BUMBURY v. THE STATE OF NEW YORK, #2006-030-523, Claim No. 107877, Motion No.
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
THOMAS H. SCUCCIMARRA
OFODILE & ASSOCIATES, P. C.BY: ANTHONY C. OFODILE, ESQ.
HON. ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERAL
BY: DIANA DYKES, ASSISTANT ATTORNEY GENERAL
March 30, 2006
See also (multicaptioned
The following papers numbered 1 to 6 were read and considered on
for summary judgment dismissing the claim:
1,2 Notice of Motion; Affirmation in Support by Diana Dykes, Assistant Attorney
General and attached exhibits
Affirmation of Anthony C. Ofodile, Esq. in Opposition to Respondent
State’s Motion for Summary Judgment and attachment
Reply Affirmation by Diana Dykes, Assistant Attorney General
5,6 Filed papers: Claim, Answer
This is a claim for unjust conviction and imprisonment asserted pursuant to
Court of Claims Act §8-b. Michael Bumbury alleges in his verified claim
that the vacatur of his conviction for Sodomy in the First Degree on November 5,
2001, and the dismissal of the indictment on or about March 5, 2002 was premised
upon one of the enumerated grounds, rendering his imprisonment unjust, and
entitling him to money damages.
Mr. Bumbury was imprisoned in Rikers Island Correctional Facility in September
1997 pursuant to an alleged parole violation. [Claim No. 107877, ¶5]. A
fellow inmate, Joseph Davis, then complained that Claimant, together with
another inmate named William Westly, sexually assaulted him. [ibid.
¶6]. Claimant alleges he was convicted of Sodomy in the First Degree
in Bronx County Supreme Court on December 23, 1999 and sentenced to 12 years in
prison on January 20, 2000. [ibid. ¶12].
According to the claim, during the course of preparation of an appeal to the
First Department, Claimant’s assigned public defender moved to vacate the
judgment - an application that was joined in by the Bronx County District
Attorney’s Office - based upon the failure to disclose certain exculpatory
material not provided pursuant to Brady, [see Brady v
Maryland, 373 US 83], and in violation of State and Federal Constitutional
due process rights. [ibid. ¶27]. On November 5, 2001
Claimant’s conviction was vacated, and Claimant was ordered released from
prison. [ibid. ¶28]. On March 5, 2002 the indictment against him was
dismissed. [ibid. ¶29].
During the course of the investigation of the appeal of Claimant’s
conviction, and also in connection with a civil lawsuit commenced by Joseph
Davis against the City of New York, Claimant’s attorneys from the Office
of the Appellate Defender met with attorneys from the Corporation
Counsel’s office on May 8, 2001. [ibid. ¶¶ 16, 20]. The
Corporation Counsel’s office provided Claimant’s attorneys with all
the discovery conducted in the civil lawsuit. [ibid. ¶20]. Included
therein were depositions of various correction officers, and Joseph Davis, and
an Unusual Incident Report prepared on February 25, 1998. [ibid.
¶¶20, 21]. The Unusual Incident Report contained exculpatory
information, including a statement by yet another inmate to the effect that Mr.
Davis had told him of his plan to implicate Claimant and others in a “sex
scandal,” contemporaneous reports by correction officers to the effect
that Joseph Davis never complained of being raped or attacked on that date; and
reports by senior officers to the effect that there was no evidence of any
attack, medical or otherwise, and that it seemed likely that the events had been
fabricated by Mr. Davis to secure a transfer. [ibid. ¶21].
When Claimant’s appellate counsel consulted with his trial counsel, the
latter reported that he had never been provided with a copy of the Unusual
Incident Report. [ibid. ¶23].
In July 2001 the Bronx County District Attorney’s Office was given a copy
of the Unusual Incident Report by Claimant’s appellate counsel.
[ibid. ¶26]. After conducting its own investigation, the District
Attorney’s Office said their investigation confirmed that the Unusual
Incident Report indeed existed, but was never provided to them. [id.].
When Claimant’s attorney brought the motion in the sentencing court to
vacate the judgment pursuant to Criminal Procedure Law §§440.10(f) and
, due to the failure to disclose Brady
material, the Bronx County District Attorney’s Office joined in the
Claimant asserts that were it not for the conviction, he would have been
released on October 2, 1998, when the Brooklyn Supreme Court had ruled in his
favor with respect to the alleged parole violation. Because that Court’s
ruling occurred while the indictment on the sodomy charge had been levied, he
remained in prison. Claimant alleges that this conviction directly resulted in
him being imprisoned for over three (3) years more than he should have been
(October 2, 1998 to November 5, 2001).
No documents - such as the County Court decision vacating his conviction or a
record of his time served - are annexed to the claim. Similarly, no documents
have been attached to Claimant’s response to the present motion, except
for a photocopy of a discovery response apparently sent to Defendant in
September 2003, that does not contain any pertinent documents.
MOTION FOR SUMMARY JUDGMENT DISMISSING THE CLAIM
Defendant now moves for summary judgment dismissing the claim based upon the
Claimant’s alleged failure to comply with the pleading requirements
contained in Court of Claims Act §8-b. Specifically, Defendant argues that
the claim fails to establish by documentary evidence that the judgment of
conviction was reversed or vacated and the accusatory instrument was dismissed
as required under Court of Claims Act §8-b(3)(ii); and that the claim fails
to state a cause of action upon which relief may be granted because it does not
fall within one of the enumerated grounds under Court of Claims Act
The applicable portions of the statute provide that
“(3) . . .[i]n order to present a claim for unjust conviction and
imprisonment, claimant must establish by documentary evidence that:
(a) he has been convicted of one or more felonies . . . and subsequently
sentenced to a term of imprisonment, and has served all or any part of the
(b) . . . (ii) his judgment of conviction was reversed or vacated, 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 . . .
(4) 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
It has often been repeated that the requirements imposed by statute allowing
claims against the State pursuant to the Unjust Conviction and Imprisonment Act
are to be strictly construed. Reed v State of New York, 78 NY2d 1 (1991);
Long v State of New York, 19 AD3d 554 (2d Dept 2005).
Claimant has not attached any documentary evidence to his claim, as statutorily
required. See Stewart v State of New York, 133 AD2d 112 (2d Dept
1987), lv denied, 72 NY2d 807 (1988); see also Guce v State of
New York, 224 AD2d 492 (2d Dept 1996) lv denied 88 NY2d 805 (1996).
Such documentation could be as minimal as copies of the decision vacating the
judgment of conviction, and proof that Claimant served a portion of a sentence
in connection with that original conviction - since there is no specific rule
as to what documents must be attached - but something must be attached showing
the first step of what has been most recently viewed by the Second Department as
a “two step” pleading requirement. See David W. v State
of New York, ___AD3d___, 808 NYS2d 741 (2d Dept 2006).
In David W. v State of New York, supra, the Claimant’s
underlying conviction for failure to register as a sex offender was overturned
based upon the failure to provide him with notice and an opportunity to be heard
as to his risk level assessment: a denial of due process. Claimant there
completed “step one” of the pleading burden required by Court of
Claims Act §8-b(3), by presenting documentary evidence with his claim that
he had been convicted and sentenced to a term of imprisonment, that he had
served part of his sentence, and that his judgment of conviction had been
reversed and the accusatory instrument dismissed upon an enumerated ground, to
wit “. . . ‘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’ (Court of Claims Act §8-b(3)(b)(ii)(D) . .
. ” David W. v State of New York, supra, 808 NYS2d at 745.
Claimant there then failed to meet his second pleading burden: to set forth
“. . . verified facts in sufficient detail to have demonstrated that he
was likely to succeed at trial in proving that this designation [as a repeat
risk level three sex offender] was, in fact, incorrect . . .”
In the Affirmation by Claimant’s attorney submitted in opposition to this
motion, counsel indicates that he “produced documentary evidence to
Respondent (sic) during discovery in this case,” and then gives a
partial recital of what documents were provided. [Affirmation by Anthony C.
Ofodile, ¶34]. Counsel also cites to a Third Department case for the
proposition that Claimant was not required to present documentary evidence with
his claim. See Dozier v State of New York, 134 AD2d 759, 761 (3d
Dept 1987); see also Lanza v State of New York, 130 AD2d 872 (3d
Dept 1987). What Dozier v State of New York, supra, and Lanza
v State of New York, supra, concern, however, is the presentation of
evidence supporting a claim of innocence: an entirely separate consideration
from the one raised here. In Dozier, supra, at 761, the Court
remarked parenthetically that although there was no statutory requirement
“. . . that documentary evidence supporting claimant’s claim of
innocence be submitted at the pleading stage (see, Lanza v State of New
York, 130 AD2d 872, 873 . . .), claimant provided all the available records
pertaining to the complainant’s long-term psychological disorders as well
as his own verified statements averring that the complainant had consented to
their sexual encounter . . .” In a similar vein, in Lanza,
supra, at 873, the Court indicated that a claimant did not need to submit
documentary evidence of the likelihood of success at trial at the pleading
Whether Claimant gave appropriate discovery materials to the Defendant, and the
production of evidence of the kind discussed in Dozier, supra, and
Lanza, supra, is not the issue of concern here.
In the present claim, the failure to present a claim as required by the act has
been preserved in the Second Affirmative defense in Defendant’s Answer.
Documentary evidence has not been provided as statutorily required even now,
when Defendant has made a motion for summary judgment dismissing the claim, when
such evidence would be required to defeat the motion in any event. Accordingly,
for this reason alone the Claim is dismissed.
Additionally, Defendant argues, the underlying criminal case was vacated
pursuant to Criminal Procedure Law §§440.10(f) and (h), based upon
the District Attorney’s failure to disclose Brady material to
Claimant. [See Affirmation in Support by Diana Dykes, Assistant Attorney
General, ¶ 4, Exhibit C: Claimant’s Responses to
Respondent’s Demand for Verified Bill of Particulars, ¶10]. Indeed,
the claim itself alleges that these were the grounds, and the grounds are again
repeated in the Verified Bill of Particulars as noted by Defendant.
Whether a sentencing court’s vacatur of a Claimant’s conviction
premised upon the failure to disclose exculpatory material could be the basis
for relief under the Unjust Conviction and Imprisonment Act was the precise
question in Tyson v State of New York, 182 Misc 2d 707, 714 (Ct Cl
1999), affd 280 AD2d 934 (4th Dept 2001), lv denied, 96 NY2d 714
(2001). The Court rejected claimant’s argument that the sentencing court
could be seen to have vacated the judgment of conviction pursuant to newly
discovered evidence pursuant to Criminal Procedure Law §440.10(1)(g) - an
allowable predicate to finding relief under the Unjust Conviction and
Imprisonment Act - in addition to the Criminal Procedure Law §440.10(1)(f)
grounds asserted in the County Court’s determination. The Court of Claims
said the basis for the trial court’s vacating the judgment of conviction
was stated as the failure to disclose Brady material - an admittedly
narrow construction - but one that therefore falls outside those kinds of
determinations that would allow relief under the Unjust Conviction and
When the judgment of conviction is vacated because of non-enumerated grounds -
such as the failure to disclose Brady material - the Second Department
has continued to affirm dismissals for failure to state a cause of action under
the Unjust Conviction and Imprisonment Act. Leka v State of New York, 16
AD3d 557 (2d Dept 2005).
Claimant’s reliance on Coakley v State of New York, 225 AD2d 477
(1st Dept 1996) is misplaced. Coakley, supra, was a case
involving reversal of an underlying conviction premised upon newly discovered
evidence: a fact specifically referred to by the First Department and also,
apparently, by the Court vacating the judgment. Additionally, the First
Department was primarily concerned with disposing of any argument by Defendant
to the effect that both the vacatur of the judgment of conviction and the
dismissal of the accusatory instrument must be upon enumerated grounds, and
decided that only the vacatur of the conviction need be one of the enumerated
grounds, and that the dismissal must be “. . .‘clearly
predicated’ on the prior order vacating the judgment.” Coakley v
State of New York, supra at 478.
The Claim does not state a cause of action under Court of Claims Act
§8-b(3)(b)(ii)(A) because the vacatur of Claimant’s conviction due to
the District Attorney’s failure to disclose Brady material was not based
on any grounds set forth in the statute or premised on a likelihood of
innocence, but rather on the ground that Claimant was deprived of due process
rights guaranteed by the United States and New York State Constitutions.
Accordingly, Defendant’s motion for summary judgment dismissing the
within claim is hereby granted in all respects, and Claim Number 107877 is
hereby dismissed in its entirety.
March 30, 2006
Plains, New York
HON. THOMAS H. SCUCCIMARRA
Judge of the Court of
. Criminal Procedure Law §440.10 provides
in pertinent part that the court may vacate the “. . . judgment upon the
ground that: . . . (f) [i]mproper and prejudicial conduct not appearing in the
record occurred during a trial resulting in the judgment which conduct, if it
had appeared on the record, would have required a reversal of the judgment upon
an appeal therefrom; or . . . (h) . . . [t]he judgment was obtained in violation
of a right of the defendant under the constitution of this state or of the
United States . . . ”