|Claimant short name:||GARCIA|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||Alan C. Marin|
|Claimant's attorney:||Neufeld Scheck & Brustin, LLP
By: Nick Brustin, Esq., Deborah Cornwall, Esq. and Anna Benvenutti Hoffmann, Esq.
|Defendant's attorney:||Andrew M. Cuomo, Attorney General
By: Janet L. Polstein, Esq., AAG
|Third-party defendant's attorney:|
|Signature date:||June 9, 2010|
|See also (multicaptioned case)|
Jose Garcia moves for an order permitting him to testify via live video conference at the trial of his claim, which is for unjust conviction under §8-b of the Court of Claims Act. The motion was made because Mr. Garcia, a citizen of the Dominican Republic, was deported and cannot lawfully enter the United States. Defendant opposes the motion.
In People v Wrotten, 14 NY3d 33, 36-37 (2009), the Court of Appeals ruled that the trial court did not err in permitting a complainant to testify against a criminal defendant via real-time two-way video, "as the court's inherent powers and Judiciary Law § 2-b vest it with the authority to fashion a procedure such as the one employed here." The Court noted that at trial, the witness testified that he could see the judge, prosecutor, defense counsel, defendant and jury, and that the trial judge had indicated that the witness could be seen very clearly, including his facial expressions.
The Court of Claims Act specifically recognizes the difficulties of proof in cases brought under §8-b, which are often commenced many years after the facts at issue occurred.(1) Note that video conference testimony was utilized in the liability and damages trials in Gonzalez v State of New York, an unjust conviction case brought under §8-b. 22 Misc 3d 1120(A) (Ct Cl 2008); 26 Misc 3d 1212(A) (Ct Cl 2009).
In view of the foregoing, having reviewed the submissions(2) , IT IS ORDERED that motion no. M-78050 be granted and that claimant Jose Garcia be permitted to testify at trial via live video conference.
June 9, 2010
New York, New York
Alan C. Marin
Judge of the Court of Claims
1. Subdivision 1 of §8-b -- the legislative intent provision -- provides in relevant part that "[i]n light of the substantial burden of proof that must be carried by such persons, it is the intent of the legislature that the court, in exercising its discretion as permitted by law regarding the weight and admissibility of evidence submitted pursuant to this section, shall, in the interest of justice, give due consideration to difficulties of proof caused by the passage of time, the death or unavailability of witnesses, the destruction of evidence or other facts not caused by such persons or those acting on their behalf."
2. The following were reviewed: claimant's notice of motion with memorandum in support, affirmation in support and exhibits A through C; defendant's affirmation in opposition and memorandum of law in opposition with exhibits A through C; and claimant's reply memorandum.