Opinion
No. 117567.
2012-02-28
Kian KHATIBI, Claimant(s) v. The STATE of New York, Defendant(s).
Benno & Associates, P.C. by Ameer Benno, Esq., Sullivan Law Offices, P.C., by Donald J. Sullivan, Esq., Of Counsel, for Claimant(s). Eric T. Schneiderman, Attorney General for the State of New York, by Robert Schwerdt, Assistant Attorney General, for Defendant(s).
Benno & Associates, P.C. by Ameer Benno, Esq., Sullivan Law Offices, P.C., by Donald J. Sullivan, Esq., Of Counsel, for Claimant(s). Eric T. Schneiderman, Attorney General for the State of New York, by Robert Schwerdt, Assistant Attorney General, for Defendant(s).
TERRY JANE RUDERMAN, J.
Kian Khatibi brings this claim pursuant to Court of Claims Act § 8–b. He alleges that his conviction of Assault in the First Degree and Criminal Possession of a Weapon in the Fourth Degree, for which he was sentenced to a term of imprisonment of seven to fourteen years, was unjust. In December 2001, his criminal conviction was affirmed on appeal ( see People v. Khatibi, 289 A.D.2d 593,lv denied97 N.Y.2d 756). Despite his numerous unsuccessful attempts to overturn his conviction, claimant steadfastly maintained his innocence throughout the more than nine years he served in prison. In November 2007, claimant's older brother, Kayvan Khatibi, confessed to the crimes at a family Thanksgiving celebration. Claimant first learned this information when it was reported to him later that month by his father during a prison visit.
The criminal charges arose out of a fight that erupted in the early morning hours of January 11, 1998 outside the Lock, Stock and Barrel, a “college bar” in the Village of Pleasantville (T:677). Bar patrons Brian Duffy and William Boyar sustained several stab wounds in the altercation. Claimant, who was 22 years old at the time, had been to the bar earlier that evening and had witnessed a fight outside the bar; however he maintains that he had no involvement in the fight. Rather, it is claimant's contention that his brother, Kayvan Khatibi, who is 16 months older and two inches taller than claimant, was the perpetrator of the crimes.
References to the trial transcript are preceded by the letter “T.”
In April 2008, claimant filed a motion in Westchester County Court, pursuant to CPL § 440.10(1)(g), seeking to vacate his conviction based upon newly discovered evidence, i.e., that his brother had confessed to the crimes. At the hearing, the judge appointed counsel for Kayvan who then invoked his right against self-incrimination and refused to provide any testimony regarding either the events of the night in question or his confession to the crimes. Claimant's sister Sheila testified to Kayvan's confession. On September 9, 2008, claimant's motion to vacate his conviction was granted; the indictment was reinstated and a new trial was ordered (Ex. 1).
On September 23, 2008, claimant's 33rd birthday, he was released on his own recognizance after serving more than nine years in prison. Thereafter, upon motion by the District Attorney's office, the indictment against claimant was dismissed in December 2008 (Exs.4, 5).
Court of Claims Trial
The trial of this claim was bifurcated and this Decision pertains solely to the issue of liability. Claimant testified that on the evening of January 10, 1998, he went to Pleasantville to a friend's home and then later proceeded to the bar. Claimant was wearing a brown jacket with a white collar and was not wearing his driving glasses (T:728–30, 737, 796–97). Claimant had consumed one or two beers when he felt someone bump into him at the noisy, crowded bar. This person was later learned to be William Boyar. Boyar grabbed claimant by his shirt and started to lift claimant off the ground (T:682–84, 736, 803). Before the encounter escalated, and within seconds, the bouncer grabbed claimant and dragged him out of the bar (T:804). Claimant did not recall seeing his brother Kayvan or his brother's friend and housemate Eric Freud at the bar; however claimant assumed that they would be there at some point that evening.
Once outside, claimant sat down on the steps in front of a building across the street from the bar. He then decided to go to 7–Eleven for a snack. He took a shortcut through the parking lot and walked through the alley leading to the store. Claimant bought some candy and a cup of coffee and then retraced his steps back toward the bar hoping to meet a friend and get a ride home to Yonkers (T:690–91, 792, 801–02). En route, claimant saw four young men arguing, close together, near the exit of the parking lot. Two were dressed in jackets and two were in summer-type clothing. They were shouting and pushing each other. As claimant approached, he recognized Eric Freud fighting with an individual later learned to be Brian Duffy. Claimant tried to walk around the group, keeping his distance from the fight. One of them pointed at claimant screaming something like, “there's the guy” (T:694). Looking back, claimant recognized William Boyar as the person who had lifted claimant off his feet inside the bar. Claimant did not observe any weapons or knives and he did not see the face of the fourth individual involved in the fight.
While claimant testified that he only recognized Freud and Boyar, on cross-examination, claimant was confronted with his criminal trial testimony that he had also recognized Brian Duffy as someone whom claimant had seen earlier in the bar. At the Court of Claims trial, claimant maintained that he did not recall his criminal trial testimony and did not remember if he recognized two or three of the individuals; however he certainly did not see the face of the person now known to be claimant's brother Kayvan.
Claimant walked to the train station. He was alone on the platform when he heard screaming, yelling and tires screeching. He feared that he might be attacked, so he went to the local police station seeking help. A surveillance video at the entrance of police headquarters showed claimant entering at 1:12 a.m. and leaving five minutes later (Ex. 18). Police Officers Mary Dennehy Hansen and Stanley Schepis were on duty. Claimant asked Schepis for a ride to the nearby Hawthorne train station because claimant was afraid to be alone at the Pleasantville station. According to claimant, Schepis agreed to transport claimant, but then could not because Schepis had to respond to a police call. After a few minutes, claimant left the police station and returned to his friend's house to use the telephone. Claimant called his sister Sheila, who was at their mother's home in Pleasantville, for a ride back to Yonkers. Within approximately 15 minutes, Sheila picked up claimant and drove him home.
The video itself was not preserved and the original footage was copied over with other matter.
When claimant learned that the police were looking for him and wanted to arrest him regarding the fight, he voluntarily went to the police station and was arrested. Claimant pled not guilty to the charges. At the criminal trial, the two bar patrons who had been stabbed in the fight identified claimant as someone at the scene. Kayvan and Freud also testified at the criminal trial. Kayvan denied having possession of a knife or seeing Boyar, Duffy or Kian outside the bar. Freud testified that Kayvan was not a participant in the fight and was not present at the bar that evening. The jury found claimant guilty.
At that time, claimant was not aware that Kayvan was the fourth individual involved in the fight.
After an unsuccessful appeal of his criminal conviction, claimant proceeded pro se with several actions including an Article 78 proceeding, a Federal Writ of Habeas Corpus and 30 to 40 Freedom of information requests and appeals. In 2007, nearly 10 years after the incident, claimant learned from his father that, at a recent Thanksgiving dinner, Kayvan had confessed to the stabbing. Claimant's response was one of relief because he had been trying to show that he did not commit the crimes for which he had been convicted. When claimant learned that Kayvan was resisting going to the District Attorney's Office to confess, claimant suggested that the family prepare notarized statements regarding Kayvan's confession.
At the time of the Court of Claims trial, claimant was a law student.
Claimant maintained his innocence throughout his incarceration. At his parole hearing in 2006, seven years after his conviction, claimant refused to admit to the crimes, despite his awareness that this would jeopardize his chances for parole because it would be considered a failure to show remorse (Ex. 24). Indeed, claimant was denied parole on that very basis. Nonetheless, claimant asserted that he would rather spend his life in prison than admit to crimes he had not committed.
Claimant described his relationship with Kayvan since their mid-teens as strained and worsening as they grew older because of Kayvan's selfishness. According to claimant, Kayvan had a history of drug and alcohol abuse before the incident. Since Kayvan's confession, their relationship has been nonexistent. Claimant did concede, however, that Kayvan had visited during claimant's incarceration.
Detrix Richards testified that he did not know any of the people involved in the fight he witnessed on January 11, 1998 when he was seated in the front passenger seat of a car parked across the street from the bar. Richards was listening to music for approximately 10 minutes, when he observed four individuals shouting and fighting outside the bar. He described the location of the fight as the exit of the parking lot a few doors south of the bar. An alleyway from the parking lot led to a shortcut to a nearby 7–Eleven store. According to Richards, two of the young men were obviously intoxicated and yelling at the top of their lungs. He described them as wearing white tee shirts, above average in height and muscular. The other two involved in the fight were wearing jackets and were also above average height.
The fight was in progress when a fifth male, now known to be claimant, appeared. He was wearing a brown jacket with a white collar and was shorter than the others. Richards further described claimant as having distinctively short, slicked-back hair. Richards observed claimant coming through the alleyway, calm and nonchalant; he tried to walk around the fight and not get involved. Claimant made a hand motion described by Richards as “like we don't need to fight, we don't need to fight” or leave me out of it (T:80). Richards did not see anything in claimant's hands. Claimant “stood out” from the others “towering over him” and was “the only person * * * trying to get them not to fight” (T:89). Claimant headed down the street while the others continued arguing and bumping chests.
Claimant was in fact five feet, eight inches and Kayvan was five feet ten inches.
It was not until after claimant had left the scene that the fight escalated and one of the men in a jacket started yelling and threatening. Richards could not see any weapons, but he later observed blood coming through the white tee shirts as the men dispersed toward Richards. Richards yelled to them to ask if they were “okay” (T:97). They initially did not respond and then one of them indicated that they were “all right” as they continued walking ( id.). Richards then saw a police car and reported to the officer that two men had been stabbed and were headed up the street bleeding in white tee shirts. Richards proceeded to the bar where he later observed police officers speaking with the bouncer.
Claimant's older brother, Kayvan Khatibi, testified that he committed the stabbings in the fight on January 11, 1998. According to Kayvan, he was in possession of a knife that evening because during the afternoon hours of January 10, 1998, he and his friend and housemate Eric Freud had been involved in another fight with two other men at their home in Yonkers. That fight was witnessed by Kayvan's sister, Sheila, who also lived with them. Freud sustained a black eye in the altercation and Kayvan kicked one of the men in the head six or seven times until Kayvan's father told Kayvan to stop before he killed the guy. The police were called to the scene. No arrests were made and the men left. According to Kayvan, one of the men threatened to return; therefore Kayvan changed into his hard-soled boots because the boots he had been wearing did not do much harm to the man's face he had kicked. He also took a small, four-to-five-inch, paring knife from his kitchen and secreted it in the leg pocket of his carpenter pants. He, Freud and another friend, later went to the bar in Pleasantville.
Kayvan and his friends were at the crowded bar for a short time, when Kayvan's attempts to talk to a young woman were interrupted by a large male who threw Kayvan against the wall. Kayvan walked away from the scuffle and went to the back of the bar to warn his friends about this individual. Shortly thereafter, Kayvan saw claimant at the front of the bar in a tussle with a large man, possibly the same person Kayvan had encountered. Claimant was then dragged out of the bar by the bouncer. Approximately 15 minutes later, Kayvan and Freud were outside the bar arguing with two well-built men wearing white tee shirts, one of them was the large male who had fought with Kayvan inside the bar. Claimant was not present.
The verbal sparring escalated into a physical confrontation and Kayvan was engaged in shoving, punching and grabbing. He then took the knife from his pants pocket with his left hand and stabbed the two combatants in numerous places in an attempt to get them to drop to the ground so that he could flee. Claimant was not present when Kayvan stabbed the men. Kayvan was surprised when there was no reaction to his stabbing. He stated, “I guess the knife was too small, or they were too drunk, or maybe the knife was too sharp, they didn't feel it. I don't know. * * * [A]t some point, I guess they tired out or maybe they did feel it” because they stopped and backed away from the fight (T:140). They walked away and so did Kayvan and Freud.
Kayvan later observed a police car driving down the hill and he also saw claimant coming around the corner, walking toward the bar. Kayvan directed Freud not to start running until they had turned the corner and were out of sight by the police. The police car drove past them, toward the bar, and Kayvan and Freud started running. Kayvan testified, “I remember seeing my brother [claimant] for the first time after the fight right when I'm turning that corner” (T:229). Kayvan was in front of Freud and threw the knife toward the rooftop of the Mediterraneo Restaurant. Kayvan testified that he tried to “clear a tree and throw it up on the roof.” He was not sure if the knife reached the roof because it sounded like it hit some leaves at the top of the tree. He was running at full speed and did not hear the knife land. He then looked back and neither Freud nor claimant were anywhere to be seen. Kayvan continued a few blocks toward his mother's apartment. En route, he noticed that he had blood on his “jacket shirt,” so he took it off and threw it in a dumpster (T:147). When he reached his mother's apartment, he washed the blood from a cut he had sustained to his left index finger during the fight.
Days after the incident, Pleasantville Detectives Stephen Bonura and Robert Mazzei came to Kayvan's home looking for claimant. According to Kayvan, he responded that he, not claimant, was responsible for the stabbing. Kayvan further explained that he had stabbed them only in self-defense and because it was two of them against him. Kayvan testified that the detectives then grabbed Kayvan and shoved him against a wall; they stated that they knew it was claimant and not Kayvan and that they had a warrant for claimant's arrest. The officers then threatened Kayvan that if he tried to say he did it, he would have a big problem and something bad would happen. Claimant was subsequently arrested.
Kayvan testified that he was walking in Pleasantville on the night before he was scheduled to give testimony at claimant's criminal trial, when an unmarked police car stopped and Officer Mazzei directed Kayvan to get into the car. As Mazzei drove around the block, he purportedly reminded Kayvan of the threats that Mazzei and Bonura had made to Kayvan about confessing to the stabbing. Kayvan was frightened by the officers' threats and of going to jail himself; therefore he was not truthful at claimant's criminal trial and did not admit responsibility for the charges lodged against his brother.
On November 17, 2007, the Sunday before Thanksgiving, Kayvan and his three siblings were at their father's apartment celebrating Thanksgiving early, due to their father's work schedule. When their father mentioned that he wished claimant was celebrating with them, Kayvan admitted that he was the one who had committed the stabbing. His father displayed shock and anger, while his sister Sheila verbalized her anger and the other two siblings left the table.
The father and mother had been divorced since 1993. They had five children: Kayvan was the oldest, followed by claimant, Sheila, Farah and Sean.
Seven months later, Kayvan complied with his father's request to attend claimant's CPL § 440 hearing. According to Kayvan, he intended to testify to his role in the crimes charged and claimant's innocence; however, when Kayvan began to testify, the judge interrupted and appointed counsel for him. Thereafter, counsel signaled Kayvan to refuse to answer any questions based upon his constitutional right against self-incrimination (Ex. 84). Therefore, Kayvan did not answer any questions regarding his role in the fight.
After claimant's release from prison, Kayvan wrote a handwritten statement, notarized on January 14, 2009, detailing the events of the incident (Ex. 85).
Kayvan admitted to a history of alcohol and substance abuse and purportedly confessed to others before admitting his actions to his girlfriend, Kerry–Anne Rafferty, and his family. Kayvan did not recall visiting claimant in prison very often; Kayvan testified that he visited on occasion with other family members.
Kerry–Anne Rafferty testified that she has been living with Kayvan for five to six years. According to Rafferty, Kayvan admitted to her in 2005 or 2006 that he was responsible for the stabbings and felt terrible that his brother was in prison. They did not discuss the topic further because it was very difficult for Kayvan. Later in 2007, Kayvan confessed to his family at a Thanksgiving celebration. Rafferty was not present on that occasion. She noticed that thereafter, Kayvan appeared to be relieved, but his relationship with his family grew distant and he had no relationship with claimant.
Eric Freud was subpoenaed by claimant to testify at trial. He reluctantly appeared and took the stand complaining that he did not feel well because he was diabetic and was voluntarily proceeding to detox because he wanted to get a job. He testified that he appeared in court due to his relationship with the Khatibi family prior to the stabbing. Freud stated, “I want to say something, but * * * I don't want to get anyone in trouble ...” (T:242). “Kian [claimant] is innocent * * * but I don't want to say that person unless I make sure I know he's not getting in trouble if I say something” ( id.). “I was there. I saw what happened” ( id.). “[A]s long as no one else is going to be rearrested for something else” (T:243).
Freud then explained that he, Kayvan and claimant got into a confrontation with two bar patrons outside the bar. They were large, drunk men. Claimant was much smaller than everyone. Kayvan “came around my right side, and struck the two gentlemen with the knife” (T:245). When asked if he saw the knife, Freud responded, “Actually, I never even saw the weapon, but I mean, obviously, when he's bumping into someone, all of a sudden, the stains on the shirts. And they were so drunk, they didn't even realize what happened” (T:250). He stated that the victims were so intoxicated they “wouldn't even know if Big Bird did it” (T:247). Kayvan then ran to his sister's and claimant ran to the police station (T:245). “That's what happened * * * that's the truth. And this man [claimant] went to jail for no reason. He's innocent. And I was there” ( id.). “And the only reason that they think Kian [claimant] did it [is] because of a surveillance” (T:247). “They wanted to stick [it] to Kian [claimant], because they didn't like him. And they hated him” (T:248). Freud did not tell the police that Kayvan was the guilty one because, in Freud's words, “I was worried about Kayvan going to jail. * * * I wasn't going to rat someone out that lived with me that I loved very much and send him to jail for a long time, even though he did the wrong thing” (T:249). Freud then indicated that he did not want to answer any questions and that he wanted to go home. He refused to answer most questions posed to him on cross-examination and was completely uncooperative. Accordingly, his testimony was accorded little weight.
Sheila Khatibi, testified that in January 1998, she was living in a house in Yonkers with her older brother Kayvan, his friend Eric Freud, and another individual. During the afternoon of January 10, 1998, Sheila observed Kayvan and Freud in a fight outside the house and the police were called to the scene. Later that evening, Sheila went out to dinner with her boyfriend and then went to stay at her mother's apartment in Pleasantville because she no longer wanted to live at the house with Kayvan.
Sheila was awakened by a telephone call from claimant requesting that she pick him up at a friend's house in Pleasantville and drive him to the house in Yonkers. Sheila got dressed and picked up claimant. She described his demeanor as normal. En route to Yonkers, Sheila realized that she had forgotten something at her mother's home so Sheila returned to the apartment. At her mother's, Sheila observed Kayvan exiting the bathroom. He asked Sheila for a ride to the Yonkers house and they met Freud downstairs, who also joined them in the car. Sheila then drove claimant, Kayvan and Freud back to Yonkers. Music was playing in the car and no one mentioned the fight.
On November 17, 2007, all the siblings, except claimant, were at their father's home celebrating Thanksgiving. During the meal, Sheila recalled seeing her father and Kayvan engaged in an emotional conversation. She realized that they were talking about claimant. She soon joined them and heard Kayvan say that he was responsible for the stabbing and for claimant's incarceration. Sheila was angered and aggressively questioned Kayvan, demanding details of the evening. Kayvan used actions and words to describe how, holding his knife, he bounced off the two victims. Kayvan also related that he had cut his hand; Sheila then deduced that Kayvan was washing off blood when she had observed him on January 11, 1998 exiting their mother's bathroom. Kayvan also described how he threw the knife on the roof of the Mediterraneo Restaurant.
Kayvan stated that he did not think that claimant would be convicted and that when he was, Kayvan became scared and depressed. Sheila became so enraged that she left the dinner. Sheila noted that, in the years after claimant's conviction, Kayvan's life spiraled downhill. He became a drug addict and she rarely saw him.
Later, Sheila made an anonymous call to the Westchester County District Attorney's Office and presented a hypothetical situation involving a confession to a crime for which another person had been convicted. Sheila was advised that the guilty party should speak to an investigator in the District Attorney's Office. Thereafter, Kayvan was persuaded by his father to go to the District Attorney's Office. Sheila was ready to drive Kayvan, when he reneged. This angered Sheila.
Sheila wrote a statement memorializing Kayvan's confession and had it notarized (Ex. A). She also testified about Kayvan's confession at claimant's hearing on his motion to vacate his conviction. She was not concerned at the hearing about any potential consequences to Kayvan; she just told the truth about what she knew.
George Khatibi testified that he has always had a close relationship with his five children, Kayvan, claimant, Sheila, Farah and Sean. George had been employed in the hospitality industry for many years and in 1998 he was the Banquet Manager at the Hyatt Hotel in Greenwich, Connecticut. On the afternoon of January 10, 1998, George witnessed a fight at Kayvan's house in Yonkers. Eric Freud and Sheila Khatibi were also present and the police were called to the scene.
On November 17, 2007, George hosted a pre-Thanksgiving celebration because most of his family worked on the upcoming holiday. Near the end of the meal, George remarked that he wished claimant was celebrating with the family. Approximately five minutes later, Kayvan revealed that he was responsible for the stabbing which resulted in claimant's imprisonment. Kayvan explained that he had not come forward previously because he was scared and did not want to go to jail. Sheila and Kayvan began arguing, while Farah and Sean became upset and left the room. Before that evening, Kayvan had never mentioned that he had anything to do with the fight.
The next weekend, George and Sheila visited claimant in prison and told him about Kayvan's confession. Claimant was shocked. When the attempts to get Kayvan to confess to the District Attorney were unsuccessful, claimant suggested that each of the family members write statements describing Kayvan's confession and have them notarized. They complied with claimant's request and sent the statements to claimant in prison.
Michael DeMaio testified that he became a police officer in 1996 and began as a patrol officer in the Village of Pleasantville. On January 11, 1998, DeMaio was on routine car patrol when he witnessed a group of four to six individuals in the alleyway, near the bar, engaged in an argument or altercation, so he drove around the block to make further observations. DeMaio did not notice anyone wearing a brown jacket with a white collar (T:464). By the time DeMaio turned the corner, the group had dispersed, but he noticed Eric Freud because he had a black eye. DeMaio was flagged down by a bouncer from the bar regarding a fight, but the bouncer did not provide any other information, such as a description of the individuals. DeMaio then saw Duffy and Boyar walking with blood-stained white tee shirts. They appeared intoxicated and were not aware that they had been stabbed. DeMaio lifted their shirts and observed several severe stab wounds. He radioed for an ambulance and for additional police support. Police Officers Dennehy Hansen and Schepis responded.
DeMaio opined that the victims were physically capable of identifying their assailant; however, he did not recall if they had provided such information or if he had made such an inquiry. DeMaio testified that he may have asked for a description, but he was not certain. He testified that he believes that the victims just reported that they had been jumped by a couple of guys. DeMaio left Officer Dennehy Hansen with the victims and went to look for Freud because DeMaio had just seen Freud approximately five to ten minutes earlier and believed that he was involved with the stabbings. DeMaio did not recall if that belief was based upon information that he had learned from the victims. Rather, it was “primarily” based upon DeMaio having seen Freud earlier (T:413). DeMaio testified that he did not recall the victims providing any description of anyone, “but,” he stated, “I can't say for certain they didn't” (T:413). DeMaio later testified that when he interviewed one of the victims, possibly Boyar, at the hospital, he just “reiterated that they were jumped” (T:446). When asked if Boyar had mentioned an individual with a black eye, DeMaio responded, “I don't recall if he said that or not” (T:446). The following ensued during direct examination of DeMaio:
“Q.Did you testify in deposition * * * about six weeks ago, and did you say in substance the only identification that either one of them gave you was a kid with a black eye?
A.They both had stated that the kid with a black eye was involved.
Q.They did tell you that there was a kid with a black eye involved in this event?
A.Involved in that event. Correct.
Q.Involved in the fight?
A.They couldn't say whether he was involved in the actual fight or not.
Q.They were not able to say.
A.Correct.
Q.What description did they give you of the assailant when you encountered them at the scene?
A.I don't recall a, a—I don't recall what they said exactly as to a description.”
(T:446–47). DeMaio was then asked, “what description, if any, did Boyar and Duffy give you at the scene about who was involved in the fight?” (T:448). DeMaio responded as follows:
“A.At the scene, the only indication or description they gave me was that Eric Freud was involved in some way.
Q.Did they tell you the name Eric Freud?
A.No.
Q.Did they give you a description that you recognized as Eric Freud?
A.I had brought Eric Freud back to the scene, and they identified him as being involved.
Q.Before you did that, did they describe to you, as part of the fight, a kid with a black eye?
A.I don't remember.
Q.And you went looking for Eric Freud, because you had already seen him with a black eye?
A.I went looking for Eric Freud, because I had seen him at the scene, or what I believed to be the original altercation.”
(T:448–49).
DeMaio picked up Freud and brought him to the victims for a show-up identification (T:459–60). The victims were being treated in the ambulance and became agitated at the sight of Freud, but they could not state if he had stabbed them or was fighting with them.
DeMaio reported that claimant was recorded on videotape coming into headquarters on January 11, 1998 after the fight had ended. There was nothing unusual about claimant's appearance, such as blood, bruises, scrapes, or torn clothing and he did not appear disheveled.
DeMaio searched the area in the dark for a knife. He searched again in the daylight and checked the rooftops within a two-block radius of the incident. The knife was never recovered.Mary Dennehy Hansen testified that she graduated from the police academy in May 1996 and on January 11, 1998 she was on duty in the Pleasantville police station. She recalled claimant entering headquarters at approximately 1:10 a.m. He was wearing a brown jacket and had a slim build. He was out of breath and appeared frightened. He was not bruised, bloody or disheveled. She noted in her report that when asked what was wrong, claimant indicated that there were guys chasing him and so he ran into the police station for help (Ex. 16).
Shortly thereafter, Dennehy Hansen left to respond to DeMaio's call for assistance with the two stabbing victims. They had been stabbed in the lower back, stomach and wrist. Dennehy Hansen administered first aid to them and inquired how they were injured. According to Dennehy Hansen, “they were not sure” (T:508). They were drinking a lot and had been attacked outside the bar. Dennehy Hansen participated in a search for evidence; the knife was never found.
Stephen Bonura testified that he was a police officer in Pleasantville from 1981 until 2009 when he left the department. In January 1998, he was a Detective Sergeant and had been the Youth Officer in the village since 1990. Bonura explained that Pleasantville was a very small village and that, as the Youth Officer, he was involved in the schools and knew many of the young people and their parents. Bonura knew the Khatibi family including claimant and Kayvan.
The investigation of the stabbing was assigned to another detective in the department, Robert Mazzei. Bonura accompanied Mazzei to Kayvan's house in Yonkers because they had a warrant to arrest claimant and that was the address they had for him. Kayvan answered the door and indicated that claimant was not there. The officers stayed for a few minutes and then left. Bonura's recollection of the events at the house was limited; however he unequivocally denied that Kayvan had confessed to the stabbings. Bonura also unequivocally denied using any force on Kayvan or threatening him.
Bonura interviewed Freud at the police station because Bonura had known Freud for several years and had experience in getting Freud to focus. Nonetheless, even after a couple of hours, Freud was still not forthcoming with any information. Bonura became frustrated and placed Freud in a cell and telephoned Freud's mother. After Freud spoke with his mother, he agreed to provide a statement, which Bonura then typed. The signed copy of the statement, which implicated claimant, was lost before claimant's criminal trial so Mazzei had to take another statement from Freud.
Robert Mazzei testified that as a Pleasantville detective, he was called into headquarters at approximately 2:00 a.m. on January 11, 1998 to investigate the stabbing. At that time, Mazzei had been with the department for more than 20 years. He knew claimant and Kayvan since they were about 13–years–old and testified that in 1998, Kayvan was “probably four inches, five inches” taller than claimant (T:943).
Mazzei prepared two photo arrays, one including Kayvan at position five with fillers (Ex. B) and the other with claimant in position three with fillers (Ex. C). Mazzei showed the arrays to Boyar at his office and then later to Duffy at his home. Before showing the arrays to either Boyar [Slip Op. 11]or Duffy, Mazzei told them that the photographs could possibly include somebody who was at the scene (T:970). Both Boyar and Duffy identified claimant as someone who was at the scene. Thereafter, Mazzei went to the police station to type statements for Boyar and Duffy to sign. When he presented the statements to Boyar and Duffy for signature, he told each of them “you got it right,” before they signed the statement (T:967–68). Mazzei then sought an arrest warrant for claimant.
Black and white photocopies of the photograph arrays were received into evidence as exhibits B and C.
Before the arrest warrant was obtained, Mazzei and Bonura went to the house in Yonkers listed as the last known address for claimant and Kayvan. Mazzei merely wanted to talk to claimant about his involvement in the incident (T:972). Mazzei rang the doorbell, while Bonura remained in the patrol car. Kayvan answered the door and Mazzei indicated that he was looking for claimant. Kayvan responded that claimant was not there. The conversation lasted three to five minutes and Mazzei left. When asked if Kayvan had confessed to the stabbings at that time, Mazzei answered, “[a]bsolutely not” (T:951). Mazzei also denied ever using any force upon Kayvan or threatening him. Mazzei also testified that Kayvan's story about being ordered into a patrol car the night before claimant's criminal trial and being threatened by Mazzei and Bonura was completely false.
A day or two after the stabbing, Mazzei used a cherry picker lift machine to search the roofs in the area for the knife used in the fight. The machine, however, could not go high enough to enable Mazzei to get onto the roof of the Mediterraneo Restaurant. Additionally, according to Mazzei, “[t]here were trees in the way in front of that building [the Mediterraneo Restaurant] and you would have to be a marksman knife thrower to get it through the trees, onto the roof” (T:1008).
According to Mazzei, “hours” after the victims were taken to the hospital by ambulance and many people had walked through that area, Dennehy Hansen found a baseball cap and a flannel shirt at the scene (T:974, 978). This was the only “possible” physical evidence recovered; however it was never sent to the crime lab because Mazzei had “personally checked them with a black light” and a magnifying glass for anything “from saliva to semen to blood” (T:976, 1002, 1004). The items were not tagged or logged in evidence and the District Attorney's Office was never told about the items because they were not found to be connected to the case. The victims were never shown the shirt or hat and asked if they could recognize them. The items were placed in a locker at the police station and were subsequently lost during a major renovation of the building.
Analysis
To prevail on a claim of unjust conviction and imprisonment under Court of Claims Act § 8–b, claimant must prove by clear and convincing evidence that: (1) he was convicted of one or more felonies or misdemeanors, was sentenced to a term of imprisonment thereon, and has served all or part of that sentence; (2) his judgment was reversed or vacated pursuant to a statutorily enumerated ground; (3) he did not commit any of the acts charged in the accusatory instrument; and (4) he did not by his own conduct cause or bring about his conviction. The requirements of Court of Claims Act § 8–b are to be strictly construed ( see Torres v. State of New York, 228 A.D.2d 579) and “the linchpin' of the statute is innocence” (Ivey v. State of New York, 80 N.Y.2d 474, 479).
In the instant case, it is undisputed that claimant has satisfied the first two requirements. Thus, the remaining issues are whether claimant has established, by clear and convincing evidence, his innocence and that he did not cause or bring about his conviction ( see Livingston v. State of New York, 229 A.D.2d 477). The purpose of this requirement is to “ensure that one is not rewarded for his own misconduct” (1984 McKinney's Session Law, Ch. 1009, pp 2899, 2932; see Moses v. State of New York, 137 Misc.2d 1081). The Law Revision Commission Report lists five examples of conduct which would preclude a claimant from recovering under the statute: giving an uncoerced confession of guilt, removing evidence, attempting to induce a witness to give false testimony, attempting to suppress testimony and concealing the guilt of another ( see 1984 McKinney's Session Law, Ch. 1009, pp 2899, 2932). The list was intended to be illustrative and other conduct may form the predicate for denying a claimant recovery ( see Coakley v. State of New York, 150 Misc.2d 903, 910,affd225 A.D.2d 477).
The Court of Appeals noted that, “[w]hile the Legislature specified that courts should give due consideration to difficulties of proof caused by the passage of time, the death or unavailability of witnesses, the destruction of evidence or other factors not caused by such persons' (Court of Claims Act § 8–b[1] ), it also allocated to claimants the heavy burden of proving their innocence by clear and convincing proof” (Reed v. State of New York, 78 N.Y.2d 1, 11). The clear and convincing evidence standard is more demanding than the preponderance standard which is ordinarily required in a civil trial and requires a quantum of proof establishing a high degree of probability ( see Fisch on N.Y. Evidence § 1090 at 614 [2nd ed]; PJI 1:64). The proof cannot be “loose, equivocal or contradictory” (George Backer Mgt. Corp. v. Acme Quilting Co., 46 N.Y.2d 211,quoting Southard v. Curley, 134 N.Y. 148, 151).
Upon review of all the evidence, including listening to the witnesses testify and observing their demeanor as they did so, the Court finds that claimant has established his innocence by clear and convincing evidence and has met his burden of proof in showing that he did not cause or bring about his conviction. Claimant's testimony was forthright and credible.His conduct of going to the police station shortly after witnessing the fight was consistent with his innocence and his lack of awareness that his brother was involved in the fight. Surely, if claimant had in fact just stabbed two people or knew that his brother had done so, it would be highly unlikely that claimant would proceed into the nearby police station seeking a ride from a police officer. Further, claimant's physical appearance at the police station was not consistent with the appearance of someone who had just been in a physical altercation with two, very large, intoxicated men who were bleeding in several places. Additionally, the testimony of Detrix Richards, a disinterested witness, established a clear picture of claimant, who “stood out” from the group of men fighting, as he tried to walk around them without getting involved. Richards further testified that the fight had not escalated into a stabbing until after claimant had left the area. The Court did not find it incredible, as defendant argued, that claimant did not recognize his brother Kayvan in the melee as claimant walked through the alley trying to keep his distance from the fight.
Also consistent with innocence, is claimant's act of voluntarily going to the police station later, when he learned that the police were looking for him regarding the fight ( cf. People v. Yazum, 13 N.Y.2d 302 [flight is indicative of consciousness of guilt]; Murnane v. State of New York, 288 A.D.2d 277). Claimant steadfastly maintained his innocence throughout his more than nine years of incarceration while he pursued legal remedies in an attempt to overturn his conviction. Significantly, at his parole hearing, seven years after his conviction, claimant refused to admit to the crimes, despite his awareness that this would jeopardize his chances for parole because it would be considered a failure to show remorse.
Contrary to defendant's arguments, claimant's inaccuracy in his testimony regarding the number of visits Kayvan had made to prison prior to his confession to the family, did not detract from claimant's credibility. The Court also did not find defendant's argument that claimant was in fact concealing evidence of his brother's guilt to be convincing and that argument is also inconsistent with defendant's position that Kayvan was not even present at the fight. Claimant's continued efforts during his incarceration in pursuing legal remedies to overturn his conviction is also inconsistent with concealing his brother's guilt. Rather, the Court credits claimant's testimony that he first learned that Kayvan was involved in the fight more than nine years later, when claimant was told of Kayvan's confession to the family. The Court also believed the testimony of Sheila and George Khatibi regarding Kayvan's confession as well as Kayvan's own testimony regarding his role in the fight, which was against Kayvan's penal interest ( see Reed v. State of New York, 78 N.Y.2d 1,supra; DiPalma v. State of New York, 90 AD3d 1659, 1659 [“the court is free to credit any part of a witness's testimony that it deems true and disregard what it deems false * * * and the court's determination to credit that testimony, at least in part, is entitled to deference”] ).
In sum, the Court finds that the totality of the evidence established claimant's entitlement to an award on his claim of unjust conviction.
A trial on the issue of damages will be scheduled as soon as practicable.
LET INTERLOCUTORY JUDGMENT BE ENTERED ACCORDINGLY.