New York State Court of Claims

New York State Court of Claims
ORTIZ v. THE STATE OF NEW YORK, # 2020-034-510, Claim No. 126292, Motion No. M-95254


Defendant who pleads guilty is not precluded from seeking section 8-b relief on the basis that he contributed to his own conviction where the judgment was vacated pursuant to CPL 440.10 (1) (g-1), which must be deemed to be part of paragraph (g).

Case information

UID: 2020-034-510
Claimant(s): JOSUE ORTIZ
Claimant short name: ORTIZ
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 126292
Motion number(s): M-95254
Cross-motion number(s):
Claimant's attorney: LAW OFFICES OF WAYNE C. FELLE, P.C.
Defendant's attorney: HON. LETITIA JAMES
New York State Attorney General
Assistant Attorney General
Third-party defendant's attorney:
Signature date: July 10, 2020
City: Buffalo
Official citation:
Appellate results:
See also (multicaptioned case)


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 February 4, 2020, filed February 6, 2020;

4. Affidavit in Support of Motion for Summary Judgment of Timothy J. Flynn,

sworn to February 4, 2020, with attached exhibits;

5. Reply Affirmation(1) of Wayne C. Felle, dated February 27, 2020, with attached


6. Reply Affidavit in Further Support of Defendant's Motion for Summary Judgment

of Timothy J. Flynn, sworn to March 13, 2020, with attached exhibit.

Pursuant to a verified claim filed June 15, 2015, Claimant has sought to recover damages for his alleged wrongful conviction and imprisonment pursuant to Court of Claims Act 8-b.(2) Defendant now moves under CPLR 3212 for 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 fails to state a cause of action. In that regard the State urges that Mr. Ortiz has not met, and cannot meet, his statutory burden of pleading and proving the elements of a cause of action by clear and convincing evidence, as set forth within section 8-b (3) (b), (4) and (5). Specifically, Defendant contends that Claimant's plea of guilty to a negotiated disposition of the charges filed against him is fatal to his claim under established black-letter law, since he would thereby have caused or brought about his own conviction, so as to preclude recovery under section 8-b (4) (b). On consideration I will deny dismissal of the claim on the ground asserted.

For purposes of this motion I accept that on December 8, 2004 Claimant was indicted by a grand jury in Erie County, charged with two counts of Murder in the First Degree under Penal Law 125.27 (1) (a) (viii), two counts of Murder in the First Degree under Penal Law 125.27 (1) (a) (vii), two counts of Murder in the Second Degree under Penal Law 125.25 (1), 20.00, two counts of Murder in the Second Degree under Penal Law 125.25 (3), and one count of Burglary in the First Degree under Penal Law 140.30 (1), 20.00. Those charges arose from the shooting deaths of brothers Nelson ("Lobo") Camacho and Miguel ("Flaco") Camacho within a first-floor apartment they reportedly shared on Niagara Street in the City of Buffalo on November 11, 2004. Three intruders allegedly forced open the front door to their residence, and committed the killings with an AK-47 rifle as they attempted to steal money and drugs from the two occupants. As the intruders ran from the residence a third brother, Luis Camacho, arrived at the scene in his vehicle, having been called by Miguel as the incident began. Luis observed two individuals as they ran from the scene, then entered the apartment. Once inside he found that his brother Nelson was apparently deceased, and that his brother Miguel, while mortally wounded, was still alive. Luis called for police assistance, then remained in the apartment until officers arrived. Over that time he spoke with Miguel, and evidently took a handgun from him before he died. He also made a number of observations of the crime scene that he reportedly shared with others in the community over the days that followed. It is claimed that Mr. Ortiz learned information regarding the incident when he attended a funeral service for the two deceased Camacho brothers on November 16, 2004, and spoke with Luis about what he observed as he waited for the police to arrive at his brothers' apartment.

On November 15, 2004 Claimant was taken to Buffalo General Hospital by officers from the Buffalo Police Department for psychiatric evaluation, after making reports that people were trying to kill him. During that evaluation Mr. Ortiz evidently commented that he knew who killed the Camacho brothers, and that people in the community believed that he was involved in that killing. At that point police detectives were summoned to the hospital to interview Claimant about the homicide.(3) That interview ended without further investigative action, and Mr. Ortiz was released from the hospital with the direction that he call 911 if any further problems arose.

On the late afternoon of November 16, 2004 two Buffalo Police Officers responded to a call that ultimately led them to Claimant's home. At that time - hours after the funeral service for the Camacho brothers - Claimant again advised that he had information regarding the homicides. The officers transported Mr. Ortiz to the Buffalo Police Department's Major Crimes Unit, where he was interviewed by Detective Mark R. Stambach.(4) The detective, who did not speak Spanish, arranged for Officer Torres to appear as a translator, but in the interim spoke with Claimant in broken English. Reportedly, it was over the period - estimated at 50 minutes - that Claimant first admitted that he killed the Camacho brothers. After Officer Torres arrived Claimant's questioning continued, albeit translated into Spanish. He was also provided Miranda warnings, again in Spanish. Claimant's confession became reduced to writing, and he was arrested for the two homicides. In a later deposition in this matter Detective Stambach acknowledged that Claimant's confession served as the sole evidentiary basis for his having determined to arrest him at that time.

Within the first days that followed Claimant's arrest concerns arose with respect to his competency to proceed under Criminal Procedure Law article 730. In that regard Evelyn Coggins, M.D., a board-certified forensic psychiatrist, met with Mr. Ortiz on November 19, 2004. The psychiatrist determined that Claimant was psychotic at the time of her evaluation, and diagnosed him as suffering from schizophrenic illness and depression. Claimant immediately began treating with antipsychotic medication in the holding center, and was later hospitalized for psychiatric treatment from November 30 until December 29, 2004. Claimant's mental condition eventually improved to a point where Dr. Coggins found to a reasonable degree of medical certainty that he possessed the capacity to understand the proceedings against him, and to assist in his own defense.

As previously noted, on December 8, 2004 Claimant was indicted under a nine-count indictment that included four counts of murder in the first degree. Thereafter, in May 2005, a competency hearing pursuant to CPL 730.30 occurred before the Honorable Joseph S. Forma, J.S.C. By Memorandum and Order granted July 20, 2005, the court found Mr. Ortiz to be competent to proceed. Justice Forma then proceeded to a Huntley(5) hearing in August 2005, with respect to Claimant's statements to Detective Stambach. Following that hearing the court denied Claimant's request to suppress his confession as involuntary.

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, before the Honorable Michael L. D'Amico, J.C.C., the parties agreed that Mr. Ortiz would be sentenced to two concurrent determinate terms of incarceration for 25 years, followed by 5 years of post-release supervision. The court honored that negotiated plea, and on June 16, 2006, sentenced Claimant to the two concurrent terms of incarceration.(6) On appeal the Supreme Court, Appellate Division, Fourth Department affirmed the judgment of conviction, rejecting Claimant's challenges to the conduct of the competency and Huntley hearings, and the severity of the terms of incarceration imposed by the sentencing court (see 46 AD3d 1409 [2007], lv denied 10 NY3d 769 [2008]). In the interim Claimant was delivered to State custody, and commenced serving his prison sentence.

In November 2012 a Federal Grand Jury issued a superseding indictment charging Misael Montalvo, Carmen M. Justiniano Ramirez, Efrain Hidalgo and Brandon Jonas in the homicides. In that prosecution the United States Attorney's Office took the position that Claimant played no role in the murders of the two Camacho brothers.(7)

It April 2013 Claimant moved to vacate his conviction pursuant to CPL 440.10 (1) (g), (g-1) and (h), 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 lengthy and comprehensive 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 (see claim, exhibit F; Reply Affirmation of Wayne C. Felle, dated February 27, 2020 [Felle affirmation], exhibit B).(8) Judge Franczyk limited the scope of the hearing 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 pursuant to CPL 440.10 (1) (g-1) as well as Claimant's free-standing claims of innocence under CPL 440.10 (1) (h). The court otherwise rejected any review under CPL 440.10 (1) (g), which by its terms applies solely to convictions after trial.

The Erie County District Attorney's Office, which had prosecuted the indictment, initially opposed Mr. Ortiz's efforts to vacate his conviction. However, by letter dated December 8, 2014, Erie County District Attorney Frank A. Sedita, III, withdrew his opposition to Claimant's motion to vacate his plea, after noting his understanding that Mr. Ortiz had premised his request upon CPL 440.10 (1) (g-1) (see Felle affirmation, exhibit B [December 8, 2014 letter]).(9) The next day, December 9, 2014, Judge Franczyk issued an order vacating Claimant's conviction "pursuant to CPL 440.10," and released him from custody on his own recognizance (see Felle affirmation, exhibit B [December 9, 2014 Order]). Thereafter, on January 26, 2015, Claimant filed a motion to dismiss the indictment. On January 30, 2015 Judge Franczyk granted the motion. An order memorializing that relief "for the reasons stated on the record" was later granted on May 8, 2015 (see Felle affirmation, exhibit B [May 8, 2015 Order]). Significantly, the submissions herein do not extend to the record of the proceedings before Judge Franczyk on either December 9, 2014 or January 30, 2015.

This motion for summary judgment is based upon the simple assertion that, as a matter of law, a claimant whose conviction and incarceration derived from a guilty plea cannot recover under section 8-b, since that plea represents conduct on the part of the litigant that necessarily caused or brought about the conviction. Under section 8-b (4) (b) and (5) (d) it is a claimant's burden to initially allege facts in sufficient detail to permit the court to find that he or she will likely succeed in establishing the elements of the claim at trial, including the absence of conduct on his or her part to cause or bring about the conviction. I note that little in the way of guidance exists on the issue of whether a litigant whose incarceration resulted from a guilty plea could sustain a claim under section 8-b. Compounding the difficulty in my review is the lack of specificity with respect to the statutory ground(s) upon which Claimant's conviction was vacated. Still, for reasons that follow I reject the State's position that as a matter of law a section 8-b claim cannot be raised where the initial conviction resulted from a guilty plea, at least when premised upon CPL 440.10 (1) (g-1), and post-conviction DNA testing. However, I will allow further motion practice addressed to whether, in this instance, the circumstances of the vacating of Claimant's negotiated plea would preclude recovery.

In denying the State's motion I start by recognizing the "[b]ecause suits against the State are allowed only by the State's waiver of sovereign immunity and in derogation of the common law, statutory requirements conditioning suit must be strictly construed" (Lichtenstein v State of New York, 93 NY2d 911, 913 [1999], quoting Dreger v New York State Thruway Auth., 81 NY2d 721, 724 [1992]). That principle has been applied to the interpretation of the provisions of section 8-b (see Long v State of New York, 7 NY3d 269, 276 [2006] [failure to comply with the requirement within section 8-b (4) that the claimant verify the claim compelled dismissal]). That principle will guide my assessment of whether Claimant can pursue his claim notwithstanding that his conviction resulted from a negotiated plea.

As applicable herein section 8-b allows an unjustly convicted defendant to pursue a claim for damages where the judgment of conviction was reversed or vacated, and the accusatory instrument dismissed, provided that the judgment of conviction was reversed or vacated, and the accusatory instrument was dismissed, on certain enumerated grounds (see section 8-b [3] [b] [ii]).(10) Those enumerated grounds, again as applicable herein, include five of the grounds upon which a judgment of conviction can be vacated under CPL 440.10 (1), specifically paragraphs (a), (b), (c), (e) or (g). A previously noted, in this instance Mr. Ortiz cited paragraphs (g), (g-1) and (h) as the grounds upon which he sought to vacate his conviction. Judge Franczyk denied relief to the extent premised upon section 440.10 (1) (g), since that provision expressly applied where there had been "a verdict of guilty after trial," and directed a hearing with respect to the remaining two grounds cited in support of relief, paragraphs (g-1) and (h). In his subsequent order of December 9, 2014, in which he vacated the judgment of conviction Judge Franczyk simply cited "CPL 440.10," and the submissions herein do not otherwise reveal whether Judge Franczyk offered further specificity on whether his direction was based upon paragraph (g-1) or (h) or both when he addressed the matter with counsel on the December 9, 2014 return date.

As part of his February 7, 2014 Decision and Order directing a hearing Judge Franczyk cited People v Hamilton, 115 AD3d 12 (2d Dept 2014), which held that a motion to vacate a trial conviction based upon a freestanding actual innocence claim could proceed under CPL 440.10 (1) (h). However, the Court of Appeals has now made clear that where a conviction is derived from a guilty plea there is no right to pursue an actual innocence claim under CPL 440.10 (1) (h) (see People v Tiger, 32 NY3d 91 [2018]). In any event paragraph (h) is not one of the provisions that would support a wrongful conviction claim (see Court of Claims Act 8-b [3] [b] [ii]). Thus, to the extent Judge Franczyk may have relied upon paragraph (h) in vacating the conviction, Mr. Ortiz would not be entitled to pursue recovery on that ground.

I will next address the potential that Mr. Ortiz could recover under section 8-b based upon a judgment of conviction vacated pursuant to CPL 440.10 (1) (g-1). In that regard I reassert that historically CPL 440.10 (1) (g), when weighed along with CPL 440.30 (1-a), provided a mechanism where a defendant convicted after trial - but not by a guilty plea - could seek DNA testing as a form of newly discovered evidence to vacate a judgment of conviction, provided the movant could show that it was reasonably probable that such evidence, if it had been received at the trial, would have resulted in a more favorable verdict. Thereafter, in January 2012 the New York State Justice Task Force issued a report entitled "Recommendations Regarding Post-Conviction Access to DNA Testing and Databank Comparisons." The Legislature then enacted paragraph (g-1), effective August 1, 2012, to specifically address the use of newly-discovered DNA evidence as a basis to collaterally attack a conviction, including one resulting from a guilty plea (see People v Tiger, 32 NY3d at 99-100).

Paragraph (g-1) expressly addresses two circumstances. For an individual convicted after trial, relief is dependent upon the court's determination that proffered postconviction DNA evidence establishes a reasonable probability that the verdict would have been more favorable to the defendant if that evidence had been known before the verdict was rendered. That allowance thus expressly applied the general newly-discovered evidence provisions for posttrial relief under paragraph (g) to subsequent DNA testing. Paragraph (g-1) also added a remedy not authorized within paragraph (g): the use of post-conviction forensic DNA testing evidence in support of an application to vacate a conviction based upon a plea, where that evidence demonstrates the probability that the defendant is actually innocent of the offense of which he was convicted (see id.). It is that latter ground upon which Claimant urges an entitlement to recover under section 8-b, irrespective of his guilty plea.

I will next address whether paragraph (g-1) should be deemed a part of paragraph (g) for purposes of Court of Claims Act 8-b (3) (b) (ii), so as to allow the pursuit of a wrongful conviction claim when the underlying conviction is vacated on that basis. In my view the response should be in the affirmative, based upon established principles of statutory construction. Paragraph (g-1) is clearly in pari materia with paragraph (g), in that the amendment expands upon paragraph (g)'s historic application to challenges to trial-based convictions based upon newly discovered DNA evidence (see People v Byrdsong, 33 AD3d 175, 177-178 [2d Dept 2006], lv denied 7 NY3d 900 [2006]). Indeed, one of the two DNA-based forms of relief incorporated within paragraph (g-1) formalizes that procedure. The second ground, relating to the vacating of plea-based conviction, is similarly premised upon DNA testing as a form of newly discovered evidence. In addition, I find it significant that the Legislature chose to identify the added section with the alphabetical character "g", together with the addition of the numerical "1", as it positioned the 2012 enactment within the structure of the statutory enactment. "The importance of selecting the position of an act within the entire body of statutory enactment cannot be overemphasized" (Norman J. Singer, 1 A Sutherland Statutory Constr. 21:3 [7th ed. 2009]). I will recognize the Legislature's chosen contextual setting for its amendment of CPL 440.10 (1), and will deem paragraph (g-1) to be a part of paragraph (g). A vacatur based upon paragraph (g-1) would thus support the pursuit of a wrongful conviction claim under section 8-b (3) (b) (ii).

Since paragraph (g-1) expressly applies to the vacating of a conviction based upon a guilty plea, I reject Defendant's contention that as a matter of law Claimant's negotiated plea precludes him from now seeking to recover for wrongful conviction.

Notwithstanding the above I will allow further motion practice addressed to whether Claimant's conviction actually was vacated under paragraph (g-1), whether that statute could have applied to the specific circumstances presented within the County Court motion, and whether the District Attorney's sole reference to paragraph (g-1) in withdrawing its objection to the vacating of the conviction would now preclude any challenge to the propriety of that ground for relief.

It is hereby

ORDERED, that Defendant's motion for summary judgment dismissing the claim is denied, in part without prejudice.

July 10, 2020

Buffalo, New York


Judge of the Court of Claims

1. Deemed an answering affirmation (see CPLR 2214 [b]).

2. Claimant has also filed civil rights claims in the United States District Court for the Western District of New York, urging recovery against the Erie County District Attorney's Office and several of it officials (Ortiz v Case, et al. [Civil Action 16 CV 322]), as well as the City of Buffalo, the Buffalo Police Department, and a number of police representatives (Ortiz v Wagstaff, et al. [Civil Action No. 16 CV 321]).

3. It appears that Mr. Ortiz communicated primarily in Spanish. Police Officer Edwin Torres served as the interpreter for the interview.

4. Detective Stambach denied that he was present at the interview of Claimant at Buffalo General Hospital on November 15, 2004. However, Officer Torres believed that Detective Stambach had participated in that interview.

5. See People v Huntley, 15 NY2d 72 (1965).

6. At sentencing Mr. Ortiz made a conclusory request to withdraw his plea, which was denied.

7. In that investigation Claimant appeared before the Federal Grand Jury in 2011 for the purpose of denying his involvement in the homicides. Instead, however, in his testimony Mr. Ortiz apparently reasserted his responsibility for the murders of the Camacho brothers. Later, in September 2012 Claimant evidently returned to the Grand Jury and reported that his earlier testimony had been false, and that he had not been involved in those killings.

8. Exhibit B to the Felle affirmation consists of multiple documents.

9. The Sedita letter made no reference to CPL 440.10 (1) (h), notwithstanding that Judge Franczyk had directed that the hearing on the vacatur application also extend to that requested basis for relief.

10. The Court of Appeals has made clear that a claimant seeking to recover under section 8-b must establish only that the judgment of conviction was vacated on one of the grounds listed in section 8-b (3) (b) (ii), and not that the ultimate dismissal of the charge also occurred under one of those grounds (see Long, 7 NY3d at 273-275).