Opinion
# 2018-028-519 Claim No. 131715 Motion No. M-92736
10-16-2018
Sidney Manes, as, Administrator of the Estate of HECTOR RIVAS v. THE STATE OF NEW YORK
C. T. LEE & ASSOCIATES BY: Corey T. Lee, Esq. HON. BARBARA D. UNDERWOOD, ATTORNEY GENERAL BY: Bonnie Gail Levy, Esq. Assistant Attorney General
Synopsis
Motion to dismiss pursuant to CPLR 3211 (a).
Case information
| UID: | 2018-028-519 |
| Claimant(s): | Sidney Manes, as, Administrator of the Estate of HECTOR RIVAS |
| Claimant short name: | MANES |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 131715 |
| Motion number(s): | M-92736 |
| Cross-motion number(s): | |
| Judge: | RICHARD E. SISE |
| Claimant's attorney: | C. T. LEE & ASSOCIATES BY: Corey T. Lee, Esq. |
| Defendant's attorney: | HON. BARBARA D. UNDERWOOD, ATTORNEY GENERAL BY: Bonnie Gail Levy, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | October 16, 2018 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The following papers were read on Defendant's motion to dismiss the claim pursuant to CPLR 3211 (a):
1. Notice of Motion dated August 2018;
2. Affirmation of Bonnie Gail Levy dated August 16, 2018 with Exhibits 1-2 annexed.
In 1993 Hector Rivas was indicted and convicted for the 1987 murder of Valerie Hill. In March 2015 the United States Court of Appeals, Second Circuit, in a habeas corpus proceeding, reversed the determination of the District Court, based minimally on ineffective assistance of counsel. The matter was remanded to the District Court with the direction that the writ issue unless the State of New York had taken concrete and substantial steps within 60 days to expeditiously retry Rivas. Thereafter, the State trial court set the matter for retrial but Rivas died on July 10, 2016 prior to his retrial. On July 14, 2016 the indictment against Rivas was dismissed and in July 2018 the administrator of his estate brought this claim for unjust conviction pursuant to Court of Claims Act § 8-b. Defendant has moved to dismiss the action on various CPLR 3211 (a) grounds. Among the grounds relied upon is CPLR 3211 (a) (7), failure to state a cause of action.
"On a motion to dismiss under CPLR 3211, the pleading is to be given a liberal construction, the allegations contained within it are assumed to be true and the plaintiff is to be afforded every favorable inference. At the same time, however, allegations consisting of bare legal conclusions as well as factual claims flatly contradicted by documentary evidence are not entitled to any such consideration" (Simkin v Blank, 19 NY3d 46 [2012] [citations and internal quotations omitted). In one argument offered in support of the motion, defendant contends that the claim does not contain an allegation that the indictment was dismissed based on one of the grounds set forth in Court of Claims Act § 8-b [3] [b] and therefore, fails to state a cause of action. Under Court of Claims Act § 8-b [3] [b] "[a]ny person convicted and subsequently imprisoned for one or more felonies or misdemeanors against the state which he did not commit may, under [specified conditions], present a claim for damages against the state." Among the elements necessary to support such a claim is the requirement that the judgment of conviction was reversed or vacated and, as relevant to the circumstances here, a new trial was ordered, and claimant was not retried and the accusatory instrument dismissed on the grounds in CPL § 440.10 [a], [b], [c], [e] or [g] or CPL § 470.20 [1], [2], [3] or [5] (Court of Claims Act § 8-b). As defendant notes the claim contains an allegation that the judgment of conviction was vacated by the Second Circuit Court of Appeals pursuant to CPL 440.10 [1] [g]. This provision refers to new evidence that, if presented at trial, would have produced a verdict more favorable to the criminal defendant. Putting aside the question of whether the appellate court relied on these grounds in vacating the conviction, it is clear, not only from the court's opinion, but from the allegations in the claim presented here, that the appellate court did not dismiss the accusatory instrument and instead allowed for a new trial. Dismissal of the accusatory instrument was accomplished by an order of the State trial court and did not occur until after Hector Rivas was deceased. Thus, the allegation that the Second Circuit vacated the conviction is insufficient to satisfy the statutory requirement in Court of Claims Act §8-b [3] [b] that the accusatory instrument be dismissed on certain specified grounds.
The claim contains a further allegation that the motion to dismiss the indictment was granted pursuant to CPL § 160.50. The superior court criminal disposition report attached to the claim contains the remark " Dismissed and sealed per 160.50; defendant deceased." The certificate of disposition, also attached to the claim, reports that the indictment was dismissed pursuant to CPL § 160.50 as the court had been notified that the defendant was deceased. CPL § 160.50, however, does not provide grounds for dismissal of an indictment. Rather, it requires that upon termination of a criminal proceeding in favor of the accused, the record of the action or proceeding shall be sealed. Thus, the records show only that the indictment was dismissed based on defendant's passing. That circumstance does not fit any of the bases listed in Court of Claims Act § 8-b [3] [b] as satisfying the 'dismissal of the accusatory instrument' element of a claim for unjust conviction. Consequently, claimant has failed to present a cognizable claim.
Accordingly, for the reason stated above, and in the absence of opposition, it is
ORDERED, that the motion is granted and the claim is dismissed.
October 16, 2018
Albany, New York
RICHARD E. SISE
Judge of the Court of Claims