|Claimant short name:||JONES|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||S. Michael Nadel|
|Claimant's attorney:||Davis, Polk & Wardwell
By Daniel Kahn
|Defendant's attorney:||Andrew M. Cuomo, Attorney General
By Assistant Attorney General Robert Schwerdt
|Third-party defendant's attorney:|
|Signature date:||August 19, 2009|
|See also (multicaptioned case)|
The claimant seeks to hold the defendant liable pursuant to the Unjust Conviction and Imprisonment Act of 1984, codified as § 8-b of the Court of Claims Act. The events giving rise to this claim are as follows: on July 2, 2001, at about 10 PM, Willie Hayward, Terron "Slop" Savoy, Emil Smith, Jamar Miller, and Dwaughn Sherrod "Pooh Bear" Jones were gathered on a bench in a courtyard in the Sea Park Housing Complex in Coney Island, Brooklyn, when a man dressed in black clothing opened fire upon them.(1) Hayward was struck and died of his wounds, Savoy was struck and wounded, and the others were not injured and fled the scene.
Two months later, on September 7, 2001, Lonnie Jones was arrested at his home in the Bronx and was taken to the 60th Precinct in Brooklyn, where he was identified in a lineup by Robin (Tawana) Fludd and Miller as the person who shot and killed Hayward and wounded Savoy, and subsequently intimidated and harassed Fludd on August 25, 2001. Fludd was Savoy's girlfriend and had a child with him.
Mr. Jones was charged by a sixteen-count indictment with: murder in the second degree (Penal Law § 125.25-1); murder in the second degree (Penal Law § 125.25-2); two counts of attempted murder in the second degree (Penal Law § 110/125-25-1); criminal possession of a weapon in the second degree (Penal Law § 265.03-2); criminal possession of a weapon in the third degree (Penal Law § 265.02-4); reckless endangerment in the first degree (Penal Law § 120.25); assault in the first degree (Penal Law § 120.10-1); assault in the first degree (Penal Law § 120.10-3); assault in the second degree (Penal Law § 120.05-1); assault in the second degree (Penal Law § 120.05-2); assault in the second degree (Penal Law § 120.05-4); also included in the indictment were charges that relate to alleged threats made to Fludd on August 25, 2001: intimidating a witness in the third degree (Penal Law § 215.15-1); menacing in the second degree (Penal Law § 120.14-1); criminal possession of a weapon in the fourth degree (Penal Law § 265.01-01); harassment in the second degree (Penal Law § 240.26-1).(2)
Mr. Jones was tried for the July 2, 2001 shootings as well as for the subsequent threats. The only eyewitness who testified against Mr. Jones was Fludd, who claimed to have witnessed the shooting from a ninth-floor terrace that overlooked the scene. At the criminal trial, she testified that she observed the claimant and his nephew Markquice Jones shoot at Hayward and Savoy. She also testified that she picked the claimant and Markquice Jones out of a lineup at the police precinct.(3) A number of witnesses testified on Mr. Jones's behalf (including Shantell Murray and Maria Salvador, both of whom also testified at this trial).
By judgment of the Supreme Court Kings County, rendered November 19, 2002, following a jury trial, Mr. Jones was convicted of murder in the second degree, assault in the first degree, and intimidating a witness in the third degree. Mr. Jones was sentenced to consecutive prison terms of twenty-five years to life on the murder count and twelve years on the assault count, and to a prison term of two to four years on the count of intimidating a victim or witness in the third degree, to be served concurrently with the sentences on the other counts.
By order dated September 10, 2003, Justice Tomei denied Mr. Jones's pro se motion to vacate judgment, and by subsequent order dated June 14, 2005, the same court denied Mr. Jones's motion to vacate the judgment. The conviction and denials were appealed.
By order of the Appellate Division, Second Department, issued on July 18, 2006, Mr. Jones's conviction was reversed and a new trial was ordered before a different Justice.(4) The court stated that a new trial was required because the prosecutor had failed to correct testimony of a prosecution witness when she falsely testified that she had identified the defendant's nephew in a lineup as one of the two people involved in the shooting. The People apparently conceded this point and did not oppose reversal of Mr. Jones's judgment of conviction on this ground.
A second trial was held, and Fludd again testified on the People's behalf. None of the other witnesses who had testified at the claimant's first trial testified at his second trial. However, at the second trial three new witnesses testified on Mr. Jones's behalf as to the whereabouts of Fludd on the night of the July 2 shooting. Mr. Jones testified at this trial that at the time of his first criminal trial, he was not aware that any of the three witnesses possessed such information. The court dismissed the charges relating to the August 25 incident as insufficient as a matter of law, and a jury acquitted Mr. Jones of all other charges on which he had been convicted.(5) He was released from custody on January 30, 2007.
At this trial, the claimant testified that at the time of the shooting he was at home in his Bronx apartment with Maria Salvador, whom he referred to as his "common-law wife," and their children. Sometime around 10:30 or 11:00 PM, he received two separate phone calls informing him that there had been a shooting at the Sea Park Housing Complex. Mr. Jones had once lived in Sea Park and his mother and his nephew, Markquice, continued to live there on the date of the shooting. Mr. Jones would visit once or twice a month. He stated he was not there at any time on July 2, 2001, and only learned days later that Hayward had been killed and Savoy injured. He knew Hayward and described him as a high ranking member of the Bloods gang in Brooklyn.
On August 25, 2001, Mr. Jones received a phone call from Markquice who informed him that Savoy had just tried to kill him by firing multiple rounds at him from a semi-automatic weapon in the stairwell of his building, and wanted the claimant to help him get out of Coney Island because he feared for his life. The claimant testified that Savoy shot at his nephew in order to extract information from him regarding someone called Supreme, who Savoy believed was involved in the July 2 shooting. Supreme, years earlier, had apparently, fathered the claimant's sister's child. Mr. Jones drove from the Bronx to Sea Park to assist his nephew. He neither brought a weapon with him that day, nor did he own a weapon. When he arrived, at about 2:00 PM, the area was crowded with people because there was a basketball tournament underway. As he walked towards the complex, he ran into Fludd in the courtyard, and asked her why her boyfriend Savoy was trying to shoot his nephew Markquice. According to the claimant, Fludd told him that Savoy believed Markquice had information about the July 2 shooting, and that if he did not divulge it, "he was going to get it," and she also said that the claimant and his entire family could also "get it." The claimant maintained that while this encounter with Fludd was argumentative, he did not threaten Fludd or pull a weapon on her. He eventually learned that later that day Fludd went to the police and accused him of the July 2, 2001 shooting, and of threatening her. According to the claimant, he reported Savoy's attempted murder of Markquice to the police. Savoy was never prosecuted for the shooting.
Dwaughn Jones (no relationship to the claimant) testified on the claimant's behalf. He said that he went by the nickname "Pooh Bear." On the evening of July 2, 2001, Dwaughn was hanging out on a bench in the Sea Park courtyard with his friends, including Hayward (whom he described as having been his best friend), Savoy, Smith and Miller. According to Dwaughn, Hayward was a high-ranking member in the Bloods gang, known as OG or original gangster, and he ran a crack cocaine drug dealing operation in Sea Park. The friends were talking, listening to music on a radio, and Hayward and Savoy were drinking Hennessy Cognac. The witness referred to a photograph of the courtyard, in evidence, to indicate where the group was congregated.(6) At around 10:00 PM, he heard what he thought were the sounds of fireworks. He looked up and observed a man dressed in black, wearing a hooded sweatshirt, standing behind a short dividing wall in the courtyard, firing shots at the group. As he fled the scene, he realized that Hayward and Savoy had been shot. Dwaughn described the shooter as taller than the claimant, at least six feet to six feet two inches, and thinner than the claimant, with gold teeth in the front of his mouth. He testified that he knew the claimant at the time of the shooting, but was not friends with him. He testified that the claimant was not the person who fired on the group, adding that he had not seen the claimant at all that day. Dwaughn believed that the shooter was someone known as Blue, who he understood had an association with Supreme. He characterized Supreme as a rival drug dealer of Hayward.
Dwaughn also knew Fludd and described her as a friend at the time. On August 25, 2001, he received a phone call informing him that there was an altercation at Sea Park and that it might have concerned the Hayward shooting. As he headed towards the buildings, he ran into Fludd. Dwaughn testified that Fludd told him that in order to protect her baby's father (Savoy) from going to jail for retaliating in connection with the July 2 shooting, she was going to lie and tell the police that the claimant was the July 2 shooter and that he pulled a gun on her.
Dwaughn learned that the claimant had been arrested when he "bumped into" him in a courthouse holding pen; apparently, Dwaughn was being held in connection with an unrelated criminal matter. He did not testify for the claimant that day,(7) but testified at Mr. Jones's hearing on his motion to vacate the conviction.
Shantell Murray testified on the claimant's behalf. At the time of the incident, she lived at the Sea Park Housing Complex. That evening, she was with some friends in the courtyard, sitting on a brick wall, when she noticed a man dressed in black and wearing a hooded sweatshirt walk by her, at which point he opened fire on the Hayward group. Once the shooting started, Ms. Murray ran from the area. She was unable to make out the shooter's face, because it was partially covered, but she described the man as six feet two inches or six feet three inches tall, with a slim build. Ms. Murray testified that she knew the claimant and was familiar with his build and appearance, and that the shooter could not have been the claimant.
Maria Salvador testified on the claimant's behalf. Ms. Salvador is the claimant's domestic partner and lived with him in a Bronx apartment at the time of the incident. She has been involved with the claimant since 1993. She corroborated that on the evening of July 2, 2001, the claimant was relaxing at home with the family, and at no point did he leave the apartment. She also testified that on August 25, 2001, at 2:00 PM, the claimant was on his way to Coney Island.
As pertinent to this claim, the provisions of Court of Claims Act § 8-b, require that the claimant prove by clear and convincing evidence that: (1) he was convicted of one or more felonies or misdemeanors, was sentenced to a term of imprisonment thereon, and has served all or part of that sentence; (2) his judgment was reversed and that he was acquitted at a new trial; (3) he did not commit any of the acts charged in the accusatory instrument; and (4) he did not by his own conduct cause or bring about his conviction. It was not disputed that the first two of these requirements have been established, nor did the defendant put on a defense on the issue of liability. To the extent that the defendant has advanced arguments in support of its position that the claimant has not proven his innocence, those amount to minor inconsistencies and discrepancies in the testimony of witnesses at trial.
Clear and convincing has been defined as proof which establishes that it is "highly probable that what [a party] claims is what actually happened" (Ausch v St. Paul Fire and Mar. Ins. Co., 125 AD2d 43, 45, citing PJI 1:64). This standard "is significant since it is a higher, more demanding standard than the preponderance standard. Furthermore, the clear and convincing 'standard serves to impress the factfinder with the importance of the decision. Finally, clear and convincing evidence means evidence that is neither equivocal nor open to opposing presumptions" (Solomon v State of New York, 146 AD2d 439, 440 [1st Dept 1989] [internal citations and internal quotation marks omitted]; see also Acosta v State of New York, 22 AD3d 367 [1st Dept 2005]; Alexandre v State of New York, 168 AD2d 472 [2d Dept 1990]).
Upon the record at trial, the Court finds that the claimant has proven, by clear and convincing evidence, that he did not commit any of the acts charged in the accusatory instrument, and that he did not by his own conduct cause or bring about his conviction. Indeed, no evidence was adduced at trial which connects him to the commission of the crimes of which he was convicted.
Upon the claimant's testimony, the testimony of his expert economist, and Exhibits received in evidence, the Court finds that the claimant has established that he is entitled to $171,010 in past lost wages, and $127,681 in future lost wages.
Sanford L. Drob, a clinical and forensic psychologist, testified on the claimant's behalf. His expert opinion was based on four and one-half hours he spent with Mr. Jones, interviewing him and administering a battery of psychological tests, and on his review of certain records from the claimant's incarceration. He also interviewed Maria Salvador. Dr. Drob opined, to a reasonable degree of clinical certainty, that as a result of the claimant's wrongful conviction and incarceration, he suffers from a number of psychological conditions, including: generalized anxiety disorder, posttraumatic stress disorder, and personality disturbances with schizoid and schizotypal features. The claimant's psychological condition is characterized by his withdrawal from others, isolation, depression, low energy, extreme worry, repeated unpleasant thoughts, and a degree of paranoia. Dr. Drob stated that while not mentally ill to the point of hospitalization or the inability to function, Mr. Jones does suffer from a moderate form of mental illness causally related to his wrongful conviction and incarceration.
The claimant described his time in prison as "living hell."(8) He stated that he thinks about the time he spent in prison "all the time," and that his "brain can't shut down" thinking about things all the time. While incarcerated, he received threats on a daily basis as the purported killer of a Bloods gang member. At some point, he learned that a contract had been taken out against him. When housed in Elmira Correctional Facility, he was attacked by another inmate with a razor blade, which resulted in his segregation from the general population. During his time in prison, he fractured his ankle as he exited a van while shackled, and he also developed a bleeding ulcer.(9) During his time in custody, his father and his sister died, and he lost contact with most of his family and friends. Since his release from prison, he, Maria Salvador, and their children moved to Florida, partially out of fear of reprisal from the Bloods. He also worries for his mother's safety, fearing that the Bloods may retaliate against him by harming her. When he was released from prison, he had trouble finding a job and housing because of what he described as a 5½-year gap in his resume. After about eight months, he eventually found a job working as an exterminator for Middleton Pest Control, where he is still employed. Prior to his incarceration, he was working at L&C Burner Services, in the Bronx, as a plumber/welder. He stated that because of the ankle injury he sustained in prison, he is unable to perform the type of physical labor that is required to work as a plumber.
Maria Salvador testified that during the claimant's incarceration, she would see him twice a month and characterized their relationship as virtually nonexistent. After the claimant was acquitted, they moved to Florida. She stated that the claimant went on numerous job interviews, and eventually found employment. According to Ms. Salvador, the claimant has undergone a number of personality changes as a result of being incarcerated for nearly six years. She describes him as more distant, not as intimate or social as he once was, and no longer having friends. He also suffers from migraines, aches, does not sleep well, and engages in "compulsive- obsessive" behavior.
The claimant seeks non-pecuniary damages including $175,000 per year of incarceration, plus at least $500,000 for pain and suffering and emotional distress. The defendant has not taken a position with respect to damages.
In a recent decision, Baba-Ali v State of New York (878 NYS2d 575), Judge Schweitzer of this Court provided an extensive analysis of the proper measure of non-pecuniary damages in a claim for unjust conviction and imprisonment. In that decision, he explained that non-pecuniary damages "are comprised of the damages claimant suffered during his period of incarceration following conviction; and then those he suffered following his release which resulted from his unjust conviction and incarceration. In the first category, the 'principal elements' of damages include 'loss of reputation, mental anguish and, above all, the loss of liberty' (Harris v State of New York, 38 AD3d 144, 153-154 [2d Dept 2007]). The mental anguish suffered by an inmate while he is in prison encompasses his discomfort, fear, lack of privacy and degradation. It is distinct from the continuing type of emotional damage he may suffer after his release from prison. (Carter v State of New York, 139 Misc 2d 423 [Ct CI 1988], affd 154 AD2d 642 [2d Dept 1989])."
As to damages for loss of reputation, he cited former Judge Orlando of this Court in Reed v State of New York (NYLJ, Nov. 7, 1988, at 24), who found it "axiomatic" that a claimant unjustly convicted of murder suffered an especially great loss of reputation.
With respect to expert testimony concerning psychiatric disorders, he cited former Judge Weisberg of this Court in Coakley v State of New York (Claim No. 77025, filed March 31, 1994), who said: "I need not decide whether claimant's maladies satisfy the clinical definition of this disorder. The evidence showed, and I find, that claimant was and is suffering from several, if not all, of its symptoms; that they proximately resulted from the conviction and imprisonment; and that they are probably permanent."
Judge Schweitzer examined the history of damages awarded for loss of liberty under section 8-b of the Court of Claims Act, and he specifically rejected a "formulaic" standard based solely on a per-annum calculation.
This Court has relied upon all of that analysis in arriving at an amount of reasonable compensation for Mr. Jones based upon the record established at trial. Upon that basis the Court has made its determination starting with the understanding that the principal component of non-pecuniary damages in any claim for unjust conviction and imprisonment is loss of liberty, which can only be measured by the amount of time one has been deprived of it, for the value of liberty is no greater -- or no less -- for any one person, regardless of background or circumstance. To the extent that any additional basis for non-pecuniary damages is established at trial, such is not necessarily related (or unrelated) to the amount of time in prison, but is dependent upon the particular proof at trial. To the extent that incidents occurring or arising out of circumstances during one's imprisonment warrant compensation in the form of damages, the fact of imprisonment, because it has been determined to have been wrongful, is the proximate cause of such incidents and circumstances.
The claimant established his entitlement to damages for the indignities and loss of liberty and civil rights and degradation suffered by him as a result of his unjust conviction and imprisonment for over four years, for which the Court awards him $1,000,000.
The claimant established his entitlement to damages for specific physical injuries he sustained while in prison, for which the Court awards him $150,000.
The claimant established his entitlement to damages for shame, humiliation, loss of reputation, mental anguish and emotional distress as a result of his unjust conviction and imprisonment, for which the Court awards him $350,000.
The total award is $ 1,798,691.
To the extent that the claimant has paid a filing fee, it may be recovered pursuant to Court of Claims Act §11-a (2).
LET JUDGMENT BE ENTERED ACCORDINGLY.
1. During the course of the trial, reference was made to both the birth names and nicknames of various individuals.
2. Claimant's Exhibit 11, Indictment.
3. Markquice Jones was never charged for the July 2, 2001 shooting.
4. Claimant's Exhibit 5, People v Jones (Decision & Order, Ind. No. 7421/01; 31 AD3d 666 [2d Dept 2006]).
5. Claimant's Exhibit 4, Verdict Sheet.
6. Claimant's Exhibit 7, photograph.
7. According to the claimant, at the first criminal trial, his attorney made an application to the court to allow Dwaughn Jones to testify, but it was denied.
8. Mr. Jones testified that prior to the subject conviction, he had spent three years in prison on an earlier conviction of attempted robbery and assault for an unrelated incident that occurred in 1988.
9. This was substantiated in Claimant's Exhibit 2, Lonnie Jones, Department of Correctional Services Medical Records.
August 19, 2009
New York, New York
S. Michael Nadel
Judge of the Court of Claims