New York State Court of Claims

New York State Court of Claims

KINGE v. THE STATE OF NEW YORK, #2009-009-201, Claim No. 88273


In a prior decision on liability, this Court found the State liable for malicious prosecution and negligent supervision, based upon evidence tampering by members of the New York State Police. In this damages decision, claimant was awarded the sum of $250,000 for mental anguish, emotional distress, and loss of liberty and privacy.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):

Cross-motion number(s):

Claimant’s attorney:
BY: Norman M. Spindelman, Esq.,
Defendant’s attorney:
Attorney General
BY: Belinda A. Wagner, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant’s attorney:

Signature date:
June 23, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


In a Decision filed February 22, 2008, this Court found the defendant State of New York liable to claimant upon her causes of action for malicious prosecution and negligent supervision. A trial limited to the issue of claimant’s damages has now been held, and this decision addresses that issue.

The facts upon which liability was determined are obviously more fully set forth in this Court’s prior Decision (Kinge v State of New York, 20 Misc 3d 161). In essence, claimant was prosecuted, convicted after a jury trial, and sentenced for several crimes resulting from her alleged participation in the coverup of a quadruple homicide committed in Dryden, New York, in December, 1989. After it was revealed that a State Police investigator had fabricated evidence and provided false testimony in the proceedings against her, claimant’s judgment of conviction was vacated in August 1992, and the entire indictment in Tompkins County was dismissed in November 1992. Claimant was incarcerated from February 7, 1990 until she was released from custody on September 9, 1992, following the vacatur of the judgment of conviction against her (Exhibit A).

Claimant now seeks damages for emotional distress and mental anguish, physical pain and discomfort, damage to her reputation, and deprivation of her liberty and her right to privacy.

At the damages trial, in addition to her own testimony claimant produced three witnesses who testified on her behalf: Douglas E. Sutton, Robert Hartwell, and Nancy E. Falconer. The State did not present any witnesses.

Douglas E. Sutton, a developer in the Ithaca area, employed claimant as a housekeeper and babysitter approximately 20 to 25 years ago. He testified that claimant initially worked for him for approximately 1½ to 3 years and then left for a time to assist her daughter with the birth of her first child. She subsequently returned to his employment and worked for approximately one year, until she was laid off when Mr. Sutton’s business slowed down. Mr. Sutton testified that in addition to her duties as housekeeper and babysitter, claimant also performed bookkeeping services, including writing checks for him to sign. Mr. Sutton testified that claimant performed her duties well, and that she was both pleasant and capable.

Robert Hartwell testified that he worked with claimant at the Port Authority of New York and New Jersey during the early to mid-1970s. Mr. Hartwell was not claimant’s direct supervisor, and only had minimal contact with her when they worked together on a tape-recorded bus announcement system. Mr. Hartwell testified that claimant was honest and hardworking, and also took instructions very well.

Nancy E. Falconer testified that she owned and operated a “Bed and Breakfast” in Ithaca, and had employed claimant (as an independent contractor) for approximately two years immediately prior to claimant’s incarceration. She testified that claimant was initially hired as a housekeeper, but that claimant eventually assisted her with checking guests in and out, handling cash and credit cards in the business, and other duties such as cooking and laundry, without any problems whatsoever. Ms. Falconer testified that during this time, she and claimant became very good friends. She visited with claimant at the Tompkins County Jail while the criminal proceedings were pending; she maintained correspondence with claimant after her conviction and while she was incarcerated at Bedford Hills Correctional Facility; and she spent time with claimant on September 9, 1992, the day that claimant was released from custody. She further testified that she continued to maintain contact with claimant, either by telephone or letter, after claimant was released from custody and moved away from the Ithaca area.

Ms. Falconer, who was trained as a social worker, testified to the changes in claimant’s personality and appearance which she observed following her arrest, conviction, imprisonment, and subsequent release.

Ms. Falconer testified that when claimant began working for her, she was “impeccably neat”[1], punctual and completely trustworthy. After claimant was arrested and while she was awaiting trial, Ms. Falconer visited claimant in jail and observed changes in claimant’s demeanor and mental state. Following her trial and conviction, claimant was transferred from the Tompkins County Jail to Bedford Hills Correctional Facility, and Ms. Falconer continued to communicate with claimant by mail during this time. Ms. Falconer testified that she noted a distinct change in the tone of these letters and that her impression was that claimant was quite “down” or depressed as a result of her incarceration.

Ms. Falconer continued to remain in contact with claimant following her release from Bedford Hills Correctional Facility to New Jersey. Again, Ms. Falconer was of the opinion that claimant was sinking deeper into a depression and that she was extremely withdrawn to the point that she would not go out of her home or seek employment. Ms. Falconer testified that because of her concern for claimant, she attempted, without success, to locate a psychiatrist or counselor in the vicinity of claimant’s residence who could assist claimant in treating this depression.

In claimant’s testimony, she also described her depressive state of mind, both during and after her incarceration. She testified that she considered the sentence imposed following her trial to be a “lifetime” sentence, based upon the terms of that sentence and her age at the time of sentencing. She further confirmed that she was incarcerated for a total of approximately 2½ years, with one year being spent at the Tompkins County Jail, and 1½ years at Bedford Hills Correctional Facility.

Claimant also testified that following her release, she was afraid of being recognized and therefore became afraid of going out in public, and stated that she was approached at different times by individuals who had heard of this case and questioned her about it. She testified that the basis of her depression was the fact that she knew, in her own mind, that she had been falsely accused of those crimes.

Claimant testified that following her release from custody, she moved to New Jersey where she resided with a cousin for several years. During her time in New Jersey, she was not employed, although she did take a computer course. Claimant further testified that eventually, around 1998, she and her mother moved from New Jersey to Atlanta, Georgia. While in Georgia, claimant obtained employment as a nurse’s aide and worked on a part-time basis during the approximate 10 years that she resided in Georgia. Claimant has since moved to Charlotte, North Carolina where she presently resides. Claimant testified that she was 73 years old as of the date of this damages trial. Upon direct questioning from the Court, claimant acknowledged that a person who obtains a credit card belonging to another, and then uses that credit card to purchase items for his or her own benefit exhibits “bad character” and further acknowledged, with regard to her involvement in the events forming the basis of this claim, that she exhibited “bad character” when she used the credit card belonging to Dolores Harris.
In this particular claim, the Court has a most difficult task in determining an appropriate measure of damages. To begin with, there is no question that claimant has suffered damages as a result of the reprehensible conduct partaken by certain members of the New York State Police during their investigation and subsequent prosecution of claimant for those crimes connected to the quadruple homicide of the Harris family committed by her son. This conduct has been set forth in detail in this Court’s prior decision on liability and need not be repeated herein. This Court, however, is cognizant of the fact that the State cannot be assessed punitive damages (Sharapata v Town of Islip, 56 NY2d 332), and therefore any damages to be awarded must have been actually sustained by claimant and established by her at trial.

The assessment of damages in this claim is further complicated by the fact, as previously stated by this Court in its liability decision, that claimant has not come into this Court with “clean hands”. Claimant has acknowledged her use of a credit card belonging to Dolores Harris, one of the homicide victims, and has also admitted that she signed the name of Dolores Harris to that card, which she has characterized as “stupid”. As brought out at the liability trial, this conduct resulted in her becoming a lead suspect in the homicide investigation.

Claimant’s involvement in the events leading to her trial and conviction can perhaps best be explained through an examination of her criminal record, a copy of which was received into evidence at trial (Exhibit D).

In November 1990, following her jury trial, claimant was convicted of burglary first degree (B Felony), arson third degree (C Felony), four counts of forgery second degree (D Felonies), hindering prosecution first degree (D Felony), hindering prosecution second degree (E Felony), and criminal possession of stolen property fourth degree (E Felony). Pursuant to the sentencing order of County Court Judge Barrett, claimant received an indeterminate sentence of 18 to 44 years for these felony convictions.

As emphasized by defendant, her use of the credit card presumably led to her conviction of the four counts of forgery and the criminal possession of stolen property. Pursuant to Judge Barrett’s sentencing order (Exhibit D), claimant received an indeterminate sentence of one to three years on her conviction for each of the four counts of forgery second degree, and her sentence on her conviction for criminal possession of stolen property was to be served concurrently with these forgery charges.

After her conviction was vacated and the indictment dismissed against her, no criminal charges were ever reinstituted against her in Tompkins County.

In November 1992, however, claimant was charged with forgery second degree (D Felony) in Cayuga County, and pled guilty to a reduced charge of forgery third degree, a Class A misdemeanor, for which she received a conditional discharge with restitution (Exhibit C). This charge and conviction related to claimant’s admitted use of the Dolores Harris credit card in Cayuga County.

Although no records pertaining to any conviction in Onondaga County were produced at trial, claimant testified that she also pled guilty to the same misdemeanor charge (Forgery Third Degree) in Onondaga County stemming from her use of that credit card in Onondaga County, and that she received a conditional discharge on that conviction as well.

It is readily apparent, therefore, that claimant, by her actions and admitted criminal involvement, cannot claim complete and total innocence even though, as this Court previously found, there was no credible evidence to tie claimant to any of the horrific crimes which occurred at the Harris home.

With this in mind, the Court will therefore consider the various elements of damages for which claimant seeks recovery.


According to Prince, Richardson on Evidence, “[c]haracter and reputation are not synonymous. Character is what a person is morally; reputation is the estimate which the community has of a person’s character.” (Prince, Richardson on Evidence, § 4-401, at 162-163; [Farrell 11th ed]).

In this claim, claimant contends that her reputation has suffered as a result of the actions taken by the State Police in fabricating evidence against her, resulting in her malicious prosecution for the heinous crimes committed at the Harris home.

At trial, claimant’s witnesses all testified as to her good character and that she was an excellent, trustworthy worker. Although these witnesses, in effect, testified that claimant was a person of good character prior to the events surrounding this claim, none of the witnesses provided any credible testimony as to the effects of the malicious prosecution upon claimant’s reputation within her community.

In addition to this gap in proof, claimant admitted to this Court that she had exhibited “bad character” when she used the credit card belonging to Dolores Harris and, therefore, was not a completely innocent person. At best, through her use of that credit card, claimant had some tangental connection to the horrific crimes committed at the Harris home. Based upon her conduct, the Court finds that claimant must therefore bear full responsibility for any damage to her reputation which may have occurred.

Simply stated, based upon the testimony presented at trial, claimant has not established to the satisfaction of this Court that her reputation has been damaged as a result of her malicious prosecution.[2]


In this Court’s opinion, there is no question that claimant endured mental anguish and emotional distress both during and after the prosecution against her for those crimes committed at the Harris home. For example, claimant had to listen, at her criminal trial, to testimony from a New York State Police Investigator providing highly incriminating fingerprint evidence against her which she knew to be completely false. She then had to listen as a jury pronounced her guilt on several heinous crimes based on this tainted evidence and testimony, and then listen to a judge pronounce what in practical effect was a life sentence on these crimes.

Additionally, claimant provided testimony as to the emotional distress and anguish she suffered while incarcerated for these crimes, and that the distress and anguish continued subsequent to her release from custody. Her testimony, which was substantially corroborated by the testimony of Ms. Falconer, established that claimant became severely depressed. According to Ms. Falconer, claimant “became a different person” during this time, and following her release from custody and her move to New Jersey, she noticed a deep depression in which claimant became extremely withdrawn and fearful of leaving her home.

The Court accepts the testimony of claimant and Ms. Falconer, and will therefore consider the emotional distress and mental anguish suffered by claimant in making its award herein. Even so, the Court must note that there was no testimony presented at trial from any mental health professional in support of this claim, nor was there any evidence whatsoever to even suggest that claimant had ever sought professional help or counseling to treat her depression and emotional distress.


As previously stated herein, claimant was incarcerated for approximately 2.6 years, from the time of her arrest until her release from custody following revelation of the State Police misconduct leading to her conviction. Claimant has suggested that any damages awarded herein should be comparable to damages awarded in “unjust conviction and imprisonment” claims brought under § 8-b of the Court of Claims Act.

The Court must emphasize, however, that this claim is not based upon § 8-b. At the outset of her liability trial, claimant withdrew her cause of action sounding in unjust conviction and imprisonment when it became apparent that claimant would be unable to succeed on that theory. One of the required elements of any unjust conviction claim is that a claimant must prove by clear and convincing evidence that he or she “did not commit any of the acts charged in the accusatory instrument” (§ 8-b [5] [c]). Claimant, as a result of her admitted use of the credit card belonging to Dolores Harris, clearly would have been unable to satisfy this required element of an unjust conviction claim, and therefore could not possibly have succeeded under this theory of liability. As a result, any reliance by claimant upon damage awards made in unjust conviction claims, where a claimant is required to establish actual innocence of all crimes, is misplaced.

On the other hand, the Court also rejects defendant’s argument that claimant, in essence, had served 2½ years out of a minimum of 4 years for which she was sentenced on the four forgery convictions (four consecutive sentences with a minimum of one year on each conviction) directly related to her admitted use of the credit card. First of all, sentences are not imposed in a vacuum, and many features must be considered by a Court in determining an appropriate sentence. Therefore, a portion of a sentence cannot simply be separated from the entire sentence and addressed on its own, especially as here, where the conviction on all crimes was vacated.

Additionally, this Court cannot speculate as to what actions might have been taken by the Tompkins County District Attorney had the State Police not fabricated evidence against claimant. Based on the available evidence at the time, the Court simply cannot surmise as to what charges, if any, would have been brought against claimant; whether claimant would have been convicted of those charges; and if so, what type of sentence she would have received upon conviction.

Applying the same line of reasoning, the Court cannot second guess or question the conditional discharges received by claimant on her misdemeanor pleas in Cayuga and Onondaga Counties. At the time claimant received those conditional discharges, both courts were presumably well aware of the events that had transpired when they were determining an appropriate sentence (i.e., the fabrication of evidence against claimant and the time that claimant had already served for the convictions, which were based on that fabricated evidence). This Court cannot assume that claimant would have been sentenced to a period of incarceration in Cayuga or Onondaga County if claimant had never been prosecuted in Tompkins County, nor can it assume that claimant would have received the same dispositions in these two counties without prior revelation of the police misconduct.

In sum, this Court determines that any assessment of damages for the time for which claimant was incarcerated must be measured by what actually occurred, as presented at trial. It has been established, without contradiction, that claimant was incarcerated for approximately 2.6 years upon her conviction in Tompkins County for several serious crimes related to the Harris family homicide. This conviction was subsequently vacated, the indictment dismissed, and all charges (including the forgery charges) were dismissed. Claimant subsequently pled to misdemeanor crimes in both Cayuga and Onondaga Counties, and received conditional discharges in each court, with no jail time imposed.

Accordingly, in addition to the emotional suffering and mental anguish suffered by claimant while incarcerated, the Court must also consider claimant’s loss of privacy and deprivation of liberty in making its award.

Based upon all of the foregoing, therefore, the Court finds that claimant is entitled to the sum of $250,000.00 in damages for the mental anguish and emotional distress she suffered both during her prosecution and after her conviction, and for her loss of liberty and privacy for her 2.6 years of incarceration.

The Court notes that no proof was offered with regard to any loss of earnings.

The amount awarded herein shall carry interest at the rate of 9% per annum from the date of the determination of liability on December 13, 2007 (Dingle v Prudential Prop. & Cas. Ins. Co., 85 NY2d 657; Love v State of New York, 78 NY2d 540).


June 23, 2009
Syracuse, New York

Judge of the Court of Claims

[1]. Unless otherwise indicated, all references and quotations are taken from the Court’s trial notes.
[2]. Claimant’s negligent supervision cause of action, upon which liability was also found in her favor, led directly to her malicious prosecution cause of action. As a result, the Court also makes no award for damages to her reputation on the negligent supervision cause of action.