Opinion
# 2018-053-525 Claim No. 128121 Motion No. M-91834
05-15-2018
DAMONE T. SAVAGE v. STATE OF NEW YORK
ETIDO UDOUSORO, ESQ. HON. BARBARA D. UNDERWOOD Acting Attorney General BY: Timothy J. Flynn, Esq. Assistant Attorney General
Synopsis
The State's motion for summary judgment pursuant to CPLR 3212 seeking to dismiss this claim for false imprisonment, unjust conviction and imprisonment, and wrongful confinement is granted. The claimant's conviction was not overturned for reasons enumerated by section 8-b (3) (b) and he failed to establish by documentary evidence that his conviction was reversed on one of the predicate grounds listed in CPL 440.10. The wrongful confinement claim was dismissed as claimant's confinement was determined to be privileged.
Case information
| UID: | 2018-053-525 |
| Claimant(s): | DAMONE T. SAVAGE |
| Claimant short name: | SAVAGE |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 128121 |
| Motion number(s): | M-91834 |
| Cross-motion number(s): | |
| Judge: | J. DAVID SAMPSON |
| Claimant's attorney: | ETIDO UDOUSORO, ESQ. |
| Defendant's attorney: | HON. BARBARA D. UNDERWOOD Acting Attorney General BY: Timothy J. Flynn, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | May 15, 2018 |
| City: | Buffalo |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
In claim no. 128121, claimant Damone T. Savage seeks damages for false imprisonment. Defendant moves for summary judgment pursuant to CPLR § 3212 dismissing the claim. Claimant opposes the motion.
The claim alleges that claimant was arrested on January 18, 2013 by Buffalo Police officers and charged with criminal possession of a weapon in the second degree in violation of Penal Law § 265.30 (3), a class C-felony. An analysis report dated February 14, 2013 showed that the partial DNA profile obtained from the handgun was a mixture from at least three unknown individuals, but not including the claimant (see Exhibit C to the claim attached to defendant's papers as Exhibit A). By a Decision and Order dated September 6, 2013, the Hon. Russell P. Buscaglia, J.S.C. denied a motion brought by claimant's counsel to suppress physical evidence (the handgun) and statements made by claimant to the police (Defendant's Exhibit C). On September 17, 2013, claimant pled guilty to criminal possession of a weapon in the second degree and on November 12, 2013, claimant was sentenced by Justice Buscaglia to a term of seven years determinate, five years of post-release supervision, as a second felony offender, and mandatory surcharges (Defendant's Exhibit D).
Claimant appealed his judgment of conviction to the Appellate Division, Fourth Department. On March 25, 2016, the Appellate Division unanimously reversed Justice Bustaglia's suppression hearing decision and order, suppressed the physical evidence (the handgun) and the statements made by claimant to the police, and vacated claimant's guilty plea (see Exhibit A of claim attached to Assistant Attorney General Flynn's affidavit as Exhibit A). On April 14, 2016, the Assistant District Attorney moved to dismiss the charges against the claimant as the People were without any evidence to proceed against the claimant and Justice Buscaglia dismissed the indictment (Defendant's Exhibit E).
The Unjust Conviction and Imprisonment Act provides a mechanism "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]). The express language of the statute makes clear that the burden of proof is a heavy one, requiring claimants to meet strict pleading requirements (Court of Claims Act § 8-b [1], [3] and [4]). These requirements are jurisdictional and strictly construed (Reed v State of New York, 78 NY2d 1 (1991).
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) (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 judgment 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
...
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. 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."
Court of Claims Act § 8-b (3) (b) requires the claimant to produce evidence that his conviction was reversed or vacated and the indictment dismissed on certain enumerated grounds found in CPL 440.10 (1). "To defeat a motion to dismiss, the statute places the burden on the claimant to provide the requisite documentary evidence" (Guce v State of New York, 224 AD2d 492 [2d Dept 1996]). In his claim, claimant fails to even mention Court of Claims Act § 8-b or to specify the subsection of 440.10 of the criminal procedure law under which his conviction was allegedly reversed or vacated. Pursuant to sections 8-b (3) (b) (i) and (ii ), where, as here, claimant was not pardoned upon the ground of innocence, claimant needs to establish by documentary evidence that his conviction was reversed on one of the predicate grounds listed in CPL 440.10 (1) (a), (b), (c ), (e) or (g). The CPL 440.10 (1) predicate grounds are: (a) the court did not have jurisdiction of the claimant; (b) the judgment was procured by duress, misrepresentation or fraud on the part of the court or prosecutor; (c ) material evidence adduced at trial was false and was known by the prosecutor to be false before the judgment entered; (e) the claimant, by reason of mental disease or defect, was incapable of understanding or participating in the proceedings that resulted in the judgment; or (g) new evidence discovered since entry of the judgment based upon a verdict of guilty after trial which could not have been produced by the claimant at trial even with due diligence. Defendant alleges that none of these grounds apply to the vacatur of the judgment and, thus, that claimant does not have a claim for unjust conviction and imprisonment.
Attached to the claim as Exhibit A is the memorandum and order of the Appellate Division, Fourth Judicial Department. By its memorandum and order, the Fourth Department held that the trial court had erred in refusing to suppress the handgun and claimant's oral statements to the police. Accordingly, the Fourth Department vacated claimant's guilty plea, dismissed the indictment and remitted the matter to the Supreme Court for proceedings pursuant to CPL 470.45. The only ground mentioned by the Fourth Department for dismissing the indictment was the illegal search and the reversal of the trial court's decision not to suppress the handgun and the statements made by claimant to the police which were obtained as a result of the search.
Illegal searches are governed by the Fourth Amendment to the United States and New York Constitutions. This ground would fall within CPL 440.10 (1) (h) as a judgment obtained in violation of a right of the claimant under the constitution of this state or of the United States. However, section 440.10 (1) (h) is not one of the Criminal Procedure Law subsection predicates upon which a claim for unjust conviction and imprisonment can be based. Thus, defendant argues, because claimant cannot establish one of the predicate grounds for a Court of Claims Act §8-b claim, it is entitled to summary judgment dismissing the claim.
In the claim, claimant refers to the DNA analysis report attached to the claim as exhibit C. This report was dated February 14, 2013, approximately four months before defendant pled guilty to criminal possession of a weapon in the second degree (Defendant's Exhibit D). While the claimant does not refer in the claim to the DNA evidence as a predicate ground under 8-b (3) (b), it would not qualify as a predicate ground pursuant to § 440.10 (1) (g) as it was not new evidence discovered since entry of judgment after trial nor would it qualify as a predicate ground pursuant to § 440.10 (1) (g-1) as it was not forensic testing performed following entry of judgment.
In his attorney's reply papers, claimant argues that his assigned counsel neglected to inform him of the correct date of the grand jury hearing, failed to call a witness, and coerced defendant to plead guilty. These remaining issues as raised by claimant's counsel amount to ineffective assistance of counsel which is not one of the predicate grounds for a claim under the Unjust Conviction and Imprisonment Act (see Baba-Ali v State of New York, 20 AD3d 376 [2d Dept 2005]; Britt v State of New York, 260 AD2d 6 [1st Dept 1999]). In addition, there is no evidence that claimant was coerced into pleading guilty by the court or the prosecutor. In fact, Justice Buscaglia explained to claimant the rights he would be giving up by pleading guilty and elicited a "Yes sir" response from claimant when he asked him if he was entering the guilty plea "knowingly, intelligently, voluntarily, [and] of [his] own free will after speaking with [his] attorney" (see p. 9 of Claimant's Exhibit F). Thus, defendant is entitled to summary judgment as claimant failed to meet the pleading requirements of Court of Claims Act § 8-b (a) (3) (b) (ii) or to establish by documentary evidence that his conviction was vacated and the accusatory instrument dismissed on the basis of any of the predicate grounds to an unjust conviction and imprisonment claim as set forth in Court of Claims Act § 8-b (a) (3) (b) (ii) (see Scheidelman v State of New York, 151 AD3d 1691 [4th Dept 2017]). In claimant's reply papers, claimant argues for the first time that he does not need to plead or establish a predicate ground for his Court of Claims Act 8-b claim as his judgment was reversed on appeal to the Appellate Division, rather than upon a motion to the trial court to vacate the judgment, and so the claim is governed by the pleading requirements of Criminal Procedure Law 470.20. Claimant is referring to Court of Claims Act § 8-b (3) (b) (ii) (B) which has been held to allow certain provisions of CPL 470.20 to form the predicate of an 8-b claim when an appellate court's reversal of the judgment after trial was based on subsections one, two, three or five of CPL 470. 20 (Clarke v The State of New York, UID No. 2017-032-142 [Ct Cl, Hard, J., Aug.30, 2017). Here, claimant argues that the judgment was reversed pursuant to subsection three of CPL 470.20 as the count dismissed was the sole basis for the imprisonment complained of (see Court of Claims Act § 8-b (3) (b) (ii ) (B). Contrary to claimant's position, however, the Appellate Division did not reverse a judgment of conviction entered after a trial. There was no trial as claimant pled guilty to possession of a weapon in the second degree. Thus, it was incumbent upon claimant to plead and prove by documentary evidence that his conviction was vacated on one of the grounds set forth in Court of Claims Act § 8-b (3) (b) (ii )(A), which he has failed to do.
Defendant further argues that the claim should state facts sufficient to find that claimant did not commit any of the acts charged in the accusatory instrument and did not by his own conduct cause or bring about his own conviction. Here, claimant failed to allege in his claim that he was innocent of the crime for which he was convicted. Further, claimant failed to establish that the indictment was dismissed on any of the predicate grounds listed in 8-b (3) for recovery and claimant failed to establish by clear and convincing evidence that he did not cause or bring about his own conviction when he pled guilty to the charge of criminal possession of a weapon in the second degree (Scheidelman v State of New York, supra at 1693; Coleman v State of New York, UID No. 2014-031-082 [Ct Cl, Minarik, J., Dec. 23, 2014]). Thus, because claimant's conviction was not vacated and his accusatory instrument was not dismissed on one of the statutorily enumerated grounds and because claimant's plea of guilty caused his conviction, claim no. 128121 insofar as it can be construed as alleging a cause of action under Court of Claims § 8-b must be dismissed.
To the extent that the claim is asserting a cause of action for wrongful confinement, it must also be dismissed. In order to assert a cause of action for wrongful confinement, claimant must show that the State intended to confine him, that claimant was conscious of the confinement, that claimant did not consent to the confinement, and that the confinement was not otherwise privileged (Broughton v State of New York, 37 NY2d 451 [1975], cert denied sub dom. Schanbarger v Kellogg, 423 US 929 [1975]).
It has been held that "[w]here a facially valid order issued by a court with proper jurisdiction directs confinement, that confinement is privileged . . . and everyone connected with the matter is protected from liability for false imprisonment" (Holmberg v County of Albany, 291 AD2d 610, 612 [3d Dept 2002]). Here, there is no question that the Supreme Court of Erie County had jurisdiction upon defendant's guilty plea to issue a certificate of conviction - imprisonment (Defendant's Exhibit D). Furthermore, there is no question that claimant was held in confinement by the Department of Corrections and Community Supervision (DOCCS) pursuant to a valid court order.
Accordingly, claimant's confinement was privileged and to the extent that claim no. 128121 is alleging a cause of action for wrongful confinement, it must be dismissed.
Based on the foregoing, defendant's motion no. M-91834 is granted and claim no. 128121 is dismissed.
May 15, 2018
Buffalo, New York
J. DAVID SAMPSON
Judge of the Court of Claims The following were read and considered by the Court: 1. Notice of motion and supporting affidavit of Assistant Attorney General Timothy J. Flynn sworn to February 13, 2018, with annexed Exhibits A-E; 2. Undated opposing affirmation of Etido Udousoro with annexed Exhibits A-F; and 3. Reply affidavit of Assistant Attorney General Timothy J. Flynn sworn to March 9, 2018.