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). 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
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
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.