Opinion
# 2019-051-041 Claim No. 126725 Motion No. M-93965 Motion No. M-93998 Cross-Motion No. CM-94039
09-10-2019
CHARLES PIERRE v. STATE OF NEW YORK
VAN HENRI WHITE, ESQ. HON. LETITIA JAMES New York State Attorney General BY: THOMAS G. RAMSAY, ESQ. Assistant Attorney General
Synopsis
Both the claimant's motion and the State's cross motion for summary judgment regarding claimant's Court of Claims § 8-b claim were denied.
Case information
| UID: | 2019-051-041 |
| Claimant(s): | CHARLES PIERRE |
| Claimant short name: | PIERRE |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 126725 |
| Motion number(s): | M-93965, M-93998 |
| Cross-motion number(s): | CM-94039 |
| Judge: | DEBRA A. MARTIN |
| Claimant's attorney: | VAN HENRI WHITE, ESQ. |
| Defendant's attorney: | HON. LETITIA JAMES New York State Attorney General BY: THOMAS G. RAMSAY, ESQ. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | September 10, 2019 |
| City: | Rochester |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The following papers were read on defendant's motion to preclude (M-93965), claimant's motion for summary judgment (M-93998) and defendant's cross motion to dismiss or for summary judgment (CM-94039):
1. Notice of Motion (M-93965) with Affirmation of Thomas G. Ramsay, AAG, and attached exhibits, filed April 29, 2019;
2. Notice of Motion (M-93998) with Affirmation of Van Henri White, Esq., and attached exhibits, filed May 22, 2019;
3. Memorandum of Law, dated March 22, 2019;
4. Notice of Cross Motion (CM-94039) and Affirmation of Thomas G. Ramsay, AAG, and attached exhibits, filed June 4, 2019;
5. Affidavit of Shannon Arnold with attached exhibit, filed June 4, 2019;
6. Affidavit of Luther Dean Kistler with attached exhibits, filed June 4, 2019;
7. Claimant's Reply and Response to Summary Judgment with attached exhibits, dated July 2, 2019;
8. Reply Affirmation of Thomas G. Ramsay, AAG, with attached exhibit, affirmed July 10, 2019;
9. Filed papers: notice of claim, verified answer.
By his claim filed September 14, 2015, Charles Pierre sought to hold the State of New York liable for damages pursuant to the Unjust Conviction and Imprisonment Act of 1984, codified as section 8-b of the Court of Claims Act. Pierre was convicted of murder in the first degree, two counts of murder in the second degree, and one count of arson in the second degree after a jury trial in 2003, and sentenced to life in prison without parole. On July 17, 2014, Pierre's motion to vacate the judgment was granted on grounds of newly discovered evidence that Darrell Boyd ("Boyd"), who was present at the scene of the crime, allegedly confessed to his wife and a jail house lawyer that he had committed the crimes. On June 12, 2015, the Fourth Department affirmed that decision. (People v Pierre, 129 AD3d 1490 [4th Dept 2014]). On retrial, Pierre was acquitted of all charges on August 13, 2015.
The State moved to preclude (M-93965) Pierre from using the transcript of his May 20, 2018 deposition which was resolved by the parties consenting to the use of the deposition transcript but not of the errata sheets.
On May 22, 2019, claimant filed a motion for summary judgment (M-93998), setting forth the facts he believed proved Boyd committed the murders and arson. The motion was not supported by copies of the pleadings, which was the procedural ground relied upon by the State in its opposition to claimant's motion for summary judgment. Citing the CPLR 3212 (b), the Fourth Department has repeatedly held that a movant's failure to attach copies of the pleadings mandates denial of the motion regardless of the merits. (Niles v County of Chautauqua, 285 AD2d 988, 989 [4th Dept 2001]; see Rivera v State of New York, 59 Misc 3d 1233 (A) [Ct Cl, 2017].) Claimant did not cite to any legal authority to support the application of CPLR 2101(f) to salvage his motion. Therefore, claimant's motion for summary judgment is denied. However, even if the Court were to address the merits of claimant's motion, summary judgment would be denied based on the case law and analysis provided below.
The State cross-moved to dismiss (CM-94039) pursuant to CPLR 3211 (2) and (7), and, alternatively, for summary judgment. The State contended that the claim did not provide the requisite information mandated by Court of Claims Act § 8-b, namely: a copy of the accusatory instrument or a statement specifying what acts were alleged therein, and facts proving Pierre's conviction was not brought about by his own conduct. Since these omissions were raised in its answer and the time for relief from such error has expired, the State argued the claim must be dismissed. The basis for the State's summary judgment motion was that it established that Pierre will be unable to prove by clear and convincing evidence that he did not commit any of the acts charged in the accusatory instrument, and that he did not, by his own conduct, cause or bring about his own conviction. Claimant opposed the State's cross-motion, contending he had sustained his pleading requirements by demonstrating that another person committed the murder and he should be awarded summary judgment. For the reasons set forth below, the State's cross motion to dismiss, and alternatively for summary judgment is denied.
Although the claimant's answering paper, entitled "CLAIMANT'S REPLY AND RESPONSE TO SUMMARY JUDGMENT", is unsworn, the Court reviewed it to the extent that it contained arguments and citations to facts contained in its summary judgment motion papers.
The State's cross motion:
A. The cross motion to dismiss.
The basis for the State's cross motion to dismiss was that Pierre failed to plead the mandatory elements for an 8-b claim. Rather, the State contended that the claim addressed irrelevant facts focused on attacking the City's and the County's investigations and their untimeliness of notifying him of exculpatory evidence, which were rejected and debunked by the Federal District Court in Pierre v City of Rochester. (2018 US Dist Lexis 154879 [WDNY 2018] recons.den. 2018 US Dist LEXIS 1881180 [WDNY 2018]). The State argued it is well established that liability cannot be levied upon the State by implication, and, therefore, Pierre's failure in satisfying the statutory requirements was fatal and his claim must be dismissed.
Pierre opposed the cross motion, countering that the claim repeatedly characterized his arrest as unjustified and unwarranted, asserted that another, not Pierre, had committed the crimes stated in the indictment, and that the attached affidavit of the jailhouse lawyer, along with the Rochester Police Department Field Information Form, clearly set forth who was responsible for the crimes he was wrongfully convicted of and incarcerated for. Pierre further contended that the claim and the attached affidavits made it patently obvious whom Pierre thought committed the crimes and that he demonstrated his allegedly wrongful conviction was the result of improper actions on the part of the City and County. Pierre postulated that his claim contained sufficient detailed allegations to sustain the pleading burden stated in Warney v State of New York, (16 NY3d 428 [2011]). In the alternative, Pierre asked for permission to file an amended claim pursuant to CPLR 3205 (b).
In reply, the State initially noted that Pierre's answering papers are unsworn or affirmed. The State argued that Pierre failed to comprehend the rigidity of the jurisdictional requirements in pleading a claim against the State for money damages and the consequences for failing to do so that was recently reaffirmed by the Fourth Department in Matter of Geneva Foundry Litig., (173 AD3d 1812, 1813 [4th Dept 2019]). Moreover, it is fundamental that a jurisdictionally deficient claim cannot be cured by amendment.
B. The cross motion for summary judgment
The primary basis for the State's cross motion for summary judgment was that Pierre would never be able to meet the clear and convincing standard that he is innocent of the charges, arguing that it was not enough to demonstrate that someone else conceivably committed the crimes because the evidence showed that Pierre: (1) was observed at the scene at the time the crimes were committed by three independent witnesses, two of whom observed him exiting the house at the time the fire was observed; (2) had several motives to murder the female victim; (3) made vicarious admissions via his attorney that the female victim recently assaulted Pierre and that he had a history of abusing alcohol and drugs; (4) had access to a potential murder weapon, and (5) Pierre's alternative theory was neither clear, nor convincing. In addition, the State also submitted that Pierre contributed to his conviction because, as noted by the trial judge at the sentencing hearing, he stared down the trial judge and witnesses during the course of the trial.
In opposing the State's motion, Pierre argued that his motion papers for summary judgment contained overwhelming evidence of his innocence by establishing that Boyd had the motive and opportunity to commit the murders and arson, including Boyd's alleged confessions, proof as to the murder weapon, and Boyd's "murderous pattern and practice." Pierre reasoned that Oxley v State of New York, relied upon by the State, did not apply. This evidence against Boyd, Pierre contended, must be contrasted with the lack of evidence connecting him to the crimes: he cooperated with the police investigation and the test, taken just hours after the murders, found no evidence of any blood on his person.
Further, Pierre called into question the evidence relied upon by the State to support its cross motion. Pierre contended that the only witness to testify at the first trial that he exited the home after the fire started recanted his testimony at the second trial and that no witness testified that they saw Pierre enter the victims' home or be inside immediately before or at the time of the murders. Moreover, he submitted that the State's cross motion relied upon the inadmissible testimony of Ms. Arnold and Mr. Kistler, which offered out of Court statements by one of the victims, to establish motive. Pierre argued that assessing the credibility of these witnesses and determining the weight to accord them required a trial. Pierre submitted the affidavit of his criminal defense attorney, David A. Murante, Esq., to refute that a letter his attorney sent to the District Attorney made any admissions against his interests. As to the murder weapon, Pierre submitted that the State speculated that he had access to it and countered that Boyd admitted to using it. As to the credibility of Boyd's ex-wife and the jail-house lawyer, Pierre pointed out that the District Attorney used their testimony to convict Boyd of murdering Katrina Lawn.
Decision
A. Motion to dismiss.
Court of Claims Act § 8-b furnishes a procedure for "innocent persons who can demonstrate by clear and convincing evidence that they were unjustly convicted and imprisoned ... to recover damages against the state" (Court of Claims Act § 8-b [1]; see also Ivey v State of New York, 80 NY2d 474, 479 [1992]). To assert a claim, the statute sets forth two distinct prongs that ultimately must be established by clear and convincing evidence. The first prong, which must be demonstrated by documentary evidence, is that (a) the claimant was convicted of a crime, sentenced to a term of imprisonment, and served at least part of the sentence; (b) the claimant was pardoned on the ground of innocence or, alternatively, the conviction was reversed or vacated and the accusatory instrument was dismissed; and (c) the claim is not time-barred (Court of Claims Act § 8-b [3]). The second prong, which does not need to be established by documentary evidence, requires that the claim "state facts in sufficient detail to permit the court to find that claimant is likely to succeed" in carrying his burden at trial 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" (Court of Claims Act § 8-b [4]). The statute mandates dismissal of the claim "[i]f the court finds after reading the claim that claimant is not likely succeed at trial" on this prong (Court of Claims Act § 8-b [4]).
The pleading standard in an unjust conviction claim is higher than that found in the CPLR, requiring the Court to weigh whether the allegations are sufficiently detailed to demonstrate a likelihood of success at trial (see Court of Claims Act § 8-b [4]). "[T]he allegations in the claim must be of such character that, if believed, they would clearly and convincingly establish the elements of the claim, so as to set forth a cause of action" (Solomon v State of New York, 146 AD2d 439, 442 [1st Dept 1989] [internal citation omitted]). However, when making such analysis, the Court should not reach issues of credibility or weigh the evidence, which are "more appropriately a function to be exercised at the actual trial." (Warney v State of New York, 16 NY3d 428, 435 [2011]). The Court of Appeals in Warney opined "[i]n short, a claimant who meets the evidentiary burdens described in Court of Claims Act § 8-b (3) and makes detailed allegations with respect to the elements described in section 8-b (4) is entitled to an opportunity to prove the allegations at trial (Court of Claims Act § 8-b [5])." (id.)
The Court finds the State's argument regarding claimant's failure to submit documentary proof of the qualifying basis for relief as required by Court of Claims Act § 8-b (3) specious. Courts have held that no particular document 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]; see also Fowler v State of New York, 81 AD3d 495, 495 [1st Dept 2011].) Rather, any document is sufficient if it is "clear from the record, and was obvious to the State the basis upon which his conviction was reversed." (Jeanty v State of New York, UID No. 2017-040-034 [Ct Cl, McCarthy, J., Mar. 29, 2017] [internal quotation marks and internal citation omitted].) It would only be fatal if the document was unclear as to what he was tried for and whether the conviction was vacated or reversed for any of the grounds enumerated in the statute. (id.)
Here, Pierre attached to his claim numerous documents that attested to his arrest, conviction, incarceration, his judgment being vacated and why it was vacated. The documents attached to his claim confirm that Pierre had been convicted of multiple felonies against the State and subsequently sentenced to a term of imprisonment, he served part of his sentence, his judgment of conviction was vacated, he was acquitted after a second jury trial, and that his claim was not time barred. (see Warney v State of New York, 16 NY3d 428, 434-35 [2011]; see also Court of Claims Act § 8-b [3].) Pierre has sustained his 8-b burden of producing sufficient documentary evidence to state a claim.
To identify a few, the repository inquiry report, prepared for ADA Brian Green, provides Pierre's arrest, conviction and sentencing history in New York, (claim, exhibit D); Judge Randall's Decision and Order, dated July 17, 2014, sets forth his reasoning for vacating Pierre's conviction, (claim, exhibit H); the memorandum and order of the 4th Department affirming Judge Randall's decision to vacate Pierre's conviction, (claim, exhibit I); and the Court's Sealing Order stating Pierre's arrest charges to be sealed and that the criminal action against him was terminated in his favor on August 13, 2015, (claim, exhibit J).
The parties also debated whether the claim provided sufficiently detailed allegations to state an 8-b claim. In determining a motion to dismiss, the Court must treat the facts as alleged in the claim as true. (id.; see Leon v Martinez, 84 NY2d 83, 87 [1994].) The Court of Appeals set forth the review standard on a motion to dismiss of an 8-b claim in Warney v State of New York (16 NY3d 428, 434-35 [2011]). After acknowledging that the Court of Claims Act § 8-b imposed a higher pleading standard than the CPLR, the Court of Appeals opined that a Court:
"[M]ust consider whether the allegations are sufficiently detailed to demonstrate a likelihood of success at trial (see Court of Claims Act § 8-b [4]). [T]he allegations in the claim must be of such character that, if believed, they would clearly and convincingly establish the elements of the claim, so as to set forth a cause of action (Solomon v State of New York, 146 AD2d 439, 442 [1st Dept1989]). In evaluating the likelihood of success at trial, Court of Claims should avoid making credibility and factual determinations (see Klemm v State of New York, 170 AD2d 438, 439 [2d Dept 1991] [In the absence of serious flaws in a . . . statement of facts, the weighing of the evidence is more appropriately a function to be exercised at the actual trial (quoting Dozier v State of New York, 134 AD2d 759, 761 [3d Dept 1987])]; Solomon, 146 AD2d at 445 [Court of Claims erred in "assess(ing) . . . the credibility of the evidence . . . (and) weighing . . . the evidence (which) is more appropriately a function to be exercised at the actual trial"])."
(Warney v State of New York, 16 NY3d 428, 434-35 [2011].) The Court held that claimants should be afforded an opportunity to establish their allegations at trials when they "meet[s] the evidentiary burdens described in Court of Claims Act § 8-b (3) and make[s] detailed allegations with respect to the elements described in section 8-b (4)." (id at 435; see Court of Claims Act § 8-b [5] ). Based on the case law, Pierre has sustained his pleading burden with respect to Court of Claims Act § 8-b (3).
With respect to § 8-b (4), it has repeatedly been held that a reversal of a conviction is not the equivalent to being found innocent and alone does not sustain a claimant's § 8-b (4) burden. (Reed v State of New York, 78 NY2d 1, 8 [1991]; Piccarreto v State of New York, 144 AD2d 920, 921 [4th Dept 1988]; David W. v State of New York, 27 AD3d 111, 113-116 [2d Dept 2006]; Vasquez v State of New York, 263 AD2d 539, 539, 540 [2d Dept 1999].) A claimant cannot rely on the presumption of innocence to meet his pleading burden. (see Reed v State of New York, 78 NY2d 1, 9 [1991].) Likewise, general conclusory and self-serving statements are equally deficient. (Fudger v State of New York, 131 AD2d 136, 140 [3d Dept 1987].) "As the United States Supreme Court has stated, 'actual innocence means factual innocence, not mere legal insufficiency of evidence of guilt' (see Bousley v United States, 523 US 614, 623-624 [1998] [internal quotations and citations omitted]." (Mangum v State of New York, UID 2017-049-008 [Ct Cl, Weinstein, J., Mar. 21, 2017].) The hallmarks of a wrongful conviction claim are "actual innocence, and the requirement that a claimant not cause or bring about the conviction by his or her own conduct" (David W. v State of New York, 27 AD3d 111, 117 [2d Dept 2006]). This heavy pleading "burden places the claimant in the difficult position of proving a negative . . . [and] most cases will not survive a motion to dismiss." (David W. v State of New York , 29 AD3d 111, 116 [2d Dept 2006].) To meet the clear and convincing evidence standard it must be "highly probable that what is claimed actually happened," a higher and more demanding standard than preponderance of the evidence (Matter of Gail R. [Barron], 67 AD3d 808, 811 [2d Dept 2009]). "The proof can be neither equivocal nor open to opposing presumptions." (Salce v State of New York, UID No. 2018-015-130 [Ct Cl, Collins, J., Sept. 25, 2018] [internal quotation marks and internal citation omitted].)
At this stage of the proceeding, the Court must adopt as true the allegations set forth in the claim and refrain from weighing facts or assessing credibility. In 8-b cases that hinge on the credibility of the claimant and witnesses, New York courts have adopted the reasoning of the Third Department in Lanza v State, "while events may prove later that claimant is unable to carry his burden of establishing his innocence by clear and convincing evidence, we cannot say at this stage that the facts set forth in the claim do not indicate a likelihood of success at trial or that the facts are not sufficiently detailed." (Lanza v State of New York, 130 AD2d 872, 873-874 [1987]). (see Solomon v State of New York, 146 AD2d 439, 445 [1st Dept 1989]; Salce v State of New York, UID No. 2017-015-261 [Ct Cl, Collins, J. Sept. 27, 2017].) Here, the Court concurs with Pierre that he has alleged sufficient facts to enable it to find that he is likely to succeed in carrying his burden at trial that he didn't commit the crimes and that his own conduct did not bring about his conviction; as the Court of Appeals noted in Ivey v State of New York, even though "an acquittal is not, ipso facto, equivalent to a determination of innocence, generally or for purposes of this remedial statute, it is a useful and relevant indicator of innocence" (80 NY2d 474, 479-80 [1992] [internal citation omitted]). While Pierre did not use the word "innocent" in his claim, the sum and substance of the facts in the claim were that he was innocent because it referenced "overwhelming evidence [] that another man had committed this heinous crime", he makes several references to the "the true killer", and "the true killer's identity", and attached affidavits of third party witnesses as to the "true killer's" confessions. Likewise, the claim also failed to recite the words that his own conduct did not cause or bring about his conviction. Nevertheless, Pierre clearly laid absolute blame for his conviction and incarceration upon the Rochester Police Department and the Monroe County District Attorney's Office. Consequently, the State's cross motion to dismiss the claim for failure to state a cause of action is denied.
B. Summary judgment.
Summary judgment is a drastic remedy that should only be granted where there are no doubts as to the existence of a triable issue of fact. (Andre v Pomeroy, 35 NY2d 361, 364 [1974].) In considering a summary judgment motion, the Court is required to consider the evidence in a light most favorable to the nonmoving party. (Thygesen v North Bailey Volunteer Fire Co., Inc., 151 AD3d 1708, 1709-10 [4th Dept 2017].) Claimant is not required to prove his claim to defeat a motion for summary judgment. (Ferrante v American Lung Assn, 90 NY2d 623, 631 [1997].) Rather, the standard of review this Court must apply when reviewing the State's motion for summary judgment of a Court of Claims § 8-b claim is whether the State has by its submissions actually clearly and convincingly disproved one. (See Baba-Ali v State of New York, 19 NY3d 627, 639 [2012].) Controlling in the matter under review is the general rule that the Court may not decide issues of credibility. (Ferrante v American Lung Assn., 90 NY2d 623, 631 [1997]; see Rivera v State of New York, 19 AD3d 1030, 1031 [4th Dept 2005]; Klemm v State of New York, 170 AD2d 438, 439 [2d Dept 1991].) The Court of Appeals schooled in Warney v State that unless there are serious flaws in a claimant's allegations, "the weighing of the evidence is more appropriately a function to be exercised at the actual trial." (16 NY3d 428, 435 [2011] [internal quotation marks and citations omitted].)
As recognized above, summary determination of this claim rests upon the credibility of the claimant and third party witnesses as to claimant's innocence, however, the Court is prohibited from assessing credibility on a motion for summary judgment. (Auble v Doyle, 38 AD3d 1264, 1265-66 [4th Dept 2007].) The lower court's order vacating Pierre's conviction on a 440 motion, the Fourth Department's decision upholding that decision (People v Pierre, 129 AD3d 1490 [4th Dept 2015]), his acquittal of the charges after a second jury trial, and the affidavits of third party witnesses as to Boyd's confessions to the crimes are of sufficient quality to lead to the conclusion 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 . . . and (b) he did not by his own conduct cause or bring about his conviction (Court of Claims Act § 8-b [4]). (see Fowler v State of New York, 81 AD3d 495, 495-496 [1st Dept 2011]; see also Smith v State of New York, 55 AD3d 430, 430 [1st Dept 2008]; Coakley v State of New York, 225 AD2d 477, 478 [1st Dept 1996]; Dozier v State of New York, 134 AD2d 759, 761-762 [1987]; Lanza v State of New York, 130 AD2d 872, 873 [3d Dept 1987].)
The Court disagrees with the State's reliance upon Oxley v State and agrees with Pierre that the quality of the evidence of the claimant's innocence and third parties' culpability in Oxley is not equivalent to the evidence presented here. Significantly, in Oxley there was physical evidence tying the claimant to the murder, evidence that prior to the murder claimant sought out an alibi witness and made a jailhouse admission to the crime, and there were several speculative third party culprits. None of those factors, which prevented Oxley from meeting his innocence threshold, are presented in this case. Here, the claimant has always maintained his innocence, there is no physical evidence to link him to the crimes, and he has put forth sufficient evidence of a third party culprit.
Likewise, the State's argument that claimant's actions brought about his conviction is not supported by the law. In order for claimant's conduct to be a bar to recovery in a wrongful conviction claim, it must be the "proximate cause of conviction." (Warney v State of New York, 16 NY3d 428, 437 [2011]; see Ivey v State of New York, 80 NY2d 474, 482 [1992].) The State's allegation that claimant stared down the Judge and witnesses in the criminal trial does not meet this standard. It is merely an assertion that claimant "engaged in misconduct", and does not establish that he "brought about his conviction." (id; see Wagstaffe v State of New York, UID No. 2017-049-005 [Ct Cl, Weinstein, J., Mar. 2, 2017]; see also Fortunato v State of New York, UID No. 2013-016-037 [Ct Cl, Marin, J. Nov. 18, 2013].)
The Court finds the State's motion papers did not make a prima facie showing of entitlement to judgment as a matter of law because they did not contain sufficient evidence to eliminate all material issues of fact from the matter. (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985].) "Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers." (id. [internal citations omitted].) Accordingly, defendant's motion for summary judgment is denied. However, it is important to note that this does not relieve Pierre from proving at trial, by clear and convincing evidence, all the factors set forth in Court of Claims Act § 8-b (5).
In summary, the State's motion to preclude (M-93965) is granted with the parties' consent to their use of Pierre's deposition transcript but not the errata sheets, and both the claimant's motion for summary judgment (M-93998) and the State's cross motions to dismiss and for summary judgment (CM-94039) are denied.
September 10, 2019
Rochester, New York
DEBRA A. MARTIN
Judge of the Court of Claims