Claimant's motion for a change of venue was denied.
|Claimant short name:||ELDRIDGE|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||NICHOLAS V. MIDEY JR.|
|Claimant's attorney:||SHAW & SHAW, P.C.
BY: Christopher M. Pannozzo, Esq.,
|Defendant's attorney:||HON. ANDREW M. CUOMO
BY: Heather R. Rubinstein, Esq.,
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||November 15, 2010|
|See also (multicaptioned case)|
Claimant has brought this motion seeking an order changing the venue of this action from the Syracuse District to the Buffalo District.
The following papers were considered by the Court in connection with this motion:
Notice of Motion, Affidavit in Support, with Exhibits 1,2
Affirmation in Opposition 3
In his amended claim, claimant seeks damages against the State for unjust conviction and imprisonment under § 8-b of the Court of Claims Act. Claimant's cause of action is based upon convictions for murder in the second degree (two counts), attempted robbery in the first degree, reckless endangerment in the first degree, criminal possession in the second degree (three counts), and conspiracy second. Claimant was convicted of these charges on or about June 1, 1993, in Onondaga County Court, following a trial. His judgments of conviction were later reversed, and the accusatory instrument was dismissed by the Appellate Division, Fourth Department (302 AD2d 934), on or about February 7, 2003.
The Court notes that this claim has previously been scheduled for a trial on two occasions, July 22, 2008 and February 1, 2010. At the time of the prior scheduled trials, claimant was (and apparently still is) in the custody of the United States Marshal Service. He is currently housed at the Niagara County Jail, due to pending Federal criminal charges against him in the United States District Court, Western District in New York.
This Court had issued a writ of habeas corpus directing claimant to be produced for trial on each of the previously scheduled trial dates, but these writs were not honored by the United States Marshal Service. As a result, claimant was not produced before this Court on either of the scheduled trial dates, necessitating an adjournment on each occasion.
Claimant has now brought this motion seeking to transfer venue of this claim to the Buffalo District.
Pursuant to CPLR § 510(3), the place of trial may be changed when "the convenience of material witnesses and the ends of justice will be promoted by the change."(1) In this matter, however, it appears that any material witnesses would have closer ties to Onondaga County, due to the fact that the underlying crime which forms the basis of this claim was allegedly committed in and prosecuted in Onondaga County.
Claimant apparently acknowledges this fact, as this motion is based upon claimant's inability to appear in Onondaga County for trial (due to his current incarceration). However, a claimant's own convenience (as contrasted to the convenience of non-party witnesses) carries little, if any, weight on a motion for a change of trial venue (Said v Strong Mem. Hosp., 255 AD2d 953; Mroz v Ace Auto Body & Towing, 307 AD2d 403). In this case, the Federal officials who have ignored this Court's previously issued writs have not provided any assurance that they would in fact produce claimant for a trial if it were to be held in the Buffalo District. Rather, as stated by claimant's attorney, they indicated "that they may be able to honor the court's writ for production should the matter be heard in either Niagara County or Erie County." (Item 2, par. 10).
This Court is not willing to inconvenience all other non-party witnesses based on the mere possibility that Federal officials will now honor an order to produce claimant, when two prior such orders have in fact been ignored.
Accordingly, it is
ORDERED, that Motion No. M-78509 is hereby DENIED.
November 15, 2010
Syracuse, New York
NICHOLAS V. MIDEY JR.
Judge of the Court of Claims
1. Claimant has not suggested that either § 510(1) (improper county) or § 510(2) (impossibility of an impartial trial) provide a basis for a change of venue.