Smith v State of New York
2013 NY Slip Op 52199(U) [42 Misc 3d 1204(A)]
Decided on December 2, 2013
Ct Cl
Marin, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 2, 2013
Ct Cl

Frank Smith, Claimant,


The State of New York, Defendant.


For Claimant:

Robert R. Race, Esq.

For Defendant:

Eric T. Schneiderman, Attorney General

By: Janet L. Polstein, AAG

Alan C. Marin, J.

The defendant State of New York moves to dismiss the claim of Frank Smith for unjust conviction and imprisonment brought under section 8-b of the Court of Claims Act on the basis that claimant had signed a general release that included agreeing not to sue the defendant, and procedurally, defendant seeks to amend its answer to include such as an affirmative defense.

The viability of the motion turns on whether such a release is valid as a matter of law, and if so, whether defendant is entitled to amend its answer to include it as a defense. Moreover, there is a prior decision in Bronx County Supreme Court on a civil suit brought by Mr. Smith against the City of New York which may collaterally impact these proceedings.

The background leading up to this motion spans some 25 years. Frank Smith was arrested on May 1, 1987 for his role in the sale of narcotics. On May 4, 1989, upon a jury's verdict, judgment was rendered against him in Supreme Court, New York County for the criminal sale of a controlled substance in the first degree, and Smith was sentenced to 15 years to [*2]life imprisonment (People v Smith, 168 AD2d 205 [1st Dept 1990], appeal denied 78 NY2d 957 [1991]).

Several years later in 1992, it was alleged that a man named Frank Guerra told Frank Smith's mother that he, not her son, was the individual who had conspired to sell drugs. Efforts were made to persuade Mr. Guerra to say the same thing to the authorities, but Guerra apparently never provided a sworn statement. In June, 1999, a section 440 motion was made to vacate Smith's judgment on the basis that Guerra's admission to claimant's mother was newly discovered evidence.

On June 19, 2003, Justice Leslie Crocker Snyder, who had sentenced Smith in 1989, granted the section 440 motion, vacated the judgment and dismissed the indictment (No. 3049/87), stating, "For the reasons set forth in the papers submitted by all parties, and in the interests of justice, the defendant's motion is granted."[FN1]

During this period, Mr. Smith had other involvements with the criminal justice system, state and federal, as set out in an August 12, 2013 letter from the United States Attorney for the Eastern District of New York to the Assistant Attorney General handling this 8-b case,[FN2] including:

Smith pleaded guilty in 1992 to conspiracy to burglarize a bank,[FN3] and was sentenced in federal court to a term of three years to be served consecutively to the state sentence he was serving on his 1989 narcotics case.
In 2001, the office of the Brooklyn District Attorney in conjunction with the U.S. Attorney's office indicted Smith for killing two men, Carmine Variale and Frank Santora.
On January 16, 2003, Smith signed a formal cooperation agreement by which he pleaded guilty in federal court to a violation of RICO,[FN4] which alleged his participation in seven murders and a conspiracy to murder.
As part of the January 16, 2003 cooperation agreement, claimant pled guilty in Kings County Supreme Court to manslaughter in the first degree for the Variale and Santora homicides.
Smith's sentence for the Variale and Santora case was six to twelve years, which would run concurrently with his sentence in the original narcotics case.
By the time of the June 19, 2003 section 440 order that vacated his narcotics conviction, Smith had served nearly all of the 15-years sentence on that case. He was credited with three years of this time in satisfaction of the bank burglary case and nearly 12 years in satisfaction of the sentence received in state court for the Variale and Santora case.
Accordingly, the sentences for the bank burglary and the Variale/Santora homicides were deemed served, and in July of 2003, Smith was granted bail on the federal case, and entered the federal witness protection program, which he eventually left voluntarily.

The General Release

The general release was signed by Smith on June 12, 2003. The introductory language of the general release states that Frank Smith is entering into it "in consideration of the dismissal of Special Narcotics Indictment 3049/87"; the last paragraph of the document provides that Smith has discussed the matter with counsel and that counsel advised signing it. The text of the release includes the following:

"I do hereby Release the City of New York, the New York City Police Department, the Office of the Special Narcotics Prosecutor, the Office of the New York County District Attorney, the New York City Department of Correction and the New York State Department of Correction . . . from any and all actions, causes of action, suits . . . under federal and state law arising out of my arrest, prosecution, and incarceration in conjunction with Indictment 3049/87 . . . This release is intended to release the Releasees and any and all others liable or claimed to be liable jointly with the Releasees, whether presently known or unknown"

(Defendant's Affirmation in Support, exhibit A).

Courts have looked with skepticism, if not disfavor, on releases that exchange the resolution of a prosecution for an agreement by the criminal defendant not to bring a civil suit arising therefrom.

The Court of Appeals decided the issue in Cowles v Brownell (73 NY2d 382 [1989]). Stephen Cowles had been arrested when he and a friend were stopped in their car by City of Amsterdam police. Mr. Cowles was charged with two counts of harassment, a violation. For his part, Cowles brought civil suit, alleging that he was arrested without cause and beaten without provocation. Cowles' attorney and the prosecutor discussed a negotiated disposition via an adjournment in contemplation of dismissal, but Cowles refused the offer, maintaining that the charges against him were baseless. Nonetheless, he reluctantly agreed to sign a release that he would not civilly sue the municipality or its officers as the only way to dispose of his criminal case without a trial.

The Court of Appeals threw out the release and reinstated Cowles' civil suit. Unlike a plea bargain which is beneficial to both sides, the Court stated that "[t]here is no public interest to be advanced by enforcing the agreement here. Rather, the agreement may be viewed as undermining the legitimate interests of the criminal justice system solely to protect against the possibility of civil liability" (73 NY2d at 387). [*4]

The Court had explained that if Cowles were guilty, the People's interest in seeing a wrongdoer punished would not be vindicated, and were he innocent, or the case against him unprovable, the prosecutor would be ethically bound to drop the charges. The Court added that a set of facts might exist as it did in Newton v Rumery (480 US 386 [1987]), that " an independent, legitimate reason . . . directly related to the . . . prosecutorial responsibilities' . . . might overcome the strong policy considerations disfavoring enforcement of such agreements'" (73 NY2d at 387, quoting 480 US at 398). While noting the strong policy considerations against such release agreements and the likelihood of abuse, neither the United States Supreme Court nor the New York Court of Appeals came out for a per se rule against any such release from civil liability.

Justice O'Connor, concurring in Bernard Rumery's section 1983 suit, stated that among the factors to be considered were the existence of a legitimate criminal justice objective, the circumstances of the release, the experience of the defendant and the extent to which the release was obtained under judicial supervision (480 US at 399, 401).

This Court would have concluded that the circumstances of Frank Smith's general release satisfy the exceptional case of this kind. But in any event, such has already been decided by Justice Allen Hurkin-Torres on November 13, 2007, who, on the basis of Smith's general release, granted summary judgment to the City of New York in Smith's civil suit against it (Defendant's Affirmation in Support, exhibit L). Newton and Cowles support the conclusion that for the purposes of collateral estoppel, the issues here are the same as those before Justice Hurkin-Torres, and Mr. Smith had a full and fair opportunity then to contest the applicability of the general release.

Amendment of Defendant's Answer

Mr. Smith's section 8-b claim was conferenced at least a half a dozen times before this Court, beginning September 12, 2005. At a conference on April 24, 2008, it was represented without contradiction that all discovery was done, except for Mr. Smith's deposition, which was delayed because Mr. Smith was in the witness protection program and then incarcerated in Texas serving a five-year term. Consequently, the claim was placed on inactive status in the Court of Claims, and the defendant's stipulation and order to unseal Smith's state criminal file was held in abeyance (Defendant's Affirmation in Support, ¶ 7; Claimant's Affirmation, exhibit 1).

The State of New York did not learn of the general release until this year, nor did it fail to learn of it because it did not exercise sufficient diligence. The release was never mentioned by Mr. Smith's counsel, was not contained in any discovery turned over by claimant and the Hurkin-Torres Order was handwritten and unpublished.

The Second Department in Campbell v Genesis Contrs., Inc., stated the following:

"CPLR 3025 (b) provides that leave to serve an amended pleading should be freely given upon such terms as are just . . . In this case, the Supreme Court providently exercised its discretion in granting the defendant's motion for leave to amend the answer to assert the affirmative defense of release. Defense counsel provided a reasonable explanation for the delay in seeking leave to amend the answer, and the defense sought to be interposed is not patently devoid of merit. In addition, since the plaintiff was aware of the settlement and release of the prior litigation involving the same claims as raised in this action, she could not claim either surprise or prejudice as a result of the amendment"

(76 AD3d 1038, 1038 -1039 [2d Dept 2010]).

This Court concludes that the defendant has complied with the standard obtaining for amending its pleadings to include an affirmative defense at this stage; the cases cited by claimant in its opposition papers do not persuade otherwise: (McCaskey, Davies & Assoc. v New York City Health & Hosps. Corp., 59 NY2d 755 [1983]; Fahey v County of Ontario, 44 NY2d 934 [1978]; Gallo v Aiello, 139 AD2d 490 [2d Dept 1988]; Dwyer v County of Onondaga, 61 AD2d 1132 [4th Dept 1978]; and City of Watertown v Roy, 73 AD2d 832 [4th Dept 1979]).


In view of the foregoing, and having considered the parties' submissions,[FN5] IT IS ORDERED that: that part of motion No. M-83872 to amend the answer to include the affirmative defense of release be granted and that part of such motion to dismiss claim No. 110982 be granted.

New York, New York

December 2, 2013


Judge of the Court of Claims


Footnote 1: Defendant's Affirmation in Support, exhibit E, tab 8.

Footnote 2: Defendant's Affirmation in Support, exhibit I.

Footnote 3: 18 U.S.C. § 371.

Footnote 4: Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §1961 et seq.

Footnote 5: Defendant submitted: 1) a Notice of Motion together with an Affirmation in Support of Motion to Dismiss, or in the Alternative, for Summary Judgment, with exhibits A through L; exhibit E included tabs 1 through 9; and 2) a "Reply to Claimant's Reply Affirmation,'" with exhibits A and B. Claimant submitted a "Reply Affirmation" opposing defendant's motion, with exhibits 1 and 2.