New York State Court of Claims

New York State Court of Claims
SALCE v. STATE OF NEW YORK, # 2018-015-130, Claim No. 126391


Claim alleging wrongful conviction was dismissed following a trial as the claimant failed to meet her burden of establishing by clear and convincing evidence that she was innocent of the crimes charged.

Case information

UID: 2018-015-130
Claimant(s): LYDIA-ANN SALCE
Claimant short name: SALCE
Footnote (claimant name) :
Defendant(s): STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 126391
Motion number(s):
Cross-motion number(s):
Claimant's attorney: David A. Harper, Esq.
By: David A. Harper, Esq.
Defendant's attorney: Honorable Barbara D. Underwood, Attorney General
By: Michael C. Rizzo, Esq., Assistant Attorney General
Brett R. Eby, Esq., Assistant Attorney General
Third-party defendant's attorney:
Signature date: September 25, 2018
City: Saratoga Springs
Official citation:
Appellate results:
See also (multicaptioned case)


The claim herein alleges the claimant, Lydia-Ann Salce, was wrongfully convicted following her arrest and indictment on charges of second-degree attempted murder, assault in the first degree (two counts) and assault in the second degree (two counts).

The charges arose from a violent encounter between the claimant and her then-husband, Michael McKee, on August 11, 2011. At the conclusion of the criminal trial Ms. Salce was convicted on the attempted murder and both assault in the first degree charges; both assault in the second degree charges were dismissed. The claimant was sentenced to two concurrent 16-year terms of imprisonment and a 5-year period of post-release supervision.

Claimant appealed her conviction to the Appellate Division, Third Department, which reversed the judgment of conviction and granted a new trial (People v Salce, 124 AD3d 923 [3d Dept 2015], lv denied 25 NY3d 1207 [2015]). She was re-tried in April and May 2015 and acquitted of all charges (Exhibit 4). The claim asserts a single cause of action for unjust conviction and imprisonment pursuant to Court of Claims Act 8-b. Claimant was incarcerated in the custody of the Department of Corrections and Community Supervision from September 4, 2012 until January 13, 2015 (Exhibit 2).

In August 2011, the claimant resided at 1632 Route 9, Clifton Park, New York with her daughter Mikala and her husband, Michael McKee. Ms. Salce testified that she first met Mr. McKee at a bible study group in June 2010. According to Mr. McKee, the two met while working at the local Walmart where Ms. Salce was a claim representative and McKee assembled furniture and bicycles. Both the claimant and Mr. McKee agree that his body bore a significant number of visible tattoos at the time they first met. In this regard the claimant testified that when she first met Mr. McKee "all the tattoos were pretty obvious" (T56)(1) but "his statement to me . . . was that it was who he had been, and that he was a different person, and he was seeking God, and that that was the past. It was not who he was at the present" (T57).

Claimant testified that she and Mr. McKee's first date occurred on December 20, 2010, her birthday. The two were married on February 6, 2011 at what Mr. McKee described as a "biker theme[d]" wedding, in which the participants, including Ms. Salce, wore leather jackets, jeans and boots (T430). Claimant described their married life as "normal" (T58) until approximately April 2011 when Mr. McKee began drinking heavily and associating with members of a motorcycle club known as the Prisoners of Fate. According to Ms. Salce, "[t]he drinking would make him very unpredictable, and violent, and physically aggressive" (T60). She estimated that McKee spent "[a]bout twelve hours a day" (T61), generally from 5:00 p.m. to 5:00 a.m., with his friends from the motorcycle club. As a result of her husband's heavy drinking and association with the Prisoners of Fate, she began to have serious misgivings regarding the viability of her marriage. Ms. Salce testified "I told him, I said, if you join Prisoners of Fate, then I will divorce you" (T63). Claimant testified that her marriage to Mr. McKee continued to deteriorate throughout the summer of 2011 as Mr. McKee persisted in drinking heavily and associating with the Prisoners of Fate.

Mary T. Pennant worked with the claimant at the Walmart store in Halfmoon, New York, beginning in August 2010 when she recruited Ms. Salce to work in the claims department where Ms. Pennant was a claims supervisor. In her testimony at claimant's second criminal trial, Ms. Pennant stated that she worked closely with the claimant and that she came to know Michael McKee through his interaction with Ms. Salce. In December 2010, Ms. Pennant asked the claimant if she and Mr. McKee were dating. She denied that they were dating at that time, but informed Ms. Pennant in January 2011 that she and Mr. McKee were to be married. Then, in mid-February 2011, she advised Ms. Pennant that she and Mr. McKee had married and shared photographs of the event. Ms. Pennant described the claimant in January and February 2011 as "very glowing and glistening and, you know, very happy" (Exhibit GG, p. 586). For four weeks thereafter Ms. Salce was "very cheery, very bubbly, very pleasant. She would brag about how it was nice to have a man in the house" (id. at 589). Her cheerful demeanor began to change, however, in March 2011, when Ms. Pennant noticed that the claimant appeared stressed and tired, and she began to complain to Ms. Pennant regarding Mr. McKee's drinking and late hours. According to Ms. Pennant "she first complained towards the end of March about him being out drinking, and it got more so like April and May, it was getting more so" (id. at 591). By July 2011, it appeared to Ms. Pennant that the claimant was becoming unstable, complaining with regard to McKee's drinking and his involvement "with his buddies" (id. at 591). Also in July, the claimant mentioned to Ms. Pennant "that she had gone to Saratoga and gotten paperwork to file for a divorce" (id. at 591). Finally, again in July 2011, the claimant came back from lunch "very frazzled" and stated to Ms. Pennant "she couldn't take it anymore, she was going to kill him" (id. at 592). She did not, at the time, take claimant's statement literally. Ms. Pennant testified she had never observed any visible marks to indicate the claimant was a victim of domestic violence, nor did Ms. Salce at any time indicate that Mr. McKee was threatening her or had been violent.

The witness testified that on August 10, 2011 the claimant appeared angry and distraught while at work. On that date, the claimant and Ms. Pennant were training a third employee when Ms. Salce began complaining that Mr. McKee was "staying out and hanging out with his buddies and coming home drunk" (id. at 597). She also stated she had called a psychiatrist and was attempting to get an appointment. Ms. Salce left the Walmart at lunchtime and returned to work even more visibly upset. According to Ms. Pennant, "she said how she heard back from the office for the psychiatrist, and they said they couldn't see her for 20 days . . . She said, I really can't wait that long. She said, I'm just going to end up killing him" (id. at 598). Cherylan L. Rock, the employee being trained by the claimant and Ms. Pennant on August 10, 2011, also testified at the criminal trial, where she confirmed the claimant's statement that "[i]f I don't get to talk to somebody, I'm going to kill him" (Exhibit FF at 962).

At trial, Ms. Salce testified that on August 2, 2011, Mr. McKee came to the house on Route 9 intoxicated, threatening her and attempting to force his way into the home. Claimant called 911 (Exhibit 5) and police responded to the scene. Mr. McKee was found outside the house, hiding behind a car parked in the driveway. He was detained by police and a warrant check determined he had a warrant outstanding in Gloversville, New York. McKee was not arrested for his conduct that evening vis-a-vis Ms. Salce, but was detained on the outstanding warrant and transported to Gloversville where he paid an outstanding fine attendant to a plea of guilty to a charge of Menacing, Third Degree, entered in October 2008 (Exhibit 47).

Ms. Salce and Mr. McKee both testified that McKee resumed residing with the claimant at the house on Route 9 several days following the incident on August 2, 2011.

The events which are the subject of the claim herein occurred beginning on August 10, 2011. According to Ms. Salce, she arrived at work at 7:00 a.m. and went home for lunch at 12:00 noon. She returned to work at 1:00 p.m. and completed her shift at 3:00 p.m. At approximately 2:30 p.m. she received a text message from Mr. McKee indicating that he would not be at home that evening. Ms. Salce went to her residence on Route 9 where she changed into running clothes and drove to The Crossings, a park located in Colonie, New York, where she met her friend and running partner, Jill Frament. According to the claimant, she and Ms. Frament were together at The Crossings until 8:00 p.m. at which time the claimant drove to her home in Clifton Park, arriving at approximately 8:30 p.m. Later that evening, the claimant and Ms. Frament communicated with each other via both text and telephone. According to Ms. Frament's prior testimony at the criminal trial, she and the claimant spoke on the phone for approximately 20 minutes beginning at 10:30 p.m. At the end of their conversation the claimant informed Ms. Frament that she observed Mr. McKee's hand in a window. She testified that Ms. Salce "didn't sound upset. It was kind of matter of fact. That he was here, and that's it" (Exhibit 39, p. 16). Shortly after midnight on August 11, Ms. Frament texted the claimant inquiring "Hey, is everything OK?" (id., p. 17). Ms. Frament testified that during their walk she and the claimant had extensively discussed the difficulties Ms. Salce was having in her marriage. Since she was aware that Mr. McKee had appeared at the claimant's home, she was "[j]ust kind of checking in" (id.). The claimant indicated in a text "Yes, I am fine" (id, p. 23). During the time they texted the claimant informed Ms. Frament that Mr. McKee was joining the Prisoners of Fate and that she and Mr. McKee were going to divorce.

According to Ms. Salce, she was in her home on the evening of August 10, 2011 when a pickup truck drove into the home's driveway at approximately 10:15 p.m. Mr. McKee and another individual exited the vehicle and approached the house as the claimant stood on a cement pad near her door. At the time Mr. McKee was wearing a black vest with two patches, one of which read "Prisoners of Fate", and the other "Prospect" (Exhibit 27). Claimant described herself as angry and distraught that Mr. McKee had become a member of the Prisoners of Fate and referred to the patches on Mr. McKee's vest as "Boy Scout badges" (T79). She described both Mr. McKee and the individual with him, Vinny, as livid following her reference to the patches as Boy Scout badges. She informed Vinny that she did not want to know him or any of the other members of the Prisoners of Fate and ordered him and Mr. McKee off the property. The two men then entered the pickup truck and left the residence. Ms. Salce testified that she re-entered her home and locked the door. Sometime after midnight while she was texting with Ms. Frament, she again observed Mr. McKee's hands on the kitchen window. She ended her conversation with Ms. Frament and answered a phone call from Mr. McKee who was outside the house. Eventually the claimant allowed Mr. McKee into the house after he appeared calmer and stated an intention only to talk to her.

Inside the home, claimant showed Mr. McKee the divorce papers and stated that since he had decided to join the Prisoners of Fate she wanted a divorce. She described Mr. McKee as heavily intoxicated and stated that the two began arguing in the kitchen. Mr. McKee exited the kitchen and went into the dining room. According to the claimant, when he returned to the kitchen he threw a glass mason jar at the claimant, which just missed her and instead broke on the kitchen counter. She described Exhibits 30 and 31 as depicting the kitchen sink and counter, and what she characterized as broken glass from the mason jar which had been thrown at her. Claimant stated that at the time she was wearing flip-flops so she used her hands and a broom and dustpan to gather up the broken glass. She gathered one scoop of glass with the dustpan, emptied the glass into the trash, and began cleaning glass from the kitchen counter when Mr. McKee approached her from behind and grabbed her ponytail. The claimant had been facing the kitchen window but was spun around by Mr. McKee who held "a large, large knife" (T90) in front of her. She identified Exhibit 52 as the knife held by Mr. McKee and stated that after he brandished the knife Mr. McKee indicated his intention to kill her. McKee next punched the claimant in the face with his right hand which held the knife. When asked how many times she was punched the claimant responded "A lot" (T92). Claimant put her hands in the air in an attempt to protect herself and fell to the right as Mr. McKee continued to strike her with his right hand while holding her hair with his left hand. Claimant testified that she attempted to protect her head and "went down in a little ball" (T93). Claimant's glasses had been displaced and Mr. McKee continued punching her head, neck, shoulders and back. It was at this time that Ms. Salce noticed McKee's knife lying on the floor. According to the claimant "I remember picking it up and started flailing with it with my right hand, because I sort of felt that most of the punches were coming somewhere to my right" (T94). Claimant testified that she had cut her hands while cleaning up the broken glass in the kitchen counter and floor. Ms. Salce continued flailing with the knife and the two fell to the floor. At that time she reached up and grasped Mr. McKee's left hand, which was holding her hair, and released his grip using a technique she had learned while working with children with disabilities. Mr. McKee's fingers released claimant's ponytail and "[b]y that time, he was falling towards the floor, and he finally at that point, stopped punching me" (T98). The claimant then stood and backed towards the kitchen sink looking for her IPhone. She left the kitchen and walked through the dining room to the bathroom looking for the phone. Because her glasses had been lost during the event with Mr. McKee, she cleaned her hands of blood in the bathroom sink "so I can feel something, they were so slippery" (T99). She testified that she had previously washed her hands in the kitchen sink but they continued to bleed. After washing her hands in the bathroom she returned to the kitchen and took a phone which was attached to Mr. McKee's hip and called 911. She estimated two minutes expired between the end of her fight with Mr. McKee and the time she called 911. Law enforcement arrived within a few minutes and the claimant exited the house. She identified Exhibit 22, Exhibit 23 and Exhibit 24 as photographs taken shortly after police arrived. Exhibit 24A is a photograph showing claimant's hands with the palms facing up. At trial, claimant utilized Exhibit 24A to identify various lacerations to both her hands as a result of her involvement with Mr. McKee. The claimant spoke to a Saratoga County Sheriff's deputy at the scene and informed him that her husband "had threatened me with a knife and had told me he was going to kill me" (T107). She also spoke to an EMT and was placed in an ambulance and transported to Albany Medical Center. Following X-rays and scans, at approximately 5:30 a.m., claimant was informed that she was able to be discharged. According to the claimant, two law enforcement officers offered her a ride back to Clifton Park, the claimant believing that they were taking her to her home on Route 9. Instead, claimant was taken to the State Police Barracks in Clifton Park, New York.

At the State Police Barracks, claimant was asked to give a statement regarding the evening's events by an individual who identified himself as Rodger Kirsopp. Claimant provided a statement, verbally relating the events which were then typed by Mr. Kirsopp on a laptop. Once the claimant's statement was concluded it was printed and she was asked to read it over. Although claimant testified that she "couldn't even see straight. I had really bad concussions" (T112), she read the statement and signed it. Claimant identified various photographs which she contended depict various injuries to her hands and feet (Exhibits 17, 19, 20, 21, 25). After the statement was complete and photographs had been taken, claimant was informed by an individual identified as Patty Donovan, a member of the State Police, that additional photographs were required and that the claimant would have to remove her clothes. Claimant complied with the direction and additional photographs were taken. When asked by counsel whether at that time bruises on her shoulders and her back were evident, claimant responded that the incident had occurred only five or six hours earlier "so they weren't really expressing a lot of bruising yet" (T122). Shortly thereafter, Rodger Kirsopp informed the claimant that she was to be arrested for assault. She was then taken to the Saratoga County Jail. Four days following her arrival at the county jail, claimant's defense counsel arranged for additional photographs to be taken. Claimant testified that Exhibits 7 through 10 and 11 through 14 depict bruises, abrasions and contusions suffered in the altercation with Mr. McKee, which only became apparent over time.

At the conclusion of her direct examination, claimant explained Mary Pennant's testimony at the criminal trial, that the claimant had spoken of killing her husband, by stating she had requested time off to meet with a counselor regarding marital problems and had stated to Ms. Pennant "I need to get this appointment, I need to go, because this whole situation is killing me" (T127). Claimant denied ever having seen the knife received as Exhibit 52 prior to the time Mr. McKee brandished it before her in the early morning hours of August 11, 2011. This despite testimony at the prior criminal trial by her daughter, Mikala Russman, that the claimant had kept a knife, from her description one identical to that received as Exhibit 52, in a compartment in the headboard of her bed for "[a]s long as I can remember" (Exhibit A, p. 9).

On cross-examination Ms. Salce acknowledged that on April 9, 1996 she pled guilty to a violation of Penal Law 120.14, Menacing in the Second Degree. She was sentenced to 60 days confinement and three years of probation. She also acknowledged that she and Mr. McKee had a "biker themed" wedding motiff in which the claimant wore jeans and a leather jacket and the minister wore a bandana. She denied that she was aware Mr. McKee had previous convictions prior to marrying him. She agreed, however, that she appeared in an episode of a television series, the episode was entitled "Wives with Knives", in which she stated she was aware that Mr. McKee had been involved in "past bad acts" which she equated to criminality (T136).

Claimant acknowledged there was no physical contact between her and Mr. McKee during the incident which occurred on August 2, 2011, and that she allowed him to resume living at the residence several days later. She repeated her testimony on direct examination that she advised Mary Pennant that the stress relating to her marriage was killing her. She did, however, acknowledge that at the second criminal trial she allowed that it was possible she could have made the statement attributed to her by Ms. Pennant. In this regard she was referred to an excerpt from the criminal trial transcript in which she states, "I remember it a little bit differently, but if I had said that I was going to kill him, if she remembers that, it's possible I might have said it. I was very upset" (T148). Also, while she did not recall telling Jill Frament that she wanted to beat up Mr. McKee, she stated at trial "[a]gain, as I stated, I don't recall saying that, but if she says that I said it, it's possible" (T150).

With regard to the events which occurred in the early morning hours of August 11, 2011, claimant testified that when Mr. McKee returned to the house sometime after midnight he was drunk, violent and screaming. He later calmed down and the claimant allowed him to enter the home. She acknowledged she did not request that Ms. Frament call the police while the two were texting following Mr. McKee's arrival. At trial she denied that she saw Mr. McKee wearing the knife he brandished in front of her (Exhibit 52) in a sheath or holster under his vest. This despite her testimony at her Examination Before Trial in which she stated that as Mr. McKee returned to the kitchen from the dining room she observed that he had removed his vest and was wearing a holster with a brown handle protruding. She then acknowledged observing the knife in a holster as McKee returned from the dining room saying "I did see it" (T169). Ms. Salce agreed that she never mentioned that Mr. McKee was wearing a knife in a shoulder holster during her testimony at the prior criminal trial. She agreed that the knife she alleges Mr. McKee used to threaten her was ultimately found on the floor of the dining room, despite the fact that Mr. McKee was severely injured after their altercation and lying on the kitchen floor. She reviewed Exhibit Y which depicts the home's bathroom. She agreed that she had informed the State Police that she was searching the area depicted in Exhibit Y.

Michael McKee testified that he was born in Illinois and moved to the State of Florida when he was 23. While in Florida, he twice pled guilty to felony charges of arson and burglary. He first served part of an initial two and one-half year term, and completed a later nine and one-half year term of imprisonment. Upon his release from prison he moved to Johnstown, New York, where he worked in a textile factory. While employed there in 2008, Mr. McKee was arrested and charged with menacing in the second degree. He pled guilty to the misdemeanor charge and "did one day in jail" (T428).

In 2010, McKee began employment at the Walmart located on Route 9 in Halfmoon, New York, where he assembled furniture and bicycles. While he was employed at the Walmart he met the claimant and the two began dating. After dating for several months the claimant and Mr. McKee were married at what he described as a biker-themed wedding in which guests and participants, including the claimant, wore leather jackets, jeans and boots. The two took up residence at the claimant's home on Route 9 where they lived with the claimant's daughter who was 13 years old at the time. According to Mr. McKee, the claimant had placed knives in every room of the house, including a Ka-Bar knife which she kept in a compartment above her bed. He testified that he first became a member of the Prisoners of Fate motorcycle club when he began working at Walmart, prior to the time he began dating Ms. Salce. His involvement with the Prisoners of Fate became an issue in his marriage to the claimant in the first two or three months they were married. Although the couple began to discuss the possibility of divorce, he denied that there was any violence or threats of violence in the marriage. He also denied that the Prisoners of Fate were in any way associated with the Hells Angels motorcycle club.

Addressing the events of August 10, 2011, the witness testified that he left his home in Clifton Park and drove to Malta where he met members of the Prisoners of Fate. He estimated he drank approximately a six-pack of beer beginning at 3:00 p.m. or 4:00 p.m. that afternoon. After approximately six or seven hours he left the group and was driven home by a Prisoner of Fate member identified as Victor Ortiz. McKee arrived home "[c]lose to the early morning hours" wearing blue jeans, boots and a motorcycle vest (T443). At that time he possessed a knife in a sheath on his right hip and a box cutter he used to open boxes at work.

Upon arriving, the two men exited Mr. Ortiz's vehicle, which was parked in the driveway, and the claimant exited the home "screaming at the top of her lungs" (T447). The witness described the claimant as agitated and stated that both he and Mr. Ortiz were calm. Ms. Salce was upset that Mr. McKee had been out late and refused to shake Victor Ortiz's hand, instead telling him to leave her property. McKee and Ortiz re-entered Ortiz's vehicle and drove to a nearby Hess gas station where they remained for approximately one hour in order to give the claimant time to cool off. Mr. Ortiz returned the witness to the house on Route 9 and left. Mr. McKee could not recall whether he walked into the house or was let in the house by the claimant, but testified he did not use force to enter the home. Mr. McKee encountered the claimant in the kitchen where she informed him "we need to talk" (T452). The two then discussed issues such as the motorcycle club, money and their potential divorce. The witness described the claimant as angry and upset and stated that he left the kitchen and entered the living room area, where he hung up his vest and then returned to the kitchen. He and the claimant continued their discussion and the claimant declared "it's either the club or me" (T453). Mr. McKee informed the claimant that, if forced to make a choice, he would choose the motorcycle club, and then turned to leave the kitchen in order to use the bathroom. According to Mr. McKee "[a]fter I turned my back to leave to go to the bathroom, I feel a stab in my back" (T454). He then felt another stab in his back and turned to see the claimant holding a knife. As she attempted to stab him again, he pushed her against the kitchen sink in order to secure the knife while at the same time defending himself. In so doing, he punched the claimant in her eye whereupon she stabbed him in the chest with the Ka-Bar knife he knew her to keep in the bed compartment. Mr. McKee then dropped to his knees and was stabbed again by the claimant who was repeatedly stating "You're done" (T456). Eventually, Mr. McKee fell over on his side and was again stabbed by the claimant. McKee was stabbed a total of 12 times.

He denied that he at anytime held a knife in his hands or threatened his wife with a knife during the sequence of events described above.

On cross-examination the witness testified that he joined the Prisoners of Fate for camaraderie and brotherhood. He was wearing his motorcycle club vest on August 10, 2011, and he acknowledged that the vest contained a small red and white patch representing the Hells Angels. He agreed that he had been spending a lot of time with the Prisoners of Fate during the summer of 2011 and that by July 2011 his marriage to the claimant was in trouble.

On August 10, 2011, Mr. McKee attended a barbecue in Malta, New York, with other members of the Prisoners of Fate. He testified that he had a "few beers" and left after six or seven hours (T477). Victor Ortiz drove the witness home and the claimant exited the house as they parked in the driveway. Mr. Ortiz attempted to introduce himself to the claimant who refused to shake his hand. Although he denied that the claimant mocked the patches on his motorcycle club vest at trial, he was referred to his testimony at the 2015 criminal trial in which he answered in the affirmative when asked whether the claimant mocked his patches.

The witness and Mr. Ortiz left the house and drove to a nearby Hess gas station. Less than an hour later Mr. Ortiz dropped McKee at his home and then left. Mr. McKee could not recall whether he walked directly into the house or was let in by the claimant. He did not recall several phone calls made to the claimant between 10:30 and 11:30 p.m. and denied that he attempted to open a window from the outside in order to gain entry to the home. Once inside the house the claimant and McKee discussed his involvement with the motorcycle club, money and other differences between them. Ms. Salce remained in the kitchen while the witness entered the living room and placed his motorcycle vest on the back of a chair. He identified Exhibit 29 as a photograph of the living room area depicting his motorcycle vest and an empty knife sheath laying on the floor. McKee had previously identified the sheath as the one used for the Ka-Bar knife the claimant kept in a compartment above her bed.

Mr. McKee returned to the kitchen and told the claimant they would continue to talk after he returned from the bathroom. He turned to leave the kitchen and was stabbed in the back by the claimant who told him "you're done" (T489). Claimant then stabbed him in the back a second time. The witness turned around and pushed the claimant against the sink and attempted to wrest the knife from her hand. He was unsuccessful, and punched the claimant once on the left side of her face near her eye. McKee testified that after he punched the claimant "she drawed [sic] back a little bit and came back at me with the knife" (T492). He denied that he ever grabbed the claimant by her hair during the encounter. The witness recalled being stabbed in the chest and falling to the kitchen floor where he fell onto his side. According to the witness, the claimant continued to stab him while he lay on the floor, standing over him and repeating "you're done" (T493).

The witness was examined with regard to Exhibit 44, a statement given by Mr. McKee at 6:35 a.m. on August 11, 2011 while he was in the emergency room at Albany Medical Center. At trial Mr. McKee testified that he did not recall giving the statement, but agreed that during the 2015 criminal trial he had acknowledged that the document bore his signature below a Penal Law 210.45 notice, to which Mr. McKee also affixed his initials. The statement reads in relevant part:

"I am here because my wife Lydia Ann McKee stabbed (me) with a big kitchen knife at our residence. I came home late last night, we started arguing over bills and me coming home so late. We were in the kitchen face to face, the next thing I knew she had a knife in her hand and stabbed me directly in my chest, I saw her hand raised and she thrusted the knife into my chest in a downward motion."

Mr. McKee denied that he informed State Police Investigator Britten that his wife stabbed him with a kitchen knife while they were standing face-to-face. He denied that he informed the investigator that he observed the claimant raising her hand and thrusting the knife into his chest in a downward motion. He testified that, in fact, his wife stabbed him in the back with a Ka-Bar knife which she kept in a compartment in her bed. He also denied informing the investigator that both he and the claimant fell to the ground where Ms. Salce continued to stab him in the back.

Claimant presented the expert testimony of Massad F. Ayoob, a part-time police officer and author of several publications in the use of firearms and police investigative techniques. Mr. Ayoob testified that the shallow depth of Mr. McKee's wounds supports the claimant's version of how the incident occurred. His testimony was based in part on the testimony of Dr. Herbert Reich (Exhibit 43) who opined during the course of claimant's second criminal trial that McKee suffered a pneumothorax, which was caused by air entering the pleural space. In Dr. Reich's opinion, such a condition could be caused by a knife entering the chest wall a distance of only two inches (Exhibit 43, pp. 10-11). Dr. Reich explained that the absence of significant blood in the pleural space (a hemothorax) indicated that a lung was not punctured (id. at pp. 20, 45). Mr. Ayoob concluded, therefore, that the shallow depth of McKee's wounds were consistent with claimant's description of what happened. Mr. Ayoob testified as follows in this regard:

"Mr. McKee stated that [the claimant] attacked him while they were both standing, and the testimony of [claimant] . . . was that she was down in variously a fetal position . . . with him in a physically superior position. She had described flailing her arm backward toward him, . . . which would bring the . . . knife . . . [to] the end of the range of movement. That would have very little power to penetrate, and it would be consistent with the one to two inch wounds that both the defense's expert and the treating physician have testified to in the past" (T257).

Court of Claims Act 8-b was enacted to permit innocent persons who have been wrongly convicted an avenue of redress over and above other tort remedies (see Court of Claims Act 8-b [1]). It has been noted that "the 'linchpin' of the statute is innocence" (Ivey v State of New York, 80 NY2d 474, 479 [1992]). To prevail on a wrongful conviction claim following a retrial that results in acquittal, claimant was required to prove "by clear and convincing evidence" that (i) she has been convicted of one or more felonies for which she served all or part of a sentence of imprisonment (Court of Claims Act 8-b [5] [a]), (ii) she was found not guilty after a new trial (Court of Claims Act 8-b [5] [b] [ii]), and (iii) that she did not commit any of the acts charged in the accusatory instrument (Court of Claims Act 8-b [5] [c]).(2) While claimant satisfied her burden of establishing that she was convicted of one or more felonies for which she served part of a sentence of imprisonment and was thereafter found not guilty after a new trial, she did not demonstrate by clear and convincing evidence that she was innocent of the crimes charged.

The clear and convincing evidence standard is a "heavy" burden (Reed v State of New York, 78 NY2d 1, 11 [1991]). An acquittal of criminal charges is not the equivalent to a finding of innocence but means only that the People failed in proving the higher standard of guilt beyond a reasonable doubt (id. at 8). 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" (Matter of Duane II. [Andrew II.], 151 AD3d 1129, 1131 [3d Dept 2017]), lv denied 29 NY3d 918 [2017]) and at least one court has concluded that proof consisting of no more than the claimant's conclusory and self-serving testimony fails to satisfy the clear and convincing evidence standard (Vasquez v State of New York, 263 AD2d 539 [2d Dept 1999], lv denied 94 NY2d 754 [1999]).

Here, claimant's testimony that she was acting in self defense when the knife wounds were inflicted on McKee was contradicted by McKee who testified that he was walking away from the claimant when he was stabbed in the back. Although McKee himself may have had motive to lie, the testimony of the non-party witnesses supports the inference that claimant may have acted with the intent to kill or seriously injure McKee. Claimant's co-workers, Ms. Pennant and Ms. Rock, both testified at the criminal trial that claimant had indicated to them that if she did not get help soon, she was going to "end up killing him" (Exhibit GG, p. 598; Exhibit FF, p. 962). According to both Pennant and Rock, these statements were made on August 10, 2011, less than 24 hours prior to the incident at issue herein. While claimant attempted to ameliorate the effect of this testimony by explaining that she indicated only that she needed a doctor's appointment because "this whole situation is killing me" (T127), the Court credits the testimony of the two non-party witnesses who had no reason to lie and whose credibility was not called into question. In addition, claimant's credibility on a central issue, the knife used during the encounter, is also suspect. Claimant's testimony that she had never previously seen the knife used in the attack was directly contradicted by her daughter, Mikala, who testified it was the same knife the claimant kept in a compartment of the headboard of her bed for "[a]s long as I can remember" (Exhibit A, p. 9). The material issues which exist regarding the claimant's credibility, including her ownership and long-term possession of the weapon used in the assault, leads the Court to question the veracity of her testimony regarding the manner in which the incident occurred. While the statement given by Mr. McKee in the hospital is also at odds with portions of his trial testimony, it was taken within hours of the incident at a time when he was hospitalized and heavily sedated.

Nor does the testimony of claimant's expert, Massad F. Ayoob, tip the scales in claimant's favor. First, with respect to Mr. Ayoob's qualifications, nothing in his curriculum vitae uniquely qualifies him to testify as an expert in knife-wound interpretation. He has worked as a part-time policeman in New Hampshire and nothing in his employment history or educational background reflects expertise in knife-wound interpretation. Rather, the central focus of Mr. Ayoob's "Personal Training" and various publications, as reflected in his curriculum vitae (Exhibit 58), is firearms and police investigative techniques, not knives or knife-wound interpretation. For this reason, the Court finds his testimony of little probative value (see e.g. Moon Ok Kwon v Martin, 19 AD3d 664 [2d Dept 2005]).

Furthermore, while Mr. Ayoob testified that one of the cuts on the claimant's hand was consistent with defensive action on her part (T274-275), he also testified it is equally likely the injury to her finger was the result of encountering broken glass during the course of the confrontation with Mr. McKee. Importantly, Mr. Ayoob repeatedly testified to the fact that defensive wounds are primarily found or inflicted on the hands and arms of the defender. The proof presented at trial established that the claimant sustained a small laceration on her left middle finger. Mr. McKee, however, had a 10 cm laceration to his right elbow, a 2 cm laceration to his left elbow and a small laceration to his left wrist (claimant's Exhibit 41, Discharge Summary). Mr. Ayoob's testimony, both as to the possible alternative causes for the laceration to the claimant's finger and the nature and usual location of defensive wounds, failed to establish that the wound to the claimant's finger was sustained in self-defense. Instead, the testimony of claimant's expert is equally supportive of a conclusion that the wounds sustained by Mr. McKee, and not the claimant, were defensive in nature.

Lastly, it appears that Mr. Ayoob's testimony rested entirely on the theory that McKee was situated behind the claimant on the floor as she was flailing her arms backwards with the knife. However, claimant testified that McKee was situated in front of her and to her right as she struck outwardly with the knife (T194). Mr. Ayoob's testimony is therefore unsupported by the facts in evidence (Hambsch v New York City Tr. Auth., 63 NY2d 723 [1984]).

Upon the proof presented at trial, the Court finds that the claimant failed to establish her innocence by clear and convincing evidence. As a result, the claim is dismissed.

Let judgment be entered accordingly.

September 25, 2018

Saratoga Springs, New York


Judge of the Court of Claims

1. Numbers preceded by the letter "T" refer to the trial transcript.

2. The Court of Appeals held in Ivey v State of New York (80 NY2d 474 [1992]) that the grounds for dismissal enumerated in the proviso clause contained in 8-b (3) (b) (ii) and 8-b (5) (b) (ii) do not exclude claimants who have been acquitted after retrial although such claimants must still prove their innocence by clear and convincing evidence.