Opinion
# 2015-040-034 Claim No. 123625
08-04-2015
GORDON v. STATE OF NEW YORK
Jessica M. Gorman, Esq. ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Brett R. Eby, Esq., AAG
Synopsis
Court of Claims Act § 8-b Claim for unjust conviction and also asserting false arrest cause of action dismissed following Trial for failure of proof.
Case information
| UID: | 2015-040-034 |
| Claimant(s): | KEVIN E. GORDON |
| Claimant short name: | GORDON |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 123625 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | CHRISTOPHER J. McCARTHY |
| Claimant's attorney: | Jessica M. Gorman, Esq. |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Brett R. Eby, Esq., AAG |
| Third-party defendant's attorney: | |
| Signature date: | August 4, 2015 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, Kevin Gordon, failed to establish by clear and convincing evidence that he was unjustly convicted of a crime and imprisoned, as provided by Court of Claims Act § 8-b (1). In addition, Claimant failed to establish by a preponderance of the evidence that he was falsely imprisoned between the reversal of his conviction and his re-indictment. A bifurcated trial, addressing liability issues only, was held on March 10, 2015 at the Court of Claims in Albany, New York. Claimant was the only witness to testify. Claimant submitted 29 exhibits into evidence (Exs. 1-29) and Defendant submitted 11 exhibits into evidence (Exs. A-K). Thereafter, the parties were granted additional time to submit post-trial memoranda.
On February 16, 2010 at approximately 6:00 a.m., a man wearing a mask and brandishing a knife entered a convenience store located in the City of Albany and demanded that the clerk, Mohammed Hafeez Habib, open the register and give him money. The perpetrator, who was wearing a long black and blue jacket with a "North Face" logo, took the money, jabbed Habib in the stomach with the knife and fled the store. Based on evidence developed by the police during their investigation, Mr. Gordon was arrested and later charged by indictment with robbery in the first degree and attempted assault in the second degree. He subsequently filed a motion seeking Wade and Sandoval hearings, as well as an order dismissing the indictment alleging, among other things, that he was deprived of due process during the grand jury proceedings. Albany County Court denied the motion to dismiss the indictment and, following a Wade hearing, suppressed evidence from one witness identifying Mr. Gordon as the perpetrator because the People failed to provide proper notice (see CPL 710.30), but denied the motion as to another witness whose identification of Mr. Gordon was obtained by the police through the use of a photographic array. A jury trial was conducted, after which, Mr. Gordon was convicted, as charged, and sentenced, as a persistent violent felony offender, to concurrent prison terms of 25 years to life and two to four years for the robbery and attempted assault convictions, respectively (People v Gordon, 101 AD3d 1473, 1473-1474 [3d Dept 2012]).
The Appellate Division determined that the "integrity of the grand jury proceedings was so impaired by the admission of … hearsay that reversal of the underlying conviction is required" (id. at 1476). The Court also dismissed the indictment, but further allowed the People leave to re-present any appropriate charges against Mr. Gordon to another grand jury (id. at 1477).
Claimant testified regarding his activities on the night of February 15, 2010 and the morning of February 16, 2010. He said he was selling clothing, which he previously had stolen, at several locations including the convenience store that was robbed that night. No one at the convenience store bought any of his stolen merchandise. He stated that he never robbed the convenience store. He stated he was offered plea deals but did not accept them, as he had with other criminal cases, because he did not commit the alleged offense in this case. He admitted that he has committed several crimes and has been convicted several times and spent time in jail. However, the time he served on this conviction was more difficult because he knew he did not commit the offense for which he was convicted.
Claimant also contends that he was falsely imprisoned between the reversal of his conviction and his re-indictment. The Appellate Division decision reversing Claimant's conviction is dated December 27, 2012 (Ex. 2). Claimant testified that he learned of the decision in late December and thought that he would be released from custody at Green Haven Correctional Facility located in Stormville, New York (hereinafter "Green Haven"). He stated that on January 2, 2013, an officer came to his cell at Green Haven and told him to pack up his property. Claimant inquired if he was being released and he was advised that the Albany County Sheriff's Department was there to pick him up. Claimant stated that he was transported to the Albany County Jail. He said he was held for 36 days. He was told that there was a securing order from a judge (see Ex. 1). He was re-arraigned 36 days after January 2, 2013. He was re-tried in September, 2013 and a jury found him not guilty of all charges. Claimant asserts that he was falsely imprisoned for the 36 days he was detained at the Albany County Jail from January 2, 2013 until he was re-indicted on the charges because the Appellate Division had reversed his conviction and dismissed the underlying indictment.
Following Claimant's testimony, Claimant rested his case. Defense counsel moved to dismiss. The Court reserved on the motion. The Defendant then rested without calling any witnesses. Claimant then sought to re-open his case. The Court denied the motion, but allowed the parties to address the issue in their post trial submissions.
Upon review of the parties' submissions and upon further consideration, the Court adheres to its prior determination not to allow Claimant to re-open his case. After a party has produced all of its evidence and rested, it is within the Court's discretion whether to allow the case to be reopened (Petroleum Serv. Co. v Steel City Painting Co., 115 AD2d 872, 873 [3d Dept 1985]). Here, Claimant did not move immediately to reopen his case. He waited to make his motion to reopen and present additional proof until after Defendant made a motion to dismiss and then rested without offering any evidence (cf. Salzman v Alan S. Rosell, D.D.S., P.C.,129 AD2d 833, 836 [3d Dept 1987]).
Court of Claims Act § 8-b was enacted in 1984 to allow innocent people to recover damages from the State where they can prove by clear and convincing evidence that they were unjustly convicted and imprisoned (see Court of Claims Act §8-b [1]; Long v State of New York, 7 NY3d 269, 273 [2006]). The relevant portion of the statute provides as follows:
"3. In order to present the claim for unjust conviction and imprisonment, claimant must establish by documentary evidence that …
"(b) … (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 judg[]ment 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" (Court of Claims Act § 8-b [3]).
A claimant may therefore seek redress where the court (1) vacates (or reverses) the judgment and dismisses the accusatory instrument; (2) vacates the judgment and orders a new trial, followed by a subsequent dismissal of the accusatory instrument before retrial; or (3) vacates the judgment and orders a new trial, resulting in a not guilty verdict.
(Long v State of New York, supra at 273-274)
In Long (supra at 274), the Court of Appeals explained that Ivey v State of New York (80 NY2d 474 [1992]) addressed the third scenario in the preceding paragraph and, in particular, whether a reversal must be predicated on one of the enumerated grounds when a new trial was ordered by the Court as was done in People v Ivey (83 AD2d 788 [4th Dept 1981]) and an acquittal follows upon retrial. In such instances, the Court found that a "claimant need not show that the reversal or vacatur was based on one of the grounds listed in Court of Claims Act § 8-b (3) (b) (ii) [Ivey v State of New York, supra] at 480-481" (Long at 274).
The Long court went on to state:
We reasoned [in Ivey] that the proviso did not apply in that scenario because that clause, by its terms, applied only when "the accusatory instrument was dismissed." A dismissal, however, "is a technically and theoretically alien notion where a new trial is ordered and held and results in an acquittal" ([Ivey v State of New York, supra] at 481).
(id.)
The Long court further stated:
Where, as here, the accusatory instrument is dismissed, the plain language of the proviso appears to suggest that both the vacatur of the judgment and dismissal of the accusatory instrument must be premised on one of the grounds set forth in CPL 440.10(1) (id.).
However, the Court concluded:
… that a claim satisfies the statutory criteria if the claimant establishes that the judgment of conviction was vacated under one of the specified grounds in Court of Claims Act § 8-b (3) (b) (ii), regardless of the basis for the dismissal of the accusatory instrument.
(Long at 275)
Claimant asserts that the holding in Ivey applies to him and he does not have to establish that his conviction was reversed on an enumerated ground because he was retried and acquitted.
The Court disagrees and concludes that the rule articulated in Ivey does not apply to Claimant's situation because the Appellate Division, Third Department, in People v Gordon (supra at 1477) reversed the conviction and dismissed the indictment but did not order a new trial. Rather, the Court gave the prosecution leave to re-present the matter to a new grand jury. Thus, it cannot be said in Claimant's case, as was the rationale in Ivey, that a dismissal of the accusatory instrument "is a technically and theoretically alien notion" (Ivey v State of New York, supra at 481). To the contrary, in People v Gordon, the Appellate Division explicitly dismissed the indictment. Rather, the circumstance in Claimant's case is analytically more like the first scenario outlined in the above-referenced quote from Long, an instance in which the court has vacated or reversed the judgment and dismissed the accusatory instrument (Long v State of New York, supra at 273-274). Long instructs that, in such cases, a claimant must establish that the judgment of conviction was vacated under one of the grounds specified in Court of Claims Act § 8-b (3) (b) (ii) regardless of the basis for the dismissal of the accusatory instrument (id. at 275). Moreover, "[t]he requirements of [Court of Claims Act § 8-b] are to be strictly construed" (Torres v State of New York, 228 AD2d 579, 580 [2d Dept 1996], lv denied 89 NY2d 801 [1996]). Accordingly, the Court finds that Claimant had to establish that his conviction was reversed on one of the enumerated grounds of CPL § 440.10 (1) and then had to prove the same by clear and convincing evidence (see Court of Claims Act §§ 8-b [3] [b] [ii], [5] [b] [ii]). This Claimant failed to do so.
In addition, the Court finds and concludes that Claimant failed to establish by clear and convincing evidence that he was innocent of the underlying charges (see Alexandre v State of New York, 168 AD2d 472 [2d Dept 1990], appeal dismissed 77 NY2d 925 [1991]). Mr. Gordon was the only witness to testify. The Court has considered Mr. Gordon's testimony and observed his demeanor as he did so. The Court finds that Claimant was less than forthright and sincere in his testimony and determines further that he was less than a credible witness.
Therefore, based upon the foregoing, the Court finds that Claimant failed to establish his cause of action for unjust conviction and imprisonment.
The Court now turns to Claimant's cause of action asserting he was falsely imprisoned for the period between the reversal of his conviction and his re-indictment.
Mr. Gordon asserted there was no legal basis to further detain him after the indictment was dismissed. The Court disagrees. The decision of the Third Department was not self-effectuating insofar as Claimant could not simply present it to the authorities at Green Haven and expect to obtain any particular relief. To the contrary, some further action by a court having jurisdiction over his case was required. CPL § 470.45 commands that "[u]pon reversing or modifying a judgment and directing corrective action, an appellate court must remit the case to the criminal court in which the judgment was entered ," in this instance the County Court of Albany County (emphasis supplied). "Such criminal court [, in turn,] must execute the direction of the appellate court and must , depending upon the nature of such direction, either discharge the defendant from custody, exonerate his bail or issue a securing order " (id. [emphasis supplied]). There was no need for the Third Department to recite the foregoing in its Decision because, by operation of the statute, it was mandatory that the matter be remitted back to Albany County Court. The criminal court, likewise, was under a statutory charge to effectuate the corrective action prescribed by the Appellate Division, which, in this case, included leave to re-present the matter to another grand jury. The "mandatory remittur directing the criminal court to fulfill the direction from the Appellate Division [] is nothing more than a formality" (Simmons v State of New York, 17 Misc 3d 394, 398 [Ct Cl 2007], affd 59 AD3d 1013 [4th Dept 2009]). That other courts have, on occasion, elected to spell out these steps does not alter the express command and operation of the statute (see People v Barbot, 133 AD2d 274 [2d Dept 1987]; People v Hays, 132 AD2d 620 [2d Dept 1987]; People v Stallings, 128 AD2d 908 [2d Dept 1987]). What those cases do illustrate, however, is that, when the People have been given leave to re-present any appropriate charges to another grand jury, then the criminal court may issue a securing order in accordance with the provisions of CPL § 210.45 (9), the relevant portion of which is as follows:
9. When the court dismisses the entire indictment but authorizes resubmission of the charge or charges to a grand jury, such authorization is, for purposes of this subdivision, deemed to constitute an order holding the defendant for the action of a grand jury with respect to such charge or charges. Such order must be accompanied by a securing order either releasing the defendant on his own recognizance or fixing bail or committing him to the custody of the sheriff pending resubmission of the case to the grand jury and the grand jury's disposition thereof. Such securing order remains in effect until the first to occur of any of the following: * * *
(d) The expiration of a period of forty-five days from the date of issuance of the order; provided that such period may, for good cause shown, be extended by the court to a designated subsequent date if such be necessary to accord the people reasonable opportunity to resubmit the case to a grand jury.
That is precisely what transpired in this case. The Decision of the Appellate Division, Third Department, was dated December 27, 2012. The matter apparently was returned to Albany County Court as required and contemplated by CPL § 470.45 and Judge Breslin (the same judge who issued the initial judgment upon a verdict convicting Claimant) elected to effectuate one of the corrective actions available to him when he signed the securing order on January 2, 2013. Mr. Gordon testified that he was held for 36 days after his indictment was dismissed before a new indictment was filed. That is more than a week before the 45-day period from the date of issuance of the order. The District Attorney re-presented the case within 45 days and followed the guidelines set forth in CPL § 210.45 (9) (d). The Court finds and concludes that the Albany County Sheriff was correct in holding Mr. Gordon pursuant to the Appellate Division decision and Judge Breslin's securing order (see Exs. 1 and 2). The Court, therefore, concludes that Claimant failed to establish he was falsely imprisoned.
Claimant failed to establish his Claim.
All motions and cross-motions are denied as moot. All objections upon which the Court reserved determination during trial, and not otherwise addressed herein, are now overruled.
The Clerk of the Court is directed to enter judgment dismissing the Claim.
August 4, 2015
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims