|Claimant short name:||FOWLER|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||Alan C. Marin|
|Claimant's attorney:||Pamela D. Hayes, Esq.|
|Defendant's attorney:||Andrew M. Cuomo, Attorney General
By: Janet L. Polstein, Esq., AAG
|Third-party defendant's attorney:|
|Signature date:||December 3, 2009|
|See also (multicaptioned case)|
Lawrence Fowler's claim is for unjust conviction and imprisonment under §8-b of the Court of Claims Act (the "Act"). Defendant moves for summary judgment dismissing the claim on the grounds that: (1) it was untimely served for the purposes of §8-b.7 of the Act; and (2) it fails to comply with the pleading requirements of ¶¶a and b of §8-b.3 of the Act, as well as §8-b.4.
Section 8-b.7 of the Act provides that an unjust conviction and imprisonment claim must be filed within two years after the dismissal of the accusatory instrument against claimant. Section 11.a of the Act provides that the claim must be served on the Office of the Attorney General within the same time frame.
The parties are agreed that claimant's conviction was vacated on August 2, 2006. Two years from that date is August 2, 2008; as that was a Saturday, claimant's deadline for service and filing of his claim was Monday, August 4, 2008. See General Construction Law §25-a. The claim was filed on July 31, 2008. As to service, defendant maintains that it did not receive the claim until August 5, 2008, attaching as exhibit D to its papers a copy of the claim with a Claims Bureau internal "received" stamp dated August 5, 2008. However, claimant attaches as exhibit A to his opposition papers a copy of United States Postal Service tracking information, which indicates that the claim was in fact received by "Claims" on the 23rd floor with the telephone number 416-8500, on August 4, 2008 at 3:26 p.m. It is unclear why the Claims Bureau did not internally stamp the claim as having been received until the next day, but in any event, defendant failed to demonstrate here that claimant did not satisfy the time requirements of §8-b.7 of the Act.
Section 8-b.3 of the Act provides that "[in] order to present the claim for unjust conviction and imprisonment, claimant must establish [certain items] by documentary evidence
. . ." Specifically, ¶a of such subdivision requires claimant to show that "he has been convicted of one of 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 . . ." Paragraph b of §8-b.3 essentially requires, in relevant part, that claimant identify which of certain enumerated paragraphs of subdivision one of Criminal Procedure Law §440.10 form the basis of the vacatur of his conviction.
Section 8-b.4 provides in relevant part that "[t]he claim shall state facts in sufficient detail to permit the court to find that claimant is likely to succeed at trial" in proving that he did not commit any of the acts charged and that he did not by his own conduct bring about his conviction.
Defendant argues that claimant has failed to satisfy ¶¶a and b of §8-b.3 of the Act, as well as §8-b.4, in that no documents are attached to Fowler's claim.
As to ¶¶a and b of §8-b.3, claimant annexes in exhibit B to his opposition papers on this motion the August 2, 2006 Order of the Hon. Edward Davidowitz of the Supreme Court Bronx County, directing that "[Fowler's] conviction for murder in the second degree rendered in May 1998 before this Court be vacated pursuant to CPL section 440.10 based on newly discovered evidence and section 8-b of the New York State Court of Claims Act for Unjust Conviction and Imprisonment [and that] [Fowler] is [immediately] released from the New York State Department of Corrections pursuant to the above statutes."
Justice Davidowitz's Order specifically refers to Fowler having been convicted of murder in the second degree, and orders that the conviction be vacated on the ground of newly discovered evidence, which is paragraph g of subdivision 1 of §440.10, a valid predicate ground under the unjust conviction statute. Implicit in the Order is that claimant "was sentenced to a term of imprisonment" and that he had "served all or any part of the sentence . . ." It should be noted that aside from the instant motion, the Order was also provided to the State in connection with an earlier late claim motion made by Fowler (which was essentially denied as unnecessary in a Decision and Order dated February 19, 2008).
As to §8-b.4 and the likelihood of success, exhibit B to claimant's opposition papers also includes documents such as claimant's attorney's affidavit in support of the CPL §440.10 motion, as well as various pieces of correspondence from his attorney. These documents indicate that an individual named Pierre Moore told the New York City Police that he had witnessed the murder and claimant was not involved. They also indicate that a confidential informant, who was himself a lookout in connection with the murder, had advised the US Attorney's Office that claimant was not involved. As with Justice Davidowitz's Order, the affidavit and correspondence were also provided to the State on claimant's earlier late claim motion.
I find that the foregoing documentation satisfies §§8-b.3 and 8-b.4 of the Act. That the documentation was not annexed to the claim itself is not dispositive. See Acosta v State of New York, 270 AD2d 164, 165 (2000), in which the First Department essentially found, in allowing the amendment of a claim which did not comply with §8-b.4 of the Act that:
Where claimant's ultimate submission satisfied the factual showing required by Court of Claims Act §8-b (4), the court's grant of what is correctly considered to be a motion for renewal . . . comports with the strong public policy in favor or resolving cases on the merits . . . while simultaneously protecting against baseless claims of unjust conviction and imprisonment . . . The motion sought an amendment remedying a pleading deficiency, not one curing a jurisdictional defect relating to the notice of claim requirements of Court of Claims Act §§ 10 and 11 . . .
See also Harris v State of New York, 38 AD3d 144, 150 (2007), an unjust conviction case, in which the Second Department found that the failure of the claim to specify the applicable paragraph of CPL §440.10 was not a jurisdictional defect. Like Fowler's case, the §8-b predicate in Harris was newly discovered evidence.
In view of the foregoing, having reviewed the submissions(1) , IT IS ORDERED that motion no. M-76951 be denied.
December 3, 2009
New York, New York
Alan C. Marin
Judge of the Court of Claims
1. The following were reviewed: defendant's notice of motion with affirmation in support and exhibits A through E; and "Claimant's Response to Defendant's Motion to Dismiss" with "Affidavit in Opposition to Defendant's Motion to Dismiss" and exhibits A and B.