New York State Court of Claims

New York State Court of Claims

BUMBURY v. THE STATE OF NEW YORK, #2006-030-581, Claim No. 107877, Motion No. M-71758


Synopsis


Motion to reargue/renew denied, concerning dismissal of a claim brought pursuant to the Unjust Conviction Act, Court of Claims Act §8-b. Even if renewal granted, motion for summary judgment dismissing the claim would still be granted, since claimant did not establish by documentary evidence that the judgment of conviction was reversed or vacated and that the accusatory instrument was dismissed as required by Court of Claims Act §8-b(3)(b)(ii); and the claim fails to state a cause of action upon which relief can be granted because it is not based upon one of the enumerated grounds under Court of Claims Act §8-b(3)(b)(ii)(A). Off the record discussions, and arguments in briefs, do not establish the basis for the reversal of the conviction or the dismissal of the indictment

Case Information

UID:
2006-030-581
Claimant(s):
MICHAEL BUMBURY
Claimant short name:
BUMBURY
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
107877
Motion number(s):
M-71758
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant’s attorney:
OFODILE & ASSOCIATES, P.C.BY: ANTHONY C. OFODILE, ESQ.
Defendant’s attorney:
HON. ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERAL
BY: DIANA DYKES, ASSISTANT ATTORNEY GENERAL
Third-party defendant’s attorney:

Signature date:
November 13, 2006
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision

The following papers numbered 1 to 9 were read and considered on Claimant’s Motion to reargue and/or renew the prior Decision and Order of this Court granting Defendant’s motion for summary judgment dismissing the claim:
1-3 Notice of Motion; Affirmation in Support by Anthony C. Ofodile, Attorney for Claimant and attachments; Memorandum of Law in Support of Motion to Renew and Reargue

  1. Affirmation in Opposition to Claimant’s Motion to Renew and Reargue by Diana Dykes, Assistant Attorney General and attached exhibits
5,6 Reply Affirmation by Anthony C. Ofodile with attached exhibits; Claimant’s Reply Memorandum of Law in Further Support of his motion to renew and reargue

7-9 Filed papers: Claim, Answer, Decision and Order, Bumbury v State of New York, Claim No. 107877, M-70858 (April 12, 2006, Scuccimarra, J.), and underlying papers

This was a claim for unjust conviction and imprisonment asserted pursuant to Court of Claims Act §8-b, that was dismissed in a Decision and Order granting summary judgment on April 12, 2006. [See Bumbury v State of New York, Claim No. 107877, M-70858 (April 12, 2006, Scuccimarra, J.)]. In his verified claim, Michael Bumbury alleged that the vacatur of his conviction for Sodomy in the First Degree on or about November 5, 2001 and the dismissal of the indictment against him on or about March 5, 2002 were premised upon one of the enumerated grounds, rendering his imprisonment unjust, and entitling him to money damages. Summary Judgment dismissing the claim was granted, first, because Claimant failed to append documents to his claim establishing by documentary evidence the statutory prerequisites to filing an unjust conviction claim - indeed he then did not properly oppose the motion for summary judgment by including such documentation - and, second, because Claimant did not establish that the vacatur of his conviction was premised upon an enumerated ground under the statute. A copy of the Decision and Order dismissing the Claim was served upon Claimant’s attorney with Notice of Entry on April 20, 2006. [Affirmation of Anthony Ofodile, Exhibit 1].

The Court notes that the Claim was served and filed on or about June 13, 2003; issue was joined on July 21, 2003 and a Note of Issue and a Certificate of Readiness for Trial was filed on September 23, 2005, including the indication that all discovery was completed.
MOTION FOR REARGUMENT/RENEWAL
“A motion for reargument, addressed to the discretion of the court, is designed to afford a party an opportunity to establish that the court overlooked or misapprehended the relevant facts, or misapplied any controlling principle of law. Its purpose is not to serve as a vehicle to permit the unsuccessful party to argue once again the very questions previously decided . . . (citations omitted). Nor does reargument serve to provide a party an opportunity to advance arguments different from those tendered on the original application.” Foley v Roche, 68 AD2d 558, 567-568 (1st Dept 1979); Loris v S & W Realty Corp., 16 AD3d 729, 730 (3d Dept 2005); see Civil Practice Law and Rules §2221(d)(2). Additionally, such a motion should be brought within thirty (30) days after service of a copy of the order with notice of entry, or in any event prior to the entry of any judgment by the appellate court to which an appeal has been taken. Civil Practice Law and Rules §2221(d)(3); see Bray v Gluck, 235 AD2d 72 (3d Dept 1997), lv dismissed 91 NY2d 1002 (1998).

A renewal motion asks the Court to consider new facts not previously offered that would change the earlier determination, or a change in the law that would change the prior determination. Civil Practice Law and Rules §2221(e). With respect to new facts, however, the motion should contain “reasonable justification for the failure to present such facts on the prior motion.” Civil Practice Law and Rules §2221(e)(3); see Stocklas v Auto Solutions of Glenville, Inc., 9 AD3d 622, 625 (3d Dept 2004).

In the Affirmation in support of the present motion, Claimant’s counsel indicates for the first time that Claimant was incarcerated “until February, 2006” and indicates that Claimant was “. . . moved many times during the time we represented him in this case, it made it difficult for him to work with us or help in the prosecution of his case. He gave limited papers and nothing that was necessary for the defense of the [summary judgment] motion because that was what he had.” [Affirmation by Anthony Ofodile, ¶4]. Counsel indicates that there had been attempts to secure records directly from the Court, and from Mr. Bumbury’s appellate counsel, but that Claimant’s appellate attorney would not release records to the present attorneys without having spoken to Mr. Bumbury. Counsel asserts that when Mr. Bumbury “brought the file of his case to my office in April 2006 at which time it was too late to use anything contained therein to defend the [summary judgment] motion and based on the difficulties and peculiar circumstances of this case, I respectfully request that the Court grant our motion for leave to renew and reargue.” [Ibid. ¶6]. Counsel also avers that “the State brought the motion for summary judgment during the period of discovery in this case and discovery had not ended. The Claimant had not been deposed, and the parties were still trying to secure the relevant documents relating to Mr. Bumbury’s conviction, sentence and the setting aside of his conviction and sentence as well as the indictment.” [Ibid. ¶3].

As noted previously, Claimant filed a note of issue and certificate of readiness for trial on September 23, 2005. The Court notes that the Defendant’s summary judgment motion was originally brought in October 2005, and marked for submission in January 2006: clearly within the time constraints for same provided for by statute. See Civil Practice Law and Rules §3212. It is also noted that no arguments were advanced in opposition to the underlying motion for summary judgment premised on any failure to communicate with the Claimant or any remaining discovery issues.

The Court is somewhat at a loss as to how to view the present application, which is a hodgepodge of hearsay and excuses containing what might have proven to be the glimmerings of a valid argument and a claim with possible merit. Instead of an affirmation from appellate counsel, or a track record of correspondence indicating that no records would be released to present counsel, Counsel recites the story in his affirmation, and appends an additional affirmation from an attorney in his firm, Kathy Polias, affirmed on May 21, 2006, stating:

“2. I personally went to the Criminal Court to obtain the relevant records at the direction of Anthony Ofodile, Esq., the Attorney of Record in this case, with an authorization signed and notarized by Michael Bumbury. The file I was given by the Court Clerk did not contain any of the papers that were helpful to the defense of the State’s Motion. In fact the file was very thin.

3. I was told that any records mentioning the name of the alleged victim would not be made available because it was a sexual offense.

4. I sent authorizations to the Office of the Appellate Defender in this case to obtain the file of Mr. Michael Bumbury but did not obtain same.

5. I talked to Mr. Warshawsky who told me that he needed to get a letter directly from Mr. Bumbury requesting the release of the records before he could do so.” [Affirmation by Anthony Ofodile, Exhibit 4].

Ms. Polias’ affirmation does not indicate when any of this investigative effort took place, what Court was involved, does not say what documents were actually provided by the Court Clerk of whatever Court she was talking to, does not include copies of correspondence, and does not indicate when she was actually able to obtain documents and what those documents were. Indeed, the Court again notes that the opposition papers submitted by Claimant’s attorney in connection with Defendant’s Summary Judgment motion do not mention any of the foregoing difficulties, including Claimant’s movement and efforts to obtain documents that should have accompanied the claim in the first instance, and would impliedly have had some role in Claimant’s having filed a note of issue and certificate of readiness for trial.

The papers submitted do not establish that the Court misapplied any controlling principle of law; therefore the motion for reargument is denied. Similarly, the papers submitted - including as they do additional facts not included on the prior motion - do not present a convincing rationale for the failure to present such information earlier, nor would such information have changed the Court’s decision in any event. Accordingly, the motion to renew is also denied.

Assuming for the sake of argument that the application to renew were convincing, the Claim would still be dismissed on summary judgment because, however harsh the result, Claimant did not present his claim with the minimal documentary support required as stated in the earlier decision [See Court of Claims Act §8-b(3)(ii)] nor does the claim state a cause of action upon which relief may be granted because it does not fall within one of the enumerated grounds even if the documents submitted now were considered. [See Court of Claims Act §8-b(3)(ii)(A). Specifically, 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)(b)(ii); and the claim fails to state a cause of action upon which relief may be granted because it does not contain one of the enumerated grounds under Court of Claims Act §8-b(3)(b)(ii)(A).

The applicable portions of the Unjust Conviction 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 sentence; and

(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 conviction . . . 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(3) and (4).
It is often 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).

In connection with the present motion, Claimant appended some documentary evidence that if it had been attached to the claim, and if it contained the requisite detail, might be the type of documentary proof envisioned by the pleading requirements. But none of it appears to satisfy the predicate requirements of showing the actual basis for the vacatur of the conviction and dismissal of the indictment.[1]

Claimant has appended to the motion for reargument and renewal, an attorney’s affirmation by Anthony Ofodile, an Affidavit of Michael Bumbury, Claimant, sworn to May 17, 2006, a copy of an authorization he signed dated August 12, 2003 directed to the Division of Criminal Justice Services allowing Mr. Ofodile’s office access to records maintained by the Division of Criminal Justice Services [Affidavit of Michael Bumbury, Exhibit 1]; a copy of a form order entered November 14, 2001 vacating the conviction and sentence [ibid. Exhibit 2]; a copy of a stipulation between the Bronx County District Attorney’s Office and the Office of the Appellate Defender indicating that the appeal to the first department of the judgment of conviction had been rendered moot by the November 14, 2001 order vacating it [ibid. Exhibit 3]; a memorandum from the Bronx County District Attorney’s Office recommending dismissal of the indictment against Mr. Bumbury and his co-defendant William Westly to the Bronx County Supreme Court [ibid. Exhibit 4]; documents associated with a federal habeas corpus proceeding involving Mr. Bumbury relative to his immigration status and appeals [ibid. Exhibit 5; 8]; a copy of the Unusual Incident Report previously discussed that constitutes Brady material [see Brady v Maryland, 373 US 83] suggesting that Claimant’s alleged victim may have fabricated the alleged sexual assault [ibid. Exhibit 6]; a copy of an affidavit by Shawn Patterson also known as Robert Davis sworn to June 26, 2001 and apparently submitted to the Bronx County Supreme Court in connection with proceedings involving Claimant’s co-defendant, William Westley, indicating that Claimant’s accuser may have fabricated the sexual assault charge [ibid. Exhibit 7]; a memorandum directed to Mr. Bumbury from D. LaClair, Deputy Superintendent for Security at Upstate Correctional Facility dated December 10, 2001 concerning jail time credits [ibid. Exhibit 9]; lab reports dated October 8, 1998 and September 28, 1999, respectively, listing the victim as Joseph Davis and the suspects as Mr. Bumbury and Mr. Westley on the later report which indicates that the semen samples taken from Mr. Davis could not be from Mr. Bumbury or Mr. Westley; and listing only Mr. Bumbury on the earlier report, which appears to summarize only what parts of the body samples were taken from [ibid. Exhibit 10]; a copy of a memorandum decision emanating from Kings County Supreme Court dated September 1, 1998 relative to a habeas corpus proceeding Claimant commenced in Supreme Court concerning his parole revocation hearing, releasing him from custody [ibid. Exhibit 11].

By way of his attorney’s three paragraph Reply Affirmation, Claimant attaches a copy of the transcript of proceedings in Bronx County Supreme Court on March 5, 2002, during which - after an off the record discussion - the Judge pronounced that the case was dismissed. Nothing was stated on the record. [Reply Affirmation of Anthony Ofodile in Further Support of Claimant’s Motion to Renew and Reargue, Exhibit 1]. In the Reply Affirmation counsel states that the transcript shows that the indictment “was dismissed based on the grounds and recommendation of the District Attorney and not on any ground stated in any motion papers.” [Ibid. ¶1]. Counsel also attaches to his Reply Affirmation a Memorandum of Law submitted by the appellate counsel for Claimant’s co-defendant without explanation, saying that it was filed on William Westley’s behalf in support of a motion to vacate the judgment against Mr. Westley, “on among other grounds, CPL 440.10 (c) and (g).” [Ibid. ¶2].

In terms of the initial pleading requirements of Court of Claims Act §8-b(3), therefore, there is a document showing that his conviction was vacated on November 14, 2001, but not showing the reason beyond a handwritten “C.P.L. 440”[Affidavit of Michael Bumbury, Exhibit 2]. While it may be that the accusatory instrument was dismissed on March 5, 2002, according to the transcript of the proceeding [Reply Affirmation by Anthony Ofodile, Exhibit 1], any basis for such dismissal was off the record. The memorandum apparently filed by the District Attorney’s Office in connection with the dismissal sets forth the following as the concluding basis for such recommended dismissal: “. . . Based upon the extensive evidence which contradicts Davis’ [the alleged victim] testimony and supplies him with a possible motive to lie, the People would be unable to prove this case beyond a reasonable doubt. Accordingly, we ask that the instant indictment be dismissed.” [Affidavit of Michael Bumbury, Exhibit 4]. A totally unexplained memorandum to Claimant from the Deputy Superintendent for Security at Upstate Correctional Facility dated December 10, 2001, in which the Deputy Superintendent refers to a 12 year sentence being vacated and what credits applied to that sentence, suggests that Claimant may have served time in connection with the conviction at issue, at best elliptically. [Ibid. Exhibit 9]. Thus even if these documents had been attached to the pleading as required, they would not show what is required to “present the claim for unjust conviction and imprisonment” under Court of Claims Act §8-b(3). Briefs containing arguments are not evidence as to why a Court vacated a conviction or dismissed an indictment.[2]

Accordingly, Claimant has not shown how he would be “likely to succeed at trial” [Court of Claims Act §8-b(4)] or that he could establish at trial by “clear and convincing evidence that” his conviction was vacated and that the indictment was dismissed based upon the enumerated grounds: an element that must be established in a claim asserting a cause of action for unjust conviction and imprisonment pursuant to the Court of Claims Act. [See Court of Claims Act §8-b(5)(b)].

Claimant’s motion to renew and/or reargue [M-71758] the Court’s prior grant of Defendant’s motion for summary judgment dismissing the claim is in all respects denied.

November 13, 2006
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims




[1]. The documents are ambiguous as to whether the periods of incarceration were related to the conviction at issue, as opposed to parole and immigration problems, however Defendant did not address this.
[2]. The Court is aware that the Court of Appeals has found that a claimant must establish only that the vacatur of the judgment of conviction - as opposed to dismissal of the indictment as well - was based upon one of the statutory grounds under Court of Claims Act §8-b(3)(b)(ii), in a claim where the Order vacating the judgment stated that the Court’s decision was premised upon Criminal Procedure Law §440.10(1)(g), while the dismissal of the indictment stated such dismissal was in the interest of justice. See Long v State of New York, 7 NY3d 269 (2006). Here, no grounds are stated in either ruling and several arguments appear to have been advanced in the briefs to the Court that vacated the conviction and dismissed the indictment. Notably, too, one of the briefs is in reference to the co-defendant, not this Claimant.