Opinion
Claim No. 131374
04-07-2023
Selwyn Days, Claimant v. The State of New York, Defendant.
For Claimant: Glenn A. Garber, P.C., By: Glenn A. Garber, Esq., Rickner PLLC, By: Robert Rickner, Esq. For Defendant: Hon. Letitia James, Attorney General, By: Joseph Scolavino, AAG.
Unpublished Opinion
For Claimant: Glenn A. Garber, P.C., By: Glenn A. Garber, Esq., Rickner PLLC, By: Robert Rickner, Esq.
For Defendant: Hon. Letitia James, Attorney General, By: Joseph Scolavino, AAG.
HON. LINDA K. MEJIAS-GLOVER, J.C.C.
Defendant, the State of New York (hereinafter, the "State" or the "Defendant") moves by Notice of Motion dated September 12, 2022, seeking, inter alia, an order for sanctions pursuant to CPLR § 3126 for Claimant's intentional or negligent spoliation of evidence. Claimant, Selwyn Days (hereinafter, the "Claimant") opposes the State's motion and moves by Notice of Cross Motion for Spoliation and Sanctions dated September 26, 2022, seeking, inter alia, for sanctions pursuant to CPLR § 3126 for the State's spoliation of evidence. Both motions have been fully briefed.
Relevant Facts and Points of Counsel
Claimant brings this action under Court of Claims Act § 8-b. The following facts are undisputed: On or about November 21, 1996, Archie Harris and home health aide, Betty Ramcharan, were murdered in Eastchester, New York, at the home of Archie Harris; Mr. Harris was beaten, bludgeoned and stabbed to death; Ms. Ramcharan had been strangled, suffocated and her throat was slit; prior to the murders, Claimant's now-deceased mother, Stella Days, worked as an aide for Archie Harris; prior to the murders, she had accused Mr. Harris of sexually assaulting her; and Ms. Days filed a criminal complaint and commenced a civil lawsuit against Mr. Harris as a result. In November of 2000, Claimant told Cherilyn Mayhew, in sum and substance, that he has gotten away with the murder of an old man and the lady, which she reported to police during the course of an investigation relating to Claimant's arrest for a violation of an order of protection in her favor. Subsequently, an officer questioned Claimant, who, in a videotaped confession, confessed to the murders. Claimant has contested and continues to contest the voluntariness and truthfulness of his confession. Claimant was ultimately arrested and prosecuted for the murders of Archie Harris and Betty Ramcharan.
According to the Claim, Claimant was first tried in 2003, which resulted in with a hung jury. Thereafter, Claimant was convicted of two counts of murder in the second degree on April 16, 2004, and on April 11, 2006, the Appellate Division, Second Department, affirmed the conviction. As a result of a series of CPL § 440.10 motions, the Westchester County Court determined that Claimant's counsel was ineffective, vacated the judgment and ordered a new trial. The County Court specifically held that the vacatur was because Claimant was deprived of his federal and state constitutional right to effective counsel under CPL § 440.10 (1)(h), not CPL § 440.10 (1)(g). The County Court also determined that Claimant had failed to establish actual innocence. Claimant was retried twice in 2011-the first ended in a mistrial and the second ended with a conviction in December of 2011. On appeal, the Second Department, reversed, and a new trial was ordered. In a fifth trial in September of 2017, a jury acquitted Claimant and he was released from jail.
In this instant action, Claimant filed a Verified Claim with the Clerk of this Court on April 30, 2018, and the State filed its Verified Answer with the Clerk of the Court on June 5, 2018, as well as served its first Demand for Discovery. In section 5 of the Demand, Defendant requested all information and documents, including" discovery requests, discovery responses pertaining to any criminal court proceeding involving the alleged occurrence of the Claim."
On December 11, 2018, Claimant filed an action against the Town of Eastchester, Westchester County, and individual officers involved in the investigation and arrest of Claimant.
The State maintains that the Claimant either intentionally or negligently, lost or destroyed a critical piece of evidence vital to the defense of this Claim, to wit: an audio recording of Claimant making an inculpatory statement to his mother, which Defendant has never had the opportunity to inspect. Defendant's counsel argues that "[t]he absence of such an inculpatory statement, especially in light of defending a claim of unjust conviction where the linchpin is innocence, fatally prejudices the State in defending this Claim."
Defendant's counsel avers that during the course of discovery, Defendant learned of the existence of an audio recording of a telephone call between Claimant and his mother, Stella Days, which took place on or about February 15, 2001, from the Mount Vernon Police Department. Claimant was at the precinct for his arrest for violating an order of protection and after his confession. It is not disputed that a recording of this call exists or existed at some point.
In his deposition, Lieutenant Michael Kiernan, of the Town of Eastchester Police Department, testified that he was familiar with the substance of this call because he was standing next to Claimant when he made the call. He further testified that he heard the Claimant say, "[t]hey got me for what I did to Archie." A recording of said phone call, along with notes, were vouchered as evidence on February 20, 2021, and labeled as "Orig[inal] tape & notes of a call between [Claimant] & mother."
Hon. Robert J. Prisco, then an Assistant District Attorney for the Westchester County District Attorney's Office ("WCDAO"), testified that he recalled having the recording in his possession and listening to the recording. His testimony was supported by the sign-in/sign-out sheet, which documents him retrieving the "tape & notes" from the Property Clerk on September 21, 2001. Judge Prisco further testified at his deposition that he specifically recalled hearing Claimant on that recording stating to his mother, in sum and substance, that they got me "for what I did to Archie." For reasons that the Court does not deem germane to these motions, Judge Prisco decided not to use the recording in his prosecution of Claimant. With respect to the WCDAO's copy of the recording, Judge Prisco testified that he recalled placing it into a box with other items that were connected to the matter, and that he maintained the box, along with other boxes, to prepare for the grand jury and eventually trial. He further testified that it was his understanding that the WCDAO's original copy of the tape is missing and has never been recovered. He further testified that there was another copy of the tape, which was made for Claimant's defense counsel at the time, Christopher Chan, Esq., which he personally provided to Mr. Chan.
During the course of discovery in this matter, Defendant's counsel submitted requests to the WCDAO for all materials from the criminal proceedings and met with Assistant District Attorney Lara Murphy to discuss such requests. Defendant's counsel states that it is his understanding that the WCDAO has searched through approximately 80 boxes of records looking specifically for the tape, to no avail and still remains missing from their files today.
Upon learning that a copy of the tape was provided to Claimant's defense attorney for the first two trials, Mr. Chan, and any subsequent attorney, such as Glenn Garber, Esq., and the law firm of Paul Weiss, was entitled to" presumptive access to the [previous] attorney's file" (citing Sage Realty v Proskauer Rose Goeta, et al., 91 N.Y.2d 30, 37 ([1997]), Defendant made a Supplemental Demand to Claimant, specifically demanding" said audio recording of the aforementioned telephone conversation between Claimant and Stella Days." On May 7, 2021, Claimant responded, via co-counsel, Robert Rickner, Esq., and denied that they ever had possession of said recording, stating that: "After a diligent search, Claimant and [his] counsel have been unable to find this audio-recording. There is no evidence in the records that it was ever turned over during the criminal proceedings. [Claimant's] position is that this tape is exculpatory and demanded it repeatedly from the prosecutors during the criminal investigation. They claimed it was lost. Given that the Claimant cannot disclose what he does not have, we have no materials responsive to this Request."
Defendant's counsel notes that on June 16, 2021, Mr. Chan sat for sworn testimony on this specific issue. Mr. Chan testified that he recalled receiving a copy of the telephone conversation between Claimant and his mother Stella Days from Judge Prisco. He further testified that, in addition to listening to the tape, he recalled going to the jail and discussing it with the Claimant. Mr. Chan also testified that after representing Claimant in the first two criminal trials, he recalled meeting with Mr. Garber, and other members of the law firm of Paul Weiss. He testified that he specifically recalled handing the audio tape directly to Mr. Garber in Mr. Garber's office.
Thereafter on June 21, 2021, Defendant issued a Second Supplemental Demand to Claimant for a copy of the tape Mr. Chan swore that he personally gave to Mr. Garber. Defendant's counsel avers that he never received any formal or even informal response to the Second Supplemental Demand.
On August 31, 2022, this Court issued a So-Order Subpoena directing WCDAO to produce to the Court "[a] copy of or the original audio recording of any phone call Selwyn Days made while at the Mt. Vernon Police Department on February 15, 2001, or February 16, 2001, which were collected as part of the investigation and prosecution of State v. Days, Ind. No. 469/01."
Defendant's counsel argues that the loss or destruction of the tape, which counsel considers "key evidence" is extremely prejudicial to Defendant and fatally compromises the defense of this Claim. Counsel argues that because Claimant alleges that the audio recording confession at issue was forced and/or coerced, the loss or destruction of the tape leaves the State in the position of not having the only other recorded statement of Claimant from the day of the arrest-a statement made in the context of Claimant calling his own mother on his own volition. It is counsel's position, that instead of having incontrovertible evidence that Claimant stated, in his own voice and to his own mother that "they got me for what I did to Archie," the State is now deprived of" appropriate means to confront" Claimant's contention of innocence" with incisive evidence of his guilt, which undoubtedly will" turn [ ] [this] trial [ ] into [a] speculative spectacle [ ] based on rank 'swearing contests'." Counsel further argues that any allegation by Claimant that the tape is of no importance due to the prosecution's choice not to use it as evidence is meritless because the circumstances in this matter are quite different. Specifically, there was no guarantee that Claimant would take the stand in the criminal trial making him subject to cross-examination of the statements made on the tape, whereas in this case, Claimant has no choice but to testify.
Now, the Defendant argues that it was deprived of the opportunity to confront the central witness of this case with a key piece of evidence-a recording of his own voice made not to law enforcement, but to his mother. Secondly, unlike in criminal trials, where the prosecution strategically decided not to use the tape as a means to get Claimant's mother to take the stand, who has since died, here, there is no such strategic calculation to be made. Thirdly, counsel goes on to argue, if the Defendant had the tape, there would be no question that it would be offered as evidence in defending this action and could have been easily authenticated by Claimant himself or other witnesses familiar with his and his mother's voices. Instead, counsel argues that the defense is now crippled without this critical piece of evidence, which would be the most impartial "witness" to what really occurred, and such a piece of physical evidence may be far more instructive and persuasive to the trier of fact than oral or photographic descriptions. It is, therefore, Defendant's position that the only proportionate remedy under these circumstances is dismissal.
In opposition to Defendant's motion and in support of Claimant's cross motion, Claimant's counsel gives a lengthy recitation of the background leading up to Brian Macreery (a former ADA from Westchester County), of Deren, Genett & Macreery, and Roberto Finzi (a former Assistant U.S. Attorney in the South District of New York) of Paul, Weiss, Rifkin, Wharton and Garrison, along with other counsel from Paul, Weiss (hereinafter collectively referred to as the "Defense Team"), taking over the defense of Claimant's criminal matters. Counsel avers that the trial and appellate files were acquired by Mr. Macreery, and states that "it is believed that he acquired everything that trial counsel, Christopher Chan, [Esq.] had." Counsel maintained duplicate files, however, as the case grew, Paul Weiss became the main source for the discovery and work product. Mr. Garber asserts that Claimant's counsel had frequent in-person and telephonic meetings during the course of the criminal matters, and that they shared everything, including all discovery, work product, and strategic thinking.
Claimant's counsel states that during the course of the criminal matters, the prosecution maintained a binder with trial exhibits, which expanded each time a trial occurred, and that by the end of trial five, there were more than 600 exhibits. Counsel states that the prosecution's trial binder referenced a call recording and notes about a call between Claimant and Stella Days at the Mt. Vernon Police Department, as People's Exhibits 156 and 157, but neither the recording nor the notes were provided. Counsel avers neither he nor anyone on the Defense Team, have ever possessed the recording, and according to counsel, they "first learned that the prosecution lost it prior to trial three, which would have been after the 440 hearing and sometime in early 2011."
According to Claimant's counsel, the missing recording became an issue in July of 2016, after the reversal of the conviction and prior to trial five, contrary to Defendant's assertion that it was not an issue in the criminal proceeding.
Counsel avers that in preparation of his papers on this cross motion, counsel conferred with Claimant's false confession expert, Dr. Richard Leo, who indicated that the recording is "highly relevant to Days's state of mind, given its timing."
With respect to Mr. Chan and the tape, Claimant's counsel begins by arguing that Mr. Chan is not the respected attorney that the State portrays him to be, and that he was disciplined at least twice for ethics violations. Claimant's counsel states that Mr. Chan "lied at his deposition about providing the recording to [him], and he simply is not a credible witness that can be relied upon for the State's spoliation motion, and on which this motion hinges." Counsel further notes that even Mr. Prisco testified at his deposition that Mr. Chan is not trustworthy. Counsel refers the Court to Mr. Chan's deposition taken on June 16, 2021 and asks the Court to not only review the transcript, but also review the video recording of the deposition so as to adequately assess his credibility. In sum, counsel has laid out several discrepancies and inconsistencies in Mr. Chan's different sworn statements and puts into serious question Mr. Chan's credibility in toto and most importantly with respect to whether the recording was ever turned over to the Defense Team. Counsel further argues that "the thrust of the ineffective assistance claim was that Mr. Chan had a fee dispute with Stella Days, and therefore failed to investigate [Claimant]'s alibi, among other lapses of representation." A 440 hearing before Hon. Jeffrey Cohen resulted in a finding that all the alibi witnesses were credible and that Mr. Chan rendered ineffective assistance of trial counsel (People v. Days, 1206 Misc.3d 1205(A) [Westchester Cty. Ct. 2009]).
Next, Claimant's counsel brings to question the lost roll of transparent tape and notes and argues that Judge Prisco's account of the circumstances surrounding the lost tape and notes is "dubious". Counsel states that Judge Prisco "was scrupulous in documenting everything, yet there is no record of him ever giving the tape to Buddington or Mr. Chan, either in writing or on the record and [Judge] Prisco could not provide an explanation." Counsel further contends that the "lack of documentation is particularly troubling given that the standard practice for any prosecutor is to document all discovery disclosures, usually with written acknowledgements of receipt from defense counsel, or statement on the record what was turned over. Here, none of this occurred, leaving only inconsistent memories many years later." Counsel further argues that "[Judge] Prisco's story as to why he did not use the tape at the first and second trial is confounding So, not only did the defense want the tape in the criminal proceedings, but it also certainly wants it again now, especially given the convenient and arguably self-serving, rendition offered by Lt. Kiernan and Judge Prisco.
In further support of its motion and in opposition to Claimant's cross-motion, Defendant's counsel states that contrary to Claimant's assertion that the State admitted it had no evidence that Mr. Garber lost or destroyed the tape, Mr. Garber's "admissible, sworn testimonial evidence" establishes that Mr. Garber did, in fact, possess the tape. Defendant's counsel opposes Mr. Garber's characterization as a liar, and attacks by Mr. Garber on Mr. Chan's ability and fitness as an attorney. Counsel further opposes Mr. Garber's attack on the integrity of Judge Prisco and reduces it to "a desperate attempt to attack the integrity of everyone else calling into question his role in the missing tape."
In response to Claimant's counsel's pointing out of "slight differences in the testimony of Mr. Chan and Judge Prisco," Defendant's counsel argues that their accounts of what Claimant said during the call are, in sum and substance, the same statement, and that the "same goes for Mr. Chan's account of having a microcassette versus Judge Prisco's account of transferring the microcassette to an audiotape."
Next, Defendant's counsel argues that Claimant's cross-motion must fail because the State is not responsible for the actions of an Assistant District Attorney because an assistant district attorney is not a state actor.
Lastly, Defendant's counsel argues that an evidentiary hearing is unnecessary, but states that it "[w]elcomes any opportunity to further question Mr. Garber" about what happened to the tape, "[a]nd because Mr. Garber is a central figure in this dispute, his live testimony under oath would be absolutely necessary." Counsel then goes on to reserve its right to move for disqualification of Mr. Garber as Claimant's attorney, as he is emerging more and more as a witness to the key events of this case."
In reply to Defendant's opposition to the cross motion, Claimant's counsel argues that he has proven spoliation insofar as the lost tape is to be considered to be destroyed evidence for spoliation purposes, and proof that evidence was lost due to negligence is sufficient to establish a culpable mental state justifying sanctions against the offending party, such as an adverse inference. Counsel further argues that "the State's claim of spoliation must fail as a matter of law, because Mr. Garber never possessed the tape, but even if he did, it would have been during the criminal case when there was no obligation on Mr. Garber or anyone on the defense team to preserve it."
Counsel contends that the State, unlike the Defense Team, did have a duty to preserve the tape throughout the criminal case, and it was lost during the prosecution, because unlike in other ordinary tort cases, where a district attorney's office is not an agent of, or part of, the State, that principle is not applicable here. Counsel, citing People v Lewis, 140 A.D.3d 1593, 1595 [3d Dept 2016], argues that it is well-established that, "a prosecutor serves as an officer of the court and a representative of the People of the State" and, [t]herefore, the [WCDAO] is a state actor, for this analysis, and the law suggests that its conduct, which compromises the rights of private litigants, should be imputed to the State in a subsequent civil proceeding in which the State is also a party." It is counsel's position that:
this is not a typical civil case. A wrongful conviction claim under Court of Claims Act § 8-b is a unique action which requires special consideration for the Claimant. In the very first section of the Act, the legislature expressed that, "innocent persons who have been wrongly convicted of crimes and subsequently imprisoned have been frustrated in seeking legal redress due to a variety of substantive and technical obstacles in the law" and that "it is the intent of the legislature that the court, in exercising its discretion give due consideration to the destruction of evidence" § 8-b(1) (emphasis added). Here, there is no question that the district attorney, who represents the State, lost the tape at a time when the office had a duty to preserve it. So, in addition to regular spoliation law, which supports Claimant's request for sanctions, § 8-b(1) independently calls for relief in this case.
Lastly, Claimant's counsel argues that discovery ended before the State's spoliation motion, and therefore, its attempt to re-open discovery should be denied.
Law And Analysis
There is no dispute that the audio recording of a telephone call between Claimant and his mother, Stella Days, which took place on or about February 15, 2001, from the Mount Vernon Police Department is missing. There is no real dispute as to the sum and substance of the contents of that call. What is at issue here is not factual. The first issue to be determined is who is culpable, and then once culpability has been assigned, how severe a sanction is warranted under the circumstances.
Spoliation is the destruction of evidence. Although originally defined as the intentional destruction of evidence arising out of a party's bad faith, the law concerning spoliation has been extended to the non-intentional destruction of evidence A correlating trend toward expansion of sanctions for the inadvertent loss of evidence recognizes that such physical evidence often is the most eloquent impartial 'witness' to what really occurred, and further recognizes the resulting unfairness inherent in allowing a party to destroy evidence and then to benefit from that conduct or omission. The trend is particularly pronounced in litigation involving products liability, but also is found in negligence cases.
Under New York law, spoliation sanctions are appropriate where a litigant, intentionally or negligently, disposes of crucial items of evidence involved in an accident before the adversary has an opportunity to inspect them. We have found dismissal to be a viable remedy for loss of a 'key piece of evidence' that thereby precludes inspection (Kirkland v New York City Housing Authority, 236 A.D.2d 170 [1st Dept 1997]) (internal citation omitted).
On a motion for spoliation sanctions, "the moving party must establish that (1) the party with control over the evidence had an obligation to preserve it at the time it was destroyed; (2) the records were destroyed with a "culpable state of mind," which may include ordinary negligence; and (3) the destroyed evidence was relevant to the moving party's claim or defense (Duluc v AC & L Food Corp., 119 A.D.3d 450 [1st Dept 201]) [internal citations marks omitted]. "In deciding whether to impose sanctions, courts look to the extent that the spoliation of evidence may prejudice a party, and whether a particular sanction is necessary as a matter of elementary fairness" Id. at 451-452. "The burden is on the party requesting sanctions to make the requisite showing" Id. at 452.
The imposition of sanctions for the spoliation of evidence involves the exercise of broad judicial discretion (see Ortega v City of New York, 9 N.Y.3d 69, 76 [2007]). Severe sanctions such as striking a pleading or issuing an order of preclusion is reserved for the most egregious of situations, such as where it is demonstrated that the evidence is unavailable due to deliberate or contumacious conduct (see Denoyelles v Gallagher, 40 A.D.3d 1027 [2d Dept 2007]; O'Connor v Syracuse Univ., 66 A.D.3d 1187, 1191 [3d Dept 2009], lv dismissed 14 N.Y.3d 766 [2010]; Osterhoudt v Wal-Mart Stores, 273 A.D.2d 673, 674-675 [3d Dept 2000]), or where a claim or defense is fatally compromised because the unavailability of evidence leaves a party unable to bear its binder of proof (see Hotel 57 LLC v Harvard Maintenance, Inc., 29 A.D.3d 462 [1st Dept 2006]; Baglio v St. John's Queens Hosp., 303 A.D.2d 341, 342-343 [2d Dept 2003]; cf. Mylonas v Town of Brookhaven, 305 A.D.2d 561 [2d Dept 2003]; Chiu Ping Chung v Caravan Coach Co., 285 A.D.2d 621, 621-622 [2d Dept 2001]). It matters not whether the spoliation was intentional or negligent; rather, the nature of the sanction should relate to the degree to which the moving party has been prejudiced by the loss of the evidence (see Denoyelles v Gallagher, 40 A.D.3d at 1027; Baglio v St. John's Queens Hosp., 303 A.D.2d at 342; Chiu Ping Chung v Caravan Coach Co., 285 A.D.2d at 621-622).
Claimant's counsel argues that culpability cannot lie with them as the Defense Team never possessed the tape, and even if it did, the prosecution was under the obligation to preserve the tape - not the Defense Team. The Court agrees. While the Court does find that Claimant's counsel's assertions that the Defense Team never possessed the tape to be incredible, the Court also finds that Defendant has failed to satisfactorily demonstrate that the Claimant had the obligation to preserve the tape at the time that it was lost or destroyed. The Court has thoroughly reviewed the case law cited by Defendant's counsel and does not find them compelling in the instant matter under these specific circumstances and jurisdiction. Accordingly, the Court cannot assign culpability to the Claimant for the spoliation of the recording and must deny Defendant's motion in its entirety.
Defendant argues that the State is not responsible for the actions of an Assistant District Attorney, who is a local officer. The Court agrees. In Fisher v State of New York, 10 N.Y.2d 60, 61 [1961], the Court of Appeals held that while a District Attorney prosecutes crimes in the name of the People of the State of New York, "he[/she] does not act as a state officer or employee in any such sense as would make the State liable for his[/her] wrongdoing." "Furthermore, the State is not subject to liability in the Court of Claims for the consequences of official acts of a district attorney, under a theory of respondeat superior because he[/she] is not an officer or employee of the State" (Fuller v State of New York, 11 A.D.3d 365, 366 [1st Dept 2004]). The Court in Whitmore v State of New York, 55 A.D.2d 745 [3d Dept 1976], held that "[t]he rule that an Assistant District Attorney is not a State officer for whose tortious acts the State may be held liable, but is rather a local officer for whose torts the State is not responsible, is so well-established that no discussion is necessary" (citing, Fisher v State of New York, 10 N.Y.2d 60 [1961]; Ritter v State of New York, 283 AD 833 [3d Dept 1954]; Fishbein v State of New York, 282 AD 600 [3d Dept 1953]). The Court, therefore, cannot assign culpability to the State of New York for the spoliation of the recording, and must deny Claimant's cross motion in its entirety.
This leaves the parties and the Court in difficult position as no one denies that the tape existed and no one denies the contents of the tape, however, the Court is satisfied that the State may still have ample opportunity to cross-examine the Claimant regarding the tape and the statements he made to his mother in the recording.
Accordingly, it is hereby
ORDERED, that M-98556, and CM-98572 are denied.
Papers Read:
1. Notice of Motion, Affirmation in Support of Defendant's Spoliation Motion, Memorandum of Law, Exhibits Annexed
2. Claimant's Notice of Cross Motion for Spoliation and Sanctions, Memorandum of Law in Response to Defendant's Spoliation Motion and Cross Motion for Spoliation, Affirmation in Response to Defendant's Spoliation Motion and in support of Cross Motion for Spoliation, Exhibits Annexed
3. Defendant's Opposition to Claimant's Cross-Motion & Reply in Further Support of Its Motion
4. Memorandum of Law in Response to Defendant's Spoliation Motion and Cross Motion for Spoliation