Opinion
# 2020-034-520 Claim No. 126292 Motion No. M-95689
03-26-2021
JOSUE ORTIZ v. THE STATE OF NEW YORK
LAW OFFICES OF WAYNE C. FELLE, P.C. BY: WAYNE C. FELLE, ESQ. HON. LETITIA JAMES New York State Attorney General BY: TIMOTHY J. FLYNN, ESQ. Assistant Attorney General
Synopsis
Defendant's summary judgment motion dismissing Court of Claims § 8-b wrongful conviction claim granted on the basis that the conviction was vacated pursuant to CPL 440.10 (1) (h), which is not a permissible ground for recovery in section 8-b (3) (b) (ii) (A).
Case information
| UID: | 2020-034-520 |
| Claimant(s): | JOSUE ORTIZ |
| Claimant short name: | ORTIZ |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 126292 |
| Motion number(s): | M-95689 |
| Cross-motion number(s): | |
| Judge: | MICHAEL E. HUDSON |
| Claimant's attorney: | LAW OFFICES OF WAYNE C. FELLE, P.C. BY: WAYNE C. FELLE, ESQ. |
| Defendant's attorney: | HON. LETITIA JAMES New York State Attorney General BY: TIMOTHY J. FLYNN, ESQ. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | March 26, 2021 |
| City: | Buffalo |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The following papers have been submitted on Defendant's motion for summary judgment:
1. Verified Claim, verified May 13, 2015, filed June 15, 2015;
2. Answer, verified July 23, 2015, filed July 24, 2015;
3. Notice of Motion, dated July 15, 2020, filed July 20, 2020;
4. Affidavit in Support of Motion for Summary Judgment of Timothy J. Flynn, sworn to July 15, 2020, with attached exhibits;
5. Reply Affirmation to Defendant's Supplemental Motion to Dismiss of Wayne C.
Deemed an answering affirmation (see CPLR 2214 [b]).
Felle, dated July 31, 2020, filed July 31, 2020, with attached exhibits, including, as exhibit B, the Affidavit of Thomas P. Franczyk, sworn to July 27, 2020;
6. Reply Affidavit in Further Support of Defendant's Motion for Summary Judgment of Timothy J. Flynn, sworn to August 7, 2020, filed August 10, 2020.
This motion represents the second application by Defendant for summary judgment dismissing a claim to recover for wrongful conviction pursuant to Court of Claims Act § 8-b. For reasons that follow I will now grant the motion and dismiss the claim.
Claimant has sought to recover for his alleged wrongful conviction and imprisonment in the shooting deaths of brothers Nelson and Miguel Camacho in an apartment they reportedly shared in the City of Buffalo on November 11, 2004. Thereafter, on November 16, 2004, Claimant confessed to killing those two individuals after being transported to the Buffalo Police Department's Major Crimes Unit, where he was interviewed by Detective Mark R. Stambach. He was then taken into custody and charged with the two homicides. Mr. Ortiz was subsequently indicted by an Erie County Grand Jury on December 8, 2004, on charges that extended to four counts of Murder in the First Degree. Over that time he was also hospitalized for psychiatric treatment after a psychiatrist who had examined him pursuant to CPL article 730 on November 19, 2004 determined that he was psychotic, and suffering from schizophrenic illness and depression. After Claimant underwent hospital treatment for approximately one month the psychiatrist found that his condition had improved to a point where he possessed the capacity to understand the proceedings against him, and to participate in his own defense. Following a competency hearing under CPL 730.30 in May, 2005, Mr. Ortiz was found competent to proceed.
In a later deposition in this matter Detective Stambach would acknowledge that Claimant's confession served as the sole evidentiary basis for his arrest at that time.
On March 22, 2006, Claimant entered a plea of guilty to two counts of Manslaughter in the First Degree (Penal Law § 125.20 [1]) in satisfaction of the indictment. As part of that proceeding the parties agreed that Mr. Ortiz would be sentenced to two concurrent determinate terms of incarceration for twenty-five years, followed by five years of post-release supervision. On June 11, 2006, Claimant was sentenced to the agreed-upon terms of incarceration, and was delivered to State custody to begin serving his prison sentence.
In November 2012 a Federal Grand Jury issued a superseding indictment charging four other individuals for the homicides. In that prosecution the United States Attorney's Office took the position that Claimant played no role in the homicides that served as the basis for his guilty plea.
In a motion filed in April 2013 (citing CPL 440.10 [1] [g] and [h]), and a supplemental motion filed in July 2013 (citing CPL 440.10 [1] [g-1]), Claimant sought to vacate his conviction based upon alleged newly-discovered evidence developed before the Federal Grand Jury during 2011 and 2012, the performance of DNA testing that purportedly excluded him as a participant in the homicides, and his actual innocence. The motion proceeded to a review in Erie County Court that resulted in a comprehensive 73-page Decision and Order (Franczyk, J.), granted February 7, 2014 directing that a hearing occur to determine whether Claimant's assertions in support of vacatur could be sustained by clear and convincing evidence. In so doing Judge Franczyk clearly rejected any review under CPL 440.10 (1) (g), which by its terms applies solely to convictions after trial, and clearly authorized testimony with respect to Claimant's free-standing claims of innocence under CPL 440.10 (1) (h). I will later address the disputed issue of whether Judge Franczyk also directed that the hearing extend to the exculpatory significance of DNA-related evidence, as developed in testings that reportedly occurred on May 25, 2012, December 14, 2012 and June 17, 2013.
The Erie County District Attorney's Office, which had prosecuted Mr. Ortiz in 2004-2006, initially opposed his efforts to vacate his conviction. However, as Claimant's motion proceeded to multiple days of testimony in late 2014 that office determined to withdraw its opposition to Claimant's motion. That change of position was reflected in a letter from District Attorney Frank A. Sedita, III, dated December 8, 2014, in which he noted that Mr. Ortiz had premised his vacatur request upon CPL 440.10 (1) (g-1). In proceedings that followed on December 9, 2014 Judge Franczyk issued an order vacating Claimant's conviction, and released him from custody pending his counsel's submission of a motion to dismiss the indictment. In that order Judge Franczyk recited that the vacatur was made "pursuant to CPL 440.10," but without identifying a particular provision therein. Subsequently, on January 26, 2015, Claimant filed a motion to dismiss the indictment. Judge Franczyk granted the motion on January 30, 2015, and later issued an order memorializing that relief "for the reasons stated on the record" on May 8, 2015, although again without amplification.
On June 15, 2015, Mr. Ortiz filed this claim, seeking to recover for wrongful conviction under Court of Claims Act § 8-b.
On February 6, 2020, Defendant filed a motion (motion No. M-95254) seeking summary judgment dismissing the claim on the ground that Claimant has failed to satisfy the requirements set forth within section 8-b to recover for such claims, and that the claim fails to state a cause of action. The State premised its request for relief on one specific argument: that since Claimant's initial conviction and incarceration resulted from a negotiated guilty plea, he must be deemed to have thereby caused or brought about his own conviction as a matter of law, such that Mr. Ortiz would now be precluded from any recovery under Court of Claims Act § 8-b (4) (b).
Following oral argument on March 16, 2020 - the last day before the Covid-19 crisis caused the suspension of standard court operations - I reserved decision on the matter. Thereafter, by Decision and Order dated May 15, 2020, filed May 18, 2020, and a Corrected Decision and Order, dated July 10, 2020, filed July 13, 2020, I denied dismissal of the claim on the ground asserted, i.e. that as a matter of law the entry into a negotiated plea of guilty caused Claimant to have brought about his own conviction for purposes of section 8-b (4) (b). In so doing I noted that one of the three bases upon which Claimant had moved to vacate his conviction - CPL 440.10 (1) (g-1) - expressly applied to a circumstance where the conviction resulted from a guilty plea, when based upon post-conviction forensic DNA testing that demonstrated the probability that the defendant was actually innocent of the offense for which he was convicted. I understood that section (g-1), which was enacted in 2012 as part of an amendment of CPL 440.10 and 440.30 that specifically addressed DNA-based challenges to criminal convictions, had not been added to the five previously-enacted grounds within section 440 that would support a claim to recover for wrongful conviction under Court of Claims Act § 8-b (3) (b) (ii) in the absence of an acquittal following retrial. Nevertheless, I deemed section (g-1) to be in pari materia with section (g), which is one of the five listed grounds, such that a vacatur of a plea based upon subsequent DNA testing would fall within the scope of section (g).
CPL 440.10 (1) (g), which applied to new evidence discovered following trial convictions, had previously been recognized as supporting later DNA-based challenges to those convictions. Section (g-1) later provided a specific framework for challenging trial convictions through subsequent DNA testing, as well as a new allowance for the use of subsequent DNA testing to vacate plea-based convictions.
In denying the State's motion for summary judgment under Court of Claims Act § 8-b (4) (b), based upon the assertion that Mr. Ortiz's guilty plea contributed to his conviction as a matter of law, I allowed for further motion practice addressed to the issue of whether Judge Franczyk's order vacating the conviction had been premised upon a ground that could support a claim for wrongful conviction, as required under section 8-b (3) (b) (ii). In that regard I noted that District Attorney Sedita cited section 440.10 (1) (g-1) in his letter of December 8, 2014, in which he withdrew his office's objection to the vacating of the plea, and that Judge Franczyk referenced CPL 440.10 without further specificity in his Order of December 9, 2014 that vacated the conviction. Judge Franczyk's subsequent Order of May 8, 2015 dismissing the indictment "for the reasons stated on the record" at the return of the motion to dismiss on January 30, 2015 similarly failed to address the specific statutory basis upon which he had acted. Significantly, the submissions before me at that time did not extend to the transcripts of the proceedings on December 9, 2014 and January 30, 2015, and the parties did not otherwise address whether Judge Franczyk had identified a particular provision within section 440.10 in either of those appearances. Nor did the submissions include the transcript of the four days of testimony (September 2 and 3, October 8 and November 7, 2014) from the CPL 440.10 hearing that had taken place before District Attorney Sedita withdrew his opposition to the vacating of Claimant's conviction in December 2014.
Defendant has now filed the instant motion, again seeking summary judgment dismissing the claim. I will initially address the second of the two arguments made by the State in support of dismissal, since it addresses the issue left unresolved in my earlier decision, i.e whether Judge Franczyk's vacating of Claimant's conviction occurred in whole or in part under CPL 440.10 (1) (g-1). On review I now accept Defendant's argument that the conviction was not vacated under CPL 440.10 (1) (g-1), and instead was premised solely upon CPL 440.10 (1) (h), and that dismissal is required on that basis.
"To recover under Court of Claims Act § 8-b in the absence of an acquittal upon retrial . . . the criminal judgment must have been reversed or vacated on one or more statutorily enumerated grounds" (Jeanty v State of New York, 175 AD3d 1073, 1074 [4th Dept 2019], lv denied 34 NY3d 912 [2020]). Those five grounds are set forth within CPL 440.10 (1) (a), (b), (c), (e) and (g) (id. citing Court of Claims Act § 8-b [3] [b] [ii] [A]). Critically, section 8-b allows for recovery "only where the criminal court actually vacated the judgment on an enumerated ground, and not where the criminal court might have vacated the judgment on an enumerated ground, but did not do so" (Jeanty, 175 AD3d at 1075).
From a review of the submissions it is clear the Judge Franczyk based his vacatur of Claimant's conviction on CPL 440.10 (1) (h), and not any of the five grounds - CPL 440.10 (1) (a), (b), (c), (e) and (g) - that are listed within section 8-b (3) (b) (ii). Nor did he cite section (g-1) as a basis for relief. As previously noted, Claimant initially moved to vacate his conviction under CPL 440.10 (1) (g) and (h), then later supplemented that motion to add section (g-1) as a further ground for relief. In his February 7, 2014 Decision and Order (Franczyk decision) (see Affidavit of Timothy J. Flynn, sworn to July 15, 2020 [Flynn affidavit], exhibit A [verified claim], attached exhibit F) Judge Franczyk denied relief to the extent premised upon section (g) (id., p 67), and directed that the application otherwise proceed to a hearing. In so doing the court unquestionably directed that the hearing address Claimant's claim of actual innocence under section (h), citing People v Hamilton (115 AD3d 12 [2d Dept 2014]), decided three weeks earlier, which recognized that a freestanding claim of actual innocence could be pursued under that section to challenge a conviction that followed a jury trial (Franczyk decision, p 69).The court also addressed the request for relief under section (g-1), stating that "[t]his court also agrees that while the DNA evidence is somewhat helpful in the defendant's case, it is hardly dispositive because it does not create a substantial probability of innocense. (CPL 440.10 [g-1])" (Franczyk decision, p 67). Standing alone - and favorably viewed - I did not previously consider Judge Franczyk's comment to represent a denial of relief under section (g-1) prior to the hearing, and instead interpreted the judge's statement as a recognition of the difficulties that he anticipated Claimant would face in establishing an entitlement to a vacatur on that ground at the hearing. However, it is clear from the present record that the court had intended that the hearing would proceed solely with respect to the claim of actual innocence pursuant to section (h). Judge Franczyk made that intention clear at the commencement of the hearing on September 2, 2014, when he stated that "[w]e are here for purposes of a hearing pursuant to CPL 440.10 (1) (h) in connection with the Defendant's motion to set aside his conviction" (see Flynn affidavit, exhibit D [CPL 440 hearing - Day 1 (September 2, 2014)], p 3). Although the hearing was never completed, the four days of proof focused on testimony from witnesses who observed events on the evening in issue, or who subsequently heard admissions from those purportedly involved. The prosecution, in turn, elicited testimony that tended to inculpate Mr. Ortiz. Only perfunctory reference was made to DNA evidence, all in the course of testimony by Buffalo Police Department Detective Mary Evans, as she described her role in the postconviction review of the incident in 2011, as an offshoot of a gang investigation that started in 2009 (see Flynn affidavit, exhibit D [CPL 440 hearing-Day 4 (November 7, 2014)]).
The pleading attachment denoted Exhibit F consists of several documents in addition to the February 7, 2014 Decision and Order.
The Court of Appeals more recently held in People v Tiger, 32 NY3d 91, 103 (2018), that "where the defendant has been convicted by guilty plea, there is no actual innocence claim cognizable under CPL 440.10 (1) (h)," and noted that the question of whether such a remedy was available after a conviction at trial was not presented for its review (id. at p103 n 9).
As in original.
As in original.
I will next address the December 8, 2014 letter from District Attorney Sedita, and the vacatur proceedings before Judge Franczyk that followed on December 9, 2014. As I previously noted, on December 8, 2014, Mr. Sedita notified the court and opposing counsel that he was withdrawing his opposition to the motion to vacate, noting that Mr. Ortiz had premised his request for relief upon CPL 440.10 (1) (g-1) (see Flynn affidavit, exhibit E). To me that statement - again favorably viewed - raised the potential that some limiting condition may have existed with respect to the ground on which the conviction would be vacated. However, a review of the transcript of the December 9, 2014 proceedings makes clear that no such limitation existed. In formally withdrawing her office's opposition on the record Assistant District Attorney Donna A. Milling acknowledged Mr. Sedita's letter, but made no reference to section (g-1), and did not suggest that the vacatur to be was restricted in any manner. Ms. Milling's sole reference to CPL 440 occurred as she noted that Claimant's motion, dated April 23, 2013, had sought relief pursuant to CPL 440.10 (1) (g) and (h), on grounds of newly discovered evidence and a claim of actual innocence (see Flynn affidavit, exhibit F [December 9, 2014 transcript], p 2). Neither the court nor Claimant's counsel otherwise indicated that CPL 440.10 (1) (g-1) was to serve as the basis for vacating the conviction.
See also, Reply Affirmation to Defendant's Supplemental Motion to Dismiss of Wayne C. Felle, dated July 31, 2020 (Felle affirmation), exhibit E.
See also, Felle affirmation, exhibit G.
Judge Franczyk made no specific reference to any provision within CPL 440 as he granted Claimant's request to vacate his conviction. However, he did make a further allusion to Hamilton, which he had previously cited by name in his February 2014 Decision and Order as newly-decided appellate authority for vacating a conviction pursuant to CPL 440.10 (1) (h), based upon a freestanding claim of actual innocence, stating as follows:
". . . it wasn't until February of 2014 that we had clear appellate authority that said that a Defendant had the right under due process grounds to bring a motion to have a verdict - - or rather a guilty plea set aside on a claim of actual innocence," (see Flynn affidavit, exhibit F, p 7).
I understand that Hamilton had actually been issued in mid-January 2014, and involved a trial conviction rather than a plea. Still, Judge Franczyk's comments are quite similar to his express reference to Hamilton in his February 2014 Decision and Order, at page 69.
That statement reflects Judge Franczyk's belief that he possessed the authority to vacate a plea-based conviction under section (h) based upon actual innocence. The court then proceeded to note that a subsequently-convicted participant in the Camacho brothers homicides had exonerated Claimant, that Mr. Ortiz's confession has occurred in a psychotic state, that none of the suspects who entered or ran from the crime scene had remotely fit Claimant's physical characteristics, and that the court did not know "that there was any real physical evidence or forensic evidence that corroborated his [Claimant's] confession" (id., p 8). Those statements further support that the court was focused upon actual innocence under section (h). I do not believe that the court's conclusory reference to the absence of any corroborating physical evidence or forensic evidence supports a conclusion that Claimant was being exonerated on the basis of postconviction DNA testing. Without question, however, Judge Franczyk did not directly or indirectly reference section (g-1) in those proceedings, and under Jeanty I cannot now add a DNA-based exculpation to the Court's decision.
I will next address the Affidavit of Thomas P. Franczyk, sworn to July 27, 2020 (Franczyk affidavit) (see Felle affirmation, exhibit B). In that affidavit the former jurist offers explanations of his own thought processes in vacating Claimant's conviction, as well as opinion evidence regarding the habits or mental operations of District Attorney Sedita as he determined to withdraw his office's opposition to Claimant's motion to vacate his conviction.
As an initial matter I will deny the State's request that I strike the Franczyk affidavit. I acknowledge that in the course of a telephone conference on June 18, 2020 that followed my initial decision in the matter I rejected the State's request for depositions of either Judge Franczyk or Mr. Sedita. In so doing I raised the post-note of issue status of the claim, and also stated that I did not believe it proper to compel either a judge or prosecutor to explain their thought processes in making determinations that otherwise were a matter of record. Then, as now, I believe that public policy grounds exist for not compelling a judge who has made a discretionary determination in open court to have to further explain the reasoning behind his or her decision (see generally Mitchell, Maxwell & Jackson, Inc. v State of New York, 66 Misc 3d 718 [Ct Cl 2019]). Indeed, Mitchell provides support that a judge would not be permitted to testify about the mental processes that led to a decision, absent evidence of improprieties in the decision making process itself (id. at 726). Conversely, I am mindful that in Jeanty the Appellate Division, Fourth Department rejected a challenge to the use of an affidavit from the judge who vacated a criminal conviction to determine the specific provision within CPL 440.10 he had relied upon in overturning a conviction in a subsequent section 8-b claim (see 175 AD3d at 1073-1075). Understanding that the Franczyk affidavit was voluntarily produced, and not the product of compelled deposition process, I believe that the Franczyk affidavit is properly before me.
The request for depositions may also have extended to Assistant District Attorney Donna A. Milling.
On the merits, however, the Franczyk affidavit does not work to establish that Mr. Ortiz's conviction became vacated on a ground that would allow a section 8-b claim to proceed. To the extent that Judge Franczyk offered that he knew Mr. Sedita to be a person who was deliberate in his choice of words, and who thus intentionally referenced CPL 440.10 (1) (g-1) in his December 8, 2014 letter (Franczyk affidavit, para 5), he has failed to provide any foundational evidence of such a habit to support an inference of that practice in that letter. More critically, however, and as previously discussed, the record of the proceedings on December 9, 2014 provides no support that Mr. Sedita's agreement to vacate the conviction was conditioned upon the application of that specific provision. Further, as Jeanty makes clear, the focus of a determination to vacate a criminal judgment is not on what a prosecutor might have said, but what the court actually did. "[B]ecause only courts - not prosecutors - are empowered to vacate criminal judgments, the statute is necessarily concerned only with the court's rationale for vacatur" (Jeanty, at 1076 [emphasis in original]). Since the record of the proceedings does not reflect that Judge Franczyk accepted that the conviction would be vacated under section (g-1), Mr. Sedita's prior reference to that provision is of no moment.
Lastly, comments in Judge Franczyk's affidavit regarding the lack of real, physical or forensic evidence, including DNA evidence, and his specific citation to section (g-1) as a basis for relief (see Franczyk affidavit, paras 4, 7, 8, 9) are at this point irrelevant. Once again Jeanty makes clear that section 8-b "allows recovery only where the criminal court actually vacated the judgment on an enumerated ground, and not where the criminal court might have vacated the judgment on an enumerated ground, but did not do so" (id. at 1075). Judge Franczyk did not cite section (g-1) in vacating Claimant's conviction, and the record otherwise supports that the court acted solely under section (h), based upon actual innocence.
Based upon the above I am compelled to grant summary judgment dismissing the claim. The record does not support that Judge Franczyk vacated Claimant's conviction on any of the five grounds recited within section 8-b (3) (b) (ii) (A), and Mr. Ortiz is thereby precluded from recovery for wrongful conviction and imprisonment, since the underlying criminal charges were ultimately dismissed on motion, rather than by acquittal following trial. To the extent that section (g-1) could be deemed a part of section (g), and thereby support a claim, it is now clear that Judge Franczyk did not identify section (g-1) - or section (g) itself - as a basis for his vacatur. The record instead supports that he based his order vacating the conviction solely upon section (h), which similarly is not one of the five grounds that could support a section 8-b claim. The claim must be dismissed on that basis.
Although now moot, I will briefly address the further argument made by Defendant in support of dismissal. Notwithstanding my prior decision in this matter the State argues that section (g-1) should not be deemed a part of section (g) for purposes of determining motions to vacate convictions based upon new DNA evidence, and instead should be considered a separate ground for relief within CPL 440.10 (1). As such, the State contends that a vacatur granted under section (g-1) would not support a wrongful confinement claim under Court of Claims Act § 8-b in the absence of an acquittal upon a subsequent trial.
Claimant, in turn has objected to Defendant's challenge to that determination, since the State has not raised the issue within a motion to reargue or renew filed pursuant to CPLR 2221. In reply the State observes that I had raised the relation between sections (g-1) and (g) sua sponte, and that it should not be precluded from fully addressing the issue at this point. Defendant is concerned that if now constrained under CPLR 2221 it would be restricted in the scope of the arguments it could offer on an issue that it had not previously addressed, and potentially be required to justify its failure to raise the matter in its earlier submission.
I will consider the merits of Defendant's argument that section (g-1) should not be deemed a part of section (g), without constraint. In agreeing to further consider the issue I note that while my prior discussion of the relation between sections (g-1) and (g) certainly flowed from the plea-based argument raised by the State, the specific issue was not addressed by either party. They should be allowed to be heard
Defendant offers several arguments in support of its position that section (g-1) is fully separate from section (g). One of those arguments is persuasive: that in enacting the subject amendment of section 440.10 (1) in 2012 the Legislature expressly described the enactment as "adding a new paragraph (g-1)" (seeFlynn affidavit, exhibit H, sheet 17 (L 2012, ch 19, 54). I agree that the use of the term "new paragraph" would denote that the Legislature contemplated that the amendment would stand as a separate provision, and was not to be an adjunct to section (g). For that reason I would be compelled to grant summary judgment dismissing the claim even if Judge Franczyk had premised his vacatur on section (g-1).
I reject counsel's further assertion that the Legislature's choice to designate the amendment as "g-1" was simply intended to avoid the need to renumber subsequent paragraphs. That claim is wholly speculative, and disregards that section (g) has historically served as the statutory ground upon which post trial challenges to convictions based upon new DNA evidence have been pursued (see e.g. People v Byrdsong, 33 AD3d 175, 177-178 [2d Dept 2006], lv denied 7 NY3d 900 [2006]). There thus is a relationship between the remedies provided within those two paragraphs.
Based upon the foregoing, it is hereby
ORDERED, that Defendant's motion for summary judgment is granted, and the claim is dismissed.
March 26, 2021
Buffalo, New York
MICHAEL E. HUDSON
Judge of the Court of Claims