Opinion
107647.
Decided February 6, 2006.
Claimant's attorney: Irving Cohen, Esq.
Defendant's attorney: Eliot Spitzer, Attorney General by: Janet Polstein, AAG.
This is the decision following the liability trial of John Scott's claim brought under the Unjust Conviction and Imprisonment Act of 1984, which is § 8-b of the Court of Claims Act.
Mr. Scott had been convicted of thirteen felony counts arising from the armed robbery of a grocery in Queens County. Five counts were for armed robbery related to taking cash or property, or both, from five persons in the store; counts six through ten were for doing so in concert with a second armed man. Counts 11 through 13 charged depraved indifference to human life for aiming and discharging a loaded weapon in the direction of another person. (Cl exh 4).
Claimant was sentenced on August 18, 1997 to concurrent determinate terms of 25 years on the first five robbery counts, with lesser concurrent terms on the other charges. He was received into the State Department of Correctional Services on September 11, 1997. On June 18, 2001, the Appellate Division reversed the judgment and dismissed the indictment. People v. Scott, 283 AD2d 98, 728 NYS2d 474 (2nd Dept 2001). Scott was released from prison within days, on June 27, 2001. (Def exh C, p. 164; cl exhs 1, 2 3).
The Criminal Trial
The basic facts of the robbery are contained in the Second Department's decision, and drawn principally from the criminal trial testimony of William Vizcarrondo, who that night was working in the grocery or bodega, which was owned by his father. At about 8 p.m. on March 21, 1996, two men wearing ski masks entered the store, brandishing their guns, and announced a robbery. After that, only the taller of the two men spoke, telling Vizcarrondo to turn over the money in the cash register and then to "run the shine," a turn of phrase Vizcarrondo took to refer to his jewelry, which he surrendered. The robber also wanted a cigarette and asked the score of a basketball game. The entire incident took about four minutes.
Vizcarrondo's pretrial voice identification of Scott at a lineup was introduced at trial, where he testified that both Scott and the taller of the holdup men had deep, distinctive voices and that Scott was one of two men at the lineup whose skin tone was "noticeably lighter" than the other African-American males in the lineup. Scott, 283 AD2d at 101, 728 NYS2d at 475. Because the People could not demonstrate the reliability of the voice identification procedure (no voice exemplar of Scott was offered to the jury, nor of the other voices at the lineup), the Second Department ruled that Vizcarrondo's testimony about his pretrial voice identification should have been suppressed.
Vizcarrondo could not, at trial, otherwise identify Scott; nor could other individuals who were in the grocery that were called as witnesses by the prosecution. The case against Scott, as the Second Department observed, rested entirely on Vizcarrondo's out-of-court voice-based identification. 283 AD2d at 103; 728 NYS2d at 478.
The Court of Claims Trial: Evidence on Innocence
Claimant testified as did his alibi witness, William Finney. Born in Manhattan, claimant grew up in Astoria, Queens, where his mother still lived. Scott worked as a construction laborer, mainly at sites located in Queens (see def exh C, pp 108-109). In early 1996, claimant was living in upper Manhattan at 47 St. Nicholas Avenue with a woman named Joanne Russell; Scott described Ms. Russell as a friend, not a romantic attachment. Scott had just been paroled from prison — in December of 1995.
Defendant's exhibit B, an Alibi Notice per CPL § 250.20 submitted by his lawyer, Andrew Schatkin, lists claimant's address at the time as 47 West 112th Street.
On March 29, 1996, Scott was arrested at his mother's house on suspected involvement in another matter, the shooting of one Eric Mackelwain. Once at the police precinct, claimant consented to take part in a lineup for the grocery robbery, which resulted in the voice identification. He was ultimately acquitted in the Mackelwain matter, and a third separate criminal case against Scott was dismissed before trial. The three cases against Scott were contained in three separate accusatory instruments.
Scott at the time had been dating a woman named Keisha Cox. Claimant testified that he and Ms. Cox would socialize with another couple, Finney and Pamela Thomas. Scott had known Finney before he had gone to prison, and in fact, the latter had also served time. Mr. Finney and Ms. Thomas lived together on the lower east side of Manhattan — at 484 East Houston Street. Cox lived nearby to Scott on 115th Street (def exh C, p. 62).
Claimant testified that he and Cox would get together and socialize with Finney and Thomas two or three times a week, usually at the other couple's apartment on East Houston Street; sometimes Finney and Thomas would go uptown to Scott's place. At the time, Scott's construction work was sporadic; Finney was employed as a messenger and Cox a cashier. Thomas was a guidance counselor. The two couples did not have much money, so as Scott recalled, they would, "[g]o out drinking beer and watch T.V."
Scott stated that on the night of the Queens grocery holdup, which was a Thursday, "I was on the lower east side of Manhattan . . . I was with Pamela Cox and William Finney . . . Watching T.V., relaxing, hanging out." Then, Scott testified as follows:
Q. You were innocent of this bodega robbery, is that right?
A. Yes.
Q. Did you have anything to do with it at all?
A. No, I did not.
Q. Were you anywhere near that robbery?
A. No, I was not.
A large portion of claimant's testimony, on direct and cross-examination, covered claimant's discussions with his lawyers as to his alibi, as did Scott's June 21, 2004 deposition.
William Finney took the stand at Scott's 8-b trial. Finney explained that he had met Scott in the early 90's on a basketball court and played basketball with him, usually on weekends. Finney had been in prison from January 1993 to January 1996. Once out, he ran into a mutual acquaintance at a party and gave the acquaintance his phone number. The result was that Scott telephoned Finney.
The witness recalled that between mid-January and claimant's arrest in late March of 1996, the two couples got together six times, four occasions at the Finney-Thomas apartment downtown and twice at Scott's place in Harlem. Finney testified that he was with claimant the night of the grocery robbery, that he was sure it was a Thursday, which turned out to be the last time he saw claimant until 2001, but he could not independently recall the date. He remembered that it was Thursday because of the television shows that he regularly watched that night of the week, but did not assert that he was with Scott every Thursday in that two-month stretch in early 1996.
Finney recalled that Scott and Cox arrived at East Houston Street between 6:30 and 7 p.m., but had to leave sometime before 9 p.m. because claimant had a curfew, but later on in his testimony, on cross-examination, his recollection was that Scott's curfew was 10:30 p.m. Defendant never tried to connect the time of the robbery with the differing recollections of Scott's curfew, or whether it would have been possible to make curfew and commit the robbery. Scott testified that his curfew, set as a condition of his December 1995 parole, was 9 p.m.
I am cognizant of the fact that Finney was Scott's alibi witness for the Mackelwain shooting on February 15, 1996, a Thursday. Finney recalled the specific date, ascribing his better memory in this instance to the fact that he had slept over at Scott's place that night.
Defendant argues that the two witnesses' credibility is diminished because of their criminal records. Convictions for a crime can show that an individual has put his selfish interests above those of society. Morales v. State of New York, 183 Misc 2d 839, 845, 705 NYS2d 176, 180 (Ct Cl 2000), affd 282 AD2d 245, 722 NYS2d 860 (1st Dept 2001). But in evaluating the evidence in its entirety, I do not see any material effect. In fact, claimant's criminal background explains how he came to be ensnared in this case; at the 114th Precinct in connection with another crime, Scott agreed to a lineup.
Claimant suggests that the bodega robbery charges and his two other indictments all came about because of Mackelwain's animus to claimant and his older brother.
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Under the Unjust Conviction Act, an individual must prove by clear and convincing evidence that he did not commit any of the acts that were charged in the indictment (para (c), subd 5 of § 8-b). Clear and convincing evidence cannot be equivocal, contradictory or open to opposing inferences. George Backer Mgt. Corp. v. Acme Quilting Co., 46 NY2d 211, 220, 413 NYS2d 135, 139 (1978); Alexandre v. State of New York, 168 AD2d 472, 563 NYS2d 635 (2nd Dept 1990).
The totality of the evidence that we have about the March 21, 1996 robbery, which comes from one witness, is that one of the two robbers was a relatively light-skinned African-American male about six feet, one inch tall and 170 pounds who had a deep voice.
At the 8-b trial, the State offered the 2004 deposition of Scott into evidence (def exh C).
As noted, defendant's exhibit C is claimant's 2004 deposition transcript; all the other exhibits relate to the pleadings (cl exhs 1 through 5) and the opportunity to present an alibi (cl exhs 6 7; def exhs A B). As to the latter, see the subsequent discussion in the text on whether claimant brought about his own conviction per paragraph (d) of § 8-b.5.
Nothing in the deposition of any consequence is inconsistent with claimant's testimony at trial; nor for that matter was any evidence elicited on cross-examination which credibly undercut claimant's testimony that he was innocent. Defendant offered no evidence pointing to claimant's involvement in the subject robbery: no eyewitness testimony, admission, documentary evidence connecting claimant to the crime, or evidence connecting the firearm(s) used in the robbery to Scott. In fact, the defendant State of New York made no direct effort to confirm that Scott's height, weight in 1996, voice and skin tone matched the description provided by Vizcarrondo.
Defendant did elicit from Scott that he smoked and followed college basketball. At his 2004 deposition, claimant said he was 6 feet, 2 inches tall and weighed about 215 pounds, and at the time of the robbery, was 6 feet tall and weighed 180 to 185 pounds (def exh C, p. 6).
For his part, Scott's demeanor, to this trier of fact, came across as credible. His testimony was matter-of-fact, not defensive about his past hard times and definitely not scripted. Finney's testimony was sufficiently credible. His testimony, like Scott's, was not particularly seamless, but the bumps were not a result of an effort to mislead. It was hard to discern any advantage to Finney, an ex-con, in testifying falsely for Scott. He was repeatedly asked at trial if he had any financial incentive in the case and denied it — in my view, convincingly.
Accordingly, claimant has satisfied his burden of proving, by clear and convincing evidence, his innocence of the crimes charged as required by paragraph (c) of subdivision 5 of the Unjust Conviction Act.
Did Claimant Bring About His Conviction?
A claimant cannot obtain a favorable judgment under the Unjust Conviction Act if he "by his own conduct [did] cause or bring about his conviction" (para (d), subd 5 of § 8-b). The Law Revision Commission in its Report to the Legislature that accompanied its draft proposal, which served as the basis for what became the Unjust Conviction Act, gave five examples of disqualifying conduct: removing evidence; falsely giving an uncoerced confession; inducing a witness to give false testimony; suppressing testimony; or concealing the guilt of another person. The Commission's report then stated that, "[t]his requirement is necessary to ensure that one is not rewarded for his own misconduct." ( McKinney's 1984 Session Laws of New York at p. 2932).
These five kinds of behavior were examples and not intended as an exhaustive list. Moses v. State of New York, 137 Misc 2d 1081, 523 NYS2d 761 (Ct Cl 1987). Under the facts in Moses, the false alibi given to police by Mr. Moses, who did not take the stand, turned out to be the sole corroboration of his accomplice's testimony at the criminal trial, which thus caused his conviction. Moses' § 8-b claim was dismissed.
The Second Department has recently ruled that a claimant did not cause or bring about his own conviction within the meaning of paragraph (d) where he had an "alibi defense that may have been less than iron-clad but was never disproved by the prosecution through any independent evidence of fabrication" presented at the underlying criminal trial. O'Donnell v. State of New York, 2005 NY Slip Op 09507 at p. 6, 2005 WL 3421041 (2nd Dept 2005).
There is no precedent that failure to present an apparently available alibi is disqualifying misconduct under the Unjust Conviction statute, which is understandable given that a criminal defendant does not have to put on any case, and such cannot be used against him there or in this forum. Moreover, that which is trial strategy will not come within the ambit of disqualifying conduct. Williams v. State of New York, 87 NY2d 857, 638 NYS2d 600 (1995); Lanza v. State of New York, 130 AD2d 872, 515 NYS2d 928 (3rd Dept 1987). Here, the defendant State of New York expended considerable effort trying to show why Scott did not present his alibi at his robbery trial.
Defendant argues that Scott met with his first lawyer, a Mr. Schechter, five times and never mentioned his alibi, although Scott explained that his discussions with his first lawyer were general as to whom he was with, and they were brief meetings that took place in the "court pen." Scott discharged Schechter, and, with financial assistance from his parents, hired Andrew Schatkin. Claimant testified that his first lawyer had "no belief in the cases." More strongly in his deposition, Scott stated: ". . . Mr. Schecter he was like he was very adversarial against me. He didn't really want to hear what I had to say and we were just arguing all the time" (def exh C, p. 99).
Once he retained his new lawyer, they pursued the presentation of Scott's alibi.
Mr. Schatkin initially filed a CPL § 250.20 Alibi Notice dated July 18, 1996, with Keisha Cox as the only alibi witness (cl exh 7). But claimant then broke up with her, and by Alibi Notice dated October 3, 1996 (def exh A), Scott gave Finney and Thomas as his alibi witnesses. According to Scott, he had told Schatkin the names of all three in July of 1996 (def exh C, p. 139).
The Cox Notice provides that, "John Scott claims to have been at his parole office at the time in question . . ." Scott maintains that he was misunderstood and was referring to his parole address, his apartment on 114th Street, which was his alibi for the February 15 shooting, not for March 21, 1996.
If the first notice was timely and the second was not, such that claimant's only choice was to call his-ex girlfriend, and not Finney or Thomas, his choice not to call Keisha Cox was part of trial strategy. As it happened, both Finney and Thomas were at the Queens County courthouse back in 1997 prepared to testify as to Scott's alibi, but because of the lateness of the alibi notice, were not permitted to do so by the Court (cl exh 6).
It is unclear from the trial transcript excerpt from July 9, 1997 whether the timeliness of the first notice was decided (cl exh 6).
In sum, Scott did not engage in any conduct which caused or brought about his convictions within the meaning of the Act, satisfying his burden of proof thereunder.
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In view of the foregoing, John Scott has proved his innocence of the subject crimes without having caused or brought about his convictions by his own conduct, and thus the defendant State of New York is liable to claimant under § 8-b of the Court of Claims Act. The Clerk of the Court is directed to enter interlocutory judgment against the defendant on liability.
The parties will be contacted by Chambers to schedule a trial on damages and, if appropriate, a conference preceding trial.
Appendices: