|Claimant short name:||BREWER|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK, NYS DEPARTMENT OF CORRECTIONAL SERVICES, GLENN S. GOORD, COMMISSIONER NYS DEPARTMENT OF CORRECTIONAL SERVICES|
|Footnote (defendant name) :|
|Judge:||Alan C. Marin|
|Claimant's attorney:||Anthony Brewer, Pro Se|
|Defendant's attorney:||Andrew M. Cuomo, Attorney General
|Third-party defendant's attorney:|
|Signature date:||July 27, 2010|
|See also (multicaptioned case)|
Claimant Anthony Brewer moves for permission to file a late claim, alleging that he was "wrongfully imprisoned for 5 ½ years." Mr. Brewer states that on March 24, 2004, he was arrested and that on July 6, 2006, he was convicted of one count of burglary. He further states that on June 2, 2009, his conviction was reversed, and that he was thereafter released by the New York State Department of Correctional Services on June 9, 2009.
Claimant proceeds on the basis that his claim accrued on June 9, 2009 when he was released by the Department of Correctional Services, and that he was required to serve and file his claim within 90 days of such date. In fact, subdivision 7 of §8-b of the Court of Claims Act, i.e., the Unjust Conviction and Imprisonment Act, provides that a claim thereunder must be filed within two years of the dismissal of the accusatory instrument against the claimant.(1) Thus, to the extent that the accusatory instrument against Brewer was dismissed on or about June 2, 2009, the two years would run from that date, such that the time to serve and file a claim has not yet expired. In any event, "late claim relief pursuant to §10(6) is not applicable to claims asserted under [the Unjust Conviction and Imprisonment Act] . . ." Vigliotti v State of New York, Ct Cl, September 30, 2002 (unreported, motion no. M-64369, UID #2002-009-44(2) , Midey, J.).
It should be noted that claimant indicates that the criminal charges against him were overturned pursuant to Criminal Procedure Law §30.30 on the ground his right to a speedy trial was violated. If, in fact, that was the sole basis for the reversal of his conviction, it appears that he would not satisfy subdivisions 3(b) and 5(b) of §8-b of the Act, and thus he may not have a viable cause of action for unjust conviction and imprisonment.
Accordingly, having reviewed the submissions(3) , IT IS ORDERED that motion no. M-78316 be denied.
July 27, 2010
New York, New York
Alan C. Marin
Judge of the Court of Claims
1. Section 11 of the Court of Claims Act requires that the claim be served within the same time frame.
2. This and other decisions of the Court of Claims may be found on the Court's website: www.nyscourtofclaims.state.ny.us.
3. The Court reviewed claimant's notice of motion with affidavit in support, and undesignated exhibits. Defendant submitted no papers on this motion.