Court of Claims, January 18, 2023

Letitia James, Attorney General (Michael Jaffe of counsel), for defendant.

C.T. Lee & Associates (Corey T. Lee of counsel) for claimant.

For the following reasons, the motion by defendant State of New York (hereinafter State), seeking the dismissal of this claim, is granted and the claim is hereby dismissed as provided hereinbelow.

The following facts are essentially undisputed. On May 27, 2008, claimant Nathaniel Isaac (hereinafter claimant) was arrested on criminal charges arising from an incident that day, during which he was allegedly seen trespassing and transporting stolen goods from a building rooftop to the street and placing them on his shopping cart. The parties agree that on the sidewalk, two very large boxes each containing 12 pairs of women's footwear were recovered. Claimant pleaded not guilty at arraignment and was released with a desk appearance ticket. Afterwards, the NYC Police Department conducted an investigation and learned that at some point between May 23, 2008, and May 27, 2008, a break-in and burglary of certain boxes [*2]of merchandise had occurred at a warehouse adjacent to the building where claimant had been seen on May 27, 2008. As a result, claimant was rearrested and criminally charged with one count each of burglary in the third degree (Penal Law § 140.20), criminal mischief in the fourth degree (Penal Law § 145.05), criminal trespass in the third degree (Penal Law § 140.10), and criminal possession of stolen property in the fifth degree (Penal Law § 165.40), based on his alleged unlawful entry into the warehouse and rooftop and damage caused to the warehouse. Unable to post the set bail, claimant remained in pretrial detention for over two years awaiting his criminal trial.

While claimant was represented by several attorneys appointed to him pursuant to County Law article 18-A, irreconcilable differences between him and his attorneys apparently prompted counsel to withdraw. Upon his fourth application for{**78 Misc 3d at 475} new counsel, the Queens County Supreme Court declined to appoint additional counsel based on claimant's prior dilatory, disrespectful and argumentative conduct with assigned counsel. On July 19, 2010, the then pro se claimant waived his right to a jury trial and a bench trial was commenced before the Honorable Stephen Knopf of Queens County Supreme Court. After the nonjury trial where the arresting police officer, the warehouse owner and the civilian eyewitness testified, the Supreme Court (Knopf, J.) convicted claimant of one count each of burglary in the third degree, criminal mischief in the fourth degree, and criminal possession of stolen property in the fifth degree.

Subsequently, on September 8, 2010, the same Supreme Court sentenced claimant—as a second felony offender—to a term of imprisonment of 3� to 7 years for the burglary count to run concurrently with a one-year definite sentence for the criminal mischief and possession of stolen property counts. He was remanded to the custody of the New York State Department of Corrections and Community Supervision (DOCCS). Claimant unsuccessfully moved to set aside the verdict pursuant to CPL 330.30, but timely appealed his conviction. Between September 8, 2010, and October 9, 2014, claimant spent over four post-conviction years in state prison for the abovementioned crimes.

By decision and order dated October 8, 2014, the Appellate Division, Second Department, reversed the guilty verdict, vacated the counts, and dismissed all charges against the claimant (see People v Issac, 121 AD3d 816 [2d Dept 2014], lv denied 24 NY3d 1220 [2015]). Specifically, the Appellate Division vacated the burglary and criminal mischief counts on the ground that the People failed to establish with sufficient evidence "beyond a reasonable doubt" that the claimant had broken into the warehouse and caused damage to the building. As to the criminal possession of stolen property count, the Appellate Division found that "[t]he evidence showed that the [claimant] was found in possession of some of the alleged proceeds of the burglary on the date of . . . apprehension" (id. at 817). However,

"[t]he [claimant]'s conduct, as reflected by the record, did not support or justify the Supreme Court's ruling, which forced the [claimant] to proceed to trial without the benefit of counsel (see People v Williams, 101 AD3d 1730, 1733-1734 [2012];{**78 Misc 3d at 476} People v Bullock, 75 AD3d 1148, 1150 [2010]; see also People v Campbell, 281 AD2d 488 [2001], revd on other grounds 97 NY2d 532 [2002]). Under these circumstances, the [claimant] is entitled to a new trial on the count of the indictment charging him with criminal possession of stolen property in the fifth degree (see Penal Law § 165.40), based on the violation of the right to counsel (see People v Williams, 101 AD3d at 1734; see also People v Bullock, 75 AD3d at 1151). [*3]However, he has already served the maximum sentence that could be imposed upon a conviction of that crime (see Penal Law § 70.15 [1]). Under the circumstances, we do not order a new trial, but rather, dismiss that count of the indictment (see People v Flynn, 79 NY2d 879 [1992]; People v Maio Ni, 293 AD2d 552 [2002])" (id. at 817-818).

Pursuant to the Appellate Division decision, claimant was released on October 9, 2014, from DOCCS in whose custody he had been imprisoned since his 2010 sentence. On November 7, 2014, the Supreme Court (Knopf, J.) dismissed the criminal charges against claimant, and a certificate of disposition was issued on October 28, 2015. The New York Court of Appeals denied the claimant leave to appeal (24 NY3d 1220).

By notice of intention to file a claim filed on January 5, 2015, claimant commenced the instant action against the State in the Court of Claims, alleging that he was wrongfully convicted and falsely imprisoned in violation of the Unjust Conviction and Imprisonment Act of 1984 (Court of Claims Act § 8-b). The verified claim, filed on October 3, 2016, particularized that the claimant is seeking to recover monetary damages as a result of the State's malicious prosecution and wrongful conviction of him in that the State's "agents and employees knew, or should have known, that there was insufficient evidence to show that Claimant committed these alleged crimes," that they "fals[ified] and fabricated" pieces of evidence, and that he was "completely innocent of all charges in the indictment" (verified claim at 7 ¶ 34; 14 ¶ 74). On November 4, 2016, the State served claimant with its verified answer, denying the claim's allegations and raising several defenses. Documentary disclosure and depositions have been completed after several years of discovery proceedings.

By notice of motion filed June 28, 2021, the State moves for the dismissal of the claim against it, pursuant to{**78 Misc 3d at 477} CPLR 3211 (a) (2) and (7), based on claimant's alleged failure to satisfy the pleading requirements to commence this type of action under Court of Claims Act § 8-b (3) and (4). Specifically, the State argues that the claimant has failed to meet all the prerequisites for an unjust conviction claim because, although two of his convictions were overturned due to the enumerated ground of insufficient evidence, one of them was overturned based on ineffective assistance of counsel, a constitutional violation, but nevertheless a non-enumerated ground under Court of Claims Act § 8-b (3) (b) (ii), citing Pough v State of New York (153 Misc 2d 490 [Ct Cl 1992], affd 203 AD2d 543 [2d Dept 1994]). The State further maintains that, regardless, claimant is unlikely to succeed at trial in proving he was actually innocent of all charges, a requirement prescribed by Court of Claims Act § 8-b (4).

In opposition to the motion, claimant countered that he met all the requirements for an unjust conviction and imprisonment because he was sentenced and served time solely based on the burglary conviction that was overturned for insufficient evidence, not on his conviction for criminal possession of stolen property. He claimed that under Penal Law § 70.30, his sentence must be diminished by the two years he spent in custody prior to the commencement of his sentence. Relying on Court of Claims Act § 8-b (3) (b) (ii) (B), claimant specifically argued that "the count dismissed" was "the sole basis for" his four-year imprisonment, without any contribution from his stolen property possession conviction, affording him an exception to the [*4]requirement that all dismissals or vacaturs must be on enumerated grounds. Claimant also maintained that he was innocent and likely to succeed at trial in proving that he "did not commit any of the acts charged in the accusatory instrument" (Court of Claims Act § 8-b [4]), and that they do not constitute a felony or misdemeanor against the State.

The claimant's motion has been sub judice since 2021. Following the retirement of the Honorable Faviola Soto, who was presiding over this case, on June 30, 2022, all matters and motions currently pending before her have been reassigned to the Undersigned. In trying to ascertain the status of this case, on July 28, 2022, the court was informed by counsel via email that claimant had "passed away earlier this year" in 2022. Pursuant to CPLR 1015 (a), the Undersigned stayed the matter to permit the appointment of a "personal representative of the {**78 Misc 3d at 478}estate of the deceased" claimant.^[FN*] However, no further communications or any information about the appointment of an administrator has been received by the court as of January 18, 2023. As such, the court is hereby lifting the stay having afforded counsel "a reasonable time" of well over "six months" after the death of claimant to proceed with the claim (Court of Claims Act § 15; see CPLR 1021). Upon reading the papers herein, this court agrees with the State.

The Unjust Conviction and Imprisonment Act embodied in Court of Claims Act § 8-b "was enacted to provide redress to innocent persons who prove by clear and convincing evidence that they were unjustly convicted and imprisoned" (see Ivey v State of New York, 80 NY2d 474, 479 [1992]; Court of Claims Act § 8-b [1]). In order to present the claim for unjust conviction and imprisonment, a claimant "must establish by documentary evidence," inter alia, that

"[the] judgment of conviction was reversed or vacated, and the accusatory instrument dismissed or, if a new trial was ordered, either he was found not guilty at the new trial or he was not retried and the accusatory instrument dismissed; provided that the [judgment] of conviction was reversed or vacated, and the accusatory instrument was dismissed, on any of the following grounds: (A) paragraph (a), (b), (c), (e) or (g) of subdivision one of section 440.10 of the criminal procedure law; or (B) subdivision one (where based upon grounds set forth in item (A) hereof), two, three (where the count dismissed was the sole basis for the imprisonment complained of) or five of section 470.20 of the criminal procedure law" (Court of Claims Act § 8-b [3] [b] [ii]; see Heiss v State of New York, 143 AD2d 67 [2d Dept 1988]).

All counts filed against a claimant must be reversed, vacated{**78 Misc 3d at 479} or dismissed under these statutorily enumerated grounds in order to recover (see Leka v State of New York, 16 AD3d 557[*5][2d Dept 2005]; Pough v State of New York, 203 AD2d at 544; McFadden v State of New York, 151 AD2d 730, 730-731 [2d Dept 1989]). In addition, a claimant must state, in the "verified" claim, "facts in sufficient detail 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" (Court of Claims Act § 8-b [4] [a]; see Reed v State of New York, 78 NY2d 1, 9 [1991]; Nieves v State of New York, 186 AD2d 240, 241 [2d Dept 1992]). Only claims satisfying these threshold "strict pleading and evidentiary burdens" may be heard on the merits (Warney v State of New York, 16 NY3d 428, 434 [2011]; Reed v State of New York, 78 NY2d at 10).

As the Court of Appeals explained, the Legislature chose to limit the qualifying grounds for recovery in order to help courts weed out "frivolous suits against the State" (Ivey at 479), recognizing that the " 'linchpin' of the statute is innocence" (id.; see Scheidelman v State of New York, 151 AD3d 1691, 1693 [4th Dept 2017]). For instance, the Legislature specifically excluded from recovery vacaturs for violations of constitutional rights (CPL 440.10 [1] [h]), and vacaturs where "material evidence" produced by the prosecution at trial "was procured in violation" of a defendant's constitutional rights (CPL 440.10 [1] [d]; see Tyson v State of New York, 182 Misc 2d 707, 712 [Ct Cl 1999], affd for reasons stated below 280 AD2d 934 [4th Dept 2001], lv denied 96 NY2d 714 [2001]). "[I]neffective assistance of counsel" findings fall within the excluded category of constitutional claims and do not qualify as "a predicate for . . . claim[s] under the Unjust Conviction and Imprisonment Act" (Britt v State of New York, 260 AD2d 6, 7 [1st Dept 1999]; see Baba-Ali v State of New York, 19 NY3d 627, 633-635 [2012]; Coakley v State of New York, 225 AD2d 477, 478 [1st Dept 1996]).

Applying these principles to the matter at bar, the State's motion must be granted because claimant has not fulfilled all the statutory requirements. It is undisputed that claimant was originally found guilty after trial of multiple counts—burglary, criminal mischief and criminal possession of stolen property—charged in a single indictment. It is also undisputed that the burglary and criminal mischief counts were reversed by the Appellate Division upon a finding that the People failed to prove claimant's guilt with legally sufficient trial evidence, an enumerated ground under the statute (see Court of Claims Act{**78 Misc 3d at 480} § 8-b [3] [b] [ii] [B]; People v Issac at 817). However, the appellate court vacated the criminal possession of stolen property count due to ineffective assistance of counsel and dismissed it in the interest of justice because a new trial would serve no purpose as the claimant had "already served the maximum sentence that could be imposed" on this conviction (id. at 818). Since this is a non-enumerated constitutional violation excluded from the statute, the claim here does not satisfy the "strict" statutory pleading requirements imposed by the Court of Claims Act (see Leka v State of New York, 16 AD3d at 557; Britt v State, 260 AD2d at 7; Coakley v State, 225 AD2d at 478; Tyson v State, 182 Misc 2d at 714). That should end the inquiry.

However, the claimant tried to bootstrap an exception to that principle maintaining that where the count that was vacated on non-enumerated grounds did not contribute to his incarceration, then he can bring himself within the "window of eligibility" to recover under the statute (Pough v State, 203 AD2d at 544). Contrary to claimant's contentions, the sentencing court appears to have considered all the guilty counts and his status as a second felony offender in rendering the sentence of up to seven years' imprisonment. Nothing in the record intimates that the burglary count was "the sole basis for the [claimant's] imprisonment," to the exclusion of the [*6]criminal mischief or stolen property possession counts. Just like in the Pough case, the Appellate Division vacated and dismissed some of the counts on grounds enumerated under Court of Claims Act § 8-b (3) (b) (ii), and other counts on non-enumerated grounds (see id.). In both cases, the count that was vacated on non-enumerated grounds was the least serious count of conviction, but still a count under which claimant—there and here—was sentenced to incarceration (id.). Finally, in both cases the misdemeanor count was dismissed by the appellate court "in the interest of justice" because the claimants had already served the maximum sentence allowed by law (see id.; Scheidelman v State, 151 AD3d at 1693). Similarly, here, because claimant cannot demonstrate that he was in the "window of eligibility" in that the burglary count was the sole basis for the incarceration, his claim fails (see id.; Wingate v State of New York, 2016 NY Slip Op 33207[U] [Ct Cl 2016]).

Even if this court were to assume arguendo that claimant fell within that "window," he had utterly failed to demonstrate a likelihood of success in proving his innocence in order to{**78 Misc 3d at 481} comply with Court of Claims Act § 8-b (4). Under that portion of the statute, the verified claim must present "facts in sufficient detail to permit the court to find that [claimant] . . . did not commit any of the acts charged in the accusatory instrument" (see Reed v State, 78 NY2d at 7-9; see generally 28 USC § 2513 [a] [2] [similar language in federal unjust conviction statute]). Here, claimant conclusorily alleged in his claim that the allegations made against him "were false and fabricated" and that he is "completely innocent of all the charges in the indictment." There is no further allegation, documentary proof or "facts in sufficient detail" explaining which pieces of evidence were fabricated, any different version of events, or an alibi supporting his claim of innocence (see Isaac v City of New York, US Dist Ct, ED NY, 16-cv-4729, Mann, Ch. M.J.).

Although claimant asserted that his conviction was based on the testimony of only one witness, the record evidence provides ample support for the guilty finding of stolen property possession by the Supreme Court and the Appellate Division. Not only was he undisputedly present at the scene with a shopping cart close to where the stolen property was found without any reasonable explanation, but the police testified that they saw him there and the eyewitnesses picked him in the lineup and testified to his actions from the rooftop and on the ground with the boxes of stolen goods (see id.). These appear to be affirmed findings of fact of guilt which this court is not empowered nor inclined to disturb (see Humphrey v State of New York, 60 NY2d 742, 743-744 [1983]). As such, the claimant had not factually supported a likelihood of success in proving his innocence.

In accordance with the foregoing, the State's motion to dismiss the claim, motion No. M-96941, is granted and the claim is hereby dismissed.