason stated by Justice Wittner but rather should be viewed as being for grounds not stated in her decision.

Defendant notes, correctly, that the District Court granted claimants' petitions for habeas corpus relief after finding that they had been denied due process of law. Such conclusion was based on the refusal to allow claimants to present what was then newly-discovered evidence (i.e., evidence that did not exist prior to the convictions) to a jury. In determining that this refusal was so egregious as to rise to the level of a deprivation of the right to due process of law, Judge Chin relied heavily on People v Robinson (89 NY2d 648) where the Court of Appeals allowed the introduction of hearsay testimony that was not within any recognized exception to the hearsay rule, based on the overriding principle that defendants are entitled to due process of law, quoting Chambers v Mississippi (410 US 284, 302: "[f]ew rights are more fundamental than that of an accused to present witnesses in his own defense") and Washington v Texas (388 US 14, 19):
The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense, the right to present the defendant's version of the facts as well as the prosecution's to the jury so it may decide where the truth lies. Just as an accused has the right to confront the prosecution's witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process of law.
It was the application of these principles that resulted in Judge Chin's conclusion that the refusal to allow claimants to present the newly-discovered evidence of their innocence to a jury rose to the level of a violation of the constitutional right to due process of law.

The issues raised by defendant's motion were all determined, against the defendant's position, in the trial and appellate decisions in Coakley v State of New York, also an unjust conviction claim where the underlying conviction had been reversed on the ground of newly-discovered evidence, in that case DNA evidence that exonerated the claimant. Responding to the state's argument that the evidence was not really newly-discovered, Judge Weisberg wrote:
Although under Court of Claims Act § 8-b, we may be able to say that a vacating court or reversing tribunal did things for reasons in addition to those stated, that is not to say that we can ignore that which was done or the reasons given for doing it. Justice Roberts found the serological evidence to be newly discovered and explicitly vacated the judgment based in large part thereon. It was therefore newly discovered within the meaning of CPL 440.10 (1) (g). Inasmuch as that paragraph is one of the enumerated statutes in Court of Claims Act § 8-b (3) (b) (ii), the vacatur of the judgment satisfies that provision of the act unless, as the State next argues, Justice Roberts' consideration of the related ineffective counsel and lack of due process grounds invalidates it. (Coakley v State of New York, 150 Misc 2d 903, 908).
With respect to the state's contention that the inclusion in the order reversing the conviction on grounds arguably not within the statute bars relief pursuant to §8-b, Judge Weisberg held:
First, we reject the notion that judgments vacated or reversed on due process grounds ipso facto are without the act. While section 8-b does exclude claimants whose convictions were overturned for constitutional violations in general (compare, Court of Claims Act § 8-b [5] [b] [ii], with CPL 440.10 [1] [d], [h]), the underpinnings of most, if not all, of the specifically approved paragraphs are also constitutional in nature. (See, Gordon v State of New York, 141 Misc 2d 242.) For example, is not a conviction obtained as the result of the fraud or duress of a court or prosecutor or upon perjured testimony one obtained in violation of the accused's due process rights? (See, CPL 440.10 [1] [b], [c]; Mott v State of New York, 138 Misc 2d 916.) Yet these are approved grounds. Why then are some constitutionally mandated reversals within the statute while others not? The answer may be found in its legislative history.

The New York Law Revision Commission found that judgments were often reversed or vacated on constitutional grounds having little to do with innocence. (1984 Report of NY Law Rev Commn [Report], 1984 McKinney's Session Laws of NY, at 2928-2929.) For example, the commission observed, illegally seized evidence might justify a reversal but, at the same time, provide no evidence that the claimant was innocent. (Ibid.) The Legislature, therefore, included as a precondition to obtaining relief under section 8-b that the vacatur or reversal be under a ground evidencing innocence whether constitutionally mandated or not. (See, Court of Claims Act § 8-b [5] [b] [ii].) Thus, the test is not whether an overturning court labels prior errors as being due process violations but what exactly the violations were, where they fit into the CPL 440.10 scheme and to what extent they evidence innocence (id., 908-909).

In affirming Judge Weisberg's decision granting summary judgment to the claimant, the Appellate Division, First Department, held:
The statute mandates that claimant's conviction be reversed or vacated on certain specified grounds, one of which is newly discovered evidence under CPL 440.10 (Court of Claims Act § 8-b[5][b][ii]). Since claimant's conviction was explicitly vacated by the trial court on this ground, the requirements of the subdivision have been met, notwithstanding the fact that the conviction was also vacated on grounds of ineffective assistance of counsel, a ground not specified in the subdivision.
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Further, although the subdivision is not without ambiguity (see, Ivey v State of New York, 80 NY2d 474), we reject defendant's additional argument that both the vacatur of the conviction and the dismissal of the accusatory instrument must be based on one of the specified grounds (see, Dozier v State of New York, 134 AD2d 759, 762; Ferrer v State of New York, 136 Misc 2d 218, affd 136 AD2d 487). Rather, the enumerated grounds refer only to the vacatur (or reversal) (Ferrer v State of New York, supra), and the subdivision is satisfied when the dismissal is "clearly predicated" on the prior order vacating the judgment (Dozier v State of New York, supra, at 762), as was the case here (Coakley v State of New York, 225 AD2d 477, 477 - 478).[1]

Thus, defendant's arguments in this case that we should look behind Justice Wittner's decision and ascertain the "real" reason for the reversal, that the "real" grounds for the reversal was that claimants' constitutional rights were violated and not because of newly-discovered evidence and that the references to the violations of claimants' rights to due process of law in the underlying decisions of Judge Chin somehow disqualify the claimants from relief pursuant to Court of Claims Act §8-b may be readily seen to be utterly without merit. Justice Wittner's order, on its face, recites that it was based on newly-discovered evidence. Claimants' right to due process of law was violated because that newly-discovered evidence was not considered; evidence that, if heard, would, as found by Judge Chin, have resulted in their acquittal. The inclusion of the phrases "constitutional rights" or "due process of law" in a decision reversing a criminal conviction does not, as so eloquently explained by Judge Weisberg, end the inquiry but rather requires that we consider what the basis for those conclusions were. In a hypothetical case, where a criminal defendant's constitutional rights were violated because of a improper search and seizure, or the failure to give Miranda warnings, a reversal of the conviction would not indicate innocence and such reversals do not warrant relief pursuant to §8-b. Where, as in Coakley and in the instant claim, the underlying facts as found by the courts reviewing the criminal conviction are such as to indicate actual innocence, then the fact that such courts also concluded that the criminal defendant's constitutional rights were violated does not vitiate the inevitable conclusion that such is exactly the situation that §8-b was aimed at.

Defendant's final argument in support of its motion for summary judgment based on the contention that claimants should not be allowed to "present" their claim is that this case is governed by the decision in Leka v State of New York (16 AD2d 557), wherein the Appellate Division, Second Department, wrote: "[c]ontrary to the claimant's contention, his claim does not state a cause of action under Court of Claims Act § 8-b (3) (b), as the vacatur of his May 1990 conviction due to the People's failure to disclose certain Brady material was not based on any of the grounds set forth in the statute or premised on any likelihood of innocence, but rather on the ground that the claimant was deprived of his due process rights as guaranteed by the United States Constitution" (id.). In fact, contrary to the defendant's contention, the decision in Leka has nothing at all to do with the instant claim because (1) here, unlike in Leka, the underlying conviction was reversed and the indictment dismissed for a ground specified in the statute; (2) Leka does not state that if a conviction is reversed on due process grounds then it a fortiori cannot meet any of the grounds specified in §8-b(3) ; and (3) if Leka was intended to stand for such an either/or proposition (which is certainly not evident from a plain reading of the decision) then it is not binding on this court in any event because it would be squarely contrary to Coakley, which governs this claim as it arose in Bronx County.[2]

The court finds that claimants have fully satisfied §8-b(3) and additionally that they have fully satisfied §8-b(4) in that they are "likely to succeed at trial in proving that (a) [they] did not commit any of the acts charged in the accusatory instrument . . . and (b) [they] did not by [their] own conduct cause or bring about [the] conviction." Accordingly, the defendant's motion must be, and hereby is, denied.

With respect to claimants' cross-motion for partial summary judgment, a finding of liability in a claim brought pursuant to §8-b requires the conclusion that claimants have established their innocence by clear and convincing evidence. Notwithstanding the findings and conclusions reached by Judge Chin and Justice Wittner, the "clear and convincing" standard of proof was not at issue in any of those proceedings and the court cannot conclude, without hearing the testimony of all of the relevant witnesses, that claimants have met that burden. Accordingly, the cross-motion must be, and hereby is, denied as well.

June 22, 2005
White Plains, New York

Judge of the Court of Claims

[1]While not directly relevant, since here the convictions were reversed and the indictment dismissed for identical grounds, the above quotation demonstrates the falsity of defendant's contention that "[c]laimant is under the mistaken impression that only the vacatur of claimants' convictions needs to be on an enumerated ground. This is not the rule in the Second Department, and has yet to be resolved in the First Department" (Defendant's Reply Affirmation, par. 4). In fact, it was specifically "resolved" in the First Department [1996] in Coakley , as the quoted language readily demonstrates (accord, Dozier v State of New York, 134 AD2d 759 [3d Dept 1987]) and, to the extent that the Second Department's holding in Stewart v State of New York (133 AD2d 112 [1987]) articulates a broadly-applicable "rule" in the Second Department, rather than a result dictated by the specific facts thereof, which is not at all clear from a reading of the decision, it remains an anomaly.
[2]Defendant's argument that Leka is controlling merely because the criminal convictions both there and here were reversed as the result of habeas corpus proceedings in Federal court is too superficial to require any discussion.