Claim for unjust conviction dismissed because claimant's conviction was vacated not on one of the qualifying grounds set forth in Court of Claims Act § 8-b (3), Claims for Unjust Conviction and Imprisonment, but on the ground of ineffective assistance of counsel pursuant to CPL 440.10 (1) (h). Pursuant to Jeanty v State of the New York (175 AD3d 1073, 2019 NY Slip Op 06333, *2 [4th Dept 2019]), a court presiding over a claim based upon an unjust conviction under Court of Claims Act § 8-b may not look beyond the express grounds for vacatur determined by a criminal trial court in order to make actionable an otherwise unactionable claim.
|Claimant short name:||ROSARIO|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Claimant's attorney:||NEUFELD SCHECK & BRUSTIN, LLC
By: Nick Brustin, Esq.
|Defendant's attorney:||LETITIA JAMES, ATTORNEY GENERAL
By: Janet L. Polstein, Esq.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||January 7, 2020|
|See also (multicaptioned case)|
Claimant Richard Rosario filed this claim for unjust conviction and imprisonment on October 11, 2017, seeking damages arising from his 1998 conviction for murder in the second degree (Penal Law § 125.25 ), for which he was sentenced to an indeterminate term of imprisonment of from 25 years to life. In 2016, Rosario's conviction was vacated, and a new trial was ordered pursuant to a motion filed under CPL 440.10 (1) (h) based on his counsel's failure to provide effective assistance at his criminal trial. He was never retried, however, because in November 2016, on the People's recommendation to dismiss all charges against him in the interest of justice, the underlying indictment was dismissed.
On February 6, 2019, defendant, the State of New York, filed a motion seeking dismissal of Rosario's claim based on the fact that his conviction was vacated, not on one of the qualifying grounds set forth in Court of Claims Act § 8-b (3), Claims for Unjust Conviction and Imprisonment, but on the ground of ineffective assistance of counsel pursuant to CPL 440.10 (1) (h). For the reasons that follow, defendant's motion is granted, and Claim No. 130387 is dismissed.(1)
George Collazo was shot and killed on June 19, 1996, on Turnbull Avenue in Bronx County. Two eyewitnesses came forward, identified Rosario as the shooter, and were called by the People to testify at Rosario's trial. They were Michael Sanchez, a friend of Collazo's who was present during the shooting, and Robert Davis, a porter working at a nearby building. A third eyewitness, Jose Diaz, was a food truck vendor who had been parked down the block from where Collazo was shot. Sanchez and Davis identified Rosario as the shooter in photo arrays, a lineup, and open court at trial. Though Diaz, the food truck vendor, testified that he had heard the shot and believed he might have been able to recognize the shooter, he did not identify Rosario at trial. Other witnesses, such as Nicole Torres, were interviewed at the scene but did not or could not identify the perpetrator.
At the criminal trial, Rosario testified on his own behalf and presented an alibi defense; he averred that he was in Deltona, Florida at the time of Collazo's death. Then, as now, Rosario asserts that 13 alibi witnesses could and can attest to his having been over 1,000 miles away from the Bronx on or around June 19, 1996, in Florida. Rosario's trial counsel, however, only called two of those witnesses--Janine Seda and John Torres--a couple with whom Rosario had lived in Florida from May 1996 until just after the shooting.
Seda testified that because her son was born on June 20, 1996, one day after Collazo was shot and killed, she had had a very clear memory of that period and knew that Rosario was living in her home on June 19, the day before she gave birth to her son. Torres testified that he and Rosario searched for car parts on the day of the shooting.
The reasons for which the additional alibi witnesses were not called to testify, though somewhat muddled, are spelled out in the various state and federal decisions concerning Rosario's challenges to his judgment of conviction. In short, it appears that trial counsel's failure to call these witnesses resulted from a combination of an erroneous belief that funding for an investigator to interview these witnesses was unavailable, miscommunication among successive trial counsel, and decisions made by trial counsel, whether strategic or not.
It is principally on the basis of his trial counsel's failure to call those 11 additional alibi witnesses that Rosario made several direct and collateral challenges to his judgment of conviction until his release from state custody in 2016 (see People v Rosario, 288 AD2d 142, 143 [1st Dept 2001] [rejecting grounds for appeal and affirming conviction], lv. denied 97 NY2d 760  [denying leave to appeal]; Rosario v Ercole, 582 F Supp 2d 541, 545 [SDNY 2008] [denying petition for writ of habeas corpus], affd 601 F3d 118 [2d Cir 2010] [affirming denial of habeas petition]). As relevant here, Rosario also challenged his conviction by filing three CPL article 440 motions, first in 2003 (People v Rosario, Sup Ct, Bronx County, April 4, 2005, Davidowitz, J., indictment No. 5142/1996 [denying Rosario's ineffective assistance of counsel claim under CPL 440.10]); second in 2014 (People v Rosario, Sup Ct, Bronx County, March 19, 2015, Sackett, J., indictment No. 5142/1996 [denying CPL 440.10 (1) (h) claim]); and third in 2016 (People v Rosario, Sup Ct, Bronx County, March 23, 2016, Torres, J., indictment No. 5142/1996 [granting CPL 440.10 (1) (h) claim]) (the "Third CPL Article 440 Motion"), the last of which resulted in vacatur of his judgment of conviction.
The Third CPL Article 440 Motion
By Decision and Order dated March 23, 2016, the Honorable Robert Torres granted Rosario's Third CPL Article 440 Motion, vacating Rosario's conviction pursuant to CPL 440.10 (1) (h) for ineffective assistance of counsel and in the interest of justice. He ordered a new trial. JudgeTorres, familiar with Rosario's first CPL article 440 motion and the decision rendered by the Honorable Edward M. Davidowitz; Rosario's second CPL article 440 motion and the decision rendered by the Honorable Robert A. Sackett; as well as Rosario's federal proceedings, ruled that Rosario "did not receive effective assistance of counsel in this case; accordingly, he is entitled to a new trial, and the judgment of conviction and sentence must be vacated" ("Vacatur Order"). Nevertheless, for the reasons addressed below, Rosario was never retried. Instead, on the People's recommendation, Judge Torres dismissed the underlying indictment in the interest of justice by Decision and Order dated November 4, 2016 ("Dismissal Order").
Motion to Amend Judge Torres's Vacatur Order
In between the Vacatur and Dismissal Orders--a period in which Dateline NBC produced a digital documentary series on the case and the Bronx County District Attorney's Office conducted a re-investigation--counsel filed a motion seeking to amend the Vacatur Order to add--as an independent ground for vacatur--newly discovered evidence under CPL 440.10 (1) (g), one of the enumerated qualifying grounds that would support a claim for unjust conviction and imprisonment under the Court of Claims Act (Court of Claims Act § 8-b).
By Decision and Order dated October 31, 2016 ("Decision Denying Amendment"), Judge Torres denied the application and specifically held that there was "no legal or factual basis to support" such a ground.
To present a claim for unjust conviction and imprisonment pursuant to section 8-b of the Court of Claims Act, a claimant must establish by documentary evidence that his judgment of conviction was vacated on one of the grounds set forth in CPL 440.10 (1) (Court of Claims Act § 8-b  [b] [specifying certain CPL 440.10 (1) grounds as actionable claims for unjust conviction and imprisonment]). Vacatur of a judgment of conviction on any other ground not enumerated under Court of Claims Act § 8-b (3) (b)--such as ineffective assistance of counsel--is not actionable in the Court of Claims. Thus, a claimant cannot establish a prima facie section 8-b claim for money damages based on the vacatur of a wrongful conviction for ineffective assistance of counsel.
Here, Rosario concedes that his judgment of conviction was vacated pursuant to CPL 440.10 (1) (h), for ineffective assistance of counsel (in the interest of justice), and that the only ground upon which he moved for vacatur was based on that section of the CPL. He argues, however, that the Court is empowered to ignore Judge Torres's express reason for vacating Rosario's conviction, consider the totality of the record, and decide whether it supports a determination that vacatur of Rosario's conviction should have been based, at least in part, on a different ground: newly discovered evidence under section (1) (g), a qualifying ground.
Rosario's argument is not without legal support. His counsel properly referenced various cases that appear to support his position. None of those cases contend with the precise issue at bar: whether a court presiding over an unjust conviction claim can look beyond the express grounds for vacatur determined by another court in order to make actionable an otherwise unactionable claim. Nevertheless, each case cited by counsel suggests that a court may indeed review the whole record to assess whether other grounds for vacatur exist that would permit a claim for unjust conviction to go forward. For example, one court noted, "the test is not whether an overturning court labels prior errors as being due process violations but what exactly the violations were, where they fit into the CPL 440.10 scheme and to what extent they evidence innocence" (Coakley v State of New York, 150 Misc 2d 903, 909 [Ct Cl 1991], affd 225 AD2d 477 [1st Dept 1996]). Similarly, the Second Department has searched a trial record to uncover "that the claimant's conviction was vacated on the basis of newly discovered evidence," although not expressly stated by the trial court as a ground for vacatur (Harris v State of New York, 38 AD3d 144, 150 [2d Dept 2007]).
Based upon these cases, this Court, in a June 2019 order, directed Rosario to provide the motion papers for the three CPL article 440 motions filed in connection with Indictment No. 5142-1996, which motion papers his counsel electronically provided on July 16, 2019 (see NYSCEF Doc No. 54). However, in the interim, the Appellate Division of the New York State Supreme Court rendered its decision in Jeanty v State of the New York (175 AD3d 1073, 2019 NY Slip Op 06333, *2 [4th Dept 2019]), in which the Fourth Department squarely confronted the very same issue before this Court and explicitly held that "Court of Claims Act § 8-b  allows recovery only where the criminal court actually vacated the judgment on an enumerated ground, and not where the criminal court might have vacated the judgment on an enumerated ground, but did not do so (emphasis added)."(2)
Jeanty appears to have effectively foreclosed those aspects of Coakley and Harris that might have afforded relief on grounds emerging from the record but not explicitly ruled upon. Moreover, Jeanty applies to the instant case with even greater force given that, unlike the cases cited by Rosario's counsel, not only was the vacatur premised exclusively on ineffective assistance of counsel grounds, Judge Torres's Decision Denying Amendment explicitly rejected a newly-discovered-evidence ground for vacatur. Therefore, based on Jeanty, Judge Torres' denial of Rosario's motion to amend the Vacatur Decision precludes relief under section 8-b in this Court. Accordingly, it is hereby
ORDERED that defendant's motion to dismiss (M-93564) is granted and Claim No. 130387 is dismissed.
January 7, 2020
New York, New York
Judge of the Court of Claims
1. In connection with this motion, the Court read and considered the following: defendant's Notice of Motion; the Affirmation of Assistant Attorney General Janet L. Polstein, Esq., in Support, with Exhibits, filed February 6, 2019; the Affirmation of Nick Brustin, Esq., in Opposition, with Exhibits, filed March 13, 2019, including claimant's three CPL Article 440 Motions, filed pursuant to Court order on July 16, 2019 (see NY St Cts Elec Filing [NYSCEF] Doc No. 54); the Verified Answer, filed November 9, 2017; and the claim, filed October 11, 2017.
2. This new rule is binding upon this Court (see Mountain View Coach Lines v Storms, 102 AD2d 663, 664 [2d Dept 1984] [noting that the "Appellate Division is a single State-wide court divided into departments for administrative convenience [citations omitted] and, therefore, the doctrine of stare decisis requires trial courts in this department to follow precedents set by the Appellate Division of another department until the Court of Appeals pronounces a contrary rule."]).