Opinion
# 2019-045-023 Claim No. 132020 Motion No. M-93075 Cross-Motion No. CM-93229
07-24-2019
JOSIAH GALLOWAY v. THE STATE OF NEW YORK
Law Offices of Thomas F. Liotti, LLC By: Thomas F. Liotti, Esq. Hon. Letitia James, Attorney General By: Antonella Papaleo, Assistant Attorney General
Synopsis
Defendant's motion to dismiss 8-b claim due to failure to comply with requirements of 8-b (3) and 8-b (4). Claimant cross moves to amend claim and for summary judgment.
Case information
| UID: | 2019-045-023 |
| Claimant(s): | JOSIAH GALLOWAY |
| Claimant short name: | GALLOWAY |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 132020 |
| Motion number(s): | M-93075 |
| Cross-motion number(s): | CM-93229 |
| Judge: | GINA M. LOPEZ-SUMMA |
| Claimant's attorney: | Law Offices of Thomas F. Liotti, LLC By: Thomas F. Liotti, Esq. |
| Defendant's attorney: | Hon. Letitia James, Attorney General By: Antonella Papaleo, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | July 24, 2019 |
| City: | Hauppauge |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The following papers were read and considered by the Court on these motions: Defendant's Notice of Motion to Dismiss Claim; Defendant's Affirmation in Support of Motion to Dismiss Claim with annexed Exhibit A-C; Claimant's Notice of Cross-Motion and in Opposition to Defendant's Motion to Dismiss; Claimant's Affirmation in Opposition to Defendant's Motion to Dismiss and in Support of Cross-Motion with annexed Exhibits 1- 17; Claimant's Memorandum of Law; Defendant's Affirmation in Opposition to Claimant's Cross-Motion and in Further Support of Defendant's Motion to Dismiss; and Claimant's Reply Affirmation in Support of Claimant's Cross-Motion for Summary Judgment with annexed Exhibit A.
Defendant, the State of New York, has brought this motion pursuant to Court of Claims Act §§ 8-b (3), and (4) seeking an order dismissing the claim. In response, claimant, Josiah Galloway, has brought a cross-motion seeking an order granting claimant permission to amend his claim as well as an order pursuant to CPLR 3212 and Court of Claims Act § 8-b (5) granting claimant summary judgment.
On September 21, 2018 claimant filed a Verified Claim asserting a claim for unjust conviction and imprisonment pursuant to Court of Claims Act § 8-b. Claimant alleges in the Verified Claim that he was falsely imprisoned for more than 10 years beginning in 2008 and ending when he was released on September 13, 2018.
In his Verified Claim claimant states that the incident which caused him to be arrested occurred on May 15, 2008, at approximately 1:30 a.m. at West Columbia Street and Main Street near the Long Island Railroad and MTA bus stations. Thereafter in June 2008, claimant was arrested and following a jury trial was convicted of attempted murder and related felony charges in the County Court of Nassau County on March 9, 2009. Claimant was sentenced to a term of 25 years in prison on November 23, 2009. Claimant alleges that after serving 10 years in prison, the Nassau County District Attorney's Office determined that there had been a misidentification of claimant and that another individual had committed the crimes of which claimant was convicted. On September 13, 2018, the Nassau County District Attorney's Office moved to dismiss all the charges against claimant and he was released from custody. Claimant attached to the Verified Claim a copy of the Order of the Honorable Teresa K. Corrigan, Supervising Judge of the Nassau County Court, filed on September 18, 2018, in which Judge Corrigan directs that the Civil Judgment ordered on November 25, 2009 is vacated since the case against claimant was dismissed and his conviction was vacated and dismissed on September 13, 2018. Claimant also attached to the Verified Claim a copy of another Order of Judge Corrigan filed on September 18, 2018, in which Judge Corrigan directs that the Restitution/Reparation Judgment ordered on November 25, 2009 is vacated since the case against claimant was dismissed and his conviction was vacated and dismissed on September 13, 2018.
Defendant seeks dismissal of the claim arguing that the Verified Claim fails to comply with the statutory requirements of Court of Claims Act § 8-b (3). Defendant asserts that the Verified Claim: (1) fails to demonstrate by documentary evidence that claimant was convicted of a crime or crimes; (2) fails to include documentary evidence to demonstrate that claimant was at some point sentenced to a term of imprisonment; (3) fails to demonstrate by documentary evidence that claimant served a particular term of imprisonment; and (4) fails to demonstrate by documentary evidence or by detailed allegations that the criminal conviction was dismissed on one of the allowable grounds of CPLR 440.10.
In response claimant has attached a copy of the Nassau County District Court Felony Complaint dated June 7, 2008 wherein claimant was charged with attempted murder in the second degree, assault in the first degree subdivision 1, assault in the first degree subdivision 2, criminal use of a firearm in the first degree, and criminal possession of a weapon in the second degree.
Claimant has also submitted a copy of the Order of Judge Corrigan wherein claimant's convictions under Indictment #1315N-08 were vacated pursuant to CPL § 440.10 (1) (g) and Indictment #1315N-08 was dismissed.
Court of Claims Act § 8-b (3) states that in order to present the claim for unjust conviction and imprisonment, claimant must establish by documentary evidence that:
"(a) he has been convicted of one or more felonies or misdemeanors against the state and subsequently sentenced to a term of imprisonment, and has served all or any part of the sentence; and
(b) (I) he has been pardoned upon the ground of innocence of the crime or crimes for which he was sentenced and which are the grounds for the complaint; or (ii) his 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 judgement 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; or (C) comparable provisions of the former code of criminal procedure or subsequent law; or (D) the statute, or application thereof, on which the accusatory instrument was based violated the constitution of the United States or the state of New York; and
(c) his claim is not time-barred by the provisions of subdivision seven of this section."
Claimant failed to establish any of the criteria required by Court of Claims Act § 8-b (3) by documentary evidence in his Verified Claim however it is the existence of the fact as opposed to the documentation of the fact that is a statutory requirement conditioning suit (Harris v State of New York, 38 AD3d 144 [2d Dept 2007]).
Claimant has submitted a copy of his indictment #01315N-2008 dated June 16, 2008 (Cl Exh 12) which shows that on that date claimant was indicted for the crimes of attempted murder in the second degree, assault in the first degree (2 counts), criminal use of a firearm in the first degree and criminal possession of a weapon in the second degree (2 counts). Claimant has also submitted a portion of the certified transcript of his criminal trial wherein it recites the jury verdict finding claimant guilty on all counts charged under indictment #01315N-2008 (Cl Exh 13).
Claimant submitted a copy of the certified transcript of his Criminal Court sentencing proceeding dated November 23, 2009 wherein claimant was sentenced under count one of indictment #01315N-2008 to a determinate term of imprisonment of twenty-five years and five years post release supervision for the crime of attempted murder in the second degree; under counts two and three of indictment #01315N-2008 to two determinate terms of imprisonment each for twenty-five years, each with five years post release supervision for the crimes of assault in the first degree (two counts); under count four of indictment #01315N-2008 to a determinate term of imprisonment of twenty-five years and five years post release supervision for the crime of criminal use of a firearm in the first degree; and under counts five and six of indictment #01315N-2008 to two determinate terms of imprisonment each of fifteen years, with five years post release supervision for the crimes of criminal possession of a weapon in the second degree (two counts) (Cl Exh 15).
Claimant also submitted a copy of the certified transcript of his Court proceeding held on September 13, 2018 wherein claimant's convictions under indictment #01315N-2008 were vacated pursuant to CPL 440.10 (1) (g) (Cl Exh 16). The Court further ordered that indictment #01315N-2008 be dismissed and sealed. Claimant was released from custody on September 13, 2018.
Imperfect compliance with the preliminary proof requirements of Court of Claims Act § 8-b (3) is curable by amendment (Turner v State of New York, 50 AD3d 890 [2d Dept 2008]; Harris v State of New York, 38 AD3d 144 [2d Dept 2007]). This Court finds that claimant's submissions in opposition to defendant's motion satisfy the documentary proof requirements of Court of Claims Act § 8-b (3). Thus, claimant is permitted to amend his claim as put forth in his Proposed Amended Verified Claim. Claimant is directed to also attach to his Amended Verified Claim a copy of Exhibits 12 -17 from his cross motion as Exhibits to his Amended Verified Claim prior to filing the Amended Verified Claim.
Lastly, although the original Verified Claim was inartfully crafted, claimant does state in the Verified Claim that all the charges against him were dismissed based on the prosecutor's motion as joined in by the defense. Additionally, claimant states in his original Verified Claim that the prosecutor recognized that there had been a misidentification of claimant and that another individual had committed the crimes of which claimant was convicted. It can be reasonably inferred from this information that the prosecutor based his motion to dismiss the charges against claimant on the enumerated ground of newly discovered evidence pursuant to CPL 440.10 (1) (g). Most significantly, claimant is well within the two year period for filing a claim in this action and any purported deficiency in failing to specifically state CPL 440.10 in the original Verified Claim does not exist in claimant's Amended Verified Claim. Thus, given the specific facts and circumstances of this case, this Court based on the foregoing, as well as the strong public policy in deciding cases on the merits while also protecting against baseless claims, will not require claimant to file a de novo claim in this matter (Turner v State of New York, 50 AD3d 890 [2d Dept 2008]; Harris v State of New York, 38 AD3d 144 [2d Dept 2007]; Acosta v State of New York, 270 AD2d 164 [1st Dept 2000]).
Defendant also seeks dismissal of the claim pursuant to Court of Claims Act § 8-b (4) arguing that claimant has failed to demonstrate the likelihood of success at trial in proving his innocence and that his own actions did not bring about his conviction.
Court of Claims Act § 8-b (4) states that:
"The claim shall state facts in sufficient detail to permit the court to find that claimant is likely to succeed at trial in proving that (a) 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 (b) he did not by his own conduct cause or bring about his conviction. The claim shall be verified by the claimant. If the court finds after reading the claim that claimant is not likely to succeed at trial, it shall dismiss the claim, either on its own motion or on the motion of the state."
The Court finds that claimant has stated facts in sufficient detail to satisfy the requirements of Court of Claims Act § 8-b (4).
Turning to claimant's cross motion for summary judgment Court of Claims Act § 8-b (5) states that in order to obtain a judgment in his favor, claimant must prove by clear and convincing evidence that:
"(a) he has been convicted of one or more felonies or misdemeanors against the state and subsequently sentenced to a term of imprisonment, and has served all or any part of the sentence; and
(b) (I) he has been pardoned upon the ground of innocence of the crime or crimes for which he was sentenced and which are the grounds for the complaint; or (ii) his 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 judgement 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; or (C) comparable provisions of the former code of criminal procedure or subsequent law; or (D) the statute, or application thereof, on which the accusatory instrument was based violated the constitution of the United States or the state of New York; and
(c) 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
(d) he did not by his own conduct cause or bring about his conviction."
The clear and convincing evidence standard requires the trier of fact to determine that it is highly probable that what claimant alleges is what actually happened (PJI 1:64). It is a higher standard than the likelihood of success or preponderance of evidence standard (PJI 1:64). Clear and convincing evidence is not equivocal or contradictory nor is it open to opposing inferences (Acosta v State of New York, 22 AD3d 367 [1st Dept 2005]; Alexandre v State of New York, 168 AD2d 472 [2d Dept 1990], appeal dismissed 77 NY2d 925 [1991]).
This Court finds that claimant has established by clear and convincing evidence that he was convicted of multiple felonies and served a portion of his sentence. Claimant has also established by clear and convincing evidence that his judgment of conviction was vacated pursuant to CPL 440.10 (1) (g) and that his indictment was dismissed (see Long v State of New York, 7 NY3d 269 [2006]). Accordingly, the Court finds that claimant has met his burden under Court of Claims Act §§ 8-b (5) (a) and 8-b (5) (b) and is entitled to partial summary judgment as to these two elements of his claim.
In order to obtain partial summary judgment under Court of Claims Act § 8-b (5) (c), claimant must establish by clear and convincing evidence that he did not commit any of the acts charged in the accusatory instrument. It is well established that an acquittal or reversal of criminal charges is not the equivalent to a finding of innocence (Reed v State of New York, 78 NY2d 1, 8 [1991]; Vasquez v State of New York, 263 AD2d 539 [2d Dept 1999]). "An acquittal may prevent relitigation of issues necessarily resolved in the defendant's favor at a subsequent criminal proceeding... [h]owever, where the subsequent proceeding is a civil one, involving a lower standard than proof beyond a reasonable doubt, an acquittal is not proof of innocence" (id.). Nor is the fact that claimant's indictment was dismissed in this matter clear and convincing proof of his innocence (id.). The Court finds that claimant has failed to establish, at this early juncture, this portion of his claim by clear and convincing evidence. Similarly, the Court finds that claimant has failed to establish by clear and convincing evidence that he did not by his own conduct cause or bring about his conviction under Court of Claims Act § 8-b (5) (d).
Therefore, based on the foregoing, defendant's motion to dismiss is denied and claimant's cross motion to amend his claim is granted. Accordingly, claimant is directed to serve and file his Amended Verified Claim, with additional Exhibits 12-17 from his cross motion, within 45 days of the date this Decision and Order is filed. Additionally, claimant's cross motion for summary judgment is granted in part as stated herein. Claimant's cross motion for summary judgment is denied in all other respects.
Claimant is directed to also attach to his Amended Verified Claim a copy of Exhibits 12 -17 from his cross motion as Exhibits to his Amended Verified Claim prior to filing the Amended Verified Claim.
July 24, 2019
Hauppauge , New York
GINA M. LOPEZ-SUMMA
Judge of the Court of Claims