New York State Court of Claims

New York State Court of Claims

BURNS v. THE STATE OF NEW YORK, #2006-028-545, Claim No. 111231, Motion Nos. M-70805, CM-70919


Synopsis



Case Information

UID:
2006-028-545
Claimant(s):
JOHN J. BURNS
Claimant short name:
BURNS
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
111231
Motion number(s):
M-70805
Cross-motion number(s):
CM-70919
Judge:
RICHARD E. SISE
Claimant’s attorney:
LaDUCA LAW FIRM, LLPBY: John J. LaDuca, Esq.
Defendant’s attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Joel L. Marmelstein, Esq.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
April 12, 2006
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read on Defendant’s motion for an order of dismissal and Claimant’s cross-motion for change of venue:

1. Notice of Motion and Supporting Affirmation of Joel L. Marmelstein, AAG


2. Notice of Cross-Motion and Supporting Affirmation of John J. LaDuca, Esq.


3. Affirmation in Opposition to Cross-Motion of Joel L. Marmelstein, AAG


Filed papers: Claim


On January 28, 2002, Claimant, one of two passengers in a motor vehicle, was arrested for Criminal Possession of Marihuana, 1st degree. He was indicted, incarcerated pending trial, and convicted of the charge on January 6, 2004. In a decision issued April 7, 2005, the Appellate Division, Third Department, reversed his conviction and dismissed the indictment on the ground that there was no evidence suggesting that Claimant exercised “dominion or control” over the vehicle, its trunk where the marihuana was stored, or the marihuana itself (People v Burns, 17 AD3d 709 [3d Dept 2005]). Claimant was released from custody, and several months later he commenced this action for unjust imprisonment and conviction (Court of Claims Act § 8-b). The periods of incarceration for which Claimant seeks compensation are from January 28, 2002 to April 2, 2002 and from April 9, 2003 to April 13, 2005, which he states is a total of 799 days. In lieu of answering, Defendant has moved for an order dismissing the claim on the grounds that the Court does not have subject matter jurisdiction over the action or personal jurisdiction over the Defendant and that the claim fails to state a cognizable cause of action.

In order to recover money damages for unjust conviction, pursuant to section 8-b of the Court of Claims Act, claimant is required to prove the following, by clear and convincing evidence:
1. that he was convicted of a felony or misdemeanor and that he served all or part of his sentence;
2. that he was pardoned on the ground of innocence, or
that his conviction was reversed and vacated and the accustory instrument was dismissed (on certain specified grounds), or
if a new trial was ordered, that he was found not guilty or was not retried and the accusatory instrument dismissed;
3. that he did not commit any of the acts charged in the accusatory instrument or the acts and ommissions charged did not constitute a felony or misdemeanor; and
4. that he did not cause or bring about his own conviction by his own conduct.

The Court accepts the decision of the Appellate Division as ample proof that Claimant was convicted of
Criminal Possession of Marihuana, 1st degree
, and, in the absence of any factual basis for doubting his word, credits Claimant's allegation that he served a portion of the sentence imposed for the crime. Claimant’s conviction was reversed on the ground that the evidence against him was legally insufficient and the accusatory instrument was dismissed (CPL § 470.20 [2]). This is one of the resolutions that can support a claim for unjust conviction (Court of Claims Act §8-b[3][b][ii][B]).
The statute further provides the following:
The claim shall state facts in sufficient detail to permit the court to find that claimant is likely to succeed at trial in proving that (a) he did not commit any of the acts charged in the accusatory instrument or his acts or omissions charged in the accusatory instrument did not constitute a felony or misdemeanor against the state, and (b) he did not by his own conduct cause or bring about his conviction. The claim shall be verified by the claimant. If the court finds after reading the claim that claimant is not likely to succeed at trial, it shall dismiss the claim, either on its own motion or on the motion of the state.
(Court of Claims Act § 8-b[4].)

"The 'linchpin' of the statute is innocence." (Ivey v State of New York, 80 NY2d 474, 479 [1992] [citation omitted]). “The People's inability to satisfy their burden of proof at the criminal trial is simply not equivalent to the requirement of Court of Claims Act § 8-b(4) that claimant state facts sufficient to support a finding that she is likely to succeed in proving that she did not commit the acts with which she was charged” (Reed v State of New York, 78 NY2d 1, 9 [1991]).

In the instant claim, Claimant’s only allegations relating to his innocence is the following statement: “I did not possess the marijuana located in the trunk of the car and I am innocent of that criminal charge” (Claim, ¶ 4) This is very similar to the statement that was contained in the claim filed in Reed v State of New York (supra), which stated, without elaboration, that the claimant “did not commit any of the acts charged in the aforesaid indictment” (78 NY2d, at 7). This was insufficient, the Court of Appeals held, to meet the pleading requirement established by subdivision (4) of section 8-b. “[T]he mere statement that one's conviction has been reversed or vacated will not establish a prima facie case. In addition to the fact of reversal or vacating, it will still be necessary to state facts which will establish innocence; failure to do so will result in dismissal of the claim.” (1984 Report of NY Law Rev Commn, 1984 McKinney's Session Laws of NY, at 2929, quoted in Reed v State of New York, supra at 10). The Commission acknowledged that putting the burden of proof on claimant "places one in a difficult position" of proving a negative but concluded that it was appropriate to do so (id. at 2931).

In reviewing the pleadings and supporting papers submitted in opposition to a motion to dismiss and the decision by which Claimant’s conviction was reversed, the Court must accept, for purposes of the motion, that Claimant would be able to succeed in proving every factual statement that could arguably support the conclusion that he committed none of the acts with which he was charged (Dozier v State of New York, 134 AD2d 759 [3d Dept 1987]; Grimaldi v State of New York, 133 AD2d 97 [2d Dept 1987]). The difficulty here, however, is that there are simply no truly factual statements that would support the conclusion that Claimant was innocent of the crime with which he was charged. It is therefore impossible for the Court to find that Claimant is likely to succeed in proving that he did not commit any of the acts with which he was charged or that he did not by his own conduct cause or bring about his conviction.

As this Court has stated previously, “[t]he requirements of Court of Claims Act §8-b(4) was promulgated in order to prevent a claim from being submitted that had little or no chance of success” (Martinez v State of New York, Claim No. 106265, Motion Nos. M-67817, CM-67982 [Ct Cl 2004], Sise, J, UID #2004-028-532). Without factual allegations that, if proven at trial, would satisfy the heavy burden of proving
that he did not commit any of the acts charged in the accusatory instrument, Claimant’s action will have little or no chance of success. Consequently, the claim must be dismissed on the ground that Claimant has failed to comply with the requirements of Court of Claims Act § 8-b(4).
[1]

Defendant’s motion is GRANTED and Claim No. 111231 is dismissed; Claimant’s cross- motion is DENIED.


April 12, 2006
Albany, New York

HON. RICHARD E. SISE
Judge of the Court of Claims




[1]. Because this holding disposes of the claim, it is not necessary to consider Defendant’s alternative argument that the fact that the copy of the claim served on the Attorney General was not verified requires dismissal of the claim, even though Defendant did not reject the unverified pleading as a nullity (see Court of Claims Act § 11[c]; CPLR 3022).