New York State Court of Claims

New York State Court of Claims

Smith v. THE STATE OF NEW YORK, #2007-043-005, Claim No. 108916, Motion Nos. M-71983, CM-72332


Synopsis


In this unjust conviction claim, the court denied defendant’s motion for summary judgment and dismissal and granted, in part, claimant’s cross-motion to dismiss affirmative defenses.

Case Information

UID:
2007-043-005
Claimant(s):
SHAMEL SMITH
Claimant short name:
Smith
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
108916
Motion number(s):
M-71983
Cross-motion number(s):
CM-72332
Judge:
Faviola A. Soto
Claimant’s attorney:
Peluso & Touger, LLPBy: Pei Pei Cheng, Esq.
Defendant’s attorney:
Hon. Andrew M. Cuomo, Attorney General
By: Susan J. Pogoda, Esq., AAG, and Diana Dykes, Esq. AAG
Third-party defendant’s attorney:

Signature date:
February 27, 2007
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read on defendant’s motion for summary judgment and dismissal and claimant’s cross-motion to dismiss affirmative defenses.

1. Notice of Motion and Supporting Affirmation of Diana Dykes, AAG, with annexed Exhibits.

2. Notice of Cross-Motion and Supporting Affidavits of Shamel Smith and Pei Pei Cheng, Esq., with annexed Exhibits.

3. Reply and Opposing Affirmation of Susan J. Pogoda, AAG, with annexed Exhibit.

4. Reply Affidavit of Pei Pei Cheng, Esq., with annexed Exhibit.

The defendant, the State of New York (State), moves pursuant to CPLR 3212 and Court of Claims Act §8-b for summary judgment and dismissal of this claim for unjust conviction and imprisonment.

Claimant Shamel Smith opposes and cross-moves for dismissal of the State’s first, second, third, fourth and sixth affirmative defenses; the State files reply and opposition and claimant replies.

The claim alleges that claimant was unjustly convicted and imprisoned for criminal possession of a forged instrument in the second degree, was sentenced to 2 1/3 to 7 years, and served 363 days in prison.

According to the verified claim, claimant was arrested on March 19, 2001 by the New York City Police and subsequently charged with attempted grand larceny in the second degree and fourth degree and criminal possession of a forged instrument in the second degree. This arrest stemmed from a complaint filed by New Line Cinema. The alleged facts are that claimant believed the New Line Cinema’s production of the movie titled “The Cell’ was based on a screenplay he wrote in 1990 titled “Inner Mind’s Eye.” Claimant, through an attorney, sought to obtain screenplay credit for the movie. New Line Cinema would not offer to credit him for the screenplay, negotiations ceased between New Line Cinema and claimant and claimant was arrested based on New Line Cinema’s complaints to the District Attorney’s office.

Claimant was indicted on the two felony counts and one misdemeanor count and was eventually tried. The jury acquitted claimant on the two attempted grand larceny charges and convicted him on criminal possession of a forged instrument in the second degree.

The trial testimony shows that claimant presented a screenplay to Steven Beer, Esq., an attorney he retained, and asserted that New Line Cinema used it to make a movie entitled “The Cell.” The assertions were presented to New Line Cinema in August of 2000 and the film was due to open August 19, 2000. Mr. Beer telephoned a Benjamin Zinkin, Esq., General Counsel for New Line Cinema, and informed him his client would seek an injunction to stop the release of the film as claimant maintained that he wrote the script.

At trial, a Mark Protesevich claimed to be the author of the script called “The Cell” which was the basis of the movie and that claimant’s script was exactly his script word for word. Mr. Protesevich testified that claimant had only made small changes to his script. Claimant testified at trial and maintained- - and still maintains- - that he wrote the underlying script and deserved full credit.

It is the State’s position that the evidence supports that Mark Protesevich is the real author and not the claimant and that the jury believed that claimant took Mr. Protesevich’s script and altered it to make it look like his own.

On appeal claimant argued that a screenplay is not a type of written instrument encompassed by the Penal Law charge. The People so conceded and on June 26, 2003 the New York Supreme Court, Appellate Division, First Department, vacated the Court’s judgment and dismissed the indictment (Appellate Decision).

The Appellate Decision is the only document attached to the claim. It reads as follows:
“Judgment, Supreme Court, New York County (William Wetzel, J.), rendered June 3, 2002, convicting defendant, after a jury trial, of criminal possession of a forged instrument in the second degree, and sentencing him to a term of 2 ½ to 7 years, unanimously reversed, on the law, the conviction vacated and the indictment dismissed.
As the People commendably concede, when defendant, who was not impersonating anyone, signed his own actual name to a screenplay written by someone else, the screenplay at issue was not a forgery under the Penal Law (see People v Levitan, 49 N.Y.2d 87, 90, 424 N.Y.S.2d 179, 399 N.E.2d 1199). Since the only crime of which defendant stands convicted is criminal possession of a forged instrument in the second degree, he is entitled to vacatur of his conviction and dismissal of the indictment.”


The State moves for dismissal on two grounds: the claim fails to comply with the pleading requirements of Court of Claims Act §8-b(3), and it fails to comply with §8-b(4) in that it does not state facts in sufficient detail to permit the Court to find that claimant is likely to succeed at trial and that claimant’s own conduct did not cause or contribute to his conviction.

Court of Claims Act §8-b(3) provides as follows:
“3. In order to present the claim for unjust conviction and imprisonment, claimant must establish by documentary evidence that:

(a) he has been convicted of one or more felonies or misdemeanors against the state and subsequently sentenced to a term of imprisonment, and has served all or any part of the sentence; and

(b)(i) he has been pardoned upon the ground of innocence of the crime or crimes for which he was sentenced and which are the grounds for the complaint; or (ii) his judgment of conviction was reversed or vacated, and the accusatory instrument dismissed or, if a new trial was ordered, either he was found not guilty at the new trial or he was not retried 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; or (B) subdivision one (where based upon grounds set forth in item (A) hereof), two, three (where the count dismissed was the sole basis for the imprisonment complained of) or five of section 470.20 of the criminal procedure law; or (C) comparable provisions of the former code of criminal procedure or subsequent law; or (D) 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; and

(c) his claim is not time-barred by the provisions of subdivision seven of this section.”

The State asserts that the claimant failed to include any documentary evidence regarding the accusatory instrument, the conviction, claimant’s imprisonment and/or the reversal or vacatur of his conviction and dismissal of the accusatory instrument.

The court finds that the Appellate Decision, which is attached to the claim, clearly fulfills for pleading purposes all but one of the requirements of documentary evidence; whether claimant has met his pleading burden on the criteria of showing that he served all or part of his sentence is addressed separately.

The Appellate Decision specifically states that on June 3, 2002, judgment was rendered convicting claimant and sentencing him, that the conviction was vacated and that the indictment was dismissed on the grounds that the screenplay at issue was not a forgery under the Penal Law. Contrary to the State’s argument, claimant was not required to meet his burden by a particular document - - for example, claimant herein did not need to attach to his claim a copy of the certificate of conviction to show, by documentary evidence, that he was convicted.

Court of Claims Act §8-b(3) does not require a claimant to provide any particular type of documentary evidence, and the attachment of an appellate decision may prove sufficient documentary evidence, for pleading purposes. See Lanza v State of New York, 130 AD2d 872; Ivey v State of New York, 138 AD2d 963; Grimaldi v State of New York, 133 AD2d 97; Rojas v State of New York, Ct Cl, Claim No. 100601, Motion No. M-61461, dated June 30, 2000, Nadel, J. (UID 2000-014-515).

Instructive here is the recent opinion in Harris v State of New York, 2007 NY Slip Op 00272 [2d Dept, January 16, 2007]. There, the Appellate Division, Second Department, rejected the State’s argument that, what the court terms as “preliminary proof requirements” of Court of Claims Act §8-b(3)(b)(ii), are “jurisdictional in nature, such that imperfect compliance therewith is not curable by amendment of the claim.”

The court held, inter alia:
“Although, under Court of Claims Act §8-b(3) (b) (ii), the vacatur of the conviction on an enumerated ground is a prerequisite to a claim to recover damages for unjust conviction and imprisonment, the failure to submit a document demonstrating that fact is a waivable defect (see Fudger v State of New York, 131 AD2d 136, 138-139). It is the existence of the fact, as opposed to the documentation of the fact, that is a ‘statutory requirement[ ] conditioning suit’ ”.

Several decisions cited by the State in support of various arguments do not show to the contrary. For example, the State cites and attaches to its motion, as Exhibit K, Jackson v State of New York, Ct Cl, Claim No 80377, July 15, 1996, Orlando, JHO, for its position that the facts show that claimant’s acts did constitute a crime and thus, by his actions, he brought about his conviction. While that court did dismiss the claim for other reasons, it also found that the appellate decision was sufficient to meet claimant’s burden in proving conviction, and his testimony was sufficient to show that he served a portion of his sentence:
“The Court accepts the decision of the Appellate Division as ample proof that claimant was convicted of the crime of forgery in the second degree and, in the absence of any factual basis for doubting his word, credits claimant’s testimony that he served a portion of the sentence imposed for this crime”. Id. at 3.

Less clear is whether the Appellate Decision, by itself or in combination with the rest of the record before the court, sufficiently meets claimant’s pleading burden on whether he served any part of his sentence. At oral argument, the State emphasized that the Appellate Decision does not provide documentary evidence that claimant served all or part of his sentence.

A court can take judicial notice that a claimant was sentenced and imprisoned based on the decision appended to a claim. For example, in Lanza v State of New York, supra, 130 AD2d 872, the court denied a similar motion by defendant, as claimant appended to his claim the appellate decisions stating that his conviction was reversed and the court took judicial notice that imprisonment for a conviction of a class A-II felony is mandatory and that claimant was not entitled to post bail pending appeal.

Here too the Appellate Decision is sufficient, for purposes of determining this motion, for the court to take judicial notice that claimant served all or part of his sentence, particularly when it is viewed together with the trial transcript, attached as Exhibit G to the State’s moving papers, claimant’s verified bill of particulars, which serves to amplify the pleadings, and the court endorsement sheets, attached to claimant’s cross-motion as Exhibit C.

The trial transcript indicates that after the jury rendered its guilty verdict, the People requested remand, and the court denied claimant’s application to continue on bail pending appeal and the sentencing scheduled for May 20th and remanded claimant. The court stated that: “I think given the nature of the charges, and the fact that there’s almost no likelihood that he’s not going to receive a sentence of state prison, that remand is in order. So I’m ordering him remanded.” State’s Exhibit G, Trial transcript at pages 614-615. The Verified Bill of Particulars supplies the date of sentencing, June 3, 2002, and claimant’s State Correction Identification Number and his NYSID Number; in addition to the allegation in the claim that claimant was sentenced to an indeterminate term of 2 1/3 to 7 years and that claimant began his sentence on or about April 29, 2002, the Verified Bill of Particulars again states that he was sentenced to 2 1/3 to 7 years.

Additionally, attached as Exhibit C to claimant’s cross-motion and opposition are the court endorsement sheets. The entry for June 3, 2002 states that claimant was sentenced “2 1/3-7 YRS” bears the notations “NYSDOC”, and “Bail Exonerated”, and bears the signature of Justice William A. Wetzel.

It is unclear to the court why a claimant would not attach a Certificate from the Department of Correctional Services verifying claimant’s sentence and incarceration either initially to the claim, or subsequently, as an exhibit in opposition to a motion to dismiss. Nor is it clear why, alternatively, a claimant would not cross-move or bring a separate motion to amend a claim to so provide.

Be that as it may, the issue is now left to the court to determine. Here, the court finds that, for pleading purposes, claimant has met his burden, and the court denies that part of the State’s motion seeking to dismiss for failure to comply with the pleading requirements of Court of Claims Act §8-b(3).

The State also requests dismissal under Court of Claims Act §8-b(4), which states as follows:
“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. 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.”

The State contends that claimant’s own conduct brought about his conviction and that he fails to set forth facts to show he is likely to succeed at trial.

The State posits that claimant has failed to state sufficient facts and failed to proffer evidence to establish that he did not commit any of the acts set forth in the accusatory instrument, and that his conduct did not cause or contribute to his conviction. The State points to claimant’s testimony at trial, and argues that his assertion that he is the real author was refuted by Mark Protesevich, who testified that he wrote the script and that claimant got hold of a copy of his draft and made small changes.

The State argues that a finding was made that the real author of the screenplay was Mark Protesevich. The court notes that the Appellate Division decision made no such finding.

The State suggested at oral argument that claimant is unable to meet the clear and convincing standard on the issue of whether he caused or brought about his prosecution by reason of his own conduct, because while claimant maintains that he authored the screenplay, there is a witness who also claims to have authored the screenplay. The State’s position appears to be that a claimant can never meet the burden if there is conflicting testimony. But here the mere existence of conflicting testimony does not necessarily translate into a pre-trial finding that claimant cannot meet his burden by clear and convincing evidence.

The State further argues that although the District Attorney admits the jury was inappropriately charged, the defendant was guilty of Criminal Simulation, Penal Law §170.45(1)(2), a crime with which the claimant was not charged, and, therefore, claimant cannot meet his burden. Additionally, the State argues that claimant’s testimony is compromised based on his prior criminal record.

The Court finds that for purposes of this motion, the claimant has set forth facts sufficient to show a likelihood of success at trial. Contrary to the State’s argument, the legislative history the State cites (for example, the expectation of the drafters was that “most cases will not survive a motion to dismiss. The few exceptions will be the ones appropriate for a full hearing on the claim of innocence.”) and the decisions the State relies upon (for example, Reed v State of New York, 78 NY2d 1) do not compel this court to now dismiss this claim.

The claim states a cause of action for unjust conviction which meets the pleading requirements of Court of Claims Act §8-b. Here, on this summary judgment motion, claimant has stated facts in sufficient detail to permit the court to find that claimant is likely to succeed at trial in proving that he did not commit any of the acts charged in the accusatory instrument and he did not by his own conduct cause or bring about his conviction.

The court finds the claimant has met his preliminary burden. This determination does not, however, affect claimant’s trial burden. A resolution of this claim will involve an assessment of the weight of the evidence and credibility, which will be determined at trial.


The Cross-Motion

Claimant cross-moves to dismiss all but one of defendant’s six affirmative defenses, specifically the first, second, third, fourth and sixth affirmative defenses.

In the first affirmative defense, the State alleges that the claim fails to state a cause of action under Court of Claims Act §8-b, and, in the second, that the claim fails to comply with the pleading requirements of Court of Claims Act §8-b. The third and fourth affirmative defenses are that the injuries or damages allegedly sustained by claimant were brought about by his own conduct which caused or brought about his conviction, and that the injuries or damages complained of were caused in whole or part by claimant’s own culpable conduct or the culpable conduct of others for whom the State has no legal responsibility.

In the sixth affirmative defense, the State asserts that the “claim fails to comply with Court of Claims Act Section 8-b-3 in that he has failed to establish by Documentary evidence that”, and then restates the statutory pleading requirement.

Pursuant to CPLR 3211(b), a defense may be dismissed if it “is not stated or has no merit.” The second and sixth affirmative defenses were the subject of this dismissal motion, and are dismissed, the court having determined that claimant met the pleading requirements and presented sufficient preliminary documentary proof. Again, claimant still bears his burden at trial. The third and fourth affirmative defenses are not proper affirmative defenses, as it is claimant’s burden at trial to establish by clear and convincing evidence that “he did not by his own conduct cause or bring about his conviction”, and defendant need not plead these affirmative defenses to preserve them for trial. See Rojas v The State of New York, Ct Cl, Claim No. 100601, Motion No. M-61461, June 30, 2000, Nadel, J. (UID No. 2000-014-515).

While the court has determined that the claim satisfies, for pleading purposes, Court of Claims Act §8-b(3) and (4), the court denies dismissal of the first affirmative defense. Under controlling authority, the defense of failure to state a cause of action, while it may be harmless surplusage and even found to be without merit, should not be the subject of a dismissal motion and should be denied. See Raine v Allied Artists Productions, Incorporated, 63 AD2d 914, 915; Riland v Frederick S. Todman & Co., 56 AD2d 350,351.

Accordingly, the State’s motion is denied and claimant’s cross motion is granted to the extent of dismissing the second, third, fourth and sixth affirmative defenses.


February 27, 2007
New York, New York

HON. FAVIOLA A. SOTO
Judge of the Court of Claims