Opinion
# 2018-018-977 Claim No. 131531 Motion No. M-92566
11-07-2018
TERRY L. MARICLE v. STATE OF NEW YORK
FRANZBLAU DRATCH, P.C. By: Brian M. Dratch, Esquire BARBARA D. UNDERWOOD Attorney General of the State of New York By: Bonnie Gail Levy, Esquire Assistant Attorney General
Synopsis
Defendant's motion to dismiss is denied. Claimant has set forth sufficient facts and, on the motion, the Court is obligated to accept the facts as alleged as true.
Case information
| UID: | 2018-018-977 |
| Claimant(s): | TERRY L. MARICLE |
| Claimant short name: | MARICLE |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 131531 |
| Motion number(s): | M-92566 |
| Cross-motion number(s): | |
| Judge: | DIANE L. FITZPATRICK |
| Claimant's attorney: | FRANZBLAU DRATCH, P.C. By: Brian M. Dratch, Esquire |
| Defendant's attorney: | BARBARA D. UNDERWOOD Attorney General of the State of New York By: Bonnie Gail Levy, Esquire Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | November 7, 2018 |
| City: | Syracuse |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Defendant brings a motion to dismiss the claim pursuant to CPLR 3211 (a) (2) lack of subject matter jurisdiction, (7) failure to state a cause of action, and (8) lack of personal jurisdiction. Claimant opposes the motion.
A copy of the claim filed with the Clerk of the Court of Claims on June 6, 2018 was served upon the Attorney General by certified mail return receipt requested on June 7, 2018. Defendant acknowledges the timely service and filing of the claim.
The claim seeks damages pursuant to Court of Claims Act section 8-b for unjust conviction and imprisonment. Defendant notes that the relief authorized by the statute dictates very specific pleading requirements and points to several alleged deficiencies in the claim. It is Defendant's position that the claim fails to allege or annex the proper documentation to show that:
(a) Claimant was convicted of a misdemeanor or felony and sentenced to a term of imprisonment (Claimant's certificate of conviction);
(b) The charges were dismissed pursuant to one of the specific subdivisions set forth in Court of Claims Act section 8-b (3) (b) (1);
(c) Claimant served all or any part of the sentence imposed;
(d) Claimant did not by his own conduct cause or bring about his conviction;
(e) The indictment was actually dismissed;
(f) That he did not commit any of the acts with which he was charged or his acts or omissions charged in the accusatory instrument did not constitute a felony or misdemeanor; and
(g) The indictment was not attached as alleged.
It is Defendant's position that these pleading failures require the Court to dismiss the claim for failure to comply with Court of Claims Act section 8-b.
Court of Claims Act section 8-b was enacted in 1984 to provide redress for those persons wrongfully convicted and incarcerated who are innocent of the charges (Court of Claims Act § 8-b; see Warney v State of New York, 16 NY3d 428, 434 [2011]). The statute demands very specific pleading requirements and a heightened standard of proof than for other tort claims. Specifically, the statute provides that in order to present a claim for unjust conviction and imprisonment, Claimant must establish by documentary evidence that:
"3 (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) [in relevant part]. . . (ii) . . ., his judgment of conviction was reversed or vacated provided that the judgement of conviction was reversed or vacated and the accusatory instrument was dismissed, on any of the following grounds: or. . . 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 of the state of New York; and
(c) his claim is not time-barred by the provisions of subdivision seven of this section."
The statute additionally requires that the claim shall state:
"4. 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. . . ."
(Court of Claims Act § 8-b [4]). If the claim does not meet these pleading requirements the statute directs the Court to dismiss the claim even sua sponte.
A Claimant, under the statute, must meet "a higher pleading standard than the CPLR" (Warney, 16 NY3d at 435; Retamozzo v State of New York, 36 Misc 3d 1237 [A] [Ct Cl 2012]). The fact that a judgment of conviction was reversed does not alone meet the pleading requirements or provide clear and convincing proof of a Claimant's innocence. "The People's inability to satisfy their burden of proof at the criminal trial is simply not equivalent to the requirements of Court of Claims Act section 8-b (4) that claimant state facts sufficient to support a finding that [he] is likely to succeed in proving that [he] did not commit the acts with which [he] was charged." (Reed v State of New York, 78 NY2d 1, 9 [1991]). There is also no presumption of innocence in a civil proceeding (Id.).
After reviewing the statute, case law, and the claim, this Court finds that Claimant has adequately met the pleading requirements in Court of Claims Act section three (a), (b) and (c), and section four. Claimant was convicted of two felonies, Count 1, Criminal Possession of a Controlled Substance in the Second Degree (Penal Law § 220.18 [2]) and Count 2, Unlawful Manufacture of Methamphetamine Third (Penal Law § 220.73 [3]). Claimant was sentenced to 9 years in State prison with 5 years post release supervision for Count 1, and 2½ years imprisonment with 1 year post release supervision for Count 2; the sentences were to run concurrently. Initially, Claimant was ordered to pay certain penalties and fines, however, Claimant was resentenced on December 11, 2015, to the same term of imprisonment, but the restitution order was vacated. His conviction was reversed and the indictment dismissed on appeal by the Appellate Division, Third Department for legally insufficient evidence to support the conviction (Court of Claims Act § 8-b [3] [b] [ii]). Claimant has attached a copy of the Appellate Division decision which is sufficient documentary support since no specific documentation is required by the statute (Smith v State of New York, 55 AD3d 430 [1st Dept 2008]; Lanza v State of New York, 130 AD2d 872, 873 [3d Dept 1987]).
Moreover, Claimant has set forth sufficient facts in the claim and with the attached Appellate Division decision to permit the Court, at this juncture, to find that he is likely to succeed at trial in proving that he did not knowingly possess the substances or laboratory equipment for the manufacture of methamphetamine to commit either of the charged offenses, and he did not do anything on his own to bring about his conviction. He maintains his innocence, and that he did not possess, utilize, manufacture, or ingest any illegal substance or own the residence garage or any items found in it. On the motion, the Court is obligated to "accept the facts as alleged in the [claim] as true" (Warney, 16 NY3d at 435, quoting Leon v Martinez, 84 NY2d 83, 87 [1994]). Credibility and factual determinations are not permitted at this stage of the proceedings (Warney, 16 NY3d at 435).
Accordingly, based upon the foregoing, Defendant's motion is DENIED.
November 7, 2018
Syracuse, New York
DIANE L. FITZPATRICK
Judge of the Court of Claims The Court has considered the following in deciding this motion: 1) Notice of Motion. 2) Affirmation of Bonnie Gail Levy, Esquire, Assistant Attorney General, in support, with exhibit attached thereto. 3) Affirmation of Brian M. Dratch, Esquire, in opposition.