|Claimant short name:||NEWTON|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||DAVID A. WEINSTEIN|
|Claimant's attorney:||Law Office of John F. Schutty, P.C.
By: John Schutty, Esq.
|Defendant's attorney:||Eric T. Schneiderman, New York State Attorney General
By: Nicole M. Procida, Assistant Attorney General and
Robert Schwerdt, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||November 2, 2017|
|See also (multicaptioned case)|
Claimant Alan Newton brings this claim for unjust conviction and imprisonment under section 8-b of the Court of Claims Act. By Decision and Order dated June 21, 2011, Judge Melvin Schweitzer granted his motion for summary judgment on liability. A trial on damages was conducted on November 28, 29 and December 1, 2016. The issues raised at that trial are resolved in this Decision.(1)
This case is complicated by the fact that Newton was incarcerated on two distinct felony convictions, only one of which has been overturned and is at issue here. The facts underlying Newton's convictions and exoneration are, briefly, as follows:
Alan Newton was born in August 1961 (Cl. Ex. 1). On May 28, 1984, he was arrested for attempted rape of a child and endangering the welfare of a child. He was convicted of these charges on May 6, 1985, and received an indeterminate sentence of 3 ˝ to ten years in prison.(2) Although Newton professes his innocence of these charges, they have never been overturned. I refer to this first set of charges as the EG Case or (as appropriate) the EG Conviction, using the victim's initials.
On July 11, 1984, Newton was indicted on charges of rape, robbery and assault (all in the first degree), in relation to an attack on a woman that took place about 4:00 a.m. in the Bronx, as she left a convenience store. On May 21, 1985, he was convicted following trial based on identifications made by the victim and a convenience store clerk, although the former expressed uncertainty to the prosecutor as to whether Newton was the assailant, and the clerk failed to identify him at a pre-trial hearing. No physical evidence was introduced against Newton. He was sentenced to concurrent terms of eight and one-third to 25 years for rape and robbery, followed by a consecutive term of five to 15 years on assault, to be served consecutively with the EG sentence. This case is referred to below as the VJ Charge or Conviction, or the "Present Conviction."
Following trial, Newton made numerous efforts to obtain the rape kit in the VJ case. After repeated representations by the City of New York that it could not locate this evidence, the kit was found in 2005, and two separate DNA tests conducted in November of that year exonerated claimant (see Newton v State of New York, Claim No. 115443, Motion No. M-78178 [Schweitzer, J., Ct Cl, June 21, 2011] [DNA test "eliminated" Newton as the source of the DNA]). On July 6, 2006, claimant's conviction was overturned and the indictment dismissed on the joint motion of defense counsel and the Bronx County District Attorney. He was released from incarceration the same day.
Newton then brought this suit, and a parallel action against the City of New York and various individuals in federal court, the latter case raising claims under 42 USC § 1983 and other grounds. A jury ultimately returned a verdict of $18 million on the section 1983 claim.(3) Judge Shira Scheindlin set aside the verdict, on the ground that Newton had failed to prove a constitutional violation (Newton v City of New York, 784 F Supp 2d 470 [SD NY 2011]). That judgment was, in turn, vacated by the United States Court of Appeals for the Second Circuit, which reinstated the verdict and remanded the matter to the trial court (779 F3d 140 [2d Cir 2015]).
On remand, the trial court found the damages to be excessive, and directed Newton to either accept an award of $12 million (plus post-verdict interest) or submit to a new trial on damages (171 F Supp 3d 156, 177 [SD NY 2016]). Those damages only covered the last 12 of his 22 years of incarceration, since the parties had stipulated that Newton would have served the full ten years on the EG Conviction (id. at 161). In addition, Newton restricted the damages he was seeking in the federal suit solely to pain and suffering, foregoing any monetary award by the federal jury for other damages, including lost earnings and psychological harm (id. at 161 n 11).
In the present case, the parties stipulated in advance of trial that time served on the EG Conviction would have been the first six years of his incarceration (see Trial Transcript ("Tr") at 17; Ex. 13). As a result, by agreement of the parties his final sixteen years in prison are attributable to the VJ Conviction.(4)
At issue in this case are those damages claims that were not addressed in the federal case: non-pecuniary damages resulting from four years of incarceration (i.e., 22 years minus 12 years compensated in the federal suit minus six years attributable to the EG conviction under the parties' stipulation), post-incarceration pain and suffering including psychological damages, attorneys' fees expended to challenge Newton's conviction, lost wages, lost earning capacity, and future medical expenses (see Cl. Post-Tr Mem. at 7).
At the outset of trial, I ruled in regard to the EG Conviction that neither the details of the underlying offense nor any evidence regarding claimant's innocence were relevant to this case. Rather, the fact that claimant had a felony attempted rape conviction on his record is relevant to his damages claims, such as his contentions regarding the degree to which the Present Conviction reduced his earnings capacity(5) (Tr at 15).
On his direct case, claimant presented his own testimony and that of several of his family members. His older brother, Anthony Newton,(6) testified that claimant began part-time work while in high school as a teller for the Dime Savings Bank, and continued to work in this capacity full-time after graduating, transferring to Manufacturer's Hanover Trust several years later. He then took a probationary job with New York Telephone ("NYT"), where Anthony also worked. Claimant was fired in 1984, following the first arrest in regard to the EG case, notwithstanding that he was initially released on bail(7) (id. at 90-91). As a result, he was unemployed at the time of his arrest for the Present Charge (id. at 92).
Claimant introduced Anthony's earnings history, which as explained below became the basis for some of his own lost earnings estimates. Anthony acknowledged, though, that his brother was in a different position, and he had no idea what claimant earned or how it compared to his own salary (id. at 96). Claimant's own payroll records indicate that at his bank jobs, he earned between $10,000 and $11,000 annually (id. at 264; Ex. 8). For 1984, he earned $5,318 prior to his arrest, based on a salary of $250 - $300 per week at NYT (Tr at 264-267; Ex. 8).
Anthony described how he visited his brother in prison, which he was able to do frequently while claimant was at Sing Sing early on in his incarceration, but less so as he was moved farther away from New York City(8) (id. at 69-70). Similar testimony about the difficulty of making visits after claimant was transferred upstate was given by his niece, Taji Middleton (id. at 109).
Anthony also gave evidence regarding attorneys' fees he had expended as part of his brother's efforts to prove his innocence, which totaled $5,500 for lawyers and $3,300 for an experts (id. at 63-66). He said, though, that he had not accepted an offer from his brother to pay him back for these expenses (id. at 97-98). For his part, claimant testified that his brother and mother had paid for an attorney and private investigator in 1984 and 1985, and he had not reimbursed these costs (id. at 212-214).
Marva Weston Goodman, claimant's fiancée at the time of his arrests, testified that while they remained in contact during his imprisonment, she did not visit him once he left the Bronx House of Detention, and their romantic relationship ended thereafter(9) (id. 122-123).
Anthony stated that his brother married a woman while in prison, and received frequent visits from her (id. at 71-72). Some family members and friends stopped communicating with him, however (id. at 79). For his part, claimant testified that he had conjugal visits with his wife every three or four months for about two years, but they were disallowed when claimant refused to participate in a sex offender program on the ground that he was innocent (id. at 183, 184). For the same reason, he was denied the ability to transfer to a facility closer to home, and to participate in certain programming (id. at 186-187).
Newton also testified regarding his efforts while in prison to obtain the VJ rape kit. In 1988, Newton was assigned an expert to test the DNA, but no information about the outcome was conveyed to him. After filing numerous motions, he secured the assistance of the Innocence Project, which located the rape kit, and it was determined that the assailant's DNA did not match Newton's (id. at 152-153).
Newton described conditions in prison as cold, dirty, and lacking in privacy (see id. at 177, 187-188, 190-191). He said that he had seen episodes of violence, including prisoners getting murdered and having their "head split" (id. at 207). He was transferred to various facilities far from New York City, where the only visitor he received was his wife (see id. at 196, 201). He also spent one or two months in a special housing unit for refusing to give a DNA sample(10) (id. at 191-192). Claimant described the emotional impact of his imprisonment, including the effects of his mother's death while he was incarcerated, as a result of which he was only briefly able to attend the wake, while in shackles and handcuffs (id. at 155-156). His father also passed away while he was in prison, on St. Croix.(11)
Newton gave the following account regarding his educational background: he graduated from Dewitt Clinton High School in the Bronx. Prior to his incarceration, in the five years following his high school graduation, Newton did not receive any college credits, which he attributed to a lack of ability to pay (id. at 283). He testified that he intended to avail himself of NYT's college reimbursement program in the event he secured permanent employment there (id.). While incarcerated, Newton obtained an Associate's Degree in 1989, and also took classes towards a Bachelor's Degree (id. at 214; Ex. 3).
Following his release, Newton obtained a full scholarship to Medgar Evers College from the CEO of Moet Hennessy, who saw claimant giving an interview (Tr at 226). He graduated with a Bachelor's of Science in 2008 (Ex. 4). Newton also secured employment at the college with the Black Male Initiative ("BMI"), for which he commenced work in August or September 2006, at a wage of $18 to $20 per hour (Tr at 236, 238). Specifically, he provided counseling to students on career, legal and other issues (id. at 239). He continued such work for four years, and then in April 2010 began work with BMI at CUNY, as a research associate involved in the distribution of grant money (id. at 238, 240). In his new position, his work was restricted to 19 hours with no benefits(12) (id. at 241). He held that job through the end of June 2016, when he took a leave of absence that was ongoing at the time of trial, to address medical issues involving his son, who was born after his release(13) (id. at 137, 242, 253).
Newton's tax returns show income (in terms of wages, salary and tips) ranging from $25,095 in 2007 to $34,799 in 2011 (Ex. 6). In 2014 and 2015, the most recent years for which returns were submitted, his income was $29,640 and $29,610 respectively(14) (id.).
Newton stated that he has explored other job prospects over the years, including an offer from Verizon, and the presence of the EG conviction on his record had not proven to be a hindrance to his job search (Tr at 291-293).
Claimant testified that his incarceration had left him anxious, as well as "leery" and "skeptical" of others--issues he has discussed with mental health professionals (id. at 244, 250). Between 2010 and 2015 he lacked health insurance, and as a result he sought assistance from Lehman College Professor and social worker Carl Mazza, as well as Innocence Project counselor Karen Wolf (id. at 245, 256). In regard to Mazza, Newton said they both worked for CUNY, and had a "professional relationship" (id. at 246, 248). Mazza did not charge him for their discussions, which concerned "everything under the sun" (id. at 248).
Claimant also presented the testimony of three expert witnesses.
Dr. Steven Simring, certified as an expert in psychiatry, spoke to his psychiatric evaluation of Mr. Newton, and his assessment of the emotional damages claimant had suffered as a result of his wrongful incarceration. The evaluation was based in part on psychological testing performed by Dr. Charles Hasson, whose report was entered into evidence (Tr at 327; Ex. 17). Hasson found, based on a 2009 evaluation, that claimant had "persistent and serious psychological deficits" which were "a direct result of his 22 years of incarceration" (Ex. 17 at 12). Specifically, he found Newton suffered from "Major Depression" and "PTSD symptoms" (id. at 13).
According to Dr. Simring, Hasson's testing showed that claimant experienced anxiety under stress, and believed others looked down on him (Tr at 333-334). He stated that Newton meets the criteria for dysthymic disorder, otherwise known as "persistent depressive disorder," involving significant but not "major" (i.e. suicidal or disabling) depression, which he attributed to claimant's incarceration (id. at 347, 351). To address this condition, Simring opined that Newton should attend therapy sessions once a week for at least four or five years, at a cost of about $400 per session (id. at 350-351).
On cross-examination, Dr. Simring acknowledged that feelings of separation from family members are "probably more severe at the beginning" of a prisoner's incarceration, and Newton "got used to it" over time (id. at 389). And while he testified that prison time hardened those incarcerated, he declined to say that this would take more than six years, the time attributed under the parties stipulation to the EG conviction(15) (id. at 338).
In addition, Newton presented two experts to address his economic damages.
Edmond Provder was qualified as an expert in rehabilitation counseling and employability. Based on his document review and interviews and evaluation of Newton's skills and history, he found that absent the conviction he would have obtained a Bachelor's Degree in 1991 and had the earnings capacity of a college graduate ($64,150); and then would have earned a Master's degree in 1995, and had the concomitant earnings capacity of $77,865 (Tr at 487; Ex. 15 at 15). He also found that Newton could have returned to work at NYT, and that his brother Anthony's salary and benefits during his NYT career provide a reasonable estimate for the amount he would have earned there.
Provder stated that he had considered the EG Conviction in reaching this assessment, but ultimately found it had no impact since Newton "could have gotten work" in any case because (1) he in fact obtained employment; and (2) "the laws have just steadily changed regarding the impact of a conviction on somebody's ability to seek employment" (Tr at 491). Provder noted specifically that 18 states had enacted "ban the box" laws limiting inquiry into convictions during the employment process, and that the New York Post had reported recently on the hiring of felons by the New York City Fire Department (id. at 492-493). He acknowledged that he did not use any study on the impact of such convictions in performing his analysis (id. at 539, 547). Moreover, he admitted in subsequent testimony that an individual's felony conviction would have a "significant effect on his ability to reenter the labor market" (id. at 539). Indeed, in his report, Provder concluded that "Mr. Newton's employment opportunities will be limited due to his incarceration and conviction"--apparently a reference to the continuing impact of the VJ Conviction (Ex. 15 at 15).
Provder premised his analysis on an understanding of certain facts, some of which he acknowledged on cross-examination to be inaccurate. For example, he was told by Newton that he had received "good grades" in high school, but on a review of the transcript agreed this was not the case(16) (Tr at 510). And although he knew at the time of his analysis that Newton had left his NYT job, he did not know that he had been fired (id. at 513). He also agreed that while Newton had told him that he intended to obtain a college degree, there was no objective evidence of steps he had taken towards this goal prior to his incarceration, such as taking relevant examinations or obtaining college credits (Tr at 510-511).
In regard to Newton's termination by NYT, Provder testified that it "doesn't mean anything regarding his employability," since the key fact evidenced by his employment there was that he was able to do the job (id. at 527). He acknowledged that claimant and his brother Anthony were doing different jobs before the former's arrest, with Anthony a higher paid technician and Alan in customer service (id. at 532). Nevertheless, he concluded that "in the long run" their earnings would be the same (id. at 532-533).
Dr. Gary Crakes, a professor of economics emeritus at Southern Connecticut University gave testimony regarding Newton's loss of earning capacity due to his wrongful incarceration. Crakes' analysis was broken down into two periods: from June 28, 1990 through July 6, 2006 (i.e., the income lost during the time of Newton's incarceration attributable to the VJ Conviction), and from July 7, 2006 until the time Newton reaches the age of 65 (i.e., post-incarceration earnings). He made his calculations based on the three scenarios presented by Provder: Newton's "continued" employment with NYT;(17) his receipt of a Bachelor's Degree in July 1991; and his receipt of a Master's Degree in July 1995 (Ex. 16 at 3).
For the first scenario, Crakes totaled up Newton's earnings over the time of claimant's incarceration on the basis of his brother's NYT experience, and determined under this approach that his damages were $999,053 (id. at 409).
For the other two scenarios, Crakes used US Census/Bureau of Labor Statistics ("BLS") data for earnings of individuals of the same age and gender with comparable degrees (id. at 406-408). The data did not reflect any other variables; for example, it was not occupation specific (id. at 444). He tabulated the median values for each year under the census data, and arrived at a total of $761,756 (id. at 411; Ex. 16A at 4). A comparable calculation for the Master's Degree case yielded damages of $760,551(18) (Ex. 16A at 4).
To each of these scenarios, he added 10% for fringe benefits, for final results as follows (see id.):
For Newton's post-release earnings, there was no data for Anthony Newton (who had retired), and so Crakes produced estimates only for the last two scenarios, using census data for the 2006-2015 period, and adding a 3˝ % growth factor for the years thereafter, based on historical trends (Tr at 415-417). He then subtracted Newton's actual earnings for 2006 through 2016, and used claimant's 2016 earnings rate of $31,038 per annum as the baseline for the years after, again adjusting for a 3.5% annual growth rate (id. at 416; Ex. 16A at 4). Under these calculations, Crakes found future economic losses under the Bachelor's scenario to be $1,048,954, and under the Master's scenario to be $1,446,573 (id.; Tr at 416).
Crakes produced his analysis in reliance on Provder's vocational assessment and report. Thus, he expressed no view of the impact of Newton's outstanding attempted rape conviction, and said that any analysis in this regard fell outside the qualifications of an economist (Tr at 421). Indeed, he was unaware that claimant had been terminated by NYT following his arrest (id. at 432). Similarly, he had no view on whether or not claimant would have obtained a Bachelor's or Master's degree by the dates set forth in his analysis -- and was unaware of the extent of Newton's pre-arrest education, relying on Provder for these assumptions as well (see id. at 430-431, 441). Moreover, although Provder determined that the primary vocation for Newton before his arrest was as a customer service representative, Crakes did not take that into account in assessing the salary he would earn, using instead median numbers for males of similar age with comparable degrees (id. at 447-448).
For its part, the State presented the expert testimony of forensic economist Matthew McCabe. He evaluated the damages incurred by Newton as a result of his loss of earning capacity based on three scenarios, each comparing Newton's actual incarceration to a situation under which he was released from prison on June 1, 1991 (not June 1990, as the parties in fact stipulated) (see Tr at 571) . Under the first scenario, he would have been released with only a high school diploma; under the second, he would have been released with an Associate's Degree; and under the third he would have obtained a Bachelor's Degree by 1993. He calculated damages for these scenarios at $155,013, $236,536, and $356,403 respectively (Ex. G). He indicated, though, that he believed the prospect that Newton would have obtained a Bachelor's Degree on that schedule was overly speculative, and he would not have used this measure in assessing damages except that he was asked by counsel to make this calculation (id. at 583-584).
These calculations were based on the total income McCabe concluded that claimant would have earned, net of his actual earnings (id. at 567), calculated using census tables for an individual of comparable age and education, and adjusted over time for inflation (id. at 569-570). To determine the impact a felony conviction would have on income, he reviewed two studies: one by PEW Research and one by "Holzer," the latter itself a survey of 13 other studies (Tr at 612). On the basis of this literature, McCabe made two further adjustments: a 9.5% downward adjustment to reflect the impact of incarceration on salaries, and a 59.69% reduction based on unemployment rates for those who have served time in prison (id. at 571-572). McCabe also declined to calculate damages from Newton's earnings after 2008 when he obtained his Bachelor's Degree. After that point, McCabe opined, any deviation from the average individual with a Bachelor's Degree "reflects his own work choices" (id. at 591). Finally, McCabe rejected Crake's calculation of damages based on a work expectancy of age 65, since average work life is through age 59 ˝ for individuals with an Associate's Degree, and 62 for someone with a Bachelor's (id. at 592-593).
McCabe stated that using the same census tables as Crakes, he was unable to obtain the same results, coming several hundred thousand dollars short(19) (id. at 582). He further rejected the notion that an economist could not make such an evaluation, absent reliance on a vocational expert (id. at 585).
On cross-examination, McCabe acknowledged that he had erroneously began to calculate the damages assessment from June 1991, not June 1990 as the parties had stipulated, resulting in an under-estimate of between $9,000 and $16,000 depending on the scenario used (Tr at 602-603).
In an unjust conviction claim, the Court must grant such damages as will "fairly and reasonably compensate" the claimant (Court of Claims Act § 8-b ). The amount of such damages is determined under "traditional tort and other common-law principles" (Gristwood v State of New York, 119 AD3d 1414, 1417 [4th Dept 2014] [citation omitted]). Damages may cover not only those suffered between conviction and release from incarceration, but also "any subsequent or continuing damages shown to have proximately resulted from the conviction and imprisonment" (id. [citation and internal quotation marks omitted]). They may encompass such elements as lost wages, psychological problems, and pain and suffering, provided claimant can demonstrate that such were caused by the wrongful conviction (see Johnson v State of New York, 155 Misc 2d 537 [Ct Cl, 1992]).
Before I consider the various bases for damages advanced by Newton, I must consider two preliminary issues: the State's objection that the damages sought by claimant are duplicative of what he has already obtained through the federal court action; and claimant's arguments regarding his innocence on the EG Charge (claimant's earlier conviction that has not been overturned).
A section 8-b action is governed by the principle that "a claimant may not obtain a double recovery for the same injuries and damages" (Carter v State of New York, 139 Misc 2d 423, 427 [Ct Cl, 1988], affd 154 AD2d 642 [2d Dept 1989]). Where, as here, there has been a prior suit in another forum also seeking relief arising out of the same conviction, the key question to be resolved is whether the earlier action "encompass[ed] damages of the type and for the period covered by Court of Claims Act § 8-b" (id. at 432).
In this case, the scope of the federal action is clear: in that case, Newton sought only non-pecuniary damages for the last twelve years of his imprisonment. Here, claimant seeks to recover such damages for the four-year period that stretches between the conclusion of time served on the EG conviction as stipulated by the parties and the time covered by the federal award; lost wages; post-incarceration psychological harm and the costs of treatment; and fees expended on his efforts at post-conviction relief. None of these were sought in the federal action, and thus they were not part of the jury's award. Provided each of these is proven to a "reasonable probability," claimant may recover them notwithstanding that he secured a judgment for a different set of harms arising out of his conviction in federal court (see e.g. Gonzalez v State of New York, 2009 WL 10662892 [Ct Cl, 2009] [allowing damages claim for lost wages notwithstanding claimant's receipt of settlement in parallel action against New York City, where claimant had his lost wages claim voluntarily dismissed]).
Carter is not to the contrary. In that case, the trial court found a section 8-b claimant suffered only $240,000 in damages, and after parsing a $450,000 federal civil rights settlement to determine how much thereof reflected damages not at issue before the Court of Claims, held that claimant had already received more than the amount he was entitled to for the same damages found by this Court. In upholding this verdict on appeal, the Appellate Division ruled that the bar against double recoveries applies whenever a claimant "has already been compensated for all of his injuries resulting from his unjust conviction and imprisonment, and has demonstrated no additional compensable damages upon a trial of his claim" (154 AD2d at 644). But that is not the case here, since the injuries for which claimant now seeks redress were not at issue in the federal court action.(20)
As to Newton's first "EG" conviction, in his post-trial submission claimant argues vociferously that he is innocent of that crime as well (see e.g. Cl. Mem. at 4 ["Although Mr. Newton continues to claim that he was/is innocent of this first conviction as well, the NYPD's loss of biological evidence in this first case . . . thwarted his attempt to obtain exoneration . . . ."]; id. at 5 ["In sum, by the end of June, 1984, Mr. Newton had been indicted for, and then convicted of, two separate sexual assaults that he had not committed"]).
The validity of the EG Conviction, however, is not before me. That conviction has never been overturned, I have no power to grant such relief in this case, and the issue was not (and could not have been) litigated at trial. As a result, for purposes of this decision, I can make no determination on claimant's innocence on the EG Charge, and must take it as a given that he would have served the stipulated six years for that conviction.
With these matters established, I proceed to consider each of Newton's damages claims.
Non-pecuniary damages consist of such elements as loss of reputation, mental anguish and "above all, the loss of liberty" (Harris v State of New York, 38 AD3d 144, 153-154 [2d Dept 2007]; see also Gristwood, 119 AD3d at 1417 [non-pecuniary damages compensate for "grievous suffering, mental anguish, loss of liberty, degradation, loss of reputation, humiliation and other injuries"]). There is no set formula for the amount of such damages, which vary depending on the particular circumstances of each individual's wrongful incarceration and imprisonment. Nevertheless, it is appropriate to look at comparable cases, and to find in them guideposts as to the general range within which damages may fall (see Baba-Ali v State of New York, 24 Misc 3d 576, 595 [Ct Cl, 2009] [surveying verdicts and settlements, although declining to apply a per year formula]; Jackson v State of New York, UID No. 2009-038-105 [Ct Cl, DeBow, J., Dec. 21, 2009] ["It is proper for a court to look at other similar cases to determine what would be a reasonable award" in assessing damages for loss of liberty]).
The highest section 8-b award upheld by the Court of Appeals was in Baba-Ali, where the Court found $466,000 per year proper (19 NY3d 627 ).(21) Other relatively recent cases have approved lesser damages findings, but which are in the same general ballpark (see Gristwood, 119 AD3d at 1418 [$300,000 per year non-pecuniary damages for nine years]; Jones v State of New York, UID No. 2009-014-051 [Ct Cl, Nadel, J, Aug. 19, 2009] [$250,000 per year non-pecuniary damages over four years of incarceration]; Gonzalez, supra [$273,000 per year for 5.5 years of incarceration]). The State argues that these cases reflect more traumatic encounters with the prison system. While this is certainly true of Baba-Ali, whose wrongful conviction for sexual assault of his daughter led to his permanent estrangement from the child, defendant's bases for distinguishing the other cases are less persuasive. As a general matter, the holding of an individual against his or her will in prison for a crime he did not commit imposes an almost unimaginable fate, and I generally do not think that the fine distinctions the State seeks to draw between Newton's conditions of confinement and those in the decisions cited above are particularly helpful in assessing the appropriate dollar amount. While those cases present certain factors not present here, others (such as claimant's witnessing of acts of extreme violence, and the extraordinary feeling of despair that must have accompanied the frustration of his continuing efforts to seek the physical evidence he knew would exonerate him) weigh in favor of a significant award.
After reviewing the judgments in other comparable conviction cases, and considering the conditions of Newton's confinement as he credibly described them in his testimony, I find an award of $300,000 per year for four years is appropriate, for a total of $1.2 million in non-pecuniary damages.
I recognize that this results in a significantly different calculation of the annual amount to which claimant is entitled from that awarded by the federal jury for non-pecuniary harms. But I am not bound by that jury's decision in this regard, and the disparity in any case simply reflects the fact that jury awards in federal civil rights cases involving wrongful confinement have in general been far in excess of those awarded by the Court of Claims (compare Limone v United States of America, 497 F Supp 2d 143, 243-244 [D Mass 2007] [surveying recent section 1983 verdicts, and finding "wrongfully imprisoned plaintiffs" were awarded "at least $1 million per year of imprisonment"], with Baba-Ali, 24 Misc 3d at 594 n7 [extensive survey of all section 8-b verdicts and settlements to that point; many cited awards do not give a per year value, but highest verdict listed is $1.5 million in non-pecuniary damages]). In light of the amorphous nature of the task vested in the Court in such instances --to determine what compensates the "pain and suffering" of being held improperly in a prison cell--there is no "right" answer to a damages inquiry. I look to appellate and trial court rulings in relatively comparable cases for guidance, and find that those decided under section 8-b provide a more appropriate benchmark than federal jury awards.
As to claimant's lost earnings, such must be shown by a "reasonable certainty" (Baba-Ali, 19 NY3d at 641). Claimant's experts have failed to meet that standard here.
There are a number of deficiencies in the analysis presented by Newton's experts, which preclude the Court from accepting their estimates of lost earnings. First, they presume Newton's salary would reflect median census figures, notwithstanding that he has a conviction for attempted rape of a child. That strains all logic, and claimant presented no evidence which would support such a quixotic contention.(22) While Provder testified that the legal regime governing ex-offenders is in flux, that is a far cry from saying that a conviction of this nature would have no impact on earnings. Indeed, the law of New York bars consideration of prior criminal convictions in employment except where there is a "direct relationship" between the criminal offense and employment, or such employment "would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public"(23) (see Correction Law §752). While this statute sets significant limits on the consideration of a criminal record in employment decisions, it hardly demonstrates that claimant's record would have no impact on his job options.
In contrast, I found the conclusion of defendant's expert that those with a felony record earn lower average salaries and have higher rates of unemployment to be far more credible, and based on specific research which he cited.
Further, claimant's estimates are based on assumptions that are at odds with the record. Under two of the scenarios introduced by Provder and Crakes, Newton would have obtained his Bachelor's degree by 1991, and his Master's by 1995. But by stipulation of the parties, claimant would have been in prison through June 1990 even had he never been convicted for the crime at issue. There is nothing in the record to show that he had made substantial progress from an Associate's to a Bachelor's Degree by that point, and in fact he did not achieve the latter until 2008 - and then with the assistance of an individual who financed his education because of his wrongful conviction. Newton has no Master's at present, and I see no basis for the experts' assumption that he would have obtained one by 1995. Moreover, there is no evidence in the record that claimant took any steps towards an undergraduate degree (such as taking the requisite examinations) before he went to prison, and he testified that he could not afford to pay for college, even before he lost his job and was convicted in the EG case.
As to the estimate premised on Anthony Newton's earnings at NYT, this is simply baseless. Claimant was fired from his job at NYT, and the record is devoid of proof that he would have been rehired upon his release from incarceration on the EG Conviction, and there are no grounds for believing that if that occurred, he would have received his brother's position and salary (see Jackson, supra [rejecting lost wages claim based on return to prior employer, when "there was no evidence adduced at trial that [his prior employers] were willing or able to employ claimant during the period of time that he was wrongfully confined"]).
Finally, claimant contends the estimates of his experts are premised on "an actual vocational interview and testing" (Tr at 629). But his economic analysis bears little connection to this description, since it was based entirely on the median earnings of males with comparable degrees (see Ex. 16A at 3). Even without the significant problems listed above, the experts' findings simply lacks the specificity required under the reasonable certainty test. I therefore decline to adopt those findings in regard to lost wages.
But that does not end the inquiry. I have before me the testimony of defendant's expert, who concedes that Newton would have been damaged under certain scenarios, including his receipt of a high school diploma or Associate's degree prior to his release from incarceration, which did in fact come to pass. While claimant challenges Dr. McCabe's methodology and qualifications, I do not see why an economist lacked the credentials to estimate the wages Newton could have received, or the statistical impact thereon of prior convictions.(24) Since the expert testimony proffered by the State conceded that claimant has suffered harm from his incarceration, it is appropriate to use that as a floor on damages (see Franjo Transp. v B & K Fleet Serv., 226 AD2d 674 [2d Dept 1996] [finding damages established by testimony of defendant's expert]). In any case, I find Crake's testimony to be sufficiently certain, as it adjusts for the effects of claimant's incarceration, in calculating his lost wages.
Since claimant in fact obtained an Associate's Degree - and did not secure a Bachelor's Degree by the time assumed in McCabe's forecast - I hold that the damages forecast under that scenario are the proper measure. Moreover, McCabe acknowledged that an upward adjustment of $9,000 to $16,000 must be made to reflect the proper time period of incarceration under the parties' stipulation. Rounding, I therefore award $250,000 ($236,536 under McCabe's Associate's Degree scenario adjusted for the additional year) for lost earnings.
Newton's claims for psychological harm and for the costs of therapies to address it are confounded by the failure of claimant's lay testimony and expert reports to provide any basis for segregating the damages he suffered from the EG Conviction from those attributable to the VJ Conviction (cf. Jackson, supra [awarding section 8-b damages for psychological harm on the basis of testimony that prior to his return to prison, claimant had "put [earlier traumas] behind him, and was able to function," and so the damages he suffered were caused solely by the wrongful conviction]). Indeed, claimant's experts do not appear to have attempted any such distinction (see e.g. Ex. 17 at 4 ["I asked Mr Newton to discuss the effects of his incarceration for more than 20 years for a crime which he did not commit"] [emphasis added]). As an example, claimant presented significant testimony regarding the guilt felt by Newton about the death of his mother, and the heartache caused by his inability to be present at her funeral (see id. at 2). But that took place during the period he would have been incarcerated in any case under the parties' stipulation.
For the same reason, I decline to award Newton damages for the costs of future psychotherapy. Although Dr. Simring testified that such would aid claimant in his struggles with depression, he did not say that this condition resulted from the increased prison time Newton served due to his current offense, rather than from his initial period of incarceration due to the EG Conviction.
In regard to attorneys' fees expended by claimant in overturning his conviction, I find that even if such are recoverable in an 8-b case, Newton has not demonstrated his entitlement to this relief here. The only testimony in regard to these expenditures comes from Anthony Newton, who stated that he laid out the cost of one of his brother's lawyers and an expert. But there is no evidence that Newton agreed to, or did in fact, repay those costs (see Tr at 97-98; 212-214). As a result, he cannot show he was damaged in this regard.
In sum, claimant is entitled to non-pecuniary damages of $1.2 million for the four years of incarceration not covered by the federal suit, and $250,000 for lost future earnings, for a total of $1.45 million, plus statutory interest from the date liability was found on summary judgment (June 21, 2011).
Claimant may recover his filing fee, pursuant to Court of Claims Act § 11-a(2).
Let judgment be entered accordingly.
November 2, 2017
Albany, New York
DAVID A. WEINSTEIN
Judge of the Court of Claims
1. The delay between liability and the damages proceeding is attributable, in substantial part, to an effective stay in the proceedings agreed to by the parties during the pendency of an appeal of a ruling overturning the jury verdict in Newton's federal suit before the US Court of Appeals for the Second Circuit. The federal proceeding is discussed in more detail infra.
2. A one-year sentence on the endangerment of a child charge was to be served concurrently.
3. The jury also awarded a total of $592,500 against two individual defendants for intentional infliction of emotional distress. That award was overturned by the trial court as well, a determination that was not challenged on appeal.
4. There was some dispute about this at trial, as the State argued that the time claimant had spent in pre-trial detention should not be part of the six years, which would have resulted in a shorter period attributable solely to VJ Conviction. But the stipulation specifically states that these proceedings are based on sixteen years of incarceration for the Present Conviction, and so the parties ultimately agreed that the sentence at issue should be held to have commenced on June 28, 1990 (Ex. 13; Tr at 525).
5. Since claimant raises arguments regarding the validity of the EG Conviction in his post-trial submission, I address this matter further below.
6. All references in this Decision and Order to "Newton" refer to claimant, not to his brother.
7. Newton testified that he was fired for missing workdays while initially in custody because of the arrest (Tr at 268).
8. An account of the facilities where Newton resided is set forth in the report of the claimant's psychological expert Charles Hasson, although it is at odds with this testimony, since it does not reference Sing Sing. The report states, based on Newton's account, that he was initially incarcerated at the Fishkill and Great Meadows Reception Centers, and then at the following correctional facilities: Auburn, Greenhaven, Elmira, Clinton, and Attica, followed by others not listed (Ex. 17 at 3).
9. She stated that it became difficult to visit him, as she had become a corrections officer (id. at 122).
10. Newton testified that he was afraid his sample would wind up in the rape kit. He ultimately relented, and was released from SHU (id. at 192).
11. Newton's father left the family home while claimant was nine or ten years old. Claimant said that never saw him in person as an adult, although he spoke with him frequently (id. at 158-160).
12. The precise hourly rate he received is not clear from the record. His most recent pay stub for July 2016 lists an hourly rate of $30 per hour, but stubs from 2007 list a rate of between $48 and 60 per hour (Ex. 7).
13. The marriage Newton entered into while incarcerated ultimately dissolved, and he currently lives with his son and his son's mother.
14. His social security earnings ranged from $20,871 in 2010 to $36,793 in 2009, with most years falling in the $25,000 to $26,000 range (see Ex. 8).
15. The relevant exchange was as follows:
"Q: So is it your opinion with a reasonable degree of medical certainty that a person serving a smaller sentence, say, three to six years, will become less hardened than someone who has served a prison sentence of 22 years?
A: Well, six is pretty long. You're in a middle ground there. Let me say that somebody who has served four months is a different kind of individual than someone who has served ten or twenty years . . . . Now where that shifts, I can't tell you exactly, but I can tell you there is a vast amount of literature . . . ." (Tr at 337-339).
16. Newton's transcript indicates that he had a 70 Grade Point Average (Ex. 2).
17.The reference to "continued" employment appears to indicate that claimant was employed by NYT at the time of the Present Charge, although in fact he had by that point already been fired.
18. The lower number for the Master's estimate is presumably due to the fact that his employment would have started four years later.
19. McCabe said that he was unable to locate a table listing median income of all males, which Dr. Crakes indicated he had used. Instead, he used age-mean income (Tr at 582-583). Following trial, claimant submitted the census data used by Crakes in his calculation. I do not address this issue, since I find that the methodology used by Crakes and Provder did not establish Newton's lost earnings by a reasonable certainty, and thus decline to accept their testimony regardless of the underlying data used.
20. This is not a case where defendant raises a res judicata defense, in which the relevant question is whether a claim could have been brought in the federal suit (see Seavey v James Kendrick Trucking, 4 AD3d 119, 120 [1st Dept 2004]). The issue is only whether claimant has been compensated for the harms at issue here. The federal court's rulings make clear that he has not been.
21. Defendant calculates the amount of Baba-Ali's non-pecuniary damages at $344,000 per year, based on $1 million over 2.9 years of incarceration (see Def. Post-Tr. Mem. at 12; see 19 NY3d at 640 [letting stand Appellate Division's reduction of non-pecuniary damage award to $1 million]). But according to the trial court decision in that case, Baba-Ali served 783 days in prison, or 2.145 years (see 24 Misc 3d at 577). On this basis, the rounded damages calculation comes to $466,000 per year.
22. Nor, as a side note, did the experts seek to explain why the median and not the mean is the appropriate measure.
23. New York City recently enacted the legislation which places further restrictions on consideration of an individual's past convictions in hiring decisions (Local Law No. 63 ). That statute was not in effect for most of the time at issue, and in any case the entire issue was left unaddressed by claimant's experts except in an anecdotal manner.
24. Claimant's economist essentially functioned as an adding machine, totaling up numbers in complete reliance on Provder's findings. But I do not see why an economist who studies the labor market cannot perform the kind of analysis carried about by Crakes. True, there are certain calculations (such as matching job skills to lines of work) that would fall outside his ken. But given that the expert findings proffered by both claimant were simply based on overall census data, I find no reason why adjustments to that data were solely within the province of a rehabilitation expert. In any case, the point here is that claimant did not meet his burden of showing reasonably certain numbers, and he is left therefore with the findings of defendant's expert, or with nothing. Given that Newton clearly lost earnings during his incarceration, I find that adopting the former is the appropriate result.