New York State Court of Claims

New York State Court of Claims
MCDONALD v. STATE OF NEW YORK , # 2021-051-029, Claim No. 136311, Motion No. M-96833


Defendant's pre-answer motion to dismiss 8-b wrongful conviction claim denied. Claimant sufficiently pled her innocence and that her actions did not contribute to her conviction. In addition, the records attached sufficiently demonstrated she was sentenced to a period of incarceration and served a portion of her sentence.

Case information

UID: 2021-051-029
Claimant short name: MCDONALD
Footnote (claimant name) :
Defendant(s): STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 136311
Motion number(s): M-96833
Cross-motion number(s):
Claimant's attorney: MICHAEL JOS. WITMER, ESQ.
Defendant's attorney: HON. LETITIA JAMES
New York State Attorney General
Assistant Attorney General
Third-party defendant's attorney:
Signature date: September 10, 2021
City: Rochester
Official citation:
Appellate results:
See also (multicaptioned case)


The following papers were read on defendant's motion to dismiss the claim:

1. Notice of Motion with Affirmation of Tamara B. Christie, AAG and attached exhibits, filed June 3, 2021;

2. Memorandum of Law, filed June 3, 2021;

3. Affirmation of Michael Jos. Witmer, Esq., filed July 14, 2021;

4. Filed papers: claim.

Defendant moved pre-answer to dismiss this 8-b wrongful conviction claim pursuant to CPLR 3211 (a) (1), (2), and/or (7), and Court of Claims 8-b, arguing: (1) claimant failed to attach proof that she served all or part of her prison sentence; and (2) claimant failed to allege sufficient facts to demonstrate that she did not commit the acts charged in the indictment nor bring about her conviction. Claimant opposed the motion. For the reasons set forth below, defendant's motion to dismiss the claim is denied.


Claimant filed her verified 8-b wrongful conviction claim on April 29, 2021 seeking damages for her unjust conviction and imprisonment for the murder of Bradie Davis on January 26, 2015 at LJ's Bar. She attached to her verified claim the following documents: (1) the indictment dated January 30, 2015 charging claimant with the crimes of Murder in the Second Degree and Criminal Possession of a Weapon in the Second Degree; (2) a securing order of Rochester City Court dated January 27, 2015; (3) the cash bail order issued by Monroe County Court dated February 4, 2015; (4) a release order issued by Monroe County Court dated October 12, 2016 after the charge for Criminal Possession of a Weapon were severed from the original indictment and then dismissed; (5) a second securing order issued by Hon. Christopher Ciaccio dated July 13, 2016 after a jury found claimant guilty of Murder in the Second Degree; (6) a New York State Uniform Sentence and Commitment form filed on October 17, 2016 and an amended form filed on November 2, 2016 indicating claimant was sentenced to 15 years to life following a jury verdict of intention murder (Murder in the Second Degree); (7) the affidavit of the bar owner attesting that claimant was never at LJ's Bar on the night of the murder; (8) transcript of claimant's motion for a trial order of dismissal from the jury trial; (9) claimant's notice of appeal from the conviction filed on July 15, 2016; (10) the memorandum and order of the Appellate Division of the Supreme Court, Fourth Department dated May 3, 2019, unanimously reversing the claimant's judgment of conviction and dismissing the indictment; (11) order issued by Hon. Christopher S. Ciaccio formally dismissing the indictment against claimant dated June 6, 2019; and (12) a certificate of satisfaction of judgment for surcharges and fees arising from her indictment.

The detailed verified claim consisted of 94 concise paragraphs setting forth claimant's allegations of innocence. She contended numerous witnesses and surveillance video will establish she was never at LJ's Bar on the night of the murder. Her cell phone records and the FBI investigation indicated she was at home, and she stated she was asleep at the time of the murder. Furthermore, she stated she had no motive to kill the victim, an alleged drug dealer with enemies, and she had no reason to believe the alleged co-conspirator, her boyfriend, Jerry Phillips had a motive to kill the victim.

The claim also rests heavily on the Appellate Court's assessment of the prosecution's evidence set forth in its decision. The Appellate Division found, after viewing the evidence in the light most favorable to the People, there was no valid line of reasoning nor permissible inferences that would lead a rational person to reach the conclusions of the jury. (People v McDonald, 172 AD3d 1900, 1901 [4th Dept 2019].) The Appellate Court opined that since claimant was convicted solely on her status as an accessory, critically absent from the evidence was sufficient proof of claimant's intent "to kill" and the prosecution had not established the exclusion "of any other purpose." (id. at 1902.) The Court also pointed out the prosecution's failure to offer a motive for the crime. (id. at 1903.) The Court concluded "that the jury was not justified in finding [claimant] guilty beyond a reasonable doubt." (id.)

The Law

Court of Claims Act 8-b furnishes a procedure for "innocent persons who can demonstrate by clear and convincing evidence that they were unjustly convicted and imprisoned ... to recover damages against the state" (Court of Claims Act 8-b [1]; see also Ivey v State of New York, 80 NY2d 474, 479 [1992]). To assert a 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) "[s]he did not commit any of the acts charged in the accusatory instrument or [her] acts or omissions charged in the accusatory instrument did not constitute a felony or misdemeanor against the state, and (b) [s]he did not by [her] own conduct cause or bring about [her] conviction" (Court of Claims Act 8-b [4]). The statute mandates dismissal of the claim "[i]f the court finds after reading the claim that claimant is not likely succeed at trial" on this prong (Court of Claims Act 8-b [4]).

The pleading standard in an unjust conviction claim is higher than that found in the CPLR, requiring the Court to weigh whether the allegations are sufficiently detailed to demonstrate a likelihood of success at trial (see Court of Claims Act 8-b [4]). "[T]he allegations in the claim must be of such character that, if believed, they would clearly and convincingly establish the elements of the claim, so as to set forth a cause of action" (Solomon v State of New York, 146 AD2d 439, 442 [1st Dept 1989] [internal citation omitted]). However, when making such analysis, the Court should not reach issues of credibility or weigh the evidence, which are "more appropriately a function to be exercised at the actual trial." (Warney v State of New York, 16 NY3d 428, 435 [2011].)

In determining a motion to dismiss, the Court must treat the facts alleged in the claim as true. (id.; see Leon v Martinez, 84 NY2d 83, 87 [1994].) The Court of Appeals set forth the review standard on a motion to dismiss an 8-b claim in Warney v State of New York; after acknowledging that the Court of Claims Act 8-b imposed a higher pleading standard than the CPLR, the Court of Appeals opined:

"In evaluating the likelihood of success at trial, Court of Claims should avoid making credibility and factual determinations (see Klemm v State of New York, 170 AD2d 438, 439 [2d Dept 1991] [In the absence of serious flaws in a . . . statement of facts, the weighing of the evidence is more appropriately a function to be exercised at the actual trial (quoting Dozier v State of New York, 134 AD2d 759, 761 [3d Dept 1987])]..."

(Warney v State of New York, 16 NY3d 428, 434-35 [2011] [internal quotation marks omitted].) The Court held that claimants should be afforded an opportunity to establish their allegations at trial when claimant "meets the evidentiary burdens described in Court of Claims Act 8-b (3) and makes detailed allegations with respect to the elements described in section 8-b (4)." (id. at 435; see Court of Claims Act 8-b [5].)

The Court disagrees with defendant's argument regarding claimant's failure to submit documentary proof as required by Court of Claims Act 8-b (3). Courts have held that no particular document is required by the statute. (Smith v State of New York, 55 AD3d 430 [1st Dept 2008]; Lanza v State of New York, 130 AD2d 872, 873 [3d Dept 1987]; see also Fowler v State of New York, 81 AD3d 495, 495 [1st Dept 2011].) Rather, any document is sufficient if it is "clear from the record, and was obvious to the State the basis upon which his conviction was reversed." (Jeanty v State of New York, UID No. 2017-040-034 [Ct Cl, McCarthy, J., Mar. 29, 2017] [internal quotation marks and internal citation omitted].) The Appellate Division decision along with copies of the July 13, 2016 securing order, her conviction for Murder in the Second Degree, a class A-1 felony, along with attaching a copy of the uniform sentence and commitment form documenting her sentence of 15 years to life allowed this Court to take judicial notice that she was incarcerated for some period without bail; "failure to provide the specific evidence listed in the statute is not fatal to the claim when such materials as are attached prove all the factual matters set forth in section 8-b(3), albeit via inference (see Lanza v State of New York, 130 AD2d 872, 873 [3d Dept 1987])." (Retamozzo v State of New York, 36 Misc 3d 1237(A) [Ct Cl 2012]; see Smith v State of New York, 21 Misc 3d 1125 (A) at 3 [Ct Cl 2007], affd 55 AD3d 430 [1st Dept 2008].)

Defendant's second ground for dismissal, the failure to allege sufficient facts to demonstrate she did not commit any of the acts in the indictment and that her actions did not contribute to her conviction, is largely based upon the evidence offered by the prosecution at trial. However, the Court notes that the prosecution's evidence was called into question by the Appellate Division. For example, in arguing that claimant contributed to her conviction because she lied to the police about her whereabouts at the time of the murder, defendant referenced the Appellate Division's decision, which mentions the "lie" as one of the prosecution's arguments. However, the Appellate Court also noted that this evidence was uncorroborated and contradicted by videotapes of the scene which did not show the claimant to be there. In her claim, she denies being at the scene, being involved in the murder, and in contributing to her conviction. That is sufficient.

Moreover, at this stage of the proceeding, since the Court must adopt as true the allegations set forth in the claim and refrain from weighing facts or assessing credibility, it cannot dismiss this claim. In 8-b cases that hinge on the credibility of the claimant and witnesses, New York courts have adopted the reasoning of the Third Department: "while events may prove later that claimant is unable to carry his burden of establishing his innocence by clear and convincing evidence, we cannot say at this stage that the facts set forth in the claim do not indicate a likelihood of success at trial or that the facts are not sufficiently detailed." (Lanza v State of New York, 130 AD2d 872, 873-874 [3d Dept 1987]; see Solomon v State of New York, 146 AD2d 439, 445 [1st Dept 1989]; Salce v State of New York, UID No. 2017-015-261 [Ct Cl, Collins, J. Sept. 27, 2017].) Furthermore, as the Court of Appeals noted in Ivey v State of New York, even though "an acquittal is not, ipso facto, equivalent to a determination of innocence, generally or for purposes of this remedial statute, it is a useful and relevant indicator of innocence" (80 NY2d 474, 479-80 [1992] [internal citation omitted]).

In light of the above, the defendant's motion to dismiss (M-96833) is denied.

September 10, 2021

Rochester, New York


Judge of the Court of Claims