Opinion
No. 116624.
2011-05-31
Kenneth ALBRIGHT, Claimant,v.The STATE of New York, Defendant.
Falk & Klebanoff, P.C. by Jeffrey P. Falk, Esq., for claimant. Eric T. Schneiderman, Attorney General by Janet L. Polstein, AAG, for defendant.
Falk & Klebanoff, P.C. by Jeffrey P. Falk, Esq., for claimant. Eric T. Schneiderman, Attorney General by Janet L. Polstein, AAG, for defendant.ALAN C. MARIN, J.
The defendant State of New York moves to dismiss Kenneth Albright's claim brought for unjust conviction and imprisonment (§ 8–b of the Court of Claims Act) and for violations of his federal and state constitutional rights. The defendant argues that the claim fails to comply with the pleading requirements of subdivisions three and four of § 8–b of the Act, and fails to state a constitutional cause of action. Mr. Albright cross-moves to amend his claim to annex the following documents: the transcript from his criminal trial, the First Department's decision reversing his conviction, and his certificate of incarceration from the State Department of Correctional Services.
Now the Department of Corrections and Community Supervision.
On August 3, 2006, Albright and a co-worker were servicing the air conditioning in a doctor's office on the first floor of an apartment building on the west side of Manhattan. They needed to go to the basement, where they were authorized to enter the pump room, but not the room where tenants stored their bicycles.
At some point, the building superintendent saw Albright leaving the building with a large black bag. Suspicious, he went down to the pump room and saw defendant and another worker, Vasilios Kalabakas, loading a bicycle into another black bag. He then checked the bicycle room and saw that two bikes were missing.
Albright was arrested and indicted for Burglary II and III.
He was tried before a jury, convicted of burglary in the second degree on April 10, 2007 and sentenced to five years of imprisonment.
The First Department notes that Kalabakas, “was charged but not indicted.” People v. Albright, 59 A.D.3d 336, 337, 874 N.Y.S.2d 65 (2009).
His conviction was reversed by the First Department on February 26, 2009 and his indictment dismissed on the grounds that claimant's conviction was not supported by sufficient evidence. People v. Albright, 59 A.D.3d 336, 874 N.Y.S.2d 65 (2009). He was immediately released from state prison after serving almost two years.
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Subdivision three of § 8–b requires that a claimant must establish by documentary evidence that he was convicted of a crime, sentenced to a term of imprisonment, actually served time, and finally, that his conviction was reversed or vacated on one of the enumerated statutory grounds. Mr. Albright attached no such documentation to his claim, but it might well be noted that such information is contained in the First Department's decision, except for the fact of his serving part of his sentence.
In any event, failure to initially attach such required documentation is not a jurisdictional defect and claimant may amend his claim as requested. “That the documentation was not annexed to the claim itself is not dispositive.” Fowler v. State of New York, Ct. Cl., December 3, 2009 (unreported, claim no. 115609, motion no. M–76951, UID No. 2009–016–064, Marin, J.), affd. 81 A.D.3d 495, 916 N.Y.S.2d 503 (1st Dept. 2011); cf. Acosta v. State of New York, 270 A.D.2d 164, 704 N.Y.S.2d 594 (1st Dept. 2000); and Harris v. State of New York, 38 A.D.3d 144, 828 N.Y.S.2d 463 (2d Dept. 2007). I find that with the documents Albright seeks to annex to his claim, he satisfies paragraphs a and b of § 8–b.3 (although submission of a copy of claimant's case in the appellate division is of course unnecessary).
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Subdivision four of § 8–b provides in relevant part that, “[t]he claim shall state 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 and that he did not by his own conduct bring about his conviction.
The Court of Appeals has made clear that a motion to dismiss under subdivision four is to be treated in the same manner as a motion to dismiss under CPLR 3211—the court must accept as true the facts alleged in the claim, and if sufficiently detailed, claimant is entitled to an opportunity to prove such at trial. Warney v. State of New York, 16 N.Y.3d 428, 922 N.Y.S.2d 865, 947 N.E.2d 639 (2011).
Albright had been indicted for burglary, not larceny, and a necessary element of burglary, unlike larceny,
is entering a place where one is not permitted to be. As noted, Albright was authorized to be in the pump room, but not the bicycle room. As set forth below, the appellate court concluded that there was insufficient evidence to prove that he had unlawfully entered the bicycle room.
Compare Penal Law §§ 140.25 & 140.20 (Burglary II & III) with Penal Law § 155.05 (Larceny; defined).
The basement had a security camera that did not show the entrances to the bicycle and pump rooms. The camera did show Albright carrying a black bag down the hallway towards the exit. After leaving the building, Albright and Kalabakas went to the apartment of a woman they both knew, who testified at trial that Kalabakas carried a bag into her apartment and placed it on the terrace. After setting out the facts above, the First Department stated:
In this case, while the evidence may have established that defendant committed larceny by moving one bicycle from the pump room to his work van, a rational jury could not have found beyond a reasonable doubt that defendant entered the bicycle room, because the evidence just as fully supports the alternative theory that only Kalabakas ... entered the room and moved the bicycles into the pump room before defendant moved one into the van.
59 A.D.3d at 337, 874 N.Y.S.2d 65.
In terms of stating 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, Mr. Albright's claim asserts that:
[O]n or about August 3, 2006 Claimant was authorized and permitted to be at the premises to perform work he was employed to do and more particularly, to be in the “pump room” thereat ... Claimant was at the premises and did not enter any portions thereof he was not permitted and otherwise authorized to enter, such as the “bike room” ... by reason of the above facts, Claimant did not commit a “burglary” as that term is defined in the Penal Law ... Claimant did not commit any of the acts set forth under [the] Indictment ...
Claim, ¶¶ 11 through 14.
As for item (b) of subdivision four, which requires that the claim be sufficiently detailed to permit the court to find that claimant is likely to be able to prove at trial that he did not by his own conduct bring about his conviction, the claim states that, “[c]laimant ... did not cause or bring about the unlawful charges, arrest and incarceration set forth herein.” Claim, ¶ 16. While the claim is arguably conclusory on item (b), given that defendant has advanced no theory in its motion papers as to how claimant might have brought about his own conviction, the claim at this stage is sufficient per Warney, supra.
In sum, the allegations in Albright's claim satisfy the pleading requirements of § 8–b.4, and claimant is thus, “entitled to an opportunity to prove the allegations at trial [per] Court of Claims Act § 8–b[5]....” Id.
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Claimant does not address defendant's argument that he fails to state a cause of action for violations of either the United States constitution or the New York State constitution (although in his proposed amended claim, he deletes any reference to the United States constitution). In any event, the Court of Claims has no jurisdiction over claims alleging violations of the United States Constitution. Brown v. State of New York, 89 N.Y.2d 172, 652 N.Y.S.2d 223, 674 N.E.2d 1129 (1996).
As to a State constitutional cause of action under Brown, in Martinez v. City of Schenectady, 97 N.Y.2d 78, 735 N.Y.S.2d 868, 761 N.E.2d 560 (2001), the Court of Appeals described such cause of action as a narrow remedy addressing two interests: “the private interest that citizens harmed by constitutional violations have an avenue of redress, and the public interest that future violations be deterred.” The facts of this case do not fall within the protection of Brown. Moreover, “a private right of action for a violation of the N.Y. Constitution is unavailable where an alternative remedy ... for damages ... exists ...” Waxter v. State of New York, 33 A.D.3d 1180, 1181, 826 N.Y.S.2d 753 (3d Dept. 2006) (citations omitted). Here, claimant has an alternative remedy for damages via his § 8–b cause of action.
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Accordingly, having reviewed the submissions
, IT IS ORDERED that motion no. M–77510 be granted to the extent that claimant's second cause of action alleging violations of the United States constitution and the New York State constitution shall be dismissed, and such motion shall otherwise be denied; and IT IS FURTHER ORDERED that cross-motion no. CM–78065 be granted to the extent that within forty-five (45) days of the filing of this Decision and Order, claimant shall serve and file the proposed amended claim annexed to his cross-motion papers, deleting the second cause of action alleging violations of the New York State constitution, and adding as an exhibit a copy of claimant's indictment.