New York State Court of Claims

New York State Court of Claims

ORTIZ v. THE STATE OF NEW YORK, #2000-017-001, Claim No. 96390


Synopsis


Claimant awarded $530,000.00 for unjust conviction and imprisonment of 9+ years.

Case Information

UID:
2000-017-001
Claimant(s):
VICTOR ORTIZ
Claimant short name:
ORTIZ
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
96390
Motion number(s):

Cross-motion number(s):

Judge:
ANDREW P. O'ROURKE
Claimant's attorney:
William V. Ferro, P.C.by: Richard E. Noll, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney Generalby: Dewey Lee, Esq., Assistant Attorney General
Third-party defendant's attorney:

Signature date:
March 28, 2000
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
Claimant seeks damages for unjust conviction pursuant to Court of Claims Act § 8-b arising from the overturning of his 1984 conviction in Orange County for felonious rape and sodomy based on newly discovered DNA evidence. A bifurcated trial of the matter was held and during the liability phase this Court found that claimant had established his entitlement to recovery under the statute by clear and convincing evidence. A trial on damages ensued, and this decision pertains solely to the issue of damages.

The parties stipulated at trial that the date of claimant's Orange County conviction was January 17, 1984 and that he was released from imprisonment on October 25, 1996 (Trial Transcript [hereinafter, TR], pp. 6-7).

Claimant testified that he was born on September 29, 1958, that he was first arrested in connection with this case on March 24, 1983 and that he was 25 years old when convicted on January 17, 1984. He testified that he was released on October 25, 1996 and that he was 39 years old at the time. According to claimant, he was in good health before entering prison in connection with the conviction at the core of this claim.

Claimant testified that before entering prison he had attended, but did not complete, eighth grade and was last employed at the Newburgh Meat Packing Corporation where he packed meat, cut meat, and loaded and unloaded trucks. He had previously worked at a steel corporation, a clothing factory and in supermarkets. Claimant obtained his GED while imprisoned. Claimant acknowledged that he had been convicted twice prior to the conviction at the core of this claim. He testified that his first conviction was in 1978 in Florida for sexual battery and that he served three years for that crime. His second conviction was in 1983 for sexual misconduct in Bronx County.

With respect to the Orange County conviction at issue, claimant was sentenced to three terms of 12 ½ to 25 years to run concurrently, and those concurrent terms were to run consecutively to his prior sentence in Bronx County (TR, p. 53). According to claimant, over the course of the approximately 13 years that he served on the Orange County conviction, he was imprisoned in approximately ten maximum security facilities and was originally assigned to the general population. Claimant described the sparse furnishings and sanitary conditions of a typical cell, the shower facilities, lockdown and search procedures, the meals and a typical day as an inmate (TR, pp. 55-62). He testified that it is especially difficult and lonely for an inmate imprisoned for a sexual offense (TR, p. 63). Claimant testified that his cell was set on fire twice while he was imprisoned (see, Exh. 8), and he was severely beaten on one occasion in January 1989 which required his hospitalization (see, TR, pp. 64-67) Claimant was hospitalized for one night in connection with the attack and remained in the infirmary at Sing Sing for about six weeks thereafter (see, Exhs. 4, 5). After his discharge from the infirmary, claimant was housed in protective custody. He described the condition of a cell in protective custody (see, TR, p. 75), and explained that inmates spend 23 hours per day in the cell with one hour of outside recreation (TR, pp. 75-76). He remained in protective custody for seven years. Claimant testified that because of his incarceration, he was unable to attend his father's funeral in January 1990.

According to claimant, when he entered prison he was in good health, but his health deteriorated while incarcerated. Claimant did not present expert medical testimony to substantiate this allegation, however. Claimant testified that in 1998 or 1999, at the urging of counsel, he visited a psychiatrist named Dr. Riccioli four times. Claimant could not continue the visits for financial reasons.

Claimant testified that upon his release from prison he lived with an uncle in New Jersey who employed claimant at his grocery store. According to claimant, he filed some applications with various employers, but believed that he was not hired because he had to reveal that he was incarcerated for 13 years in connection with a rape. On cross-examination, claimant admitted that at the time of his arrest in Orange County, he was using marijuana and cocaine, and prior to that time had possibly used heroin. He did not believe, however, that his use of drugs had affected his home life, work life, social life or physical condition. Claimant also acknowledged that while in prison on the Orange County conviction he obtained a GED and attended a peer counseling program and a building maintenance program, among others. Claimant also testified on cross-examination that although job applications asked if he had ever been convicted of a crime he would answer in the affirmative, he did not reveal to prospective employers that he had been convicted of crimes other than the one at issue because he was never specifically asked. He stated that he would tell prospective employers that he was convicted of rape and that the conviction was overturned due to DNA evidence. However claimant produced no evidence to substantiate these lost employment opportunities nor that any employer refused his services due to the DNA reversal of his prior and last conviction

According to claimant, imprisonment in Florida prisons was not as harsh an experience as in New York (TR, p. 104). He conceded on cross-examination, however, that the Florida prisons employed similar search and lockdown procedures and that the prison setting in Florida was violent, although he did not personally experience any violent altercations (TR, p. 113). Claimant acknowledged on cross-examination that in November 1983 he pleaded guilty to a charge of sexual abuse and was sentenced to one and a half to three years that was to run concurrent with the sentence on the Orange County conviction. Claimant also presented the expert testimony of Anna Dutka, an economist. Dr. Dutka earned a bachelor's degree, a master's degree and a doctorate in economics, and has been employed by the United States Department of Commerce and as an economics instructor at Columbia University. Dr. Dutka was hired by claimant to perform a loss of earnings analysis in connection with his unjust conviction. The report she prepared was admitted into evidence as Exhibit 11. Dr. Dutka explained that although claimant's past wage history was "modest" and "erratic," in her opinion it indicated "a willingness to work on [claimant's] part" (TR, p. 11). Dr. Dutka also relied upon vital statistics, such as claimant's date of birth, the date of his arrest and criminal trial, his age at that time, and his current age. Dr. Dutka determined that at the time of trial claimant had a life expectancy of 35 years which would take him to age 76 and a work life expectancy of 24 years when he would reach the age of 65.

With respect to past lost earnings, Dr. Dutka determined that from 1983 when claimant was arrested until 1994, claimant would have earned $310,596. Dr. Dutka explained that since claimant's earnings history was erratic, she relied instead upon statistics from the U.S. Department of Labor which indicate the average earnings of young males of claimant's age (TR, p. 14). She determined that in 1983 a 25-year old male would have earned on average $406 per week or $21,000 per year. Using what she characterized as a "conservative" rate of increase of 2% per year, Dr. Dutka concluded that by 1994, a male of claimant's age would have been earning approximately $30,000 per year. Dr. Dutka employed the same technique to determine claimant's purported lost wages from 1995, through 1999, the date of trial. Dr. Dutka concluded that between 1983 and 1999, claimant lost wages of approximately $469,584. Dr. Dutka testified that claimant would have also lost fringe benefits, such as retirement funding, health benefits and sick pay, amounting to 20% of his past earnings or $158,000.

With respect to future lost earnings, Dr. Dutka continued with the same analysis as for past lost earnings, and concluded that claimant would have continued to increase his salary by 2% per year, amounting to a loss of $793,656 for the remainder of his work life expectancy. She concluded that he would have lost future fringe benefits worth approximately $158,731. When past and future lost earnings and benefits were added together, they amounted to $1,515,674, under Dr. Dutka's analysis. Dr. Dutka did not add any sums for pain, suffering or deterioration of quality of life.

On cross-examination, Dr. Dutka explained that she used Department of Labor statistics for semi-skilled laborers to determine claimant's losses. She conceded that in reaching her conclusion of claimant's loss of earnings she did not use a Social Security Administration certificate of claimant's actual past wages from 1975 to 1982, which was admitted into evidence as Exhibit 1 (see, TR, p. 27). That earnings statement indicates that claimant actually earned only $500 in the year 1981and $2,804.31 in 1982, the two years prior to his arrest. The statement also reflects that in 1975, claimant earned a total of $221.03. Dr. Dutka explained, however, that in 1975 claimant would have been only seventeen years of age, and in her opinion the wage was a typical wage for a young man (TR, p. 32). The statement reveals that in 1976, claimant earned a total of $77.05, in 1977 he earned $187.45 and that in 1978, 1979 and 1980, no earnings are reported. Dr. Dutka also conceded that she did not know if claimant had ever received benefits in connection with any of the employment he previously held (TR, p. 35).

On cross-examination, Dr. Dutka acknowledged that claimant's marital status and level of education would be significant considerations in determining his wage-earning capacity, but conceded that she did not know anything about claimant's marital situation or that claimant had an eighth grade education at the time of his arrest. Dr. Dutka conceded that, statistically, a person with an eighth grade education would earn less than one with a high school or college education and that she did not consider claimant's level of education in analyzing his loss of wages. Finally, Dr. Dutka admitted that drug use and prior criminal convictions would also affect earning capacity, and conceded that she had not considered claimant's use of drugs or prior convictions in her analysis.

Dr. Frank Riccioli, a Board-certified psychiatrist, testified on claimant's behalf as an expert. Dr. Riccioli testified that claimant was referred to him by counsel for a psychiatric evaluation and examined him on four occasions between September and October 1998 to determine the effect of incarceration on claimant's current mental state. In connection with his evaluation of claimant, Dr. Riccioli gathered biographical information from claimant and reviewed documents concerning this claim. He recalled that claimant described his New York State prison experience and that after he took claimant's history he performed a mental status examination which he defined as the clinical observation of the patient's speech, thinking and behavior (TR, pp. 130-131). Dr. Riccioli testified that he observed that claimant had a poor appearance, spoke without emotion, and had poor concentration and memory recall. Although Dr. Riccioli did not find that claimant presented signs of psychosis, he thought he displayed some paranoid trends because he was suspicious and fearful of everyone. Dr. Riccioli testified that claimant complained of nightmares, cold sweats, repetitive, intrusive thoughts about his jail experience and did not believe he could work at any occupation.

Dr. Riccioli also administered the MMPI or Minnesota Multiphasic Personality Inventory to claimant which is a test of 550 true/false questions. According to Dr. Riccioli, after reviewing claimant's test results and considering them in connection with the clinical impressions of claimant, he diagnosed claimant as suffering from post-traumatic stress disorder (PTSD) accompanied by major depression. According to Dr. Riccioli, it was his opinion to a reasonable degree of medical certainty that the PTSD was triggered by claimant's 13 years of incarceration for a crime he did not commit. He opined that the stress of knowing that he was innocent exacerbated a pre-existing asthmatic condition and testified that stress could bring on latent diabetes mellitus. Dr. Riccioli testified that the PTSD and major depression have physically prevented him from working. He opined that claimant's prognosis for recovery was very poor and that he could not predict whether therapy would be successful.

On cross-examination, Dr. Riccioli admitted that he did not verify with third parties any of the information given to him by claimant. He admitted that it was claimant that told him that he did not have diabetes or hepatitis before he entered prison. Dr. Riccioli conceded that he did not know whether claimant suffered from major depression from the moment he was released in 1996 until the time he interviewed him in 1999. He also did not know how many times claimant had attempted suicide. He testified that he did not believe that claimant had ever been hospitalized for mental illness or that claimant had ever seen any other mental health professional since his release.

A claimant seeking damages for unjust conviction pursuant to Court of Claims Act §8-b "is entitled to an award of damages that will fairly compensate him or her for lost wages and pain and suffering, including the humiliation and loss of freedom that incarceration subtends" (Johnson v State of New York, 155 Misc 2d 537, 538 [citation omitted]; see, also Court of Claims Act §8[b][6]). Claimant "has the burden of establishing loss of actual past earnings with reasonable certainty by submitting tax returns or other relevant documentation" (Poturniak v Rupcic, 232 AD2d 541, 542; Papa v City of New York, 194 AD2d 527,531).

As a preliminary matter, the Court notes that in 1983, claimant was sentenced in Bronx County to a term of 1 ½ to 3 years in connection with another crime. In sentencing claimant in Orange County on the charges at the core of this unjust conviction action, the Orange County Court directed that claimant be sentenced to three concurrent terms of 12 ½ to 25 years to run consecutive to the Bronx County sentence. Claimant began serving the Bronx sentence on December 2, 1983. The portion of the term of incarceration attributable to an unrelated conviction cannot serve as a basis for an award of damages here (see, Fudger v State of New York, 131 AD2d 136, 140-141., appeal denied, 70 NY2d 616; Jackson v State of New York, Claim No. 84611, Unreported Decision of Nadel, J., [filed 4-22-98]). Claimant has not provided the Court with any proof to establish how much of the 1 ½ to 3 year term he served solely on the Bronx conviction. That claimant may have been eligible for parole after serving a portion of the sentence does not establish that he in fact would have been granted parole on any particular date. Thus, the Court finds that the period of unjust conviction runs from December 2, 1986 -- three years after his completion of the Bronx sentence -- through October 26, 1996, a period of approximately 9 years, 10 months and 25 days.

With respect to claimant's claim for lost earnings, the Court cannot accept the figures reached by claimant's expert Dr. Dutka. Dr. Dutka's conclusions were concededly based on statistical averages and not on claimant's actual past earnings history and did not account for claimant's level of education, marital status and drug use – all factors that Dr. Dutka considered significant indicators of earning capacity. Rather, claimant has established that in the years prior to his unjust conviction he earned a maximum of $2,800 per year. Thus, this record supports a reasonable and just award for past lost earnings in the amount of $2,800 for each of the ten years of his imprisonment (see, Poturniak v Rupcic, 232 AD2d 541, 542, supra). The Court finds that this figure should be increased by 2% per year as urged by Dr. Dutka as a conservative measure of the amount that claimant's salary would increase each year. With such an increase, claimant is entitled to an award of $30,658.43 for past lost earnings. However, there was a failure of proof here to substantiate claimant's contention that he lost past fringe benefits since the record is devoid of any evidence that he had ever received fringe benefits in connection with any of the employment that he previously held.

While the Court accepts the testimony of Dr. Riccioli that claimant suffers from PTSD and major depression as the result of his unjust conviction, the Court rejects his testimony that those illnesses will prevent him from ever returning to the workforce. Claimant himself testified that he has attempted to apply for employment, but believes he has been rejected because of the conviction at the core of this claim. However, it is undisputed that claimant was convicted twice prior to the conviction at issue, and that he would be obligated to report that he had been convicted of a crime even if the conviction at issue had never occurred. The claimant is not an Edmund Dante stepping from the pages of the "Count of Monte Cristo." He was a twice-convicted felon, bearing the resulting scars and, indeed, the misfortune of that state. Additionally, claimant received his GED and other vocational training in prison which should increase his prospects for employment. Accordingly, the Court cannot on this record find sufficient support for an award of future lost earnings or fringe benefits.

Claimant has clearly established his loss of freedom for the period of his unjust incarceration, and that the indignities and events he experienced throughout this period caused him to suffer from PTSD and major depression (see, Carter v State of New York, 139 Misc 2d 423, 431, affd 154 AD2d 642). The Court is certainly mindful, however, that claimant had a prior criminal record that rendered his reputation tarnished for employment and other purposes prior to this conviction. Additionally, there is a gap in proof here that renders it impossible for this Court to find that claimant contracted diabetes and hepatitis as a result of this incarceration. No medical records were provided to the Court to substantiate the claim and Dr. Riccioli's testimony on this matter was based solely on unverified information provided to him by claimant. Based on all of the proof elicited at trial, the Court finds that an award of $500,000 will fairly and reasonably compensate claimant for his non-pecuniary losses that resulted from this unjust conviction. Consequently, claimant is awarded the total sum of $500,000 for non-pecuniary losses, plus $30,658.43 for past lost wages.
LET JUDGMENT BE ENTERED ACCORDINGLY


March 28, 2000
White Plains, New York

HON. ANDREW P. O'ROURKE
Judge of the Court of Claims