New York State Court of Claims

New York State Court of Claims

McCLURE v. THE STATE OF NEW YORK , #2006-028-588, Claim No. 112330-A, Motion No. M-71824


Claimant who was incarcerated as a result of probation violation, when the court convicting him of such violation lacked jurisdiction to do so, cannot recover for unjust conviction because probation violation is not a felony or misdemeanor and because, in any event, his own actions contributed to the conviction.

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:
LOUIS P. McCLURE, pro se
Defendant’s attorney:
BY: Joel L. Marmelstein, Esq.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
November 11, 2006

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on Defendant’s motion for an order of dismissal:

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

2. Affidavit in Opposition of Louis P. McClure, pro se

Filed papers: Claim

This is a claim for unjust conviction and imprisonment (Court of Claims Act §8-b). Claimant alleges that on May 4, 2004, he was “convicted” of probation violation and sentenced to one to four years in State prison. This judgment was reversed on appeal and the probation violation petition was dismissed (People v McClure, 26 AD3d 674 [3d Dept 2006]).

Claimant was serving probation in connection with a September 2000 arrest for Driving While Intoxicated (Vehicle & Traffic Law § 1192[2]) and subsequent conviction on that charge. He was originally sentenced to five years probation, and one condition of that probation was that he had to abstain from consuming alcoholic beverages. Claimant violated this condition of his probation on three separate occasions. In July 2002, he was continued on probation but also sentenced to 45 days of intermittent jail time and 180 days of electronic home monitoring. In September 2002, probation was again continued but this time Claimant was sentenced to 180 days in jail, followed by 180 days of electronic home monitoring. The third violation occurred in April 2004, leading to the probation revocation and his being re-sentenced to one to four years in prison on the original felony charge. On appeal, this sentence was reversed, when the Third Department ruled that St. Lawrence County Court lacked jurisdiction to revoke Claimant’s probation in 2004, because it had been required by law to terminate his probation following the second violation.[1] Claimant was released from State custody on March 2, 2006.

Section 8-b of the Court of Claims Act requires that to recover money damages for wrongful or unjust conviction, a claimant must prove, by clear and convincing evidence, that 1) he was convicted of one or more crimes and served all or part of the sentence imposed, 2) the judgment of conviction was reversed or vacated and the indictment dismissed pursuant to one of several grounds enumerated in the Statute,[2] 3) that he did not commit any of the acts, and 4) that he did not cause or bring about his conviction (Torres v State of New York, 228 AD2d 579 [2d Dept 1996]).

Defendant has moved for dismissal of this Claim on the ground that the only crime for which Claimant was convicted was violation of V&TL §1192(2), and that conviction was never reversed or vacated. Consequently, according to defense counsel, incarceration that results from a probation violation, even when the violation is unlawful, cannot qualify as the type of incarceration for which recovery can be sought pursuant to Court of Claims Act §8-b. Claimant, on the other hand, contends that because the warrant for his arrest was defective, his subsequent incarceration was therefore unjust.

It is undisputed that violation of probation is not a crime. Section 10.00(6) of the Penal Law defines a “crime” as a “misdemeanor or a felony,” and the remedy contained in section 8-b of the Court of Claims Act is available only to persons who are convicted and subsequently imprisoned “for one or more felonies or misdemeanors.” In Darvin M. v Jacobs (69 NY2d 957 [1987]), the Court of Appeals confirmed that violation of probation is not an independent crime:
A violation of probation giving rise to revocation proceedings is not a “crime” or “offense” (see, Penal Law § 10.00[1], [6] ) which, pursuant to the County Law, must be prosecuted by a District Attorney (see, County Law §§ 700, 927). Nor is a revocation proceeding a “criminal action” (CPL 1.20[16] ) under the Criminal Procedure Law at which a “prosecutor” represents the People (CPL 1.20[31] ). A “criminal action” terminates upon sentencing (see, CPL 1.20[16]; cf., Matter of Schumer v Holtzman, 60 NY2d 46). A probation revocation, in contrast, is a “criminal proceeding” brought after the completed “criminal action” (see, CPL 1.20[18] ). Its purpose is to determine if defendant's subsequent acts violate the conditions of the original sentence not whether the acts constitute a crime.
To the extent, therefore, that Claimant asserts that his incarceration resulted from wrongful violation of his probation status, he is not entitled to the remedy provided by section 8-b of the Court of Claims Act.

Even if the Court were to accept that wrongful violation of Claimant’s probation could give rise to an action for unjust conviction, however, in that it caused him to serve a period of imprisonment on the original criminal charge, he still could not succeed in meeting the other requirements of the statute.

In a factually similar case, another criminal defendant, also convicted of Driving While Intoxicated and sentenced to probation, subsequently violated a condition of that probation and was sentenced to an indeterminate term of imprisonment. As here, the conviction for violation of probation was vacated as the court lacked jurisdiction (People v Barnes, 59 AD2d 170 [3d Dept 1977]).[3] An unjust conviction action was then commenced in the Court of Claims and, in that instance, the State apparently conceded that the claimant had been convicted of a crime and served part of his sentence. The claim was nevertheless dismissed, because he was unable to prove that he was innocent of the charges brought against him, that they were vacated on one of the enumerated grounds, or that he had not contributed to his own conviction.
[I]t is disingenuous, at best, for claimant to contend that he is innocent of the accusation that he violated the terms of his probation or that he failed to contribute to his conviction, given that he pleaded guilty before the Rensselaer County Court to driving while intoxicated at a time when a condition of his probation was that he not operate a motor vehicle, and that conviction remains undisturbed.
(Barnes v State of New York, 153 AD2d 968. 969 [1989].)

In the instant case, Claimant does not contend that he was innocent of the original charge, Driving While Intoxicated, and at the April 2004 hearing, Claimant admitted that he consumed alcoholic beverages prior to and leading to the charge of probation violation (Marmelstein affirmation, ¶7). Such consumption, a voluntary act on his part, was the chief factor contributing to revocation of his probation. Further, Claimant concedes that the conviction for Driving While Intoxicated was never reversed (McClure affidavit, p 3), and, as the Third Department held in Barnes (supra), “[n]one of the provisions of the Criminal Procedure Law adverted to in subdivision 5 (b) of Court of Claims Act § 8-b” were the basis for the reversal of the probation violation.

The Court does not deny the underlying logic of Claimant’s argument: that at the time he was imprisoned on the charge of probation violation, he was not in fact on probation and therefore he could not be guilty of violating the conditions of a non-existent probation. The relief afforded by section 8-b of the Court of Claims Act, however, is not available to any and all individuals who have been wrongfully imprisoned. It is an exceptional remedy and available only to those who, among other things, “did not by [their] own conduct cause or bring about [their] conviction” (section 8-b[4][b]). This requirement must be met even by those individuals who, like Claimant, were imprisoned for acts or omissions that “did not constitute a felony or misdemeanor against the state” (section 8-b[4][a]). Because Claimant’s own actions caused or brought about his probation violation which, in turn, led to his incarceration, he cannot recover for unjust conviction, even if the court that revoked his probation lacked jurisdiction to do so and even if the actions lending to the revocation did not, under the circumstances, constitute a felony or misdemeanor against the State.

Defendant’s motion is GRANTED and Claim No. 112330-A is dismissed.

November 11, 2006
Albany, New York

Judge of the Court of Claims

[1]. The court held that County Court had violated Penal Law § 60.01(2)(d) by imposing an additional 180-day jail term in connection with Claimant’s second probation violation while purportedly continuing his probation. Because his probation should have been terminated when he was sentenced to 180 days jail time following the second violation, “the court was without jurisdiction to find a violation of his already-terminated probation” (26 AD3d at 675).
[2]. Those grounds are the grounds set forth in sections 440.10(1)(a), 440.10(1)(b), 440.10(1)(c), 440.10(1)(e), 440.10(1)(g), 470.20(1)(A), 470.20(2), 470.20(3), and 470.20(5) of the Criminal Procedure Law.
[3]. In that case, the defendant had originally been sentenced in Albany County but his probation was transferred to Rensselaer County. As a result, Albany County Court no longer had jurisdiction to conduct a violation of probation hearing.