New York State Court of Claims

New York State Court of Claims
LACKEY v. THE STATE OF NEW YORK, # 2009-042-524, Claim No. 115914, Motion No. M-76635

Synopsis

This is a motion brought on by defendant to dismiss this claim pursuant to CPLR Rule 3211 and Section 8-b of the Court of Claims Act. The court finds that the claimant has failed to meet the threshold requirement of showing that he is likely to succeed on the merits and succeed in proving that he did not by his own conduct cause or bring about his conviction. Defendant's motion to dismiss the claim is granted.

Case information

UID: 2009-042-524
Claimant(s): DANIEL C. LACKEY
Claimant short name: LACKEY
Footnote (claimant name) :
Defendant(s): THE STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 115914
Motion number(s): M-76635
Cross-motion number(s):
Judge: NORMAN I. SIEGEL
Claimant's attorney: NEAL P. ROSE, ESQ.
Defendant's attorney: HON. ANDREW M. CUOMO
Attorney General of the State of New York
By: JOEL L. MARMELSTEIN, ESQ.
Assistant Attorney General
Third-party defendant's attorney:
Signature date: December 21, 2009
City: Utica
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

The court has considered the following papers on defendant's motion to dismiss the claim:

  1. Notice of Motion, amended, filed May 21, 2009
  2. Affirmation of Joel L. Marmelstein, Esq., dated May 1, 2009
  3. Exhibits A - J, annexed to the moving papers
  4. Affirmation of Neal P. Rose, Esq. (unsigned, but accepted by the court), dated September 19, 2009
  5. Exhibits A - H, annexed to the opposition affirmation
  6. Reply affirmation of Joel L. Marmelstein, Esq., dated October 7, 2009
  7. Exhibit A, annexed to the reply affirmation

Defendant has moved, pursuant to CPLR Rule 3211 and Section 8-b of the Court of Claims Act, to dismiss this claim for unjust conviction and imprisonment.

The essential facts which underlie the motion are undisputed. In 2004 claimant Daniel C. Lackey was convicted of aggravated sexual abuse in the first degree and sexual abuse first degree for an assault allegedly committed on January 22, 2003. Following sentence, claimant was imprisoned. The conviction was based, in part, both upon the alleged victim's testimony and upon a confession given by claimant. Prior to trial, the claimant's confession was the subject of a Huntley hearing. On September 25, 2004 the trial level court issued a decision finding the confession uncoerced and admissible at trial. The later conviction and Huntley ruling were appealed and affirmed by the Appellate Division (People v Lackey, 36 AD3d 953). The appellate court reviewed the circumstances of the claimant's statements to police and determined that the trial court properly denied suppression of claimant's statements.

Subsequent to claimant's criminal conviction another incident allegedly occurred involving the same victim, but a different assailant. In the course of that investigation, discrepancies in the alleged victim's narrative of that incident were discovered. Ultimately it was determined that the victim had fabricated that incident, stated that she heard voices, and was generally confused. During that investigation it also developed that the alleged victim had been seeing a therapist for about ten years, was on numerous psychiatric medications, and was delusional on occasion. Lackey's criminal counsel moved to vacate his 2004 judgment of conviction, pursuant to Criminal Procedure Law Section 440.10 (1) (g), on the ground of this newly discovered evidence. On July 11, 2007 the trial court vacated Lackey's conviction and ordered a new trial. That decision was appealed and affirmed by the appellate court on February 28, 2008 (People v Lackey, 48 AD3d 982, lv denied 10 NY3d 936). On July 9, 2008 the Madison County District Attorney moved to dismiss the charges, stating that the alleged victim no longer wished to pursue the matter. The trial judge granted the motion and the case was dismissed, on the record, on July 9, 2008. This claim ensued.

Mr. Lackey's right to recover damages against the state for his alleged unjust conviction and imprisonment is circumscribed by statute. The right to recover against the state is solely through compliance with the mandates of Court of Claims Act Section 8-b. Furthermore, these statutory requirements are strictly construed (Reed v State of New York, 78 NY2d 1, 8; Vasquez v State of New York, 263 AD2d 539, lv denied 94 NY2d 754).

It is the contention of the defendant that the claimant fails to meet the requirements of Court of Claims Act 8-b (4), which states:

The claim shall state facts in sufficient detail to permit the court to find that claimant is likely to succeed at trial in proving that (a) he did not commit any of the acts charged in the accusatory instrument or his acts or omissions charged in the accusatory instrument did not constitute a felony or misdemeanor against the state, and (b) he did not by his own conduct cause or bring about his conviction . . . If the court finds after reading the claim that claimant is not likely to succeed at trial, it shall dismiss the claim, either on its own motion or on the motion of the state. [emphasis added]

The first prong of the defendant's motion is the assertion that the claim does not state facts sufficient for the court to find that claimant is likely to succeed at trial. The claim merely makes the bald declaration that claimant "maintains his innocence" and "denies committing any conduct to cause or bring about his conviction". It does not offer further explanation of claimant's actions at the time of the occurrence, nor does it offer any facts upon which it can be definitively determined that no crime occurred. Rather, the claim states that the alleged victim was determined to have fabricated a later incident and made false allegations in the later incident which were similar to the allegations made in this case.

The trial court vacated the conviction as a result of this newly discovered evidence, not on any definitive proof that claimant did not commit the crimes. And the district attorney moved to dismiss, not on the grounds that the claimant was innocent, but on the grounds that the victim did not wish to pursue the matter. In the dismissal of the criminal case, there was no finding that claimant was innocent. Under such circumstances, claimant has not factually demonstrated a likelihood of success on the merits (McFadden v State of New York, 151 AD2d 730).

In Reed v State of New York, 78 NY2d 1, there was a vacated criminal conviction and dismissal of the indictment preceding the 8-b civil action in the Court of Claims. The trial court awarded damages to the claimant and appeals followed thereafter. The Court of Appeals reversed the lower courts and dismissed the claim. Regarding claimant's burden of proof, the Court stated:

[t]he statute on which claimant bases her claim expressly imposes on her the burden of proving innocence by clear and convincing evidence (Court of Claims Act 8-b [5]). The presumption of innocence does not apply to this civil proceeding in which claimant bears the burden of proof, and is not a means by which she may satisfy that burden (Fudger v State of New York, 131 AD2d 136, 140).

Nor is the fact that claimant's indictment was dismissed clear and convincing proof of her innocence.

(Reed v State of New York, 78 NY2d 1, 9).

It is this burden that the court must consider in weighing claimant's initial pleading requirement of a showing of a likelihood of success on the merits. There is simply no such showing here (Nieves v State of New York, 186 AD2d 240, lv denied 81 NY2d 701; Pough v State of New York, 203 AD2d 543, lv denied 85 NY2d 803). As was the case in Duval v State of New York, UID No. 2002-013-034, Claim No. 105548, Motion Nos. M-64867, M-65282, CM-65283, October 4, 2002, Patti, J., this court has not been presented "with a contemporaneous personal affidavit or other statement from Claimant in which he affirmatively recounts the facts that he intends to prove at trial of this action to establish his innocence." The mere assertion of innocence is insufficient to meet the pleading requirements (David W. v State of New York, 27 AD3d 111, 114, lv denied 7 NY3d 709; Moses v State of New York, 137 Misc 2d 1081, 1084).

Defendant also argues that claimant's conduct contributed to his conviction - that claimant's own confession was uncoerced, presented to the criminal court jury and presumably played a significant role in his conviction. Claimant's counsel does not dispute existence of the confession, but argues vigorously that claimant is mentally handicapped with a borderline IQ. Claimant's counsel argues that claimant's statement, made without the assistance of counsel, should not preclude recovery under Court of Claims Act Section 8-b. Unfortunately for claimant, and as acknowledged by counsel, there is no case law to support this position.

In Ausderau v State of New York, 130 Misc 2d 848, the claimant, who had confessed in the underlying criminal proceeding, commenced an 8-b action and argued that he suffered from "possible organic brain dysfunction", that he was a "confessor", and that prosecutors took advantage of his mild retardation. Nevertheless, the court found that "it was not the Legislature's intention to permit redress where an uncoerced confession, though subsequently shown to be false and illegally obtained, contributed to a conviction" (Ausderau v State of New York, 130 Misc 2d 848, 852, affd on op below 127 AD2d 980, lv denied 69 NY2d 613).

Equally harmful to claimant's position is the fact that claimant's alleged mental handicap was considered by the trial court, on repeated occasions, and by the appellate court. The same expert whose psychological evaluation report was provided in opposition to this motion to dismiss also testified in the criminal case. The issue of the confession and its voluntariness was considered not only at trial but in the Huntley hearing. In the first appeal, following the Huntley hearing and conviction, the appellate court specifically addressed claimant's confession and found that the trial court was correct in denying its suppression (People v Lackey, 36 AD3d 953).

After the trial court vacated the conviction and granted a new trial, the State appealed. The appellate court found the newly discovered evidence (the victim's false statements concerning the later incident which did not involve Mr. Lackey) material enough to warrant a new trial. Again, the court addressed the issue of defendant's (claimant's) confession:

[a]lthough defendant's statement to police was strong evidence against him, he presented expert testimony at trial that he was borderline mentally retarded and prone to suggestiveness; such evidence may well have been more persuasive, and his statement less so, if this new evidence was presented.

. . .

[T]he results at a new trial are not certain, especially considering defendant's written statements confessing to the crime . . .

(People v Lackey, 48 AD3d 982, 984, lv denied 10 NY3d 936).

Claimant has exercised every opportunity to try to suppress the confession. While the courts have clearly taken his mental handicap into account, they have repeatedly upheld the validity and use of the confession. Claimant's counsel does not specifically characterize claimant's criminal confession as "coerced", but the implication is that it was involuntary or coerced as a result of claimant's vulnerable mental state. Claimant, in these prior proceedings had ample and repeated opportunity to make such an argument, did so, and the argument failed. The issue has already been considered and ruled upon, both at the trial and appellate courts. It is not appropriate to reconsider or review the issue in this forum (see Duval v State of New York, UID No. 2002-013-034, Claim No. 105548, Motion Nos. M-64867, M-65282, CM-65283, October 4, 2002, Patti, J.).

As the court in Ausderau v State of New York, 130 Misc 2d 848, affd on op below 127 AD2d 980, lv denied 69 NY2d 613, noted, in reviewing the legislative history of Court of Claims Act Section 8-b:

the legislature did not select terminology requiring misconduct or neglect on the part of a claimant as a preclusion to his recovery, but rather selected the term "conduct", which to the court does not necessitate an intentional act by the claimant. Claimant's alleged blamelessness in proffering a false, illegal, yet uncoerced confession does not make the confession and its consequence disintegrate upon further judicial review.

(Ausderau v State of New York, 130 Misc 2d 848, 851, affd on op below 127 AD2d 980, lv denied 69 NY2d 613).

The claimant has failed to meet the threshold showing that he is likely to succeed on the merits and that he can succeed in proving that he "did not by his own conduct cause or bring about his conviction" (Court of Claims Act Section 8-b [4]). "However sympathetically a court might view a claim . . . that statutory requirement (Court of Claims Act 8-b) cannot be ignored" (Reed v State of New York, 78 NY2d 1, 12).

Defendant's motion to dismiss the claim is granted.

December 21, 2009

Utica, New York

NORMAN I. SIEGEL

Judge of the Court of Claims