New York State Court of Claims

New York State Court of Claims

BROWN v. THE STATE OF NEW YORK, #2008-009-029, Claim No. 113684, Motion No. M-75106


Synopsis


Claimant’s motion for summary judgment as to liability on his claim of unjust conviction and imprisonment (Court of Claims Act § 8-b) was granted.

Case Information

UID:
2008-009-029
Claimant(s):
ROY BROWN
Claimant short name:
BROWN
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
113684
Motion number(s):
M-75106
Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY JR.
Claimant’s attorney:
JAMES R. McGRAW, ESQ.
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General
BY: Roger B. Williams, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant’s attorney:

Signature date:
October 20, 2008
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

Claimant has brought this motion seeking an order granting him summary judgment on the issue of liability on his claim of unjust conviction and imprisonment brought pursuant to Court of Claims Act § 8-b.

The following papers were considered by the Court in connection with this motion:
Notice of Motion, Affidavit of James R. McGraw, Esq., with Exhibits 1,2


Affidavit of Roy Brown 3

Memorandum of Law 4


Affirmation in Opposition, with Exhibits 5


State’s Memorandum of Law 6

Reply Memorandum of Law, Affidavit of Roy Brown, Affidavit of Katy Karlovitz, Esq., with Exhibits 7,8,9

On January 23, 1992, claimant was convicted in the Cayuga County Court of the crime of murder in the second degree in the murder of one Sabina Kulakowski. Claimant was sentenced on February 13, 1992 to a term of imprisonment of 25 years to life.

On December 14, 2006, claimant filed a motion in Cayuga County Court pursuant to Criminal Procedure Law § 440.10(1)(g) seeking a vacatur of his conviction and dismissal of the indictment, based upon newly discovered evidence in the form of just-completed DNA testing that proved his actual innocence of the crime for which he was convicted. On January 23, 2007, Hon. Mark H. Fandrich, Cayuga County Court Judge, granted this motion and vacated claimant’s conviction. The indictment against claimant was then subsequently dismissed by Order of Judge Fandrich on March 5, 2007.

Claimant was incarcerated from the date of his conviction (January 23, 1992) to the date his judgment of conviction was vacated (January 23, 2007) and therefore served exactly 15 years of his 25 years to life sentence.
The DNA evidence which formed the basis of claimant’s motion to vacate his conviction established that another man’s DNA (and not that of the claimant) was on the T-shirt that Ms. Kulakowski was wearing at the time she was murdered. Other evidence (including additional DNA evidence) linked one Barry Bench to the murder of Ms. Kulakowski. Mr. Bench, however, had committed suicide in late December, 2003. Based upon the evidence that had been discovered leading to Mr. Bench’s involvement in the murder, the Cayuga County District Attorney obtained a Court Order allowing him to exhume the body of Mr. Bench. Additional DNA testing performed on the body of Mr. Bench then confirmed that it in fact was his DNA which was present on Ms. Kulakowski’s T-shirt. Based upon this conclusive DNA evidence implicating Mr. Bench, the Cayuga County District Attorney joined in the application to dismiss the indictment against claimant. Summary judgment is a drastic remedy which deprives a party of its day in court and should not be granted where there is any doubt as to the existence of a material issue of fact (Moskowitz v Garlock, 23 AD2d 943). On a motion for summary judgment, the Court’s function is to determine if such an issue exists, and in doing so, the Court must examine the proof in a light most favorable to the opposing party. Summary judgment may only be granted if the movant provides evidentiary proof in admissible form to demonstrate that there are no material questions of fact or demonstrate an acceptable excuse for the failure to submit such proof (Winegrad v New York Univ. Med. Center, 64 NY2d 851). Once a movant has demonstrated a prima facie entitlement to summary judgment as a matter of law, the burden then shifts to the opposing party which must submit evidentiary proof in admissible form sufficient to create an issue of fact (Alvarez v Prospect Hosp., 68 NY2d 320). Mere conclusions, speculations or expressions of hope, however, are insufficient to defeat the motion (Amatulli v Delhi Constr. Corp., 77 NY2d 525).

By enacting Court of Claims Act § 8-b, the Legislature intended “to provide redress to innocent persons who prove by clear and convincing evidence that they were unjustly convicted and imprisoned” (Ivey v State of New York, 80 NY2d 474, 479). In order to obtain a judgment, a claimant must establish four elements by clear and convincing evidence (Court of Claims Act § 8-b[5]). As applicable herein, these elements are: (a) having been convicted of a crime and serving part or all of a sentence of imprisonment; (b) the conviction being vacated and the indictment dismissed; (c) that claimant did not commit any of the acts charged in the accusatory instrument; and (d) that claimant did not by his own conduct cause his conviction. It is important to note that this statute is based upon concepts of strict liability, in that it provides for a recovery by a claimant without any showing of fault or culpability attributable to the State.

In this particular matter, it is undisputed that claimant was convicted of the felony of murder in the second degree, that he was sentenced to a term of imprisonment of 25 years to life, and that he served 15 years of that sentence. Additionally, there is no dispute that his judgment of conviction was vacated and the indictment was dismissed, based upon DNA evidence which proved him innocent of the crime for which he was convicted.

The State, however, contends that there are issues of fact as to whether claimant, by his own conduct, caused or contributed to his conviction, and whether claimant has proven by clear and convincing evidence that he did not commit any of the acts charged in the indictment.

Court of Claims Act § 8-b(5)(d) requires that a claimant must establish, by clear and convincing evidence, that he or she did not cause or bring about the conviction. In its report to the Legislature, the New York Law Revision Commission listed five examples of misconduct that would bar relief under this paragraph, including giving an uncoerced confession of guilt. (1984 McKinney’s Session Laws of NY, at 2932).

In this matter, defendant relies upon an alleged confession made by claimant to Gordon Wiggins, a jailhouse informant, in July, 1991, when both were incarcerated. Mr. Wiggins testified to this alleged conversation at the criminal trial of the claimant. Claimant, however, has steadfastly maintained his innocence throughout the proceedings and his subsequent incarceration, and denies that he ever confessed to murdering Ms. Kulakowski.

Based on the evidentiary material submitted with this motion, this Court finds, as a matter of law, that this alleged, uncorroborated, and unreliable “jailhouse confession” does not equate to an “uncoerced confession of guilt” sufficient to bar claimant from recovery under this statute. Furthermore, the Court finds that this alleged admission fails to raise any legitimate question of fact as to the issue of whether claimant, by his own actions, contributed to his conviction. Not only has claimant consistently denied making this confession or admission, but the Court also notes that the District Attorney of Cayuga County placed little, if any, credence on this confession since he joined in the application to dismiss the indictment against claimant following the revelation of the DNA evidence previously described herein.

The State also contends that claimant has failed to establish, by clear and convincing evidence, that he did not commit any of the acts charged in the indictment. In this regard, the State relies not only upon the alleged confession made by claimant to Mr. Wiggins (see above), but also upon an Affidavit made by one Donna Merithew in July, 1993 (see Exhibit E to Item 5). The State contends that the Affidavit of Ms. Merithew establishes that claimant was in Auburn, near the scene of the murder, at the time the murder occurred. This Affidavit, however, was made on June 17, 1993, more than two years after the murder occurred, and approximately one and one-half years after claimant was convicted. Furthermore, as set forth in claimant’s Reply Memorandum of Law (Item 7), Deputy Stephen McCloud, who took the statement from Donna Merithew, never pursued or attempted to corroborate the information provided by Ms. Merithew, nor did he undertake any further investigation. Additionally, as pointed out by claimant’s counsel, the information contained in Ms. Merithew’s Affidavit directly contradicts extensive trial testimony with regard to the whereabouts of claimant at the time of the murder.

Furthermore, even if the Court were to give full credence to this Affidavit, Ms Merithew at best, only places claimant in Auburn, several miles from the scene, at the time of the murder. Ms. Merithew does not connect claimant in any manner whatsoever with Barry Bench, who has been conclusively identified as the murderer, and aside from placing claimant in the same general area at the time of the murder, does not incriminate him in any other manner whatsoever.

After reviewing Ms. Merithew’s Affidavit, together with the other papers submitted herein, the Court finds, as a matter of law, that defendant has failed to raise any issue of fact as to whether claimant committed any of the acts alleged in the indictment. As stated previously herein, DNA evidence has not only exonerated claimant of the murder, it has also led to the identification of the actual murderer, Barry Bench. Defendant has also failed to establish any connection or relationship whatsoever between claimant and Mr. Bench. In light of this overwhelming evidence of actual innocence established by DNA, the Affidavit of Ms. Merithew and the alleged “jailhouse confession” are wholly inadequate to raise any material question of fact. In sum, claimant has established, by clear and convincing evidence, that he did not commit any of the acts charged in the accusatory indictment.

Based on the foregoing, therefore, the Court finds that claimant has established, by clear and convincing evidence, all of the statutory requirements for recovery set forth in Court of Claims Act § 8-b(5), and there are no issues of fact which have been raised by the State that would require a trial as to liability. Claimant is therefore entitled to summary judgment on the issue of liability.

The Court notes that it had previously scheduled a unified trial for this claim to commence on December 8, 2008. Based on the determination made herein, this trial will proceed as scheduled, but will now be limited to the issue of claimant’s damages.

Therefore, it is

ORDERED, that Motion No. M-75106 is hereby GRANTED; and it is further

ORDERED, that the Clerk of the Court is directed to enter an interlocutory judgment on the issue of liability in favor of claimant in accordance with this Decision and Order. A trial limited solely to the issue of damages will commence on December 8, 2008.


October 20, 2008
Syracuse, New York

HON. NICHOLAS V. MIDEY JR.
Judge of the Court of Claims