New York State Court of Claims

New York State Court of Claims
MCKEE v. STATE OF NEW YORK, # 2021-032-049, Claim No. 130980

Synopsis

Defendant State of New York was found liable to claimant under section 8-b of the Court of Claims Act.

Case information

UID: 2021-032-049
Claimant(s): LARRY MCKEE
Claimant short name: MCKEE
Footnote (claimant name) :
Defendant(s): STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 130980
Motion number(s):
Cross-motion number(s):
Judge: JUDITH A. HARD
Claimant's attorney: Law Offices of Michael E. Talassazan
Michael E. Talassazan, Esq.
By: Cuomo LLC
By: Oscar Michelen, Esq.
Defendant's attorney: Hon. Letitia James, Attorney General
By: Janet L. Polstein, Assistant Attorney General
Third-party defendant's attorney:
Signature date: May 28, 2021
City: Albany
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

The instant claim alleges that claimant, Larry McKee, was wrongfully convicted of murder in the second degree following his arrest for the shooting death of Theodore Vance. Claimant filed a verified claim for damages based upon his alleged unjust conviction and imprisonment pursuant to section 8-b of the Court of Claims Act on February 13, 2018. An amended claim was filed as of right on March 12, 2018. Claimant's second amended claim, which included the allegation that "[n]ew evidence brought forth by defense counsel regarding an eyewitness account of the murder . . . formed the basis of the [CPL] 440 motion" (Second Amended Claim, 4) was filed on April 27, 2018.(1) Claimant served more than 20 years following his conviction. The virtual trial of this claim took place on November 18-19, 2020.

"FACTS

A. The Murder

Claimant, who is black, spent his childhood in the Bronx neighborhood of University Avenue and 176th Street. In February 1996, claimant was on parole for a gun conviction and living in his childhood neighborhood.

On February 19, 1996, he spent most of the day indoors until approximately 3:00 p.m. At that time he went for a walk and passed a male and female walking together on the other side of the street. The male, Theodore Vance, exchanged words with claimant, believing that claimant was looking at his female companion. Claimant did not respond to Vance and returned to his apartment.

At approximately 6:00 p.m. or 7:00 p.m. that evening, he went for another walk before his probation curfew started at 9:00 p.m. (11/18/20 T: 146).(2) As he passed a bodega on his way to the intersection of University Avenue and 176th Street (Exhibit 10), three black men were standing outside. One of the men was Vance. He exchanged words with Vance about the incident earlier in the day. Vance then reached behind himself to pull something out of his pants. Claimant thought the object may be a gun but it was a metal pipe. A fight ensued with Vance using the pipe to beat claimant. The men tousled and fought up 176th Street, with a small crowd following them. The men continued to fight up 176th Street to the intersection with Andrews Avenue (Exhibit 10, picture 1). Someone from the crowd threw a bottle at Rossy Chatelain, Vance's companion from outside the bodega, who then ran away "down the hill" (11/18/20 T: 156). Eventually, claimant freed himself from Vance's attacks and ran toward the next block at Montgomery Avenue while Vance pursued him. Claimant continued to run past the intersection at 176th Street and Andrews Avenue to where the fire hydrant is located in Exhibit 10, picture 1. That location is where claimant first heard a gunshot from behind him. He did not see who fired the gun or where Vance was located at the time of the gunshot. Claimant ran up 176th Street and hid behind a car parked between Montgomery Avenue and Andrews Avenue, but closer to Andrews Avenue. After the gunshot, claimant ran back down 176th Street to merge with the crowd that had gathered for the fight. He did not see Vance lying on the ground.

The next day, someone came to claimant's apartment and told his sister that claimant had violated parole and needed to come down to the police precinct. Claimant testified that he was placed in a drug treatment program as a condition of his parole. Exhibit F states that claimant missed a few days of his drug treatment program sessions, including on February 19, 1996. However, claimant testified that he was not participating in that program because he was not a drug user.(3)

Claimant went to the 48th Precinct where he was interviewed by Detectives Tierney and Gaughan. He was then taken to the 41st Precinct where he was interviewed by an Assistant District Attorney (ADA) Hogan, which was videotaped (Exhibit 14). During this interview, claimant maintained that he did not shoot Vance. After speaking with the detectives and the ADA, he was charged with the murder of Vance.

At the criminal trial, the prosecution produced Rossy Chatelain (Exhibit K), who testified to witnessing the shooting. He was 16 years old at the time of the shooting. On the night of Vance's death, Chatelain testified that he was visiting his sister's house, where Vance was also staying. That evening, Vance and Chatelain walked to a bodega on 176th Street and University Avenue to get cigarettes. When Vance exited the store, claimant was walking by the bodega. Vance asked claimant if claimant was the person he had a problem with earlier in the day (Exhibit K at 018). Claimant answered in the affirmative and Vance and claimant began fighting. At the time that the fighting began, Chatelain testified that there was another man in the bodega who stepped outside when the fighting started. Chatelain described the man as "short, dark-skinned and . . . blind in one eye" (id. at 026). Chatelain conceded that he did not actually know that the man was blind, he just assumed so because his eye "looked funny" (id.). Vance pulled out a retractable metal rod or "wand" and used it to beat claimant (id. at 021-022). According to Chatelain, claimant broke away from Vance and ran away, heading north on University Avenue. Vance and Chatelain then walked back toward Chatelain's sister's apartment. After they turned the corner at 176th Street toward Montgomery Avenue, claimant reappeared with a Hispanic male and Vance and claimant began fighting again. Claimant and Vance started to fight again near the corner of 176th Street and Andrews Avenue and eventually moved to the intersection of those streets (Exhibit 10, first picture). Chatelain testified that Vance ran into the street, then claimant pulled out a gun and shot him. Chatelain then clarified that he did not actually see a gun in claimant's hand, he only knew he started shooting because he "saw the sparks" and "heard the shots" (Exhibit K at 039). After the shooting, Vance ran up another block, to the corner of Montgomery Avenue and 176th Street, where he collapsed and died. Despite Chatelain's testimony that claimant shot Vance at the corner of 176th Street and Andrews Avenue, Vance's metal wand and spent shell cartridges from the gun were found one block up in the same location as Vance's body, at 176th Street and Montgomery Avenue (Exhibit 5 at 116-117).

At claimant's criminal trial, the prosecution also produced Dr. Zoya Shmuter, a Medical Examiner for the Office of the Chief Medical Examiner of New York City (Exhibit I). Dr. Shmuter performed an autopsy on Vance. There were two bullet wounds on his body, one situated on his right shoulder. This bullet passed through his right lung and came to rest in his upper left lung. There was no evidence that it was fired at close range. The second bullet made two holes, one in the front of the abdominal wall and one in the back. It passed through his bowel. There was no evidence of close range firing for this bullet either. Although Dr. Shmuter first testified that the bullets entered from the front, after examining Vance's clothes more closely and in consultation with another medical examiner, she determined that it was more likely that the second bullet entered from the back because the hole was smoother and there were fibers around the back hole but not the front hole. Although she testified that the wounds were significant, she testified that Vance could have run one city block after sustaining these injuries.

The defense called Kishoto Stanback at the criminal trial (Exhibit L), who was standing in front of a building on 175th Street and Andrews Avenue at 8:45 p.m. on the night of the shooting. He saw two light flashes from "about three or four" gunshots coming from the corner of 176th Street and Montgomery Avenue, where his residence was located (Exhibit L at 008). He described the shooter as "about five one, five two", 110 pounds, with a "high yellow"skin tone (id. at 010-011).(4)

He did not see where the shooter went after the shooting. After the gunshots, Stanback walked one block away from the incident and after determining that the gunshots had ceased, he walked towards his home on the corner of 176th Street and Montgomery Avenue. Vance was lying on the ground at that corner and the police had arrived. A few days later, at the request of the police, he went to the 46th Precinct to be interviewed by detectives. Stanback claimed that he was shown a picture of claimant and was told that if he identified claimant as the shooter, he could go free. He refused to identify claimant as the shooter and was subsequently arrested for an unrelated assault.

The jury convicted claimant, then age 26, of murder in the second degree (Exhibit 9). He was sentenced to a term of imprisonment of 24 years to life (Exhibit 9). He filed a direct appeal and several CPL 440 motions, none of which were successful, before a newly discovered witness stepped forward.

B. The Vacatur

While imprisoned claimant maintained his innocence and asked many organizations to help him, only to be rejected for the most part. Claimant's friends also sought legal assistance for him, and approached attorney Michael Talassazan. After reviewing claimant's file, Talassazan told claimant's friends to attempt to locate the one-eyed man that Chatelain stated was with him and Vance outside the bodega on the evening of the murder. The friends found that man and identified him as Robert Jones. Jones, who is blind in one eye, was the third man outside the bodega with Vance and Chatelain on the night of Vance's murder. Talassazan arranged to interview Jones (Exhibit T). Jones' testimony and affidavit are the newly discovered evidence used as the ground for the vacatur and dismissal (11/18/20 T: 70-71; Exhibit W). Talassazan discussed the motion with Judge Robert Torres, the judge assigned to the case, and his law clerk prior to filing a CPL 440 motion citing the newly discovered witness (11/18/20 T: 66).

Robert Jones lived at 1730 Andrews Avenue in February 1996. Jones, who has been blind in his right eye since birth, was in the bodega when Vance and Chatelain came into the store on the night of Vance's murder. He did not know either one. Vance was upset with the bodega clerk who would not give him a free cigarette. Jones tried to quiet him down and gave Vance one of his cigarettes. They went outside and claimant walked by them. Jones testified that he knew claimant from the neighborhood as Jones went to school with claimant's younger brother. Vance and claimant exchanged words and Vance pulled out a metal pipe and a fight between the two ensued. Jones attempted to get the men to calm down as the fight progressed down University Avenue to 176th Street, eventually reaching a hill near the intersection of 176th Street and Andrews Avenue (see Exhibit 10, third photograph). At that point, Jones saw a light-skinned Hispanic man wearing a black jacket come down the hill of 176th Street from Andrews Avenue, until he was behind Vance and claimant as they fought. The man pulled out a black gun and took aim at the fighters. Jones was looking at the man holding the gun when he heard the gun go off and saw sparks from the gun. After Jones witnessed the gunshot, he ran back down to University Avenue and then heard three additional gunshots. When asked if he saw claimant with a gun, Jones said: "No. He was too busy tussling with [Vance]" (11/18/20 T: 89).

A few days later, claimant's brother asked Jones to accompany him to the courthouse where claimant was to appear, so Jones could tell the authorities what he saw and heard. Claimant was never produced so Jones went home without sharing his observations. Some days later, as Jones was entering the apartment building where he lived, three Hispanic men followed him into the building and entered the elevator with him. Jones pushed the button to the fifth floor where he lived, and one of the males pushed the button to the fourth floor. When the elevator arrived on the fourth floor, the men pushed Jones out of the elevator and forced him into a stairwell (11/18/20 T: 98). The men restrained Jones and, in a "threatening manner" told him that they knew he went to the courthouse and warned him not to speak with the police (id. at 100). One of the men then burned Jones' arm with a cigarette. Jones feared for his life and moved to Massachusetts, where he now resides (T: 102). He admitted that he served time in prison in Massachusetts for drug crimes and was diagnosed with schizophrenia. Prior to trial of this claim, he was involved in a serious motor vehicle accident during which he sustained a significant head injury.

Talassazan informed the Conviction Integrity Unit (CIU) of the Bronx District Attorney's Office about Jones' testimony. Jones was brought to them and interviewed by the CIU (Exhibit Z).

On December 22, 2017, Talassazan received a letter from the CIU containing the transcript of grand jury testimony that was not produced to claimant's counsel at his criminal trial (Exhibit 2). The testimony was from a woman who was backing her car out of a driveway near the corner of Montgomery Avenue and 176th Street at the time of the shooting. She observed Vance, a family friend who had been staying at her house for three months, running when something hit him from behind. He fell at the corner of Montgomery Avenue and 176th Street. She and Vance's ex-wife, who was with her at the time, ran over to him. Vance was conscious and responded when the two women spoke to him. The last thing that he said to them before losing consciousness was that "he saw a Spanish guy" (Exhibit 2).

There are two other pieces of evidence that point to a Hispanic male as the shooter of Vance that were stipulated to at the Court of Claims trial but were not produced or admitted at claimant's criminal trial. The first is Exhibit 7, the transcript of a 911 call, that was not admitted at the criminal trial because it was made 11 minutes after the shooting and did not qualify for the excited utterance exception to the hearsay rule. In the transcript, the caller tells the operator that they live at the corner of 176th Street and Andrews Avenue and that they witnessed the shooting. The caller identified the shooter as a light-skinned or pale yellow Hispanic male wearing a dark jacket, and measuring about five feet, two inches to five feet, four inches tall.

The second piece of evidence that was not disclosed to claimant's criminal attorney until April 28, 1997, over 14 months after its creation, was a "Homicide Duty Short Memo" prepared by an assistant district attorney on duty the night of Vance's murder (Exhibit 6). The memorandum is dated February 20, 1996 and contains a summary of statements provided by Augustus Rivera, an eyewitness to the murder, who later recanted the information. He was not called to testify at the criminal trial nor was this document produced thereat because of Rivera's recantation. The document states:

On February 19, 1996 at approximately 8:45 p.m., the [eyewitness] observed (2) two male Hispanics and one male black chasing the deceased down the street. Eyewitness observed one of the male Hispanics fire several shots at deceased. At the corner of 176th Street and Montgomery Avenue the deceased fell to the ground, after which time the three unapprehended individuals ran into a building on 176th Street. The deceased was shot approximately three times and died at Lincoln Hospital at approximately 9:35 p.m. (Exhibit 6).

The CIU filed a recommendation for dismissal of the indictment which referred to Jones' testimony, the exculpatory grand jury testimony that was not disclosed to claimant, and other evidence known to the parties at the time (Exhibit 3). Talassazan filed a Notice of Motion pursuant to CPL 440.10 (1) (g) to vacate the judgment and the sentence imposed upon claimant (Exhibit 4). Oral argument on the application took place on January 29, 2018 before Judge Robert Torres in Supreme Court, Bronx County (Exhibit 11). Assistant District Attorney Risa Gerson, Esq. informed the Court that the Bronx County District Attorney, Darcel D. Clark, joined claimant's CPL 440 motion (Exhibit 11 at 003-004). ADA Gerson listed the dying words of Vance that were not disclosed to defendant; the Augustus Rivera testimony that Rivera later recanted; the 911 call; and Jones' testimony as the DA's reasons for joining claimant's CPL 440 motion. Judge Torres granted the motion and claimant was freed that day.

LAW AND DISCUSSION

"Section 8-b of the Court of Claims Act was enacted to provide redress to innocent persons who prove by clear and convincing evidence that they were unjustly convicted and imprisoned" (Ivey v State of New York, 80 NY2d 474, 476 [1992], citing Court of Claims Act 8-b [1]). Innocence is the linchpin of the statute (Ivey v State of New York, supra, quoting Report of NY Law Rev Commn, 1984 McKinney's Session Laws of NY, at 2930). The clear and convincing standard is defined as one that satisfies the trier of fact that it is "highly probable that what [claimant] claims is what actually happened" (Salce v State of New York, 184 AD3d 1037, 1039 [3d Dept. 2020], citing NY PJI 1:64; Matter of Duane II. [Andrew II.], 151 AD3d 1129, 1130-1131 [3d Dept. 2017], lv denied 29 NY3d 918 [2017]). The evidence must not be " 'equivocal or open to opposing presumptions' " (Salce v State of New York, supra, quoting Solomon v State of New York, 146 AD2d 439, 440 [1st Dept. 1989]; see also Acosta v State of New York, 22 AD3d 367 [1st Dept. 2005].

"To assert a [section 8-b] claim, the statute sets forth two distinct prongs that ultimately must be established by clear and convincing evidence. The first prong, which must be demonstrated by documentary evidence, is that (a) the claimant was convicted of a crime, sentenced to a term of imprisonment, and served at least part of the sentence; (b) the claimant was pardoned on the ground of innocence or, alternatively, the conviction was reversed or vacated and the accusatory instrument was dismissed; and (c) the claim is not time-barred (Court of Claims Act 8-b [3]). The second prong, which does not need to be established by documentary evidence, requires that the claim 'state facts in sufficient detail to permit the court to find that claimant is likely to succeed' in carrying his burden at trial that, (a) 'he did not commit any of the acts charged in the accusatory instrument or his acts or omissions charged in the accusatory instrument did not constitute a felony or misdemeanor against the state, and (b) he did not by his own conduct cause or bring about his conviction' (Court of Claims Act 8-b [4])." (Pierre v State of New York, UID No. 2019-051-041 [Ct Cl, Martin, J., Sept. 10, 2019]).(5)

Although not an exhaustive list, the Law Review Commission specified five examples of conduct that would amount to causing one's conviction: "removing evidence, falsely giving an uncoerced confession, inducing a witness to give false testimony, suppressing testimony or concealing the guilt of another" (Turner v State of New York, 50 Misc 3d 1217(A), 2015 NY Slip Op 51968[U], *5 [Ct Cl 2015], citing McKinney's 1984 Session Laws of New York at p 2932). Moreover, "[i]n order for claimant's conduct to be a bar to recovery in a wrongful conviction claim, it must be the 'proximate cause of conviction' " (Pierre v State of New York, UID No. 2019-051-041 [Ct Cl, Martin, J., Sept. 10, 2019], quoting Warney v State of New York, 16 NY3d 428, 437 [2011] [additional citation omitted]).

At the conclusion of the trial, defendant moved to dismiss the claim arguing, among other things, that part of the basis for the reversal of claimant's conviction was a Brady violation, which is not an enumerated ground for recovery under Court of Claims Act 8-b (11/19/20 T: 56). The Court denied said motion (id. at 61).(6)

Court of Claims Act 8-b (5) (b) (ii) (A), lists the grounds for reversal of a judgment of conviction that may form the basis of a claim for unjust conviction and imprisonment as any ground listed in "paragraph (a), (b), (c), (e) or (g) of subdivision one of section 440.10 of the criminal procedure law." "To recover under Court of Claims 8-b in the absence of an acquittal upon retrial . . . the criminal judgment must have been reversed or vacated on one or more statutorily enumerated grounds" (Jeanty v State of New York, 175 AD3d 1073, 1074 [4th Dept. 2019], lv denied 34 NY3d 912 [2020] [citations omitted]). Claimant must prove by "clear and convincing evidence" that his judgment of conviction was reversed on an enumerated ground (Court of Claims Act 8-b [5]). In establishing that a claimant's conviction was reversed on an enumerated ground, "[i]t is the existence of the fact, as opposed to the documentation of the fact that is a 'statutory requirement conditioning suit' " (Harris v State of New York, 38 AD3d 144, 150 [2d Dept. 2007], quoting Long v State of New York, 7 NY3d 269, 276 [2006] [additional citations omitted]). The Harris Court indicated that when the record is clear and it is obvious to the State that claimant's conviction was vacated on the basis of newly discovered evidence, then the statutory requirements have been met.

Here, claimant's CPL 440 motion (Exhibit 4), the Bronx DA's recommendation for dismissal (Exhibit 3), and the transcript of the hearing (Exhibit 11) reference newly discovered evidence, namely the discovery of the identity of the third man outside of the bodega as Robert Jones, as a reason for vacating claimant's conviction, and Judge Torres granted claimant's CPL 440 motion (Exhibit 1). Accordingly, it is clear from the record that claimant's conviction was vacated on at least one enumerated ground--newly discovered evidence (CPL 440.10 [1] [g]).

Defendant's argument that the conviction was vacated because of the prosecutor's withholding of Brady material is correct. It is clear from the transcript of the vacatur hearing that Judge Torres considered the withholding of the Brady material in addition to the newly discovered evidence. However, defendant cites to no caselaw to support the proposition that a claimant's conviction must be reversed only on an enumerated ground, at the exclusion of all other possible grounds. Indeed, motions brought pursuant to CPL 440.10 frequently cite numerous grounds, and courts grant said motions while citing more than one ground (see Jeanty v State of New York, 175 AD3d at 1074 [judgment of conviction reversed "pursuant to CPL 440.10 (1) (f) 'and/or' CPL 440.10 (1) (h)"]; Dickan v State of New York, 300 AD2d 257 [1st Dept. 2002] [judgment of conviction reversed pursuant to CPL 440.10 (1) (d) and/or (h)]). Therefore, claimant has established, through documentary evidence, that his criminal conviction was reversed on an enumerated ground (see Jeanty v State of New York, 175 AD3d at 1074).

Accordingly, the Court finds that claimant has proved by clear and convincing documentary evidence that he was convicted of a crime, was sentenced and served a part of that sentence (Exhibits 3, 5, 9). He also proved by the same standard that the conviction was vacated and the accusatory instrument dismissed (Exhibits 1, 4, 9, 11), and that the claim was filed within two years after the dismissal of the accusatory instrument (see Court of Claims Act 8-b [7]; Exhibit 11).

The Court further finds that claimant has established by clear and convincing evidence that he did not commit any of the acts charged in the accusatory instrument. Claimant presented as sincere in his testimony that he did not shoot Vance. While defendant argues that minor discrepancies in his testimony should discredit him, the Court gives little weight to such inconsistencies. Claimant has consistently maintained that he did not shoot Vance, and although he did not see the shooter, he believed that the shooter was a Hispanic male.

The Court disagrees with defendant's assessment that claimant is not credible. Defendant emphasizes that while claimant has consistently maintained that the shooter was Hispanic, there is no way that he could know that fact because he was running away from Vance before Vance was shot (11/19/20 T: 29). The Court does not find that claimant is dishonest, rather, the Court finds it more likely that claimant knew generally that the shooter was Hispanic because some unidentified Hispanic men were in Vance and claimant's vicinity during their fighting. The other inconsistencies identified by defendant, such as claimant's description of Vance's metal pipe, the injuries he sustained, and the clothes he wore the night of the crime, do not compel the Court to disregard claimant's testimony. Claimant's testimony at trial in regard to his physical altercation with Vance and the moments immediately after he fled from Vance is consistent with his prior descriptions of the incident (Exhibit H [police interview transcript, dated February 21, 1996]; Exhibit M [claimant's deposition testimony, dated October 30, 2019]).

The stipulated evidence at trial clearly points to a light-skinned Hispanic shooter as the murderer of Vance. The anonymous 911 caller (Exhibit 7); Augustus Rivera, an eyewitness who later recanted his testimony (Exhibit 6); Kishoto Stanback, who testified at claimant's criminal trial (Exhibit L); and Vance himself (Exhibit 2), all described the shooter as Hispanic or Spanish, with a pale, light-skinned complexion. Claimant, who is black and dark-skinned, clearly does not fit this description. However, it is the eyewitness testimony of Jones that is particularly persuasive. While defendant argues that Jones' visual and psychiatric problems are damaging to his honesty and credibility, the Court disagrees. Jones presented as a sincere man who was forthright in his testimony to the Court. His recorded testimony aligns with his trial testimony (Exhibit T).(7) Although he has led a difficult life with multiple physical and recent mental problems to endure, the Court finds that these problems did not affect his honesty. Importantly, the injuries he suffered in a car accident in June 2020 postdate his interview with Mr. Talassazan (Exhibit T), and the interview corroborates his testimony elicited at trial. The length of time it took for him to come forward is understandable due to the complexity of his life in the Bronx, his intent to lead a quieter life in Massachusetts, and his fear of harm if he returned to the Bronx neighborhood where this incident took place. Moreover, the Court does not fault Jones or find him less credible for failing to seek out claimant. His testimony regarding the incident in the elevator of his apartment building with three unknown men who threatened him likely dampened any possible urge to come forward with his observations of the crime.

The Court does not attribute any weight to Chatelain's testimony during the criminal trial. Chatelain testified that he did not see a gun in claimant's hand; he only saw sparks from the gunshot (Exhibit K at 039). He also testified that there was a Hispanic man right in front of him when he saw the gunshot (id. at 041). Chatelain's testimony begs the question: if he did not see the gun, then how did he know the identity of the shooter? Moreover, his testimony is contradicted by the weight of the stipulated evidence that points to a Hispanic shooter.

Defendant cites claimant's admissions to the police that he was involved in a physical altercation with Vance and placed himself at the scene of the crime as conduct that contributed to his own conviction. The Court disagrees. Claimant's testimony during trial regarding physically fighting with Vance moments before Vance was shot is consistent with his deposition testimony taken in connection with this litigation on October 30, 2019 (Exhibit M) and his videotaped statement to police given on February 21, 1996 (Exhibit H). The Court finds claimant's testimony regarding the night of Vance's murder reliable as his recitation of the events of that night remain fundamentally unchanged despite the 23 years that elapsed between the statements. It is clear that the Law Review Commission was concerned with untruthful conduct on the part of the claimant that could contribute to their own conviction (McKinney's 1984 Session Laws of New York at p 2932). A finding that claimant's honest account of the events of the night of the crime contributed to his conviction would be antithetical to the purpose of the statute.

Lastly, defendant argues that claimant contributed to his own conviction because he knew the identity of the man who shot Vance, but withheld the information. While "a claimant's knowing withholding of available, admissible, and material exculpatory evidence" will defeat a claim for damages for unjust conviction and imprisonment (O'Donnell v State of New York, 26 AD3d 59, 65 [2d Dept. 2005], generally believing that Vance's murderer was a Hispanic male does not rise to the knowing withholding of evidence.

Defendant points to a letter claimant wrote to an attorney during his incarceration while he was attempting to find an attorney to assist in overturning his conviction. The letter, written by claimant, states that "[s]ome Hispanic guys from my neighborhood saw what was happening and shot and killed [Vance]. I knew the guys, but I never told them to do it" (Exhibit R at 099). When questioned about this statement at trial, claimant testified that he knew the men from the neighborhood, but did not know their names (11/19/20 T: 28). He testified that he could not know the identity of the shooter because he was running, with his back to Vance when Vance was shot (id. at 29). The Court is not convinced that claimant knew the identity of the shooter. Moreover, given the multiple pieces of evidence in possession of the prosecutor that pointed to a light-skinned, Hispanic shooter, the Court finds that claimant's failure to notify police that he too saw a Hispanic shooter was not the proximate cause of his conviction.

CONCLUSION

Upon review of all the evidence, and observing the witnesses as they testified, the Court finds that claimant has proved his entitlement to damages for his unjust conviction and imprisonment pursuant to Court of Claims Act 8-b by clear and convincing evidence. A trial on damages will be scheduled as soon as practicable. The Clerk of the Court is directed to enter interlocutory judgment against the defendant on liability.

May 28, 2021

Albany, New York

JUDITH A. HARD

Judge of the Court of Claims


1. Although the second amended claim was not made with leave of the Court, defendant did not reject it, thereby waiving any objection (Nassau County v Incorporated Vil. of Roslyn, 182 AD2d 678, 679 [2d Dept. 1992], lv dismissed 80 NY2d 972 [1992]; Lampman v Cairo Cent. School Dist., 47 AD2d 794, 794-795 [3d Dept. 1975]).

2. References to the 11/18/20 trial transcript are indicated here as (11/18/20 T: ).

References to the 11/19/20 trial transcript are indicated here as (11/19/20 T: ).

3. The objection concerning this testimony is sustained (11/19/20 T: 55).

4. "High yellow" was described, by another witness for a CPL motion in the criminal case, as a person who is "real light" and "Puerto Rican" (Exhibit P at 017).

5. Unpublished decisions and selected orders of the Court of Claims are available at http://www.nyscourtofclaims.state.ny.us.

6. The Court also denied defendant's motion to dismiss the claim on the ground that claimant caused his conviction by his own conduct (11/19/20 T: 56-57).

7. Defendant argues that Jones was not sworn in before the December 2017 video recording filmed by Mr. Talassazan, a problem it waived by stipulating to the admissibility of this exhibit (11/18/20 T: 7; see Lahren v Boehmer Transp. Corp., 49 AD3d 1186, 1187 [4th Dept. 2008]).