Opinion
# 2014-039-410 Claim No. 117273
05-23-2014
JEROME DAVIES v. STATE OF NEW YORK
Jerome Davies, pro se Hon. Eric T. Schneiderman Attorney General of the State of New York By: Thomas Trace, Esq. Senior Attorney
Synopsis
Case information
| UID: | 2014-039-410 |
| Claimant(s): | JEROME DAVIES |
| Claimant short name: | DAVIES |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | The Court has, sua sponte, amended the caption to reflect the State of New York as the only proper defendant. |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 117273 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | James H. Ferreira |
| Claimant's attorney: | Jerome Davies, pro se |
| Defendant's attorney: | Hon. Eric T. Schneiderman Attorney General of the State of New York By: Thomas Trace, Esq. Senior Attorney |
| Third-party defendant's attorney: | |
| Signature date: | May 23, 2014 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, an inmate proceeding pro se, filed this claim with the Chief Clerk of the Court of Claims on August 14, 2009. In it, claimant seeks damages for the loss of personal property, specifically, certain legal documents, allegedly taken or lost during a cell search by correction officers on April 27, 2009 at Oneida Correctional Facility in Rome, New York. A unified trial of this matter was held before the undersigned, via video conferencing technology, on January 21, 2014. Claimant testified on his own behalf and proffered documents in support of his claim. Defendant called one witness, correction officer Jay Coppola, in its defense, and offered a certified 17-page document related to claimant's missing legal work and the investigation of the Department of Corrections and Community Supervision (hereinafter DOCCS) into the incident. Both parties offered post-trial submissions.
During the trial, it became evident that documents claimant intended to proffer were identical to certain documents contained within defendant's exhibit A, an exhibit which had been submitted to the Court prior to trial. For efficiency purposes and with the consent of defense counsel, the Court allowed claimant to refer to the portions of defendant's exhibit A that claimant contended supported his claim.
Claimant testified that, on or about April 27, 2009, while he was housed at the Oneida Correctional Facility, an inmate was murdered by another inmate in the G Dormitory area (hereinafter G-Dorm) of the facility. Thereafter, that same evening, correction officers, with the assistance of New York State Police, began a search of the facility and treated the "whole dorm [as] a crime scene." Inmates were taken from their "cubes" and questioned in the mess hall by the State Police. Claimant's cube was searched while he was being questioned. Claimant estimated that the search of the G-Dorm took "maybe about four, five hours." When he returned to his cube, "64 cube," he described the scene as "mayhem" and "crazy." His cube had been searched and "everything was just thrown all about." He stated that "the mattresses were off, the lockers were turned over, . . . all the food items [were] opened up" and the "bags," which he described as folders "with legal stuff," were "ripped apart and thrown everywhere." At around 8:30 p.m. he discovered that some of his legal work was missing. He stated that everyone's property was in different places. Some of his pictures, photos and clothing had been moved to the front of the dorm. He eventually was able to find his belongings "as best [he] could" and return them to his cube. The following morning he realized that, out of 400 pages of trial transcripts he had kept in his cube, "250 pages" were missing. Claimant stated that he notified Sergeant Snyder, who had led the search of G-Dorm, that part of his legal work was missing. Claimant completed an "Inmate Claim Form" dated April 27, 2009 regarding the loss of his paperwork, which he identified as "Jury Trial Transcript 250 Pages" (see defendant's exhibit A, p. 6). Claimant stated that the search involved over 64 cubes with a lot of officers, and that the atmosphere during the search was apprehensive and one of "heightened security."
Unless otherwise indicated, all quotations are from the electronic audio recording of the trial.
DOCCS documents indicate that the unit frisk of G-Dorm began at approximately 4:45 p.m. on April 27 and ended at 7:15 p.m. that evening (see defendant's exhibit A at 14). No contraband was found during the frisk of claimant's cube (see defendant's exhibit A at 11 and 12).
In his Inmate Claim Form, claimant wrote that, following the search of his cube, everything in the two lockers in his cube was "thrown all over [and] when I started putting things back together, I notice[d] (250) pages of my (trial) transcripts were missing" (defendant's exhibit A, at 6). He valued the loss at $250.00 and noted that the condition of the documents was "good" with no depreciation (id.). The Claim Investigation Report, dated June 5, 2009, recommended disapproving the claim, noting that the memorandums prepared by the investigation officers "contradict inmates [sic] statement in claim" and that the "evidence shows no items were taken" after the "cube was frisked" (id. at 8). The claim was disapproved on June 5, 2009, following the initial facility review on the ground that the "[e]vidence indicates that the facility was not at fault or in any way responsible for the loss or damage" (id. at 7). Following claimant's appeal, the initial finding disapproving the claim was upheld on July 9, 2009 by the Superintendent for the Division of Program Services Office of Inmate Accounts, who commented that the "allegations in claim are not substantiated. No staff negligence per investigation" (id. at 7; see also Claim Investigation Report dated July 1, 2009 ["no new evidence contained in inmate's appeal statement to amend initial decision of disapproved"]).
Claimant testified that the missing documents consisted of "my trial transcripts and my sentencing minutes" from his two underlying criminal convictions. He repeated that he had pages 251 to 400 but was missing pages 1 to 250. Claimant stated that as he prepared to come to the trial on this claim, he was not permitted to bring pages 251 to 400 to his trial because the words "Court of Claims" did not appear on those pages. He stated that he needed the missing documents for a fifth Parole Board hearing scheduled for June 2014. Claimant introduced an I-64 Form dated May 14, 2008 that covered the property claimant brought from Mid-Orange Correctional Facility to Oneida. The form indicates that legal papers accompanied claimant to Oneida, although the exact number of legal papers is unclear from the notation (see claimant's exhibit 2).
Claimant stated that he has never filed a claim for the nearly 20 years he has been incarcerated. He stated that he wrote three law firms to ascertain the price of obtaining and copying the missing 250 pages of legal documents. One firm responded in writing and stated that it would charge $1.50 per page (see claimant's exhibit 3). Claimant recalled receiving other responses of $1.25 and $.98 per page to have over 100 pages copied.
During cross-examination, claimant repeated that he believed he needed the documents for his next Parole Board appearance. He acknowledged that he had appealed previous Parole Board denials and had counsel for his previous Parole Board appearances because of his poor person status. Claimant also stated that only DOCCS documents necessary to appeal Parole Board determinations, not court trial transcripts, could be obtained for him at no cost by his counsel. He believed that the trial transcripts were no longer available and stated that he had kept those documents in his possession from 1995 until they were lost on April 27, 2009. Claimant described the contents of pages 251 through 400. He repeated that the missing documents were "invaluable" and "priceless" to him.
After claimant rested, the defendant moved for a directed verdict on the ground that, even if the Court found that the documents were removed or lost by defendant, claimant failed to establish that the trial transcripts and sentencing minutes have any value. Defendant argued further that claimant's counsel in his previous Parole Board appearances could have obtained the documents, and that they were not relevant to the Parole Board determinations, thus diminishing claimant's argument that the missing documents had value or relevance. The Court reserved on the motion. Defendant called correction officer Jay Coppola, who testified that he was working at Oneida Correctional Facility on April 27, 2009 and conducted, with other officers, a unit frisk of the cubes at G-Dorm. Coppola prepared a memo on June 3, 2009 regarding the April 27 frisk (see defendant's exhibit A at 13). According to Coppola, a cube frisk involves the search of the property of an inmate for contraband. The cube 64 frisk, like other cube frisks, involved the search of the bed area, the lockers and any other personal property. Any and all property found would be placed on the bed as the officers proceeded through the cube. Coppola testified that he signed the contraband receipt for cube 64 indicating that no contraband was found during the cube frisk (see id. at 12). He denied that any of claimant's property was lost, damaged or taken.
Claimant's cause of action sounds in bailment. It is well settled that the State has a duty to secure an inmate's personal property, and that a claim in the nature of bailment may be brought by an inmate against the State (see Pollard v State of New York, 173 AD2d 906, 907 [3d Dept 1991]; Christian v State of New York, 21 Misc 3d 1128[A] [Ct Cl 2008]; see also Court of Claims Act § 10 [9]).
Court of Claims Act § 10 (9) authorizes an inmate to commence an action in the Court of Claims to recover "damages for injury to or loss of personal property" once he or she has exhausted "the personal property claims administrative remedy established for inmates" (Court of Claims Act § 10 [9]). The Court is satisfied, based upon the evidence before it, that claimant exhausted his administrative remedies before commencing this action.
A bailment is created when personal property of one person (the bailor) is delivered into the possession of another (the bailee) with the understanding, either express or implied, that the property will be redelivered to the owner in the same condition (see generally Claflin v Meyer, 75 NY 260 [1878]). In order to establish a prima facie case of bailment, a claimant is required to demonstrate that the property was delivered to defendant and that the property was not returned to him (see Weinberg v D-M Rest. Corp., 60 AD2d 550, 550 [1st Dept 1977]; Mason v State of New York, UID No. 2012-049-107 [Ct Cl, Weinstein, J., Aug. 1, 2012]). Once claimant meets this burden, there arises a presumption of liability on the part of defendant, and the burden then shifts to the State to overcome that presumption (see Weinberg v D-M Rest. Corp., 60 AD2d at 550; Spears v State of New York, UID No. 2011-044-009 [Ct Cl, Schaewe, J., Oct. 25, 2011]). The presumption can be negated "by [defendant] establishing a non-negligent explanation for the loss . . . or by demonstrating that it exercised ordinary care" (Thompson v State of New York, UID No. 2013-048-086 [Ct Cl, Bruening, J., Mar. 6, 2013] [internal citations omitted]).
Upon application of these principles to the facts presented here, and after weighing the evidence proffered at trial, including the exhibits received into evidence, and considering the testimony and demeanor of the witnesses, the Court finds that claimant has established by a preponderance of the credible evidence, his bailment claim against defendant.
Claimant's credible testimony established that his property - 250 pages of trial transcript and sentencing minutes - was in his cube on April 27, 2009, prior to the dorm-wide search of the inmates' cubes, and was not in claimant's cube approximately three hours later. The Court credits claimant's testimony that the search was thorough but disruptive, and that, during the search of his cube, claimant's lockers were overturned and his possessions scattered about, with some of his belongings having been removed and relocated to another part of G-Dorm. The search was plainly conducted under tense circumstances by State correction officers, and the Court finds persuasive claimant's compelling testimony that his cube was in total disarray after the search was concluded, and that his legal papers were missing. Moreover, the Court finds striking and convincing claimant's specific account of his loss - exactly 250 pages of trial transcripts and sentencing minutes related to his two underlying convictions - and his testimony that he was prepared to bring pages 251 through 400 to the trial of this claim, but was denied the opportunity because a correction officer overseeing his departure apparently did not believe they were "Court of Claims" documents.
Conversely, defendant offered no credible proof that the loss was due to circumstances not within its control or that it exercised ordinary care. The search or "frisk" of the cubes was under the control of the correction officers (see defendant's exhibit A, Coppola memorandum at 13; Snyder memorandum at 14). The Court is not persuaded by Coppola's testimony that none of claimant's property was lost during his search of cube 64, particularly given the circumstances precipitating the search. Coppola's memorandum, prepared over a month after the cube frisk, has no detail about the frisk of cube 64 other than to state that the search was conducted in accordance with "NYS directives" and that no contraband was found in his cube (id. at 13). In addition, Coppola's testimony that the contraband receipt indicates that none of claimant's property was damaged or taken is not supported by this Court's review of that receipt (see id. at 12).
The Court has reviewed both the claim investigation report prepared by DOCCS and the DOCCS appeal determination and accords both documents minimal probative value (see defendant's exhibit A). The appeal determinations are conclusory and general, and the fact that officers' and claimant's memoranda contradict each other does not render claimant's recollection less credible.
As for damages, generally, the measure of recovery when bailed property is not produced upon demand is the fair market value of the property, namely, the value of the original price less a reasonable rate of depreciation (see Phillips v Catania, 155 AD2d 866, 866-867 [4th Dept 1989]; see 7 NYCRR 1700.8 [a] [for inmate personal property claims "[t]he value of lost or destroyed property shall be a reasonable level of compensation, considering the age, condition, original cost and market value of the lost item(s)"]). Insofar as missing legal papers, "[d]etermining fair compensation for lost legal documents is difficult" (Christian v State of New York, 21 Misc 3d 1128 [A] at *2).
"If legal work can still be used in pending or future proceedings, the fair market value is the cost to replace or reproduce it (see 7 NYCRR 1700.8 [a] [4]). If the legal work is of no use, the Court may consider it to be of only sentimental value and award nothing or the Court could award a modest amount for lost archival-type materials."(Spears v State of New York, UID No. 2011-044-009 [Ct Cl, Schaewe, J., Oct. 25, 2011][internal citations omitted]; see also Swiggett v State of New York, UID No. 2004-019-020 [Ct Cl, Lebous, J., Oct. 19, 2004] ["if the missing legal papers can still be used in a criminal case then the value is contingent on whether or not claimant has produced an estimate for the cost to reproduce said papers"]).
7 NYCRR 1700.8 (a) (4) states, in full, as follows: "Lost legal papers often have no value. If records in a criminal case are lost when there is no further right of appeal and no further use for them, then the records have no more than "sentimental value," that is, no value. If the lost legal papers can still be used, for example, in a pending or future legal proceeding, then the loss may be compensated by either replacing the papers or paying the reasonable cost to reproduce them. If an inmate can obtain replacement copies for no cost, then the lost papers have no value. If an inmate claims that there is a cost to reproduce the lost papers, then the inmate should produce an estimate for the cost to reproduce the lost papers, which normally should not exceed the cost shown in the bill for the original papers."
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In this case, the evidence before the Court does not unequivocally establish that the missing legal work is of "no value" to the claimant (7 NYCRR 1700.8 [a] [4]). Rather, there is evidence before the Court, particularly claimant's testimony, indicating that the missing transcripts and sentencing minutes may be of some value to claimant in some other legal forum or proceeding (compare Swiggett v State of New York, UID No. 2004-019-020 [Ct Cl, Lebous, J., Oct. 19, 2004]). Claimant endeavored to submit evidence as to the reproduction cost of the missing trial transcripts and sentencing minutes. He testified that he contacted various law firms to obtain information as to the cost of reproducing the missing transcripts. Documentary evidence showing a $1.50 per page charge (see claimant's exhibit 3) and testimony of $1.25 or $.98 per page were received into the record. No credible proof was presented indicating that claimant could "obtain replacement copies for no cost" (7 NYCRR 1700.8 [a] [4]), and none of claimant's evidence on the amount of the replacement costs was contradicted. Under these particular facts, the Court finds damages in the amount of $.50 per page for each of the 250 missing pages to be a reasonable level of compensation (see Towner v State of New York, UID 2010-009-101 [Ct Cl, Midey, J., Mar. 10, 2010]; Lopez v State of New York, UID No. 2004-031-506 [Ct Cl, Minarik, J., Mar. 19, 2004]).
Thus, based upon the foregoing, the Court concludes that claimant has proven his bailment claim against defendant by a preponderance of the credible evidence, and thus, defendant is liable to claimant for the loss of his legal documents. As for damages, the Court awards claimant damages of $.50 per page for the missing 250 pages, for a total award of $125.00 plus appropriate interest from April 27, 2009. Any and all motions on which the Court may have previously reserved, or which were not previously determined, are hereby denied. To the extent claimant has paid a filing fee, it may be recovered pursuant to Court of Claims Act § 11-a (2).
The Clerk of the Court is directed to enter judgment accordingly.
May 23, 2014
Albany, New York
James H. Ferreira
Judge of the Court of Claims