Opinion
# 2017-044-562 Claim No. None Motion No. M-90527
08-21-2017
COREY BANKS v. THE STATE OF NEW YORK
GAIL B. RUBENFELD, ESQ. HON. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL BY: Mark Sweeney, Assistant Attorney General
Synopsis
Motion for permission to file/serve late claim for malicious prosecution denied; all-important factor of merit of claim not established.
Case information
| UID: | 2017-044-562 |
| Claimant(s): | COREY BANKS |
| Claimant short name: | BANKS |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | None |
| Motion number(s): | M-90527 |
| Cross-motion number(s): | |
| Judge: | CATHERINE C. SCHAEWE |
| Claimant's attorney: | GAIL B. RUBENFELD, ESQ. |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL BY: Mark Sweeney, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | August 21, 2017 |
| City: | Binghamton |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Movant moves for permission to file and serve a late claim to recover for damages based upon a cause of action for malicious prosecution. Defendant State of New York (defendant) opposes the motion.
Some factual background is necessary before addressing the merits of this motion. Movant was indicted by a Grand Jury for rape in the first degree (Penal Law § 130.35) and rape in the third degree (Penal Law § 130.25) (see People v Banks, 137 AD3d 1458 [3d Dept 2016]). After plea negotiations, movant "pleaded guilty to one count of rape in the second degree [Penal Law § 130.30] in full satisfaction of the indictment and . . . in exchange for a sentencing commitment of [5] years in prison and 15 years of postrelease supervision" (id.). Movant made two motions to withdraw his plea, both of which Sullivan County Court denied (id.). At sentencing, County Court determined that movant "failed to take responsibility for engaging in nonconsensual sex with the victim" and sentenced him to 7 years in prison and 15 years of postrelease supervision (id. at 1459). A judgment of conviction was entered on October 15, 2013 (id. at 1458). The Appellate Division, Third Department, found that movant's plea was not entered knowingly and intelligently and therefore reversed the judgment of conviction, vacated the plea, and remanded the case for a new trial (id. at 1460). Movant asserts that on June 1, 2016, a jury acquitted him of all charges (Proposed Claim, ¶ 2 [m]). Movant was incarcerated from November 12, 2012 (when he was arrested) through June 1, 2016 and now seeks permission to file and serve a late claim.
Although movant has not provided documentation of the acquittal, defendant does not contest the issue.
The Court notes that paragraph 6 of the proposed claim incorrectly lists the date of arrest as November 12, 2013.
Movant alternatively argues that a "notice of claim" which was served upon the State Police Legal Department (Counsel for the State Police) in August 2014 should be treated as a notice of intention to file a claim, and consequently, Claim No. 129778 filed simultaneously with this motion on June 1, 2017 would be timely. Court of Claims Act § 11 (a) provides, in pertinent part, that "[a]ny notice of intention shall be served personally or by certified mail, return receipt requested, upon the attorney general." Because the requirements of Court of Claims Act § 11 are jurisdictional in nature, failure to strictly comply with them results in a lack of jurisdiction (see Finnerty v New York State Thruway Auth., 75 NY2d 721 [1989]; Pagano v New York State Thruway Auth., 235 AD2d 408 [2d Dept1997], lv denied 90 NY2d 804 [1997]). Accordingly, movant's request to treat the notice served on Counsel for the State Police as a properly served notice of intention is denied.
A motion seeking permission to file and serve a late claim must be brought within the statute of limitations period attributable to the underlying cause of action (Court of Claims Act § 10 [6]). A malicious prosecution cause of action accrues when the criminal proceeding terminates in the claimant's favor (Martinez v City of Schenectady, 97 NY2d 78, 84 [2001]), and the applicable statute of limitations is one year (CPLR 215 [3]). The felony charge against movant was dismissed on June 1, 2016 and this motion served on June 1, 2017 is timely (see Matter of Unigard Ins. Group v State of New York, 286 AD2d 58 [2d Dept 2001]).
Having determined that the motion is timely, the Court turns to a consideration of the merits of the motion itself. The factors that the Court must consider under Court of Claims Act § 10 (6) in determining a motion to permit a late filing of a claim are whether:
1) the delay in filing the claim was excusable;
2) defendant had notice of the essential facts constituting the claim;
3) defendant had an opportunity to investigate the circumstances underlying the claim;
4) the claim appears to be meritorious;
5) the failure to file or serve upon the attorney general a timely claim or to serve upon the attorney general a notice of intention resulted in substantial prejudice to defendant; and
6) claimant has any other available remedy.
Movant argues that the delay is excusable because his previous attorney mistakenly believed that service of the notice on Counsel for the State Police in Albany would be sufficient to provide notice of the claim. Neither ignorance of the law (Matter of E.K. v State of New York, 235 AD2d 540, 541 [2d Dept 1997], lv denied 89 NY2d 815 [1997]; Sevillia v State of New York, 91 AD2d 792 [3d Dept 1982]) nor law office failure are adequate excuses for failing to comply with the filing or service requirements of Court of Claims Act §§ 10 and 11 (see generally Matter of Sandlin v State of New York, 294 AD2d 723 [3d Dept 2002], lv dismissed 99 NY2d 589 [2003]; Nyberg v State of New York, 154 Misc 2d 199, 200 [Ct Cl 1992]). Accordingly, this factor weighs against movant.
The three factors of notice of the essential facts, an opportunity to investigate and the lack of substantial prejudice are frequently analyzed together since they involve similar considerations. Movant alleges that the Notice of Intention served upon Counsel for the State Police was likely forwarded to the Attorney General and thus defendant would have had notice of this claim as well as an opportunity to investigate.
In his proposed claim, movant alleges that the Grand Jury testimony of State Police Investigator Barila was inaccurate. Defendant indicates that it does not have access to the testimony as Grand Jury proceedings are secret. Defendant also notes that because movant was acquitted, the criminal case records have been sealed and defendant would not initially have an opportunity to investigate. However, defendant does acknowledge that if movant gives consent to unseal the records, an investigation could take place and defendant would suffer no prejudice.
The Court finds that defendant now has notice of the essential facts of this claim. Investigator Barila is free to discuss his Grand Jury testimony with defendant (see CPL 190.25 [4] [a]), and defendant now has an opportunity to investigate the matter. Moreover and as defendant notes, an application could be made to unseal movant's criminal case file. The Court discerns no prejudice at this time. Thus the three factors of notice, an opportunity to investigate and the lack of prejudice all weigh in favor of movant.
Another factor to be considered is whether movant has any other available remedy. Movant is seeking damages for malicious prosecution based upon his arrest by the State Police, and the Court of Claims is the proper forum for this action. Accordingly, this factor weighs in favor of movant.
The issue of whether the proposed claim appears meritorious is the most crucial component in determining a motion under Court of Claims Act § 10 (6), since it would be futile to permit a meritless claim to proceed (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 10 [Ct Cl 1977]). In order to establish a meritorious claim, a movant must demonstrate that the proposed claim is not patently groundless, frivolous, or legally defective, and that there is reasonable cause to believe that a valid claim exists (id. at 11). There is a heavier burden on a party moving for permission to file a late claim than on a claimant who has complied with the provisions of the Court of Claims Act (see id. at 11-12; see also Nyberg, 154 Misc 2d at 202-203).
In order to set forth a cause of action for malicious prosecution, a claimant "must establish that a criminal proceeding was commenced, that it was terminated in favor of the accused, that it lacked probable cause, and that the proceeding was brought out of actual malice" (Martinez, 97 NY2d at 84). In this case, a criminal proceeding was commenced against movant and he has established that it was terminated in his favor when he was acquitted. Therefore, the only remaining issues are whether there was probable cause for his arrest and prosecution and whether defendant initiated the proceeding out of actual malice.
It is well-settled that "[p]robable cause consists of such facts and circumstances as would lead a reasonably prudent person in like circumstances to believe [movant] guilty" (Colon v City of New York, 60 NY2d 78, 82 [1983] [citations omitted]). Importantly, an indictment by a Grand Jury creates a presumption of probable cause which is "founded upon the premise that the Grand Jury acts judicially and it may be presumed that it has acted regularly" (id. at 82; see also Boose v City of Rochester, 71 AD2d 59, 69 [4th Dept 1979]). However, a claimant may overcome this presumption "by evidence establishing that the police witnesses have not made a complete and full statement of facts either to the Grand Jury or to the District Attorney, [or] that they have misrepresented or falsified evidence, [or] that they have withheld evidence or otherwise acted in bad faith" (Colon, 60 NY2d at 82-83; see also Gisondi v Town of Harrison, 72 NY2d 280, 284 [1988]). "[P]olice and prosecutors cannot be said to have improperly concealed evidence every time the plaintiff is able to show that they could have done more or could have disclosed more" (Gisondi, 72 NY2d at 285). In general, neither the police nor prosecutor are required to disclose all potential weaknesses or discrepancies discovered during their investigation (id.). Nevertheless, "[t]here may be extraordinary cases in which particular discrepancies are so substantive that failure to disclose them would be comparable to fraud or perjury" (id.).
In his proposed claim, movant alleges that on November 11, 2012, Investigator Barila interviewed the complainant. According to movant, the complainant told Barila that when she and movant were both in the bathroom of their workplace on November 10, 2012, movant "hoisted her up on top of a radiator and as he stood on the ground he inserted his penis into her vagina." Movant asserts that the complainant did not tell Barila that they previously had sexual relations at their workplace until after he learned that fact from other sources and confronted her. Movant states that when he met with Barila, he did not waive his right to remain silent, but instead asked Barila what was going on. Movant indicates that he told Barila that he and the complainant had sexual relations on a few previous occasions while at work and he asked her if she wanted to engage in sex on the night of November 10, 2012. Movant further notes that even though she told him that they should not have sex because it was unfair to his fiancee, they began hugging and kissing. Movant also states that he told Barila they both had their pants down, the complainant's legs were wrapped around him and he had his penis next to her vagina. Movant asserts that he told Barila that because he was unable to have an erection, they did not have intercourse. Movant also told Barila that he ejaculated prematurely when someone knocked on the door. Movant states that he was arrested and incarcerated the night of November 12, 2012.
Because the proposed claim contains allegations which could identity a purported victim of a sexual offense, the Court will refer to her as the complainant in order to protect her identity. The Chief Clerk is directed to seal the file in Motion No. M-90527 pursuant to Civil Rights Law § 50-b.
Proposed Claim, ¶ 2 (a).
Movant alleges that Barila's Grand Jury testimony was neither truthful nor complete. Specifically, movant notes that Barila testified that the complainant did not initially tell him that she had a prior relationship with movant. However, movant claims that Barila inappropriately failed to indicate that the prior relationship was of a sexual nature. Movant states that Barila also failed to testify that he learned about the prior relationship from other people before the complainant admitted it. Movant asserts that Barila falsely testified that movant agreed to talk to him after being given his Miranda rights. Movant states that Barila testified that movant told him that he may have crossed a line that night, but contends that Barila also should have revealed that movant denied forcing himself on the complainant. Movant further asserts that Barila should have testified that movant told him the complainant did not push him away, but instead wrapped her legs around him and kissed him. Movant also notes that Barila did not inform the Grand Jury that movant stated he could not get an erection on the night of the alleged rape and that he and the complainant had sexual relations in the past.
Movant argues that complainant's statements were not credible, as evinced by her failure to admit that she and movant had intercourse on previous occasions as well as her physically impossible description of how they allegedly had intercourse. Movant contends that for these reasons, Barila should have investigated the matter further. Movant also asserts that because Barila's testimony before the Grand Jury was neither complete nor truthful, the presumption of probable cause should not apply.
Conversely, defendant asserts that Barila was not required to elaborate on his answers to the prosecutor's questions, particularly because movant's exculpatory statements were inadmissible hearsay. Defendant further argues that movant neither contends that the incriminating portions of his statement were coerced or involuntary nor that he challenged their admissibility pursuant to pre-trial motions or suppression hearings.
As set forth previously herein, movant's indictment by the Grand Jury creates a presumption that there was probable cause for his arrest and prosecution. Movant has provided no evidence that Barila's investigation and subsequent arrest of movant - based upon the complainant's statements and movant's inculpatory statements - "deviated so egregiously from acceptable police activity as to demonstrate an intentional or reckless disregard for proper procedures" (Hernandez v State of New York, 228 AD2d 902, 904 [3d Dept 1996]). Further, as defendant correctly notes, movant's exculpatory statements to Barila - that he did not get an erection, that he did not force himself upon the complainant and that the complainant was wrapping her legs around him and kissing - him are hearsay. Because hearsay statements are not admissible at trial, they are also not admissible in the Grand Jury Proceeding (see People v Mitchell, 82 NY2d 509, 513 [1993]). Moreover, Barila was not required to disclose potential weaknesses in the case such as the fact that the complainant initially failed to inform Barila of her previous sexual relationship with movant (Gisondi, 72 NY2d at 285). While this information may reflect on the complainant's credibility, it is not so substantive that the failure to reveal it would constitute fraud or perjury as would be the case if the information exonerated movant. Accordingly, movant has not set forth sufficient evidence to rebut the presumption of probable cause for his arrest and prosecution.
Although movant's statement that he may have crossed a line that night with the complainant is also hearsay, it is inculpatory and admissible pursuant to the party-admissions exception to the hearsay rule (see People v Swart, 273 AD2d 503 [3d Dept 2000], lv denied 95 NY2d 908 [2000]).
As is pertinent in this instance, the elements of the crime of rape in the first degree are that the criminal defendant engaged in sexual intercourse with another person by forcible compulsion (Penal Law § 130.35 [1]). The elements of the crime of rape in the third degree (as relevant here) are that the criminal defendant engaged "in sexual intercourse with another person without such person's consent where such lack of consent is by reason of some factor other than incapacity to consent" (Penal Law § 130.25 [3]). Whether the complainant and movant had previously engaged in consensual sexual intercourse is not determinative of whether there was forcible compulsion or lack of consent during the subject incident (see e.g. People v Powell, 128 AD3d 1174 [3d Dept 2015]).
With respect to the issue of malice, "there is no requirement that the defendant's acts be purposely evil or intended to harm, since malice may be inferred if the defendant has acted with a reckless or grossly negligent disregard of the [movant's] rights" (Hernandez, 228 AD2d at 904). Movant contends that "[t]he lack of probable cause to arrest [him] and initiate a criminal proceeding was so lacking that it is clear that the proceeding was maliciously instituted." He also argues that Barila was eager to end the investigation quickly and acted with malice by failing to further investigate the matter. These statements are completely conclusory and insufficient to establish that Barila acted with any disregard of movant's rights.
Malice may also be presumed by proof that probable cause was lacking (Boose, 71 AD2d at 69-70). However, as set forth previously herein, movant has failed to overcome the presumption of probable cause.
Proposed Claim, ¶ 8.
Movant has failed to submit any evidence that defendant lacked probable cause for his arrest and prosecution or that defendant acted with malice. Accordingly, the proposed cause of action for malicious prosecution lacks even the initial appearance of merit. Thus, the all-important factor of merit weighs against movant.
"[W]here 'the excuse offered for the delay is inadequate and the proposed claim is of questionable merit' "(Matter of Robinson v State of New York, 35 AD3d 948, 949-950 [3d Dept 2006], quoting Matter of Perez v State of New York, 293 AD2d 918, 919 [3d Dept 2002]), denial of a late claim application is appropriate (see Matter of Gonzalez v State of New York, 299 AD2d 675 [3d Dept 2002]). Although four of the six statutory factors weigh in favor of movant, the crucial issue of merit weighs against him. Movant's motion for permission to file and serve a late claim asserting a cause of action for malicious prosecution is denied.
As set forth previously herein, movant has filed and served an apparently untimely claim (see n 3, supra). The Court notes that defendant has requested 40 days in which to answer the claim if late claim relief is granted (affirmation of Assistant Attorney General [AAG] Mark Sweeney, dated June 20, 2017, in Opposition to Motion, ¶ 31). However, defendant has not addressed the present situation where late claim relief has been denied, but an answer has not been timely served or filed. Accordingly, Claim No. 129778 remains pending. --------
August 21, 2017
Binghamton, New York
CATHERINE C. SCHAEWE
Judge of the Court of Claims The following papers were read on movant's motion: 1) Notice of Motion filed June 1, 2017; Affirmation of Gail B. Rubenfeld, Esq., dated May 30, 2017, and attachments. 2) Affirmation in Opposition of Mark Sweeney, AAG, dated June 20, 2017, and attached exhibit.