SMITH v. THE STATE OF NEW YORK, #2009-043-509, Claim No. 108916
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
FAVIOLA A. SOTO
Shamel Smith, Pro Se
Hon. Andrew M. Cuomo, Attorney
GeneralBy: Ross N. Herman, AAG
July 14, 2009
See also (multicaptioned
This unjust conviction claim was tried before me on the issue of liability
only on April 30 and May 4, 5, 6, 13 and 28, 2009, following the claim’s
transfer to me on November 24, 2006, and the completion of the extensive
discovery and motion practice that followed. Familiarity with the prior
proceedings and the Court’s decisions and orders is assumed.
To prevail on a claim for unjust conviction and imprisonment, claimant must
prove all of the following by clear and convincing evidence: a) he was convicted
of a felony and sentenced to a term of imprisonment and served all or part of
the sentence; and b) his conviction was reversed and the accusatory instrument
was dismissed; and c) he did not commit the acts charged in the accusatory
instrument or the acts charged did not constitute a crime; and d) he did not by
his own conduct cause or bring about his conviction. Court of Claims Act §
As to elements (a) and (b), the Court finds, and it does not now appear to be
that claimant met his burden.
The issues materially in dispute in this trial are whether claimant met his
burden as to proving, by clear and convincing evidence, that he is innocent of
the underlying charges and did not by his own conduct cause or bring about his
convictions. The Court finds that claimant failed to meet his burden as to
§ 8-b(5)(c) and § 8-b(5)(d).
The Underlying Conviction, Incarceration, Vacatur of Conviction
and Dismissal of Indictment
Mr. Smith was indicted on May 21, 2001 on three counts. The first count was
that of criminal possession of a forged instrument in the second degree, in
violation of Penal Law § 170.25. The indictment read:
“The defendant, in the County of New York, during the period from
on or about August 9, 2000, to on or about August 15, 2000, knowing the same
to be forged and with the intent to defraud, deceive, and injure another,
uttered and possessed a forged instrument, the same being and purporting to be
and calculated to become and to represent if completed, an instrument which does
and may evidence, create, transfer, terminate, and otherwise affect a legal
right, interest, obligation, and status, to wit, a movie script.”
The second count was that of an attempt to commit the crime of grand larceny in
the second degree, in violation of Penal Law §§ 110/155.40(1),
committed as follows:
“ The defendant, in the County of New York, during the period from on or
about August 9, 2000, to on or about August 15, 2000, attempted to steal
property having a value in excess of $50,000 from the New Line Cinema.”
The third count was that of an attempt to commit the crime of grand larceny in
the fourth degree, in violation of Penal Law §§ 110/155.30(6). The
indictment states that it was committed as follows: “The defendant, in the
County of New York, during the period from on or about August 9, 2000, to on or
about August 15, 2000, attempted to steal property by extortion from New Line
On April 29, 2002, after a jury trial before the Honorable William Wetzel,
J.S.C., claimant was found guilty of the forgery charge and not guilty on the
second and third counts.
On June 3, 2002, Mr. Smith was sentenced to two and a third to seven years in
jail, the maximum he could be sentenced as a non-predicate D felony offender.
On June 26, 2003, the Appellate Division, First Department, unanimously
reversed on the law, vacated the conviction and dismissed the indictment. The
“As the People commendably concede, when defendant, who
was not impersonating anyone, signed his own actual name to
a screenplay written by someone else, the screenplay at issue
was not a forgery under the Penal Law (see People v Levitan,
49 N.Y.2d 87, 90 . Since the only crime of which defendant
stands convicted is criminal possession of a forged instrument in
the second degree, he is entitled to vacatur of his conviction and
dismissal of the indictment.”
People v Smith,
306 AD2d 225, 226.
The Court will recite the evidence and state its findings after a thorough
consideration of all the evidence which includes the testimony of all the
witnesses, after assessing their credibility and review of the numerous exhibits
Shamel Smith claims he wrote a screenplay, called “Inner Mind’s
Eye”, and that New Line Cinema infringed his work and made it into the
movie called “The Cell”. On Father’s Day, in June 2000, he
and his son went to the movies, he saw a trailer for the movie “The
Cell”, and he realized that it was his screenplay.
Mr. Smith contacted several lawyers and finally retained an experienced
entertainment lawyer, Steven Beer, Esq., on a contingency fee basis. Mr. Beer
had been recommended to the claimant by a lawyer named Kendall Minter, Esq. Mr.
Smith provided Mr. Beer with the final version of his screenplay bearing a date
of September 19, 1997, information on the movie and two sealed envelopes which
Mr. Smith claimed contained prior drafts of “Inner Mind’s
Eye”, which he had mailed to himself as a poor man’s copyright.
On August 8, 2000, Mr. Beer contacted a General Counsel to New Line Cinema,
Benjamin Zinkin, Esq., who referred him to their outside counsel.
On August 9, 2000, claimant with his attorney met with New Line Cinema’s
outside counsel, Tom J. Feber, Esq. At that time, Mr. Beer was convinced that
the claimant, and not Mark Protosevich, was in fact the true screenwriter of
At this meeting, which lasted over five and a half hours, a demand of $250,000
was made to and rejected by New Line Cinema. New Line Cinema was convinced that
it was Mr. Smith who in fact had stolen Mr. Protosevich’s screenplay and
was the infringer. Mr. Beer then subsequently withdrew from the case, as he
became convinced of the same. Mr. Beer returned to Mr. Smith his entire
Mr. Smith claims he started writing “Inner Mind’s Eye” in
1990 and that the original concept for the screenplay was based on an eighth
grade writing assignment. This screenplay initially developed into a story
about a serial killer who preyed on children. He began shopping the screenplay
in 1990 and 1991 and, in 1992, he sent it to Hudlin Bros., a company that
produced films by Black screenwriters. Several of these drafts were put into
evidence. Mr. Smith purports to have written several other screenplays, which
also were introduced into evidence. He also worked producing music videos and
was a grip in the film the Shawshank Redemption. Mr. Smith maintains that his
work, “Inner Mind’s Eye”, was stolen by Mr. Protosevich for
“The Cell” screenplay.
Mr. Smith attempted to explain that he placed specific people, places and
personal information into the screenplay; he referred to these as signatures,
explaining that a writer uses this device to identify his work. He identified
the following as examples of his signatures within the screenplay. The main
character, named Catherine Villanueva, was based on a real person, Catherine
Mortiere; the poem “Annabel Lee”, which was written by Edgar Allan
Poe and appears in part in the screenplay, was written the same month and day as
his daughter’s birth month and day; another main character was based on an
uncle who suffered from severe mental retardation and whose doctors had ruled
out the Creutzfeldt-Jakob disease, a disease featured in the screenplay. In
addition, he claimed there were other signatures, such as the name Novak, which
is his dog; Peter, which is claimant’s given name; the name Abuelita, a
reference to his wife’s grandmother, as well as the names of his
Mayra Smith, claimant’s wife (who has been separated from him for
several years), testified that in fact she did not recognize the names in Mr.
Smith’s screenplay as those of her friends.
At this trial, Mr. Smith also called as witnesses Gregory M. Singer, Isaac
Rashad, and Rodney Shaw. Mr. Singer is an old friend from college who testified
that he had never read the screenplay. Mr. Rashad testified that he had read
“Inner’s Minds Eye” in the mid 1990's, and remembers that the
victims were children. Mr. Rashad further testified that there were some
similarities between what he read and “The Cell”, but there were
also many differences. Mr. Shaw, an old friend and claimant’s managing
agent, testified that he read many of claimant’s screenplays over the
years and remembers several different versions of “Inner Mind’s
Eye”. Mr. Shaw also remembers claimant’s use of signatures and
stated that claimant always uses Peter as a signature.
After Mr. Smith was released from prison, he commenced a pro se action in the
Southern District of New York relating to his claim of infringement of a
screenplay entitled “Inner Mind’s Eye”. He alleged copyright
infringement, unfair competition, conspiracy, and breach of implied contract,
and sought monetary damages and declaratory and injunctive relief. He named the
defendants as follows: New Line Cinema, Tom Ferber, Ben Zinkin, Mark
Protosevich, Steven Beer and Kendall Minter. The federal action action was
withdrawn with prejudice.
This action for wrongful conviction was filed by claimant’s prior
counsel, Peluso & Touger, LLP, whose legal services were terminated by
claimant two weeks before this trial.
Claimant has a criminal record consisting of two felonies, both involving
forgery. Although they were more than ten years old at the time of sentencing,
it is of note that one involved claimant stealing five million dollars while he
was working at a bank and using the proceeds to purchase five luxury cars,
including an Audi, Mercedes and Jaguar. Mr. Smith also has two assault
misdemeanors, one in 1993 where he broke someone’s nose, and one in 1999,
which he committed by slamming a car door. Claimant also did not file a tax
return for the years 1990-2000, although he admits working and earning
approximately $40,000.00 (a year).
The State called several witnesses. Benjamin Zinkin, Esq., who was a General
Counsel of New Line Cinema before his retirement; Tom J. Feber, Esq., an
attorney with Pryor, Cashman, Sherman & Flynn, New Line Cinema’s
outside counsel; Steven Craig Beer, Esq., of Greenberg Taurig, LLP, the attorney
retained by claimant in 2000 in connection with Mr. Smith’s claim that his
screenplay had been taken; and Rodney Stringfellow, a freelance writer, who
previously was employed as a Development Assistant at Hudlin Bros.
Mr. Zinkin was called by Mr. Beer on August 9, 2000, a Wednesday. Mr. Beer
told Mr. Zinkin that he believed that Mr. Smith’s screenplay was infringed
by “The Cell”. Mr. Beer advised him that if a resolution was not
reached by the following Monday, he would seek an injunction to stop the release
of the film. Mr. Zinkin requested a copy of the screenplay to send to Mr.
Ferber for evaluation and, if the claim was found to be valid, for
“The Cell” was set to be released on August 18th. New Line Cinema
had spent forty-four million dollars in production and an additional sixteen
million on advertising and marketing.
Mr. Zinkin sent the script with a copy of the film to Mr. Feber. Mr. Feber was
shocked and became alarmed when he noticed that they were identical in minute
details. He contacted Mark Protosevich and faxed him a copy of claimant’s
screenplay. After the first thirty minutes of the film, they started noticing a
Mark Protosevich began writing “The Cell” in 1993 and wrote
numerous drafts. He was the executive in charge of development at MGM Studios
and originally submitted his script to MGM under a pseudonym. In 1995 he sold
the script to MGM; MGM eventually sold it to New Line Cinema in 1998; New Line
Cinema involved him as co-producer; eventually Tarsem Dun Wang Sing became its
director. Mr. Protosevich and the director worked together for six months and
the movie script, dated June 7,1999, was sent to potential cast members and
agents. Many of the differences between the script and the movie were changes
proposed by the lead actress, Jennifer Lopez, who wanted to eliminate ethnic
references, or changes proposed by the director, such as location.
Mr. Ferber met with the claimant and Mr. Beer that Friday, August 11th.
Claimant and Mr. Beer brought the two sealed envelopes, one postmarked April
1995 and the other November 1996, allegedly documenting the poor man’s
copyright of “Inner Mind’s Eye” and a Writers Guild
registration, the date unclear.
Mr. Ferber reviewed the two envelopes, which were taped with U.S. Priority Mail
tape, stapled, sealed with a gold label and sent by third class mail. He
noticed and pointed out the discrepancies and lack of authenticity of these
envelopes. The envelopes were never opened.
Mr. Ferber also confronted Mr. Smith with references in “Inner
Mind’s Eye” to Banning Lake and Bakerfield, which are in California,
although claimant’s work actually was set on Long Island. Mr. Ferber
classified these as “the thumbprint of the infringer”, a term of art
used in copyright infringement cases: if the work that one thinks has been
copied shows an error that logically would not otherwise be there, frequently
that is an error that was taken from the original work that was copied from and
not changed or corrected. Here, “The Cell” script originally was
located in the Midwest and, in 1998-99, the location was changed to California.
Yet, Mr. Smith neglected to change the location references, and “Inner
Mind’s Eye”, which took place in Suffolk and Nassau Counties, had a
reference to the Midwest and references to places in California. Mr. Ferber
also confronted Mr. Smith with the misspellings and mistakes which appeared in
both works; Mr. Smith could not explain these duplicate identical errors.
Over the course of this discussion Mr. Beer became convinced that his
client’s claim lacked foundation, as Mr. Ferber had refuted each point
made by Mr. Smith. Mr. Beer advised Mr. Smith that he would not be representing
him any further. The next attorney who contacted Mr. Beer on Mr. Smith’s
behalf was his criminal counsel.
Mr. Ferber determined that Mr. Smith’s claim was fraudulent. He informed
Mr. Zinkin, who directed Mr. Ferber to contact the District Attorney’s
Office as he concluded New Line Cinema was being defrauded and this was an
Approximately eight months after the meeting with New Line Cinema, Mr. Smith
was arrested based on Mr. Ferber’s complaint. Mr. Smith was assigned an
attorney, Joanne Dwyer, Esq., pursuant to County Law 18B.
At the criminal trial, Mr. Zinkin, Mr. Protosevich, Mr. Ferber and Mr. Beer
testified for the prosecution. Only Mr. Smith testified on his own behalf. Mr.
Smith attempted to call Catherine Mortiere, whom he claimed served as the basis
for his lead character, but her direct testimony was stricken as she refused to
be cross-examined without the presence of her attorney.
The defense also attempted to call Rodney Stringfellow, who in 1992 worked as a
Development Assistant for Hudlin Bros., a film production company. Mr. Smith
wanted Mr. Stringfellow to lay the foundation for a letter, dated April 15, 1992
(letter), purportedly sent to Mr. Smith by Mr. Stringfellow regarding
“Inner Mind’s Eye”. The letter bears Mr. Stringfellow’s
Mr. Smith stated that he told Joanne Dwyer of many witnesses who could
establish his authorship but that he failed to contact or pursue any of
Judge Wetzel, after an evidentiary hearing outside the presence of the jury,
concluded “that the witness’s own testimony is such as to deny the
authenticity to debrief (sic) the defense of a foundation for the
admissibility of the letter”.
Mr. Stringfellow did testify before this Court that regarding the
aforementioned letter which bore his signature, the letter had a line inserted
between three open spaces that said “Re:
Inner Mind’s Eye (165 page script)” and that it was not his practice
to insert such information in his form letter.
Mr. Stringfellow also testified that the script of “Inner Mind’s
Eye” dated February 12, 1992, which is stamped received, was not so
stamped by him as it was not the practice of his office to stamp scripts or
internally stamp scripts as this version of the script was stamped.
This Court concludes that the letter and the script were altered to appear as
if Mr. Stringfellow had in fact returned the dated script to Mr. Smith. There
is no evidence that this script or any script for that matter was
Judge Wetzel also concluded that other proposed witnesses, such as Mr.
Smith’s wife and mother, were not relevant as they could not testify as to
Mr. Smith’s state of mind in regard to signatures he placed in the screen
The criminal defense did not call any other witness or present any other
evidence that in fact Mr. Smith had written the screen play for “The
At Mr. Smith’s sentencing, he made a statement to the Court professing to
be the true author of the script for “The Cell”. Judge Wetzel
“your statement is the final fictitious chapter in your script, the life
of Shamel Smith, a complete and utter fraud ... You abused every ruling of this
court. You brought in fictitious documents ... This was an attempt to
perpetuate a major ... commercial fraud in a city that is a center for commerce
for both entertainment and finance ...”
Discussion and Conclusion
In enacting the Unjust Conviction Act, the legislature intended “that
those innocent persons who can demonstrate by clear and convincing evidence that
they were unjustly convicted and imprisoned be able to recover damages against
the state.” Court of Claims Act § 8-b(1). The legislature
“struck a balance between the competing goals of compensating those
unjustly convicted and imprisoned and preventing the filing of frivolous claims
by those who are not actually innocent.” Moses v State of New
York, 137 Misc 2d 1081, 1084. The statutory language of clear and
convincing “indicates that the Legislature did not intend to provide
monetary compensation for every mistake made in the course of a prosecution of
an individual for a crime he did not commit and for which he was
imprisoned.” Rogers v State of New York, 181 Misc 2d 683, 686,
affd 280 AD2d 930, citing Ausderau v State of New York, 130 Misc
2d 848, 851, affd 127 AD2d 980, lv denied 69 NY2d 613.
“[T] he purpose of the statute is not to provide a windfall to a criminal
defendant who is sufficiently experienced with the judicial process to exploit
it to his own advantage”. Britt v State of New York, 260 AD2d 6,
19. “Section 8-b is not intended to provide relief for individuals who
were so fortunate as to have the wrong charge brought against them or for
individuals who tried to commit a criminal act but failed, through inadvertence
or lack of opportunity, to accomplish that goal”. Jackson v State of
New York, Claim No. 80377, filed July 19, 1996, Orlando, JHO. A claimant
should not be rewarded for his own misconduct and equitable considerations will
not authorize such a reward. Moses v State of New York, 137 Misc 2d
A claimant seeking to prove an unjust conviction claim carries a “heavy
burden”. Reed v State of New York, 78 NY2d 1, 11. The clear and
convincing standard “means evidence that is neither equivocal nor open to
opposing presumptions”. Solomon v State of New York, 146 AD2d 439,
440. The standard is significant and a higher and more demanding standard than
preponderance of the evidence, and it serves to impress the fact finder with the
importance of the decision. Id.
“The requirements imposed by Court of Claims Act § 8-b are to be
strictly construed”. Vasquez v State of New York, 263 AD2d 539;
Fudger v State of New York, 131 AD2d 136, lv denied 70 NY2d
In determining this claim, the Court closely observed the witnesses, determined
their credibility, and carefully considered and weighed the testimony and
exhibits. As with many trials, and, in particular, in unjust conviction claims,
credibility plays a pivotal role. To this fact finder, claimant’s initial
air of credibility dissipated and then disappeared as his testimony and proof
were put to the test. As his testimony and the trial continued, the Court
credited his testimony less and less, and found, in the end, that his testimony
was not credible and, indeed, was incredible. The Court additionally
considered claimant’s criminal record and his failure to pay taxes as to
their impact on credibility and demonstrating that he puts his own interests
above those of society, and finds that, in this claim, they added to the
determination that Mr. Smith’s testimony was not credible.
As to claimant’s witnesses, the Court finds their testimony only
In contrast, the Court finds defendant’s witnesses credible and
persuasive. And, as to the conflicting testimony between claimant and
defendant’s witnesses, the Court specifically credits the testimony of
Here, claimant’s overwhelming lack of credibility is fatal to his claim,
and, standing alone or combined with the paucity of other persuasive evidence,
results in a failure of proof. Claimant failed to demonstrate, by clear and
convincing evidence, that he did not commit the acts charged in the indictment,
and that he did not contribute to his own conviction.
“As noted by the Law Revision Commission, the ‘linchpin’ of
the statute is innocence”. Ivey v State of New York, 80 NY2d 474,
479. Contrary to claimant’s argument, a reversal of a conviction and
dismissal of an indictment do not constitute a finding of innocence in a civil
unjust conviction claim. Vasquez, 263 AD2d 539, at 539-540; Swain v
State of New York, Claim Number 100137, UID No. 2001-015-535, July
13, 2001, Collins, J., affd 294 AD2d 956, lv denied 99 NY2d 501.
Nor can claimant rely on the jury’s acquittal of his two other charges,
as “[a]n acquittal of criminal charges is not equivalent to a finding of
innocence.” Reed v State of New York, 78 NY2d 1,7. The
“ presumption of innocence does not apply to this civil proceeding in
which claimant bears the burden of proof”. Id. at 9.
Claimant failed to demonstrate, by clear and convincing evidence, that he is
innocent of the underlying crime. The proof adduced at this trial does not
support claimant’s assertions that he is the true author of the movie
script, that he was merely asserting his rights to his work when he asserted to
New Line Cinema that his script was stolen and demanded that in the event New
Line Cinema did not pay him $250,000.00, he would enjoin the imminent release of
the movie “The Cell’, and that his criminal trial was merely a ploy
and a conspiracy, with the District Attorney’s Office, to deprive him of
Rather, the evidence demonstrates, to this trier of fact, that claimant took
“The Cell” script, inserted the name “Inner Mind’s
Eye” to the script, and attempted to extort money from New Line Cinema.
Claimant has not shown, and the Court does not find, that there is an innocent
interpretation to these acts. The evidence also demonstrates that Mr. Smith
altered and created documents to support his wrongful acts. As termed by the
State, Mr. Smith’s proclivity to manufacture evidence is
The Court finds that “Inner Mind’s Eye” bore the badges of
fraud and the thumbprints of the infringer; Mr. Smith’s alleged embedded
signatures do not withstand scrutiny or are otherwise of no significance; his
poor man’s copyright was bogus; he altered the Hudlin Bros. letter and
inserted the reference; his alleged early draft contains portions of a book
written years after the alleged date of Mr. Smith’s draft.
The Court additionally notes Mr. Smith’s failure to produce documents and
witnesses that would have supported his claim. For example, he failed, at this
as well as at the criminal trial, to produce the alleged envelopes and drafts
sealed therein which he asserts demonstrate his poor man’s copyright. He
also failed to produce a number of individuals, including friends, who he
claimed, at his deposition, to have purportedly read versions of “Inner
Mind’s Eye” in the early 1990's and who still have copies of his
screenplay. Significantly, he also failed to call as a witness Ms. Dwyer, his
criminal defense attorney.
The State moved for an adverse inference from these and other missing documents
and witnesses. The Court finds that these documents and witnesses were expected
to give material, non-cumulative testimony or evidence favorable to claimant;
that claimant did not offer a reasonable or any explanation for their
non-production; and, they appear, particularly but not only as to Ms. Dwyer and
the poor man’s copyright envelopes and enclosures, to be within Mr.
Smith’s custody or control, or available by subpoenas.
The Court grants the State’s motion and takes the strongest inference
against claimant, and finds, as to both the requisite elements of innocence and
not contributing to one’s own conviction, that these missing documents and
witnesses would not have supported (and, indeed, would have contradicted) Mr.
The Court finds that claimant failed to prove that he was innocent of
committing acts that constitute the felony of attempted grand larceny. The Court
finds his proof equivocal and open to opposing inferences and, therefore,
insufficient. See Acosta v State of New York, 22 AD3d 367; Alexandre v
State of New York, 168 AD2d 472. Indeed, the Court finds his proof not
The Court additionally notes, but does not decide, the following. The
Appellate Division’s reversal was based not on innocence, but on the
determination that claimant’s act of signing his own name to the
screenplay of another did not constitute the crime for which he was convicted.
Implicit in the opinion is that claimant committed a wrong act - - he signed his
name to the screenplay of someone else - - but that the conviction could not
stand because the act did not meet the elements for criminal possession of a
forged instrument in the second degree.
At this trial, claimant failed to demonstrate that he did not take the
screenplay of another and sign his own name, and, indeed, the credible and
persuasive evidence is that he did precisely that. Yet, this wrongful act did
not constitute the crime of which he was charged and convicted, and, arguably,
did not constitute a crime. Accordingly, claimant argues that he met his
Posed before the Court, therefore, is a difficult issue. A surface analysis
and pro forma application of the statutory language would appear to support, on
this limited question, the following argument. As claimant’s act of
signing his own name to someone else’s screenplay did not constitute a
forgery, and, contrary to the State’s assertion, this conduct also does
not constitute criminal simulation [Penal Law 170.45(1)] or technically fall
within the forgery crimes, claimant’s act was not a crime and, therefore,
he met his burden as to this act on the innocence issue.
Such a result, however, would reward claimant for his wrongful act and run
afoul of the equitable considerations inherent in the unjust conviction statute.
Certainly, legislative intent and case law would not favor and support this
conclusion. And, claimant’s reversal could be characterized, in certain
respects, as based on a technicality; claimant had the good fortune to have this
crime not fall squarely within the four corners of the Penal Law. Accordingly,
a strong argument is made that claimant has not demonstrated that his conviction
claim is worthy of consideration as an unjust conviction. See Romero v State
of New York, Claim No. 98939, filed February 2, 2001, Read, P.J.,
affd 294 AD2d 730.
In any event, the Court is loathe to find, even on this one limited issue, that
claimant demonstrated his innocence and met this prong, for claimant is not
truly innocent. As claimant has not otherwise met his burden and the Court does
not wish to clutter the record or provide dicta, the Court declines to engage in
any further discussion or to make a final determination on this aspect of the
Own Conduct as Contributing Factor
The element of a claimant establishing that he did not by his own conduct cause
or bring about his conviction is described as requiring a claimant:
“[t]o establish that he did not cause or bring about his prosecution by
reason of his own misconduct. Examples of such misconduct would
include falsely giving an uncoerced confession of guilt, removing
evidence, attempting to induce a witness to give false testimony,
attempting to suppress testimony or concealing the guilt of another.”
Report of the Law Revision Commission, 1984 McKinney’s Session Laws, ch.
1009, at 2932.
These five examples of misconduct are illustrative and not exhaustive.
Coakley v State of New York, 150 Misc 2d 903, affd 225 AD2d 477.
The purpose of this provision is “to carry ‘out simply the equitable
maxim that no one shall profit by his own wrong or come into court with unclean
hands’ (citation omitted). ” Rivers v State of New
York, 152 Misc 2d 332, 336-337, affd 202 AD2d 565 . The Legislature
“left open to the judiciary the task of determining on a case-by-case
basis what conduct would make a claimant ineligible to recover damages for
unjust conviction and imprisonment.” Rogers v State of New York,
181 Misc 2d 683, 686, affd for reasons stated below, 280 AD2d 930.
Not included as misconduct are “decisions that fall within the realm of
reasonable and legitimate trial strategy”. O’Donnell v State of
New York, 26 AD3d 59, 65. For example, where “the claimant merely
elected to present an alibi defense that may have been less than iron-clad but
was never disproved by the prosecution through any independent evidence of
fabrication, he cannot be said thereby to have caused or brought about his own
conviction.” Id.; see also Scott v State of New York, 11 Misc 3d
Similarly, a claimant’s decision not to testify at his criminal trial,
thereby exercising his constitutional right not to testify, does not constitute
disqualifying misconduct. Lanza v State of New York, 130 AD2d 872, 930.
“We do not believe that the Legislature intended such second-guessing of
trial strategy in determining whether a person contributed to his
In contrast, and particularly applicable herein, “[w]hat will undo a claim
to recover damages for unjust conviction and imprisonment is a claimant’s
knowing withholding of available, admissible, and material exculpatory evidence,
or his or her knowing presentation of evidence that is provably false through
evidence independent of proof of guilt.” O’Donnell, 26 AD3d
Thus, for example, a claimant’s decision not to call his wife does not
constitute “mere trial strategy” but places it more “in the
area of withholding potentially exculpatory information”, where the record
demonstrated that the decision not to call her was made by claimant and not
counsel and made for other reasons. Taylor v State of New York,
194 AD2d 113, 116, affd sub nom. Williams v State of New
York, 87 NY2d 857. So, too, a failure to call individuals who could vouch
for a claimant’s movements constitutes conduct contributing to a
conviction and, moreover, “emphasizes the gap between the evidentiary
standards obtaining in a criminal trial and under the Unjust Conviction
Act.” Groce v State of New York, Claim No. 91765, filed January 20,
1999, Marin, J., affd 272 AD2d 519. Hiding from the police for three
days and making a statement that bordered on an admission ( Murnane v State
of New York, UID 2000-010-013, Claim No. 89102 [Ct Cl May 26, 2000],
Ruderman, J., affd 288 AD2d 277), offering a false alibi to the police
(Moses v State of New York, 137 Misc 2d 1081), and intentionally
concealing the guilt of an identical twin (Stevenson v State of New York,
137 Misc 2d 313), have been held to constitute conduct that disqualifies a
Here, claimant failed to meet his burden. First, as more fully discussed
previously, claimant’s acts which led to his being charged and brought to
trial do not have an innocent interpretation. Second, claimant withheld what he
asserts is exculpatory evidence. He did not call witnesses that he alleges
would support his assertion that he is the author of the screenplay and was
within his rights to demand money from New Line Cinema or threaten to enjoin the
imminent release of the movie. The Court specifically does not credit Mr.
Smith’s assertion that he told his criminal trial attorney of these
witnesses and she failed to call them. Third, the record is replete with
claimant’s altering and creating documents. Lastly, claimant presented
evidence, including his own testimony, that was provably false.
In light of the foregoing, this claim is dismissed. Any motions not ruled on
are hereby denied.
Let Judgment be entered accordingly.
July 14, 2009
HON. FAVIOLA A. SOTO
Judge of the Court of Claims