Opinion
# 2012-038-518 Claim No. 118789 Motion No. M-80594 Cross-Motion No. CM-80740
03-30-2012
Dorsey v. THE PEOPLE OF THE STATE OF NEW YORK
Synopsis
Claimant's motion for summary judgment denied and defendant's cross motion to dismiss claim granted. Claim sought relief of undiscernable nature from a judgment of conviction following a retrial. Court of Claims lacks subject matter jurisdiction over claim for relief addressed to a judgment of conviction. To the extent claimant seeks money damages pursuant to Court of Claims Act § 8-b, his claim was filed more than two years after the Order that relieved him of his initial judgment of conviction. To the extent claimant seeks money damages flowing from his judgment of conviction after retrial, he has not demonstrated that he was pardoned or that his judgment after retrial was reversed or vacated. Case information
UID: 2012-038-518 Claimant(s): RONALD DORSEY Claimant short name: Dorsey Footnote (claimant name) : Defendant(s): THE PEOPLE OF THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 118789 Motion number(s): M-80594 Cross-motion number(s): CM-80740 Judge: W. BROOKS DeBOW Claimant's attorney: RONALD DORSEY, Pro se ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL Defendant's attorney: OF THE STATE OF NEW YORK By: Janet L. Polstein, Assistant Attorney General Third-party defendant's attorney: Signature date: March 30, 2012 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
In a claim that was filed on August 11, 2010, claimant seeks an unstated remedy in a pleading that alleges, in toto, as follows:
Wrongful and unjust conviction arises from the U.S. District Court (SDNY) in Ronald Dorsey v. Kelly, 97-2519 grant of a Federal habeas corpus, July 15, 1998 for ineffective assistance of counsel. November 13, 1998 the District Court change [sic] the Order to stay release allowing the People to hold for retrial while the People appealed to the U.S. Court of Appeals (2nd Cir) in Ronald Dorsey v. The State of New York, which was file [sic] April 6, 1998 reaffirming the grant of habeas corpus in its July 15, 1998 opinion order to release, and denied the People a reversal. In its "Summary Order" in an unpublished in the Federal Reporter the "Summary Order", for collateral estoppel or res-judicata. Which created a procedural Barr [sic] of the State Supreme Court retrial, May to June 11, 1998. The "Summary Order", stated [sic].
Claimant moves for summary judgment, and defendant cross-moves to dismiss the claim on the ground, among others, that it was not timely filed.
In his notice of motion for summary judgment, claimant restates that this claim is one for "wrongful and unjust conviction." Claimant's submission in support of his motion and the decision of the Second Circuit Court of Appeals in Dorsey v Kelly (112 F3d 50 [2d Cir 1997]) demonstrate the following procedural history. Claimant was convicted in State court in 1988 of four counts of sodomy, a conviction that was affirmed by the Appellate Division (see People v Dorsey, 166 AD2d 180 [1st Dept 1990], lv denied 76 NY2d 1020 [1990] and lv denied after reconsideration 77 NY2d 877 [1991]). Claimant was ultimately successful - in 1998 - in obtaining a writ of habeas corpus on the ground of ineffective assistance of trial counsel, as set forth in the "Summary Order" referred to in the claim (see Claimant's Submission in Support of Summary Judgment, Exhibit D, Unpublished but Reported as Dorsey v People of the State of New York, 164 F3d 617 [2d Cir 1998], affirming 1997 WL 400211 [SDNY 1997]). Thereafter, claimant was retried before the Hon. Jeffrey Atlas, J.S.C. and again convicted in 1998 of four counts of sodomy, and his conviction was affirmed on direct appeal (see People v Dorsey, 300 AD2d 136 [1st Dept 2002]).
The apparent gravamen of the claim and of claimant's motion for summary judgment is that the People were barred from retrying him by the following legend that appears atop the Second Circuit's "Summary Order":
THIS SUMMARY ORDER WILL NOT BE PUBLISHED IN
THE FEDERAL REPORTER AND MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY TO THIS OR ANY OTHER COURT, BUT MAY BE CALLED TO THE ATTENTION OF THIS OR ANY OTHER COURT IN A SUBSEQUENT STAGE OF THIS CASE, IN A RELATED CASE, OR IN ANY CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR RES JUDICATA [emphasis added].Claimant argues that the Summary Order "was issued for the purposes of collateral estoppel or res-judicata" (see Claimant's Submission in Support of Motion for Summary Judgment, at 4) and that "[t]his should have served as a procedural bar for retrial . . . rendering the second trial null and void" (id. at 2-3). The Court notes that nowhere in the claim or the motion for summary judgment does claimant expressly state the relief that he seeks in this Court, but to the extent he seeks an order challenging the allegedly wrongful conviction after retrial, he seeks a remedy that is beyond the subject matter jurisdiction of the Court of Claims, which is to hear claims against the State for money damages (see Court of Claim Act § 9).
To the extent that claimant seeks money damages for his allegedly unjust conviction, the Court turns first to defendant's cross motion to dismiss the claim. Such a claim would fall within Court of Claims Act § 8-b. In support of its cross motion, defendant asserts that this claim must be dismissed because it is either untimely or unripe because it was not filed within the time limitations set forth in Court of Claims Act § 8-b(7) (see Polstein Affirmation, ¶6). In relevant part, "[a]ny person claiming compensation under this section based on a pardon that was granted before the effective date of this section or the dismissal of an accusatory instrument that occurred before the effective date of this section shall file his claim within two years after the effective date of this section" (Court of Claims Act § 8-b[7]). If claimant is seeking damages as a result of the first conviction, the claim would be untimely because, as defendant asserts, the Summary Order of the Second Circuit Court of Appeals is the document that should have terminated any proceedings, convictions or incarceration of claimant, and that Order was filed on April 6, 1998, well more than two years prior to the filing of the instant claim. If, however, claimant seeks damages resulting from the conviction upon his retrial, his papers fail to assert, allege or otherwise demonstrate that the judgment of conviction rendered by Justice Atlas in 1998 is subject to any of the conditions that are prerequisite to a claim pursuant to Court of Claims Act § 8-b. Specifically, claimant has not demonstrated by documentary evidence that he has been pardoned on the ground of innocence, or that the judgment of Justice Atlas was reversed or vacated (see Court of Claims Act § 8-b[3][b]). To the contrary, claimant's own submissions as well as the published State court decisions cited above demonstrate that the second judgment of conviction remains extant, and thus, to the extent that a pardon, reversal, or vacatur of his judgment of conviction remain available to claimant, the instant claim is premature. Accordingly, defendant's cross motion to dismiss the claim must be granted.
In light of the Court's decision on defendant's cross motion, the Court need not address claimant's motion for summary judgment, and it is
ORDERED, that defendant's cross motion number CM-80740 is GRANTED, and claim number 118789 is DISMISSED, and it is further
ORDERED, that claimant's motion number M-80594 is DENIED.
March 30, 2012
Albany, New York
W. BROOKS DeBOW
Judge of the Court of Claims
Papers considered:
(1) Claim Number 118789, filed August 11, 2010;
(2) Verified Answer, filed September 7, 2010;
(3)Notice of Motion [for] Summary Judgment, without date and filed August 22, 2011;
(4) "Summary Judgment" Statement of Facts and Argument, sworn to July 29, 2011, with
Exhibits A-D;
(5) Notice of [Cross] Motion, dated December 7, 2011;
(6) Affirmation of Janet L. Polstein, AAG, in Opposition to Claimant's Motion for Summary
Judgment and Cross-Motion to Dismiss, dated December 7, 2011, with Exhibits A-C;
(7) Notice of Motion [sic] Reply Brief, dated December 28, 2011;
(8) "Affirmation" in Reply to Defendant Opposition to Claimat [sic] Motion for Summary
Judgment and Cross Motion to Dismiss, undated, with Exhibits A, B1 and B2.