Opinion
# 2015-015-103 Claim No. 126104 Motion No. M-86816
01-06-2016
MARK SCHEIDELMAN v. THE STATE OF NEW YORK
Frank Policelli, Esquire Honorable Eric T. Schneiderman, Attorney General By: Thomas G. Ramsay, Esquire Assistant Attorney General
Synopsis
Defendant's motion to dismiss claim alleging damages for unjust conviction and imprisonment under Court of Claims Act § 8-b was granted. The prosecutorial misconduct forming the basis for the claim did not satisfy one of the grounds set forth in Court of Claims Act § 8-b (3) (b) (ii). In addition, claimant failed to allege facts which would permit the Court to find that claimant is likely to succeed at trial in proving his innocence.
Case information
| UID: | 2015-015-103 |
| Claimant(s): | MARK SCHEIDELMAN |
| Claimant short name: | SCHEIDELMAN |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 126104 |
| Motion number(s): | M-86816 |
| Cross-motion number(s): | |
| Judge: | FRANCIS T. COLLINS |
| Claimant's attorney: | Frank Policelli, Esquire |
| Defendant's attorney: | Honorable Eric T. Schneiderman, Attorney General By: Thomas G. Ramsay, Esquire Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | January 6, 2016 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Defendant moves to dismiss the claim pursuant to CPLR 3211 (a) (1), (2) and (7) and for a sealing Order pursuant to Civil Rights Law § 50-b.
Claimant seeks damages for unjust conviction and imprisonment pursuant to Court of Claims Act § 8-b. Claimant was convicted, upon a jury verdict, of sexual abuse in the first degree in violation of Penal Law § 130.65 (3) and sentenced to a two-year determinate term of imprisonment on July 17, 2013 (defendant's Exhibit 1, claim, ¶ 4). The judgment of conviction was reversed by the Appellate Division, Fourth Department on February 6, 2015 in the interest of justice and on the basis of prosecutorial misconduct. Although the Court found that the verdict was not against the weight of the evidence, it concluded that the cumulative effect of the prosecutor's misconduct deprived claimant of a fair trial and warranted reversal and a new trial (People v Scheidelman, 125 AD3d 1426 [4th Dept 2015]). In particular, the Court found that the prosecutor improperly cross-examined the claimant concerning his homosexuality and a prior homosexual relationship which had no logical bearing on his credibility, improperly questioned the claimant regarding the criminal records of other individuals who resided in his home, and improperly introduced evidence that was irrelevant to the issues and which prejudiced the claimant by " 'suggesting to the jury that he was an erratic and potentially dangerous person who had the propensity to commit the crime at issue' or some other criminal act" (125 AD3d at 1428 [citation omitted]). The Court also found the prosecutor improperly elicited opinion testimony from an investigator, who was not an expert, in an attempt to bolster the credibility of the alleged victim and improperly commented upon this evidence during her summation. The Court found that the cumulative effect of the prosecutor's questioning and comments during summation deprived claimant of a fair trial.
Following remand, claimant pled guilty to a new misdemeanor charge of endangering the welfare of a child in violation of Penal Law § 260.10 (1) and the charge of first degree sexual abuse was dismissed (defendant's exhibit 1 [G], pp. 2-3). Claimant now seeks damages for the 672 days of imprisonment to which he was subjected following his conviction for first degree sexual assault. In support of its dismissal motion, defendant contends, first, that claimant is unable to meet his burden of proving that the conviction was reversed and the accusatory instrument dismissed based upon one of the required grounds enumerated in Court of Claims Act § 8-b (3) (b) and, second, that claimant is unable to prove his innocence by clear and convincing evidence as is required under Court of Claims Act § 8-b (5) (c), because he pled guilty to endangering the welfare of a child. The Unjust Conviction and Imprisonment Act, embodied in Court of Claims Act § 8 (b), provides a damages remedy for innocent persons unjustly convicted and imprisoned. The express language of the statute makes clear that the burden of proof is a heavy one, requiring individuals seeking relief under the statute to meet strict pleading requirements and to prove their claim by "clear and convincing evidence" (Court of Claims Act § 8-b [1], [4], [5]). With respect to pleading, section 8-b (4) requires that the claim "state facts in sufficient detail to permit the court to find that claimant is likely to succeed" in proving by clear and convincing evidence that, as relevant here, (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." This subdivision further requires that "[i]f the court finds after reading the claim that claimant is not likely to succeed at trial, it shall dismiss the claim" (Court of Claims Act § 8-b [4]). In order to "present" such a claim, § 8-b (3) requires the following:
"[C]laimant 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."
There is no dispute that claimant has met the requirements of section 8-b (3) (a) inasmuch as he was convicted of a felony and served all or part of the sentence. Nor is it disputed that claimant's judgment of conviction was reversed and that, although a new trial was ordered, he was not retried and the accusatory instrument was dismissed. Rather, defendant contends that the proviso contained in Court of Claims Act § 8-b (3) (b) (ii) requiring that the conviction was reversed or vacated on one of the grounds set forth in Criminal Procedure Law (CPL) § 440.10 (a), (b), (c), (e) or (g) was not met. Claimant, on the other hand, alleges that his conviction was reversed due to prosecutorial misconduct tantamount to misrepresentation or fraud thereby falling within the rubric of CPL § 440.10 (1) (b), one of the statutory predicates to liability under § 8-b (3) (b) (ii).
CPL § 440.10 (1) (b) requires that a judgment of conviction be vacated where it "was procured by duress, misrepresentation or fraud on the part of the court or a prosecutor or a person acting for or on behalf of a court or prosecutor." The question therefore distills to whether or not the factual allegations in the claim, accepted as true for the purposes of the instant motion (see Warney v State of New York, 16 NY3d 428, 435 [2011]), support a cause of action for unjust conviction and imprisonment under § 8-b. For the reasons which follow, the Court concludes that they do not.
As a threshold matter, it is settled that where a judgment of conviction is reversed or vacated based upon one of the grounds set forth in § 8-b (3) (b) (ii), the fact that it was also premised upon a non-statutory ground is not determinative (see Baba-Ali v State of New York, 19 NY3d 627, 636-637 [2012]; Coakley v State of New York, 225 AD2d 477, 478 [1st Dept 1996]). Thus, the fact that the claimant's judgment of conviction was reversed in the interest of justice on the ground of prosecutorial misconduct does not foreclose liability under § 8-b so long as the circumstances of the misconduct satisfy one of the statutory predicates for liability set forth in § 8-b (3) (b) (ii). While claimant asserts that the prosecutorial misconduct in his criminal trial was tantamount to misrepresentation or fraud, he fails to support this contention with reference to a single misrepresentation or act of fraud by the prosecutor. Rather, the misconduct that resulted in the reversal of his criminal conviction was the prosecutor's inappropriate questioning and remarks during summation regarding claimant's sexual preferences and relationships as well as eliciting opinion evidence from an investigator who was not an expert. While the Fourth Department found the cumulative effect of the prosecutor's questioning and remarks during summation to be prejudicial, requiring a new trial, it did not find them to be fraudulent or a misrepresentation of fact.
The Court of Appeals decision in Baba-Ali is instructive. There, the Court held that prosecutorial misconduct - an eleventh-hour exchange of exculpatory material (see Brady v Maryland, 373 US 83 [1963]) - went well beyond a simple Brady violation and amounted to a fraud on the Court within the description of CPL 440.10 (1). In fact, the material the prosecution failed to exchange would have proved the defendant innocent of the crimes charged. Unlike the facts in Baba-Ali, here the prosecutor's misconduct deprived claimant of a fair trial because some of her questioning and remarks were irrelevant and unduly prejudicial to the defense. As noted by the Honorable Gerard M. Weisberg in Gordon v State of New York, 141 Misc 2d 242, 245 [Ct Cl, 1988]), "the sine qua non for relief under either [CPL § 440.10 (1) (b) or (c)] is that the defendant or court was told something which was not true." None of the conduct on which the reversal was based involved dishonesty constituting misrepresentation or fraud (cf. Turner v State of New York, 50 AD3d 890 [2d Dept 2008]; People v Seeber, 94 AD3d 1335 [3d Dept 2012]). Thus, claimant failed to allege in the claim or otherwise establish through the submission of documentary evidence that the judgment of conviction was reversed based upon one of the grounds set forth in § 8-b (3) (b).
Claimant need only establish that the judgment of conviction was reversed on one of the grounds specified in Court of Claims Act § 8-b (3) (b) (ii) and CPL 440.10 (1), not that the accusatory instrument was dismissed on one of these grounds (see Long v State of New York, 7 NY3d 269 [2006]; Coakley, 225 AD2d at 478; Harris v State of New York, 38 AD3d 144, 151 [2d Dept 2007]).
In addition to failing to satisfy one of the grounds set forth in § 8-b (3) (b), the claim fails to state facts in sufficient detail to permit the court to find that claimant is likely to succeed at trial in proving his innocence by clear and convincing evidence (see Court of Claims Act § 8-b [4]; Warney, 16 NY3d at 434; Britt v State of New York, 260 AD2d 6 [1st Dept 1999], lv denied 95 NY2d 753 [2000]; Fudger v State of New York, 131 AD2d 136, 140 [3d Dept 1987]). While claimant alleged that his judgment of conviction was reversed and dismissed, such is not necessarily indicative of the claimant's innocence. For example, in Reed v State of New York (78 NY2d 1 [1991]) a judgment of conviction was reversed based upon the prosecution's failure to prove guilt beyond a reasonable doubt. The Court in Reed found that an acquittal was not the equivalent of a finding of innocence and that claimant's conclusory allegations in the claim failed to set forth a prima facie case. In so holding, the Court cited the legislative history of the statute, stating:
" ' the mere statement that one's conviction has been reversed or vacated will not establish a prima facie case. In addition to the fact of reversal or vacating, it will still be necessary to state facts which will establish innocence; failure to do so will result in dismissal of the claim.' " (1984 Report of NY Law Rev Commn, 1984 McKinney's Session Laws of NY, at 2929.) The Commission anticipated that most claims would not survive a motion to dismiss (id., at 2930). It acknowledged that putting the burden of proof on claimant 'places one in a difficult position' of proving a negative, but the Commission believed it was appropriate to do so (id., at 2931)" (Reed, 78 NY2d at 10).
In addition to the fact that the judgment of conviction was reversed, claimant alleges that he is likely to succeed at trial in proving that he did not commit the crime for which he was charged based upon inconsistencies between the testimony of the alleged victim and his infant brother and the fact that he passed a polygraph examination relating to the acts forming the basis for the crime charged (see claim, defendant's Exhibit 1, ¶ 6). In a subsequent submission, claimant also provided a deposition transcript from a related Supreme Court action in which the alleged victim of the crime, now age 13, allegedly contradicted the testimony he gave during the course of the criminal trial. However, any inconsistencies in the testimony of the children go only to the weight to be accorded their testimony (see Dollas v Grace & Co., 225 AD2d 319, 321 [1st Dept 1996]) and does not tend to affirmatively demonstrate claimant's innocence. Moreover, the Appellate Division, Fourth Department ordered a new trial not because of any deficiency in the quantum of proof necessary to prove claimant guilty of the crime charged, but because of prosecutorial misconduct that was prejudicial to the defense (see Pough v State of New York, 203 AD2d 543 [2d Dept 1994], lv denied 85 NY2d 803 [1995]). In fact, the Court specifically found that the verdict was supported by the weight of the evidence.
The indictment charged claimant with sexual abuse in the first degree in violation of Penal Law § 130.65 (3) in that "defendant, on or about November 11, 2012, in the County of Oneida, Town of Trenton, did subject another person to sexual contact, to wit: consisting of contact between the hand and the penis, when the other person was less than eleven years old, to wit: a male born on [redacted] 2002" (defendant's Exhibit 1[A]).
Although this material was submitted to the Court on November 20, 2015, long after the return date of the motion, the Court considered it as it was not in existence prior to the return date of the motion.
To the extent claimant relies upon the result of his polygraph examination, such proof is not admissible at trial (see People v De Lorenzo, 45 AD3d 1402 [4th Dept 2007], lv denied 10 NY3d 763 [2008]). Moreover, claimant pled guilty to endangering the welfare of a child when on November 11, 2012 he "did act in a manner likely to be injurious to the physical, moral or mental welfare of a child, To wit" a male born on [redacted] 2002" (defendant's Exhibit 1 [E], [H]). While claimant avers in an affidavit submitted in opposition to the defendant's motion that the charge to which he pled guilty did not involve any sexual misconduct on his part, and was not connected in any way to the charges that were dismissed, he fails to set forth the factual basis for the conviction and it appears the conduct forming the basis for the lesser misdemeanor charge occurred on the same day and involved the same child as the felony charge that was dismissed. While claimant's conviction for endangering the welfare of a child did not necessarily include an act of sexual abuse in the first degree, neither does it rule it out. As a result, claimant failed to state facts which would permit the Court to find that he is likely to succeed at trial in proving his innocence of the crime of first degree sexual assault by clear and convincing evidence.
In summary, claimant failed to sufficiently allege facts, or otherwise establish through the submission of documentary evidence, that the judgment of conviction was reversed based upon one of the grounds set forth in § 8-b (3). Moreover, claimant failed to allege facts in sufficient detail to permit the Court to find that claimant is likely to succeed at trial in proving his innocence of the crime of first degree sexual assault by clear and convincing evidence. As a result, dismissal of the claim is required.
Lastly, because this claim involves an alleged victim of a sexual offense whose name is revealed in the records, the defendant also seeks an Order pursuant to Civil Rights Law § 50-b directing that the claim file be sealed. Considering the sensitive nature of the allegations in this case, and the lack of opposition to this branch of the defendant's motion, the Court agrees that an Order directing that the records be sealed is appropriate.
Based on the foregoing, defendant's motion is granted and the claim is dismissed. The Chief Clerk of the Court of Claims is directed to seal the records in Claim No. 126104.
January 6, 2016
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims The Court considered the following papers:
1. Notice of motion dated June 3, 2015; 2. Affirmation of Thomas G. Ramsay affirmed June 3, 2015 with exhibits 1 and A-H; 3. Affirmation of Frank Policelli dated June 29, 2015; 4. Affidavit of Mark Scheidelman sworn to June 25, 2015; 5. Undated Memorandum of Law filed July 1, 2015; 6. Reply affirmation of Thomas G. Ramsay affirmed July 17, 2015; 7. Affirmation of Dawn Catera Lupi affirmed July 15, 2015; 8. Sur Reply of Frank Policelli dated July 20, 2015.