New York State Court of Claims

New York State Court of Claims

ALLEN v. THE STATE OF NEW YORK, #2008-040-013, Claim No. 110636, Motion No. M-74345


Synopsis


State’s motion seeking dismissal of unjust conviction and imprisonment claim – CCA § 8-b – granted. Court finds Claimant failed to meet requirements of CCA § 8-b(4).

Case Information

UID:
2008-040-013
Claimant(s):
DAVID ALLEN
Claimant short name:
ALLEN
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
110636
Motion number(s):
M-74345
Cross-motion number(s):

Judge:
CHRISTOPHER J. McCARTHY
Claimant’s attorney:
Law Offices of Michael R. Scolnick, P.C.By: Michael R. Scolnick, Esq.
Defendant’s attorney:
ANDREW M. CUOMO
Attorney General of the State of New YorkBy: Lea La Ferlita, Esq., AAG
Third-party defendant’s attorney:

Signature date:
March 18, 2008
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

For the reasons set forth below, Defendant’s motion for an order dismissing the Claim pursuant to CPLR 3211(a)(7) and 3212 is granted.

This motion relates to a Claim made pursuant to Court of Claims Act (CCA) § 8-b for unjust conviction and imprisonment. The State seeks dismissal on the ground that the Claim fails to state a cause of action in that Claimant has failed to satisfy the provisions of CCA §§ 8-b(3) and (4). As the State has moved pursuant to CPLR 3211 and 3212, the Court will treat the entire motion as one for summary judgment (see Nazario v State of New York, Claim No. 105906, Motion No. M-71192, filed May 15, 2006, Mignano, J.). The Claim was served upon Defendant on March 11, 2005 and filed in the Office of the Clerk of the Court on March 14, 2005.

Claimant and six others were convicted, sentenced to prison and incarcerated in connection with an attack and robbery of a food deliveryman on March 20, 1998. The Appellate Division, Second Department, reversed the convictions of four co-defendants on the ground that they were stopped and detained by police without reasonable suspicion and identification testimony should have been suppressed (see People v Brandon Hargroves, 296 AD2d 581 [2d Dept 2002], lv dismissed 99 NY2d 536 [2002]; People v Lavar Hargroves, 296 AD2d 582 [2d Dept 2002], lv dismissed 99 NY2d 536 [2002]; People v Strickland, 296 AD2d 584 [2d Dept 2002], lv dismissed 99 NY2d 540 [2002]; and People v Wright, 296 AD2d 585 [2d Dept 2002]), lv dismissed 99 NY2d 541 [2002]). The Appellate Division, Second Department, subsequently reversed the conviction of another co-defendant on the same ground as the others (see People v Tyree Hargroves, 303 AD2d 766 [2d Dept 2003]).

Claimant sought summary reversal of his conviction, arguing that, because there was no distinction between the facts and circumstances of his stop and the stop of his co-defendants in the four decided cases, the same rule of law should be applied to his case. The Queens County District Attorney’s office agreed that there was no distinction that could be drawn and took no position on Claimant’s application (see Allen v State of New York, 14 Misc 3d 1228[A]. On March 24, 2003, the Appellate Division, Second Department, reversed Claimant’s conviction (People v Allen, 303 AD2d 686 [2d Dept 2003]).

In its Answer, dated April 8, 2005, Defendant raised seven affirmative defenses including: the first affirmative defense that “[t]he claim fails to state a cause of action under Court of Claims Act Section 8-b” (Ex. C attached to Motion); the second affirmative defense that “[t]he claim fails to comply with the pleading requirements of Court of Claims Act Section 8-b” (id.); the fifth affirmative defense that “[t]he claim fails to comply with Section 8-b-4” because it “fails to state facts in sufficient detail to permit the court to find that claimant is likely to succeed at trial” (id.); the sixth affirmative defense that “[t]he claim fails to comply with Court of Claim[s] Act Section 8-b(3) in that [Claimant] has failed to establish by documentary evidence” that the conviction was reversed or vacated upon one of the enumerated grounds authorized by the statute; and the seventh affirmative defense that “[t]he Court lacks jurisdiction over the claim as claimant[’]s conviction appears to have been reversed and the indictment dismissed on constitutional grounds which is not a cognizable ground under Court of Claims Act Sections 8(b)3 and 8(b)(5)” (id.).

Court of Claims Act § 8-b(3) provides that “[i]n 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 judgment 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.
In satisfaction of the pleading requirements set forth in CCA § 8-b(3), Claimant attached to the Claim a copy of the Transcript of Sentencing (Ex. F attached to Claim) establishing that he was convicted of robbery in the first and second degree, assault in the second degree and criminal possession of a weapon in the second degree. He also submitted evidence that he served a portion of the sentence imposed (Certificate of Jail Time, Ex. D attached to Claim). Claimant also submitted proof that his conviction was reversed and the indictment dismissed (Decision and Order of Appellate Division, Second Department, Ex. B attached to Claim [People v Allen, 303 AD2d 686, supra]).

Thus, the Claim is governed by CCA § 8-b(3)(b)(ii) and the question that remains is whether the judgment was reversed on an enumerated ground set forth therein (Harris v State of New York, 38 AD3d 144 [2d Dept 2007]; Guce v State of New York, 224 AD2d 492 [2d Dept 1996], lv denied 88 NY2d 805 [1996]). The Appellate Division reversed Claimant’s conviction and dismissed the indictment relying upon its decisions in People v Brandon Hargroves (296 AD2d 581, supra) and People v Strickland (296 AD2d 584, supra) (see People v Allen, 303 AD2d 686, supra). In Brandon Hargroves, the Court reversed the judgment on the law, stating that the police lacked reasonable suspicion to stop and detain the co-defendants and the hearing court should have granted the motion to suppress identification testimony. The Court further noted that it was constrained to dismiss the indictment “[u]nder the particular circumstances of this case, including the fact that at the trial the complainant was unable to identify either the defendant or any of the codefendants as his assailants” (People v Brandon Hargroves, 296 AD2d 581, supra). In Strickland, the judgment was reversed “as a matter of discretion in the interest of justice”, citing Brandon Hargroves (People v Strickland, 296 AD2d 584, supra).

Since Claimant’s conviction was reversed on appeal to the Appellate Division, rather than upon a motion directed to the trial court to vacate the judgment, the Claim is governed by the pleading requirements set forth in CCA § 8-b(3)(b)(ii)(B), which incorporates certain enumerated provisions of Criminal Procedure Law (CPL) § 470.20. CPL § 470.20, in turn, provides that “where a judgment of conviction is reversed, the intermediate appellate court must either dismiss the indictment or remit for a new trial. [According to the statute, the] indictment must be dismissed where the reversal is based upon insufficiency of evidence, or on the weight of the evidence – i.e., on the facts (see subds. 2 and 5) ... Where reversal is for trial error, [however,] ... there is no double jeopardy problem and accordingly the appropriate corrective action is to remit for a new trial (see subd. 1)” (Preiser, Practice Commentaries, McKinney’s Cons Laws of NY, Book 11A, CPL § 470.20, pp. 670-671).

The Court disagrees with the assertion of Defense counsel that the Appellate Division’s reversal “must have been” premised upon CPL § 470.20(1) (La Ferlita Affirmation ¶ 30). As noted above, a reversal based upon CPL § 470.20(1) for error or defect, requires a new trial and a remittal of the case to the criminal court for such action. In Allen, the Appellate Division summarily reversed the judgment and simultaneously dismissed the indictment in its entirety. As a result, CPL § 470.20(3), which addresses modifications of judgments with respect to some, but not all, the offenses for which a defendant was convicted, likewise, does not apply.

Thus, in order for Claimant to meet the pleading requirements of CCA § 8-b(3)(b)(ii)(B), he must establish that the Appellate Division’s reversal of his conviction was predicated upon CPL § 470.20(2) or (5). To defeat a motion seeking dismissal of the Claim, CCA § 8-b “places the burden on the [C]laimant to provide the requisite documentary evidence” establishing that the conviction was reversed based upon one of the grounds enumerated in CCA § 8-b(3)(b) (Guce v State of New York, 224 AD2d 492, supra at 493; see McFadden v State of New York, 151 AD2d 730 [2d Dept 1989], lv denied 74 NY2d 615 [1989]; Stewart v State of New York, 133 AD2d 112 [2d Dept 1987], lv denied 72 NY2d 807 [1988]).

Claimant has submitted a copy of the Appellate Division Decision and Order granting his motion to reverse the judgment and dismiss the indictment (303 AD2d 686, supra). He also attached to his Claim as Exhibit I, a copy of the Appellate Division’s Decision and Order in Brandon Hargroves (296 AD2d 581).

To be sure, Claimant would not be obliged to provide a specific citation to the Criminal Procedure Law under circumstances where it was “clear from the record, and was obvious to the State” the basis upon which his conviction was reversed (Harris v State of New York, 38 AD3d 144, supra at 150). It remains a fatal defect, however, where it cannot be determined, on the record, whether the conviction was reversed for any of the grounds enumerated in the statute (id.; see Stewart v State of New York, 133 AD2d 112, supra at 113).

This Claim may suffer from such a fatal defect. It is difficult for the Court to determine, on this record, the basis upon which the conviction was reversed. Defendant asserts that the CPL §§ 470.20(2), (5) are inapplicable to the facts of the instant Claim (La Ferlita Affirmation, ¶ 27). It is true that Claimant could have offered more evidence to bolster his contention that the grounds for the reversal of his conviction support presentation of a claim under the statute.

At the same time, there is some indication that the Appellate Division’s decision in Brandon Hargroves may have been “based upon insufficiency of evidence, or on the weight of the evidence – i.e., on the facts” pursuant to CPL § 470.20(2), (5) (Preiser, Practice Commentaries, supra). In two of the cases cited by the Court in Brandon Hargroves, convictions were reversed because evidence was not legally sufficient to establish the defendants’ guilt (see People v Riddick, 269 AD2d 471 [2d Dept 2000]; People v Perkins, 189 AD2d 830 [2d Dept 1993]). Morever, in Jackson v State of New York (8/14/95 NYLJ 30 [col. 5]), the Court of Claims determined that the Appellate Division had proceeded pursuant to CPL § 470.20(2) under similar circumstances. In that case, a claim was presented pursuant to CCA § 8-b after the Second Department reversed a conviction and simultaneously dismissed the indictment because a tainted show-up identification procedure “was unduly suggestive ... it was not consistent with the defendant’s constitutional rights ... and the resulting identification should not have been admitted as evidence at trial” (People v Jackson, 159 AD2d 640, 642-643 [2d Dept 1990]).

The Court also notes that Defendant’s reliance upon Gordon v State of New York (141 Misc 2d 242 [Ct Cl 1988]) was misplaced since it was a claim in which the underlying conviction was reversed and remanded for a new trial under CPL § 420.20(1). Such claims may be presented only if the conviction was reversed pursuant to certain specified provisions of CPL § 440.10(1) that govern vacated judgments (CCA § 8-b[3][b][ii]). Thus, the determination in Gordon that a reversal based upon a tainted identification was not authorized by the statute depended upon factors relating to CPL § 440.10(1) that are not applicable to this Claim. Nevertheless, Claimant’s conclusory assertions that his conviction was reversed on one of the authorized grounds enumerated in the statute “to wit, the failure of the trial court to suppress identification testimony” (Scolnick Affirmation in Opposition, ¶ 4) provide little that amplifies on the Appellate Division’s decision or which helps establish that the pleading requirement has been met.

It is not necessary, however, to resolve whether Claimant has satisfied the pleading requirements of CCA § 8-b(3)(b)(ii)(B). Even if the Court were to find that Claimant had done so, the Court determines that Claimant has failed to satisfy a second pleading burden imposed by CCA § 8-b(4) that must be met in order to avoid dismissal. Court of Claims Act § 8-b(4) provides:
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 “degree of specificity” necessary to satisfy CCA § 8-b(4) “depends on the nature of the particular claim” but the allegations “must be of such character that, if believed, they would clearly and convincingly establish the elements of the claim, so as to set forth a cause of action” (Solomon v State of New York, 146 AD2d 439, 442 [1st Dept 1989]). The requirements of the statute are to be strictly construed (David W. v State of New York, 27 AD3d 111, 116 [2d Dept 2006]; see Reed v State of New York, 78 NY2d 1, 10 [1991]).

As Defendant correctly notes, the allegations of the Claim “are patterned upon the language of the statute and fail to provide any specific details concerning the basis of the claim” (Stewart v State of New York, 133 AD2d 112, supra at 113). Claimant needed to state verified facts in sufficient detail to have demonstrated he was likely to succeed at trial in proving that he was innocent (see David W. v State of New York, 27 AD3d 111, supra at 117). He did not do so.

Sometimes, reliance on the Appellate Division’s reversal itself can provide facts in sufficient detail to permit a finding that Claimant will likely succeed at trial, such as where the appellate court extensively discussed the evidence in the underlying criminal trial (Grimaldi v State of New York, 133 AD2d 97, 99 [2d Dept 1987]; see People v Grimaldi, 44 AD2d 722 [2d Dept 1974]). In this instance, however, the Court finds that Claimant has failed to meet his burden by simply reciting language from the Brandon Hargroves decision as “a clear indication of, and basis for finding, the innocence of claimant David Allen, and that he did not commit any of the acts charged in the indictment” (Claim, ¶¶ 14-17). Those conclusory statements alone do not provide the Court with the requisite factual basis upon which it can determine that Claimant is likely to succeed in meeting the statute’s second pleading requirement.

Even an acquittal on criminal charges is not the same thing as a finding of innocence (Reed v State of New York, 78 NY2d 1, 7 [1991]). “The People’s inability to satisfy their burden of proof at the criminal trial is simply not equivalent to the requirement of Court of Claims Act § 8-b(4) that claimant state facts sufficient to support a finding that [he or] she is likely to succeed in proving that [he or] she did not commit the acts with which [he or] she was charged” (id. at 9). The Court notes that, in this Claim, the underlying conviction was reversed and dismissed. The Appellate Division did not find that Claimant was innocent. Rather, as it stated in Brandon Hargroves, it was “constrained” to dismiss the indictment “[u]nder the particular circumstances of this case” (People v Brandon Hargroves, 296 AD2d, supra at 582).

Even if the facts asserted in the Claim are assumed to be true for the purposes of this motion, the Court concludes that they do not support a finding that Claimant is likely to succeed at trial. Claimant was obliged to provide more. He failed to do so. Because Claimant has failed to meet the pleadings requirements of CCA § 8-b(4), the Claim is dismissed.


March 18, 2008
Albany, New York

HON. CHRISTOPHER J. MCCARTHY
Judge of the Court of Claims


The following papers were read and considered by the Court on the State’s motion for summary judgment dismissing the Claim:

Papers Numbered


Notice of Motion, Affirmation in Support
and Exhibits Attached 1

Affirmation in Opposition 2

Affirmation in Reply 3


Filed Papers: Claim, Answer