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Oxley v. State

New York State Court of Claims
Jan 15, 2015
# 2015-048-168 (N.Y. Ct. Cl. Jan. 15, 2015)

Opinion

# 2015-048-168 Claim No. 121325 Motion No. M-85462

01-15-2015

WAYNE T. OXLEY, JR. v. THE STATE OF NEW YORK

WAYNE T. OXLEY, JR., Pro Se HON. ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Thomas G. Ramsay, Esq. Assistant Attorney General


Synopsis

The Court granted Defendant's motion for summary judgment dismissing Claimant's action seeking damages for unjust conviction.

Case information


UID:

2015-048-168

Claimant(s):

WAYNE T. OXLEY, JR.

Claimant short name:

OXLEY

Footnote (claimant name) :

Defendant(s):

THE STATE OF NEW YORK

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):

121325

Motion number(s):

M-85462

Cross-motion number(s):

Judge:

GLEN T. BRUENING

Claimant's attorney:

WAYNE T. OXLEY, JR., Pro Se

Defendant's attorney:

HON. ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Thomas G. Ramsay, Esq. Assistant Attorney General

Third-party defendant's attorney:

Signature date:

January 15, 2015

City:

Albany

Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

On May 18, 2013, Wayne Oxley filed a claim with the New York State Court of Claims seeking damages for his unjust and wrongful conviction and imprisonment pursuant to the New York State Court of Claims Act § 8-b. As background, on November 16, 2006, Claimant was convicted of murder in the second degree - a class A-I felony - having been found guilty of beating Bernard Trickey, Jr., to death at Mr. Trickey's home on New York Avenue in Ogdensburg, New York, during the early morning hours of August 30, 2005. On December 18, 2006, Claimant was sentenced to an indeterminate term of twenty-five years to life (see Penal Law §§ 70.00; 125.25). On July 30, 2009, Claimant's conviction was reversed and a new trial ordered (see People v Oxley, 64 AD3d 1078 [3d Dept 2009], lv denied 13 NY3d 941 [2010]). The reversal was based on the trial Court's error in excluding evidence of third-party culpability, including testimonial evidence that hours before the murder, a man named Robert Webb, also known as "Chase," threatened to beat Mr. Trickey. A second trial resulted in a hung jury. After a third trial, however, on February 23, 2012, Claimant was acquitted of the charge of murder in the second degree. Claimant then commenced this action. Defendant now moves pursuant to CPLR 3212 and Court of Claims Act 8-b (5) for an order granting it summary judgment dismissing the Claim in its entirety. Claimant opposes the motion.

Chase testified outside the jury's presence and denied committing the murder or making the inculpatory statements attributed to him ( see People v Oxley, 64 AD3d at 1082).

By Decision and Order dated December 19, 2012, this Court denied Defendant's motion seeking dismissal of the Claim based on Claimant's failure to state a cause of action ( see Oxley v State of New York, UID No. 2012-048-076 [Ct Cl, Bruening, J., December 19, 2012]).

"Court of Claims Act § 8-b, the Unjust Conviction and Imprisonment Act, provides a mechanism for 'innocent persons who can demonstrate by clear and convincing evidence that they were unjustly convicted and imprisoned ... to recover damages against the state' " (Warney v State of New York, 16 NY3d 428, 434 [2011], quoting Court of Claims Act § 8-b [1]; see Matter of Reed v State of New York, 78 NY2d 1, 7 [1991]). To recover damages, the statute specifies Claimant must clearly and convincingly establish that he

(a) [ ] has been convicted of one or more felonies or misdemeanors against the state and subsequently sentenced to a term of imprisonment, and has served all or any part of the sentence; and

(b) (i) [ ] has been pardoned upon the ground of innocence of the crime or crimes for which he was sentenced and which are the grounds for the complaint; or (ii) his judgment of conviction was reversed or vacated, and the accusatory instrument dismissed or, if a new trial was ordered, either he was found not guilty at the new trial or he was not retried and the accusatory instrument dismissed; provided that the judgement of conviction was reversed or vacated, and the accusatory instrument was dismissed, on any of the following grounds: (A) paragraph (a), (b), (c), (e) or (g) of subdivision one of section 440.10 of the criminal procedure law; or (B) subdivision one (where based upon grounds set forth in item (A) hereof), two, three (where the count dismissed was the sole basis for the imprisonment complained of) or five of section 470.20 of the criminal procedure law; or (C) comparable provisions of the former code of criminal procedure or subsequent law; or (D) the statute, or application thereof, on which the accusatory instrument was based violated the constitution of the United States or the state of New York; and

(c) [ ] did not commit any of the acts charged in the accusatory instrument or his acts or omissions charged in the accusatory instrument did not constitute a felony or misdemeanor against the state; and

(d) [ ] did not by his own conduct cause or bring about his conviction.

(Court of Claims Act § 8-b [5]).

Against this backdrop, the Court addresses Defendant's motion for summary judgment. As movant, Defendant bears the initial burden of establishing its entitlement to summary judgment as a matter of law by demonstrating that Claimant is unable to show by clear and convincing evidence, as is applicable in this action, that he did not commit any of the acts charged in the accusatory instrument, and that he did not, by his own conduct, cause or bring about his own conviction (see e.g. Difabio v Jordan, 113 AD3d 1109, 1110 [4th Dept 2014], lv denied 115 AD3d 1275 [2014]). CPLR 3212 (b) provides that such a motion shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions. The affidavit shall be by a person having knowledge of the facts; it shall recite all the material facts; and it shall show that there is no defense to the cause of action or that the cause of action or defense has no merit.

In this regard, "conclusory assertions are insufficient to demonstrate the absence of any material issues of fact" (Ayotte v Gervasio, 81 NY2d 1062, 1063 [1993]), and the failure to make the initial prima facie showing requires the denial of Defendant's motion, "regardless of the sufficiency of the opposing papers" (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). If this initial showing is made, the burden shifts to Claimant to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact, so as to necessitate a trial (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

In support of its motion, Defendant points to the sworn testimony and evidence presented in conjunction with the criminal proceedings, together with Claimant's sworn deposition testimony taken in this action. Defendant argues that there is no triable issue of fact and, as a matter of law, Claimant is unable to establish by clear and convincing evidence that he did not commit the acts alleged in the accusatory instrument. Defendant further argues that Claimant's own conduct caused or brought about his conviction in that Claimant requested that one witness - Jennifer Ritchie - give false testimony, and another witness - Bobbi Jo Gagnon - provide him with an alibi.

The Court is not persuaded by Defendant's remaining allegation that Claimant brought about his own conviction through Claimant's testimony that he permitted John Shannon to borrow his baseball bat.

During the criminal proceedings, evidence was presented that the victim - Mr. Trickey - sold drugs, including crack/cocaine, out of his home, and that various individuals would regularly visit the Trickey residence to either engage in drug use and/or to purchase drugs. Claimant, who lived on the same block as Mr. Trickey, as well as another neighbor, John Shannon, both used crack/cocaine and had purchased drugs from the victim within the week prior to the murder. There was evidence that Mr. Shannon had also sold drugs out of his home with Chase and Ms. Ritchie.

Mr. Shannon was a confidential informant for the Ogdensburg Police Department and, in that capacity, had made controlled drug purchases from Mr. Trickey during the weeks and days prior to the murder.

On the evening before the murder, Claimant, Mr. Shannon, and Travis Howe were drinking wine on the front porch of Claimant's house. There was testimony that during the evening, Claimant made multiple trips with his truck to both the grocery and liquor store with Mr. Howe or Mr. Shannon accompanying him and that, on each trip, Claimant would either stop or drive by his girlfriend, Bobbi Jo Gagnon's, house. There was also evidence that, at some point during the evening, either Mr. Shannon, Mr. Howe, or another individual, vandalized a vehicle belonging to another neighbor - Weston Murray - who was allegedly having a relationship with Claimant's ex-partner - Michelle Warnock. Claimant conceded that the night before the murder, during one of the times he stopped by Ms. Gagnon's house on his way to or from the store, he asked Ms. Gagnon for an alibi. It was after the parties disbursed that evening that Mr. Trickey was killed.

Claimant asserts that this alibi was to shield him from any criminal charges stemming from the vandalism to Weston Murray's truck.

The People's case against Claimant consisted of testimony that Claimant was angry with Mr. Trickey for shorting him in recent drug purchases, and based on the blood and hair evidence linking Claimant to the victim that was found on a baseball bat and napkin in the basement of Claimant's home. Of note is that Mr. Shannon's son (Billie Joe Shannon) testified that the night before Mr. Trickey was found dead, he heard a banging noise and observed Claimant banging a stick-like object on Claimant's front porch; that Kathleen Murray, another neighbor, testified that, the night before Mr. Trickey was found dead, she saw someone she believed to be Claimant walking toward Mr. Trickey's house; that Ms. Warnock, the mother of Claimant's children, testified that Claimant was concerned that Mr. Trickey was selling drugs to kids in the neighborhood; and that Jamin Haggart, an inmate at the St. Lawrence County Correctional Facility, testified that Claimant made a jailhouse admission to the crime (see Oxley v State of New York, UID No. 2012-048-076).

In opposition to Defendant's motion, Claimant notes that he has consistently maintained his innocence, asserting that he let Mr. Shannon use his baseball bat the night before the murder. Claimant theorizes that Mr. Shannon, Chase, or both, were the true perpetrators of the crime. Claimant also points to testimony from the criminal proceedings to establish that he is innocent, and that the police and prosecuting authorities failed to diligently investigate the crime.

At the preliminary hearing in conjunction with the criminal proceeding, Mr. Shannon denied borrowing Claimant's baseball bat on August 29, 2005.

Firstly, Claimant points to the sworn statement and criminal trial testimony of Michelle Disotell, an admitted drug user, that she was familiar with a group of "black guys," involved in the sale of illegal drugs in the area, one of whom was named Chase (Claimant's Affidavit, Exhibit Y, page 6; see Claimant's Affidavit, Exhibit Z). Ms. Disotell further stated that Mr. Trickey "ripped the black guys off for $6000.00" (Claimant's Affidavit, Exhibit Y, page 6). Ms. Disotell claimed to have observed Chase in a heated argument with Mr. Trickey the night before the murder (see Claimant's Affidavit, Exhibits Y and Z, page 4308).

By statement sworn to on July 19, 2010, Ms. Disotell recanted her trial testimony, stating that she never went to Mr. Trickey's house because she had heard he was a "rat" (Affidavit of Thomas G. Ramsay, Esq., Exhibit B).

Claimant also argues that Mr. Shannon, who died in a fire in his home only weeks after the murder, provided three varying statements to the police regarding the events occurring on the evening of August 29, 2005, thus impacting his credibility. Claimant argues that Mr. Shannon had motive to kill Mr. Tricky, as evidenced by the testimony of Sandra Pike, who testified at the criminal trial that, while she was residing with Mr. Shannon sometime around May or June 2005, Mr. Shannon threatened to kill Mr. Trickey in her presence for shorting him in prior drug buys (see Claimant's Affidavit, Exhibit BB).

There was evidence that, at some point in time during the evening, Mr. Shannon went to Mr. Trickey's house, either at the request of Claimant to see if Mr. Trickey was there, or to obtain drugs for himself.

The three statements made by Mr. Shannon are each dated August 30, 2005. The first of Mr. Shannon's statements asserted that, after Claimant took pills on August 29, 2005, he was fidgeting, wacking a stick on his porch railing, and threatening to bash "Wes' " head in (Claimant's Affidavit, Exhibit A). A second statement made by Mr. Shannon asserted that Claimant was frequently at Mr. Trickey's house buying drugs and that, on the evening of August 29th, Claimant was taking pills, drinking and complaining that Mr. Trickey was shorting him on drug purchases (see Claimant's Affidavit, Exhibit B). Mr. Shannon also claimed that, at approximately, 11:00 p.m, he observed Claimant walk to Mr. Trickey house (see Claimant's Affidavit, Exhibit B). In a third statement, Mr. Shannon again stated that Claimant was agitated about Mr. Trickey shorting him on drug purchases and that, before being taken away in a police car on August 30, 2005, Claimant approached Mr. Shannon and asked him to "get rid" of "some stuff" in his basement (Claimant's Affidavit, Exhibit C).

As further evidence that someone else committed the crime, Claimant points the testimony of

1) Frank Stevens, the taxicab driver, who attests that he overheard a black man threaten Mr. Tricky one week before the murder (see Claimant's Affidavit, Exhibit E);

2) Mike Morely, a neighbor who, at approximately midnight on August 29, 2005, observed a black or Hispanic man on foot in the neighborhood walking towards Mr. Trickey's backyard (see Claimant's Affidavit, Exhibit H, page 5041);

3) Wayne Simmons who, while incarcerated, overheard in a neighboring cell, the voice of an individual he thought was Chase, admitting to having killed Mr. Trickey (see Claimant's Exhibit AA. 4779, 4786);

4) Jamal Thompson, who became acquainted with Chase while incarcerated and testified that, in 2009, Chase admitted to him that he beat a man in Ogdensburg after that man was shot in the head (see Claimant's Affidavit, Exhibit SS, page 4604);

5) Libby Ritchie, a drug dealer, who testified that Chase threatened to make her "disappear" like what happened on New York Avenue (Claimant's Affidavit, Exhibit II, page 4806);

6) James Yerdon, who testified that, while incarcerated, Chase told him that he was at the victim's house on the night of the murder (see Claimant's Affidavit, Exhibit QQ, page 4528); and

7) Dr. Thomas Kubic, who testified as an expert on Claimant's behalf that Mr. Trickey could have been first shot in the head with a small caliber gun, and then beaten to hide any evidence of the shooting (see Claimant's Affidavit, Exhibit RR).

The People's forensic pathologist testified, in part, that a full metal jacketed projectile would be less likely to leave fragments if someone was shot in the head at close contact ( see Claimant's Affidavit, Exhibit PP). No bullet fragments were found in Mr. Trickey's head.

Claimant submits that this evidence, together with the absence of the significant amount of blood evidence that should have been found in his home and on his clothes if he was, in fact, the perpetrator, establishes that he was not, and that prosecuting authorities acted in bad faith in indicting him.

"[C]lear and convincing evidence" is a standard of proof located between a "fair preponderance" of the evidence required for a judgment in a civil matter and proof "beyond a reasonable doubt," as required for a conviction in a criminal action (Matter of New York City Dept. of Social Servs. v Oscar C., 192 AD2d 280, 283-284 [2d Dept 1993], lv denied 82 NY2d 660 [1993] [internal quotation marks and citations omitted]). While "[t]o establish a fact by a preponderance of the evidence means to prove that the fact is more likely than not to have occurred" (Matter of Beautisha B. (Racquirine A.), 115 AD3d 854, 854 [2d Dept 2014]) if, in applying the preponderance standard, the evidence is "evenly balanced," judgment should be granted against the party bearing the burden of proof (300 E. 34th St. Co. v Habeeb, 248 AD2d 50, 56 [1st Dept 1997]). In contrast, the clear and convincing standard, which is the standard applicable to actions seeking damages for wrongful conviction, has been described as requiring the proponent establish that a fact is "highly probable" (Currie v McTague, 83 AD 3d 1184, 1195 [3d Dept 2011] [internal quotation marks and citations omitted]), rather than equivocal (see Solomon v State of New York, 146 AD2d 439, 441 [1st Dept 1989]).

Based on, among other things, the undisputed blood and DNA evidence on the baseball bat linking Claimant to the victim, Claimant's admission to having requested an alibi the night before Mr. Trickey's body was found, together with testimony that Claimant was angry with the victim and was seen pounding a stick-like object on his porch the evening before the murder, the Court finds that Defendant has established its entitlement to summary judgment dismissing the Claim.

In response, the Court finds that Claimant has not demonstrated a question of fact that would require a trial of this action. Specifically, Claimant's theory that either Mr. Shannon, Chase, or both, were the true perpetrators of the crime is nothing more than speculation. Indeed, while Mr. Smith testified that a black man threatened Mr. Trickey one week before the murder, there is no evidence that Chase was that individual, and no physical evidence linked Chase to the crime. Mr. Yerdon's testimony establishes that Chase admitted to being at Mr. Trickey's house the night before the murder - not that Chase committed the crime. After the criminal trial, Ms. Disotell recanted her testimony that she was at Mr. Trickey's the night before the murder. Thus, there was no eyewitness placing Chase at Mr. Tricky's house the night before the murder. The trial testimony of Jamal Thompson, Libbie Ritchie and Wayne Simmons, which Claimant offers to establish that Chase murdered Mr. Trickey, is nothing more than sheer speculation and unsubstantiated supposition. Neither Jamal Thompson nor Libbie Ritchie testified that Chase actually admitted to killing Mr. Trickey, and Wayne Simmons admitted that he was unable to observe inside the neighboring cell, and could only assume Chase was one of the individuals he overheard. Claimant's expert's opinion is based upon speculation and cannot be deemed to either raise a question of fact as to how Mr. Trickey was killed or to support Claimant's theory of the crime.

Based on the record before the Court, Claimant has not established, by the appropriate quality of proof, that he did not commit the acts alleged in the accusatory instrument (see Court of Claims Act § 8-b [5][c]). While it is conceivable that someone else committed the crime, it is just as likely that Claimant committed the crime. In this regard, Claimant has not established his Claim by the preponderance of the credible evidence, let alone by clear and convincing evidence. Rather, the proof submitted in opposition to the motion is equivocal and open to competing inferences.

Furthermore, Claimant's admissions to 1) having requested that Ms. Gagnon provide him with an alibi, and 2) having requested that Ms. Ritchie "make something up" to help in his criminal defense (see Affirmation of Thomas G. Ramsay, Exhibit D, pages 56-57, 92-93; Exhibit F) precludes judgment in his favor (see Court of Claims Act § 8-b [5] [d]; McKinney's 1984 Session Laws of New York at p. 2932; Coakley v State of New York, 150 Misc2d 903, 910 [Ct Cl 1991], affd 255 AD2d 477 [1st Dept 1996]).

Accordingly, Defendant's Motion M-85462 is granted, and the Claim is dismissed.

January 15, 2015

Albany, New York

GLEN T. BRUENING

Judge of the Court of Claims

The following papers were read and considered by the Court:

Defendant's Notice of Motion, filed July 31, 2014;

Affirmation of Thomas G. Ramsay, Esq., dated July 30, 2014, with Exhibits A-I;

Claimant's Answering Affidavit, filed October 9, 2014, with Exhibits consisting of three separately bound volumes;

Reply Affirmation, dated October 21, 2014, with Exhibits A-B.


Summaries of

Oxley v. State

New York State Court of Claims
Jan 15, 2015
# 2015-048-168 (N.Y. Ct. Cl. Jan. 15, 2015)
Case details for

Oxley v. State

Case Details

Full title:WAYNE T. OXLEY, JR. v. THE STATE OF NEW YORK

Court:New York State Court of Claims

Date published: Jan 15, 2015

Citations

# 2015-048-168 (N.Y. Ct. Cl. Jan. 15, 2015)