Court of Claims, February 24, 2022

Letitia James, Attorney General (Joseph E. Scolavino of counsel), for defendant.

Fasulo, Braverman & DiMaggio, LLP (Samuel Braverman of counsel) for claimant.

Defendant's counsel has moved by notice of motion, dated August 23, 2021, seeking, inter alia, an order, pursuant to CPLR 3211 (a) (7), on the grounds that claimant has failed to state a cause of action, in that the claim does not state a cause of action under Court of Claims Act § 8-b (3) (b) (ii). Claimant vehemently opposes the motion. The court notes that this matter and the instant motion were transferred to the undersigned Judge pursuant to the order—transfer of claim and motion dated January 26, 2022 (Sise, A.P.J.). This court, having immediately determined that the instant motion had been fully briefed, submitted the motion for decision on January 31, 2022.

This matter, which has been previously deemed trial-ready, was granted leave by the prior Judge to the defendant to file the instant motion.

In the interest of judicial economy, the court will only set forth the factual background, which directly informs the court's decision hereinbelow.

The claim in this matter is based upon claimant's allegations of wrongful conviction and incarceration in Westchester County Court, under Court of Claims Act § 8-b. Claimant also filed a lawsuit against the officers and the Yonkers Police Department in federal court (the claim). There is no dispute as to the timeliness of the claim or proper and timely service upon the State.

On September 16, 2011, the claimant was driving in an area in Yonkers, New York, [*2]when he was stopped by members of the{**74 Misc 3d at 853} Yonkers Police Department. According to the claim, prior to being stopped by police, claimant picked up Mr. Jasmin Green, who "approached Claimant's vehicle, opened the passenger door, and placed a book bag and his other belongings in the back seat of Claimant's vehicle." According to counsel, the claimant further alleges that the "Yonkers Police Department quickly approached Claimant's vehicle," had the claimant step out of the vehicle and recovered what was "later found to contain narcotics." Claimant alleges that the predicate for the vehicle stop was false as it was based upon a false allegation of observations by Detectives Koch and Molina.

As a result of the stop, claimant was arrested, which resulted in him being indicted by the grand jury with one count of criminal possession of a controlled substance in the first degree, three counts of criminal possession of a controlled substance in the third degree, unlawful possession of marijuana, and one count of a violation of the Vehicle and Traffic Law for a failure to signal. Thereafter, on November 15, 2012, Westchester County Court Judge Barbara G. Zambelli held a pretrial suppression hearing to determine whether the Yonkers Police Department's search of claimant's vehicle and seizure of evidence found therein was unconstitutional. Claimant alleges that Detective Molina testified falsely at the hearing, and the court, relying on such false testimony, denied claimant's motions. Claimant further alleges that the Westchester County District Attorney's Office and the Yonkers Police Department "failed to disclose favorable evidence to the Claimant's defense pursuant to its obligations under Brady v Maryland."

At claimant's criminal jury trial, Mr. Green testified that, inter alia, he was the owner of the belongings and narcotics recovered from the vehicle. The jury, notwithstanding, returned a unanimous verdict of guilty on all counts. Thereafter, on April 2, 2013, claimant was sentenced to serve a determinate term of 15 years of imprisonment, followed by five years of postrelease supervision.

It is further alleged that later, on or about July 28, 2014, claimant received notice from the Westchester County District Attorney's Office that Detective Koch had knowingly submitted a false affidavit in order to obtain a search warrant for the seizure of controlled substances in an unrelated matter. Detective Koch was subsequently indicted for perjury and official misconduct in preparing a search warrant on an unrelated matter. During the course of the trial of People v Koch, the{**74 Misc 3d at 854} Westchester County District Attorney's Office conducted a review of claimant's case, which ultimately resulted in Steven A. Bender, Assistant District Attorney, concluding that new evidence discovered during the post-conviction investigation supplied grounds for a motion to vacate the claimant's conviction under CPL 440.10. This outcome was determined based upon the Detectives and police falsely testifying to the initial justification for the initial stop and seizure.

Thereafter, on or about April 10, 2015, claimant filed a motion in the Westchester County Court seeking an order vacating claimant's conviction pursuant to CPL 440.10 (1) (h).^[FN1] Defendant's counsel obtained a certified copy of the notice of motion from the Westchester County Clerk. Subsequently, the Westchester County District Attorney's Office filed a cross motion to vacate claimant's conviction pursuant to CPL 440.10 (1) (g) and (h). Both motions to vacate claimant's conviction were granted on the record on April 21, 2015, and a subsequent written order of even date followed (Zambelli, J., order vacating conviction). The order vacating conviction states, in pertinent part, that

"[b]y Notice of Motion and Supporting Affirmation dated April 8, 2015, defendant moves for an order vacating the judgment of conviction pursuant to CPL 440.10 (1) (h) . . . [and] by Notice of Cross Motion dated April 17, 2015 . . . , the District Attorney consents to the application and cross moves to vacate the judgment of conviction."

The court did not set forth the specific basis for the relief sought in the cross motion; however, the court did go on to state that on the record on April 21, 2015, it did grant "the motions and vacated the judgment of conviction and ordered the defendant released from custody."

{**74 Misc 3d at 855}In support of the instant motion, counsel for the defendant argues that claimant, in the underlying criminal matter, moved for relief exclusively under CPL 440.10 (1) (h) and that therefore the State's "consent to defendant's application" should be plainly read from the order vacating conviction as consent solely to the claimant's motion under CPL 440.10 (1) (h). Counsel further argues that, notwithstanding the rationale contained in the order vacating conviction, the prosecution's cross motion is illustrative that the gravitas of the claim is a Brady violation and not an actual innocence claim. Next, counsel argues that even upon a generous reading of the claim, the allegations are rooted in constitutional claims not actual innocence. In conclusion, counsel concludes that the claimant's judgment of conviction was vacated on a non-enumerated ground, thereby depriving this court of subject matter jurisdiction.

Claimant vehemently opposes the instant motion. Counsel argues that the claim specifically contains allegations that in the criminal jury trial, claimant called Mr. Green in support of his defense of actual innocence. Counsel argues that Mr. Green testified at the trial^[FN2] that both the book bag and drugs found inside claimant's vehicle were his belongings, and he himself had placed the book bag, and a pair of jeans inside claimant's vehicle. Mr. Green further testified that claimant had no knowledge about the drugs or contraband that he possessed on September 16, 2011, and that claimant had no knowledge that such items would be placed into claimant's vehicle. It is counsel's argument that the credibility of Mr. Green's testimony was weighed against that of the detectives and police officers and therefore the defendant's claims regarding the ineffectiveness of Mr. Green's trial testimony are meritless.

The court will not set forth the arguments made in reply, surreply and second surreply, although such papers have been read and considered.

Section 8-b of the Court of Claims Act also referred to as the Unjust Conviction and [*3]Imprisonment Act of 1984 provides that innocent persons who demonstrate by clear and convincing evidence that they were unjustly convicted and imprisoned may recover damages against the State (§ 8-b [1]). In such a wrongful {**74 Misc 3d at 856}conviction claim, it is the claimant's burden to establish by documentary evidence that he/she was convicted of one or more felonies or misdemeanors and subsequently sentenced to a term of imprisonment; served all or any part of that sentence; the judgment of conviction was then reversed or vacated; and the accusatory instrument was dismissed (§ 8-b [3]). In addition, it is required that a verified claim state facts in sufficient detail so as to permit the court to find that claimant is likely to succeed at trial in proving that 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 that he did not by his own conduct cause or bring about his conviction. In addition, if the court finds after reading the claim that claimant is not likely to succeed at trial, the statute provides that the court shall dismiss the claim, either on its own motion or on the motion of the State (§ 8-b [4]).

On a motion to dismiss made pursuant to CPLR 3211, the court must "accept the facts as alleged in the [claim] as true" (Warney v State of New York, 16 NY3d 428 [2011], citing Leon v Martinez, 84 NY2d 83, 87 [1994]). When deciding a motion to dismiss a section 8-b claim, the court must determine whether the allegations in the claim are sufficiently detailed and if accepted as true, whether these allegations clearly and convincingly establish the elements of the claim (Warney at 435; § 8-b [4]). And in evaluating the likelihood of success at trial, "[i]n the absence of serious flaws in a . . . statement of facts, the weighing of the evidence is more appropriately a function to be exercised at the actual trial" (Warney at 435, quoting Dozier v State of New York, 134 AD2d 759, 761 [3d Dept 1987]).

The court here is bound by the four corners of the order vacating conviction. Judge Zambelli did not grant only the defendant's motion nor did Judge Zambelli grant the cross motion solely on the grounds of CPL 440.10 (1) (h), but rather she simply granted the motions. Accordingly, the court must construe the order vacating conviction to have granted the entirety of the cross motion, to wit: pursuant to both CPL 440.10 (1) (g) and (h). It is this court's ruling that if not stated otherwise in the four corners of an order deciding a motion, then the motion must be deemed to have been granted in its entirety. Had Judge Zambelli intended not to grant the unstated branches of relief, the order vacating conviction would have indicated that any and all relief requested which was not specifically addressed therein is deemed denied.{**74 Misc 3d at 857}

This court is satisfied that the grounds for the claim establish a basis for a cause of action as against the State under Court of Claims Act § 8-b, insofar as the vacatur of the underlying conviction, as held by this court hereinabove, was granted upon, inter alia, CPL 440.10 (1) (g)—an enumerated basis under section 8-b (2), to wit: new evidence of officer perjury which was only discovered after claimant's conviction, sentencing and incarceration. Further, the court finds that the claim, as well as the documentary evidence therein provide a sufficient factual basis to permit the court to find that claimant is likely to succeed in meeting his burden at trial by clear and convincing evidence, to wit: that he did not commit any of the acts contained in the accusatory instrument. The motion is therefore denied, and the matter is referred to trial, where this court will determine whether the claimant has proved his actual innocence by a preponderance of the credible evidence.

Accordingly, and based upon the foregoing, it is hereby [*4]ordered, that the M-97155, defendant's motion to dismiss the claim, pursuant to CPLR 3211 (a) (7), is denied.