TURNER v. THE STATE OF NEW YORK, #2006-016-079, Claim No. 111542, Motion Nos.
Motions by both parties for summary judgment under the Unjust Conviction Act
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
Alan C. Marin
Leon Friedman, Esq.
Eliot Spitzer, Attorney
Generalby: Michael C. Rizzo, AAG
December 5, 2006
See also (multicaptioned
This is claimant Clinton Turner’s motion for summary judgment on
liability under the Unjust Conviction and Imprisonment Act, which is §8-b
of the Court of Claims Act; for its part, defendant cross-moves to dismiss Mr.
Turner was arrested on October 17, 1987 in connection with the Queens County
robbery of one William Clarke, and convicted after a jury trial in August of
1988 of Robbery in the First Degree and Grand Larceny in the Fourth
He was sentenced on October 21, 1988
to two concurrent terms of 10 to 20 years imprisonment, and was paroled in
In the pre-trial phase of his criminal case, Turner had requested the name of
any person who was to be called as a witness who was known, or with due
diligence could have been known, to have a criminal record. The prosecution
failed to respond to the request; in fact, Mr. Clarke did have a criminal
record. When Clarke testified at Turner’s trial, the potential impeachment
evidence was not used.
In 1993, Clarke told Turner’s wife that he
had lied about being attacked by claimant and signed an affidavit to that
effect. Turner then sought to have his convictions vacated under CPL
§440.10, but his motions were denied.
number of years later, Turner brought a habeas corpus petition in federal court
which was successful, and his convictions were vacated. Turner v
, 327 F Supp 2d 174 (ED NY 2004). On January 4, 2005, the
prosecution moved for dismissal, which was granted January 5, 2005.
The Unjust Conviction Act Requires Specific Grounds For Vacatur
Unless an individual is retried and acquitted, under the Unjust Conviction Act,
the vacatur of a judgment of conviction must be based upon enumerated grounds,
which for our purposes includes paragraphs a, b, c, e and g of subdivision one
of §440.10 of the Criminal Procedure Law. The remaining three paragraphs
of subdivision one cannot serve as a basis for going forward under the Act.
Subdivision one reads as follows, with the enumerated paragraphs set out first:
Paragraphs a, b, c, e and g (§8-b predicates)
(a) The court did not have jurisdiction of the action or of the person of the
(b) The judgment was procured by duress, misrepresentation or fraud on the part
of the court or a prosecutor or a person acting for or in behalf of a court or a
(c) Material evidence adduced at a trial resulting in the judgment was false
and was, prior to the entry of the judgment, known by the prosecutor or by the
court to be false; or
(e) During the proceedings resulting in the judgment, the defendant, by reason
of mental disease or defect, was incapable of understanding or participating in
such proceedings; or
(g) New evidence has been discovered . . . 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 . . .
The Other Paragraphs: d, f and h
(d) Material evidence adduced by the people at a trial resulting in the judgment
was procured in violation of the defendant’s rights under the constitution
of this state or of the United States; or
(f) Improper and prejudicial conduct not appearing in the record occurred during
a trial resulting in the judgment which conduct, if it had appeared in the
record, would have required a reversal of the judgment upon an appeal therefrom;
(h) The judgment was obtained in violation of a right of the defendant under the
constitution of this state or of the United States.
Federal Judge Gershon in the concluding paragraph of her decision granting
Turner’s habeas corpus petition stated:
To clarify, this court holds that there has been a violation of due process
based upon Brady v. Maryland
for failure to turn over material
impeachment evidence; that holding is sufficient in itself to require relief.
In addition, on the facts of this case, there has also been a violation of due
process based upon the admission of perjured testimony which the prosecutor
should have known was false.
[327 F Supp 2d
Judge Gershon’s finding of a Brady
violation does not fall within
any of the §440.10.1 predicate paragraphs. Impeachment evidence is not new
evidence within the meaning of §440. People v Taylor
, 246 AD2d 410,
668 NYS2d 583 (1st Dept 1998), appeal denied
91 NY2d 978, 672 NYS2d 857
(1998); People v Latella
, 112 AD2d 321, 491 NYS2d 771 (2d Dept 1985).
Leka v State of New York
, 16 AD3d 557, 791 NYS2d 660 (2d Dept 2005)
upheld the dismissal of a §8-b claim on the ground that the failure to
material, as determined by the Second Circuit in a habeas
was not based on a ground set
forth in the Unjust Conviction statute. See also Tyson v State of New
, 182 Misc 2d 707, 698 NYS2d 410 (Ct Cl 1999), affd
280 AD2d 934,
719 NYS2d 917 (4th Dept 2001), lv to appeal denied
96 NY2d 714, 729 NYS2d
441 (2001) and Bumbury v State of New York
, Ct Cl, March 30, 2006
(unreported, claim no. 107877, motion no. M-70858, Scuccimarra, J., UID
Turner’s claim is distinguishable from a recent Second Department case
relied upon by claimant: Baba-Ali v State of New York, 20 AD3d 376, 799
NYS2d 101 (2005), in which medical records from two examinations showed no signs
that Mr. Baba-Ali had abused his daughter. The withholding of the medical
records of the daughter’s examinations was ruled deliberate and fraudulent
satisfying paragraph b of CPL §440.10.1; the records were deemed newly
discovered evidence under paragraph g.
As for Judge Gershon’s conclusion at the end of the above-quoted
paragraph that perjured testimony
which Turner’s prosecutor should have known was false and that such was a
violation of due process, constitutional violations are not comprehended by
§8-b (see ¶¶ d & h of CPL §440.10.1). However,
paragraph c of §440.10.1 is more promising from claimant’s vantage,
although limited on its terms to evidence that was known to be false. With that
said, claimant cites persuasive precedent that paragraph c covers the situation
when the falsity of the evidence should have been known by the prosecutor, and
therefore the paragraph c predicate is satisfied here. People v Stern
226 AD2d 238, 240, 641 NYS2d 248, 251 (1st Dept 1996); People v Thomas
226 AD2d 484, 485-6, 641 NYS2d 48, 50 (2d Dept 1996).
The Unjust Conviction Act requires that a claimant prove his innocence, and
such can be tested at an early stage in the lawsuit. See Justice
Rosenberger’s concurring opinion in Britt v State of New York, 260
AD2d 6, 699 NYS2d 323 (1st Dept 1999), lv to appeal denied 95 NY2d 753,
711 NYS2d 155 (2000); and David W. (Anonymous) v State of New York, 27
AD3d 111, 808 NYS2d 741 (2d Dept 2006).
The Second Department, in ruling on the claimant’s CPL 440 motion
relating to Clarke’s recantation, stated that “Under the
circumstances of this case the court correctly found that the witness’s
recantation was incredible . . .” 215 AD2d at 703, 628 NYS2d at 122.
However, the information adduced before Justice Ralph Sherman was not as
complete as that which could be brought out at a trial under §8-b, and no
precedent has been cited that such would collaterally estop the unjust
conviction action in the Court of Claims. It in undisputed that in addition to
Turner and Clarke, two other men were present at the relevant time. One of the
men, Joseph Jones, submitted an affidavit that was part of the motion papers
before Justice Sherman, but it lacked detail. Moreover, Clarke and other
witnesses could be heard in person.
This Court tried an Unjust Conviction case a number of years ago in which the
core element was a recantation, about which it was noted:
Inherent, of course, in any recantation is that the witness has lied once about
what happened; nonetheless, compliance with the Court of Claims Act §8-b
evidentiary requisite could be satisfied with sufficiently credible
(Morales v State of New York, 183 Misc 2d 839, 848-49, 705 NYS2d 176,
182-83 (Ct Cl 2000, Marin, J.), affd 282 AD2d 245, 722 NYS2d 860 (2d Dept
In view of the foregoing, having considered the parties’
IT IS ORDERED that both
claimant’s motion (no. M-72048) and defendant’s cross-motion (no.
CM-72245) be denied.
December 5, 2006
York, New York
HON. ALAN C. MARIN
Judge of the Court of Claims
.The jury had also convicted on Robbery in the
Third Degree, but the trial court dismissed that count. Decision and Order of
Justice Joseph G. Golia, dated June 14, 1996, second unnumbered page
(claimant’s Notice of Motion, exhibit F).
.Turner complies with the basic prerequisites
of paragraph (a) of subdivisions three and five of §8-b requiring
documentary evidence that he was convicted of one or more crimes, was sentenced
to a term of imprisonment and served all or at least part of his sentence. See
Turner v Schriver
, 327 F Supp 2d 174 (ED NY 2004), appended to
claimant’s Notice of Motion as exhibit I; see also exhibits D & F
. The denial of the first motion was affirmed
by the Second Department. People v Turner
, 215 AD2d 703, 628 NYS2d 122
(2d Dept 1995). The second motion was denied in an unreported Decision and
Order by Justice Joseph G. Golia dated June 14, 1996, and the application
requesting leave to appeal was denied by the Second Department on October 2,
1996. Claimant’s Notice of Motion, exhibit F.
. Judge Gershon stated: “This case
initially presented two issues involving perjured testimony admitted at trial.
The first, which petitioner does not pursue, is that Mr. Clarke lied about the
facts of the crime and whether a crime was even committed. The second, which is
intertwined with the Brady
claim discussed earlier, is that Mr. Clarke
lied about his conviction record.” 327 F Supp 2d at 186.
. Leka v Portuondo
, 257 F3d 89 (2d Cir
.This and other decisions of the Court of
Claims may be found on the Court’s website:
. Clarke falsely testified on the stand that
he did not have a criminal record; such impeachment evidence was material. 327
F Supp 2d at 187.
. Claimant submitted: a Notice of Motion with
an Affidavit from Mr. Turner together with exhibits A through M; a Memorandum of
Law in Support of Claimant’s Motion; and a separate Memorandum of Law in
Opposition to [defendant’s] Cross-Motion. Defendant submitted: a Notice
of Cross Motion with an Affidavit in Support together with exhibits A and B; a
Memorandum of Law; and a Reply Affidavit.