Opinion
Claim No. 136999
10-11-2022
Carlton Roman, Claimant, v. The State of New York, Defendant.
For Claimant: Law Offices of James Henning & Associates, PLLC BY: James D. Henning, Esq. For Defendant: Letitia James, New York State Attorney General BY: Janet L. Polstein Esq., Assistant Attorney General
Unpublished Opinion
For Claimant: Law Offices of James Henning & Associates, PLLC BY: James D. Henning, Esq.
For Defendant: Letitia James, New York State Attorney General BY: Janet L. Polstein Esq., Assistant Attorney General
David A. Weinstein, J.
Claimant Carlton Roman filed the claim at issue on September 14, 2021, seeking damages under Court of Claim Act § 8-b for his alleged unjust conviction and imprisonment. According to the allegations in the claim, claimant was imprisoned for nearly 32 years as a result of his 1990 conviction for one count of murder in the second degree, one count of attempted murder in the second degree, two counts of burglary in the first degree, two counts of assault in the first degree and one count of criminal possession of a weapon in the second degree (Verified Claim ¶¶ 1, 5).
On appeal, the conviction for assault in the first degree was reversed and vacated, and Roman was sentenced on the remaining convictions (id. ¶ 6). In 2021, pursuant to a Criminal Procedure Law § 440.10 motion made jointly by Roman and the Queens County District Attorney ("QDA"), and based on new evidence including the recantation of a key witness, Roman's entire conviction was overturned and vacated, and his indictment was dismissed (id. ¶ 15). Through the present claim, Roman argues that he was innocent of all charges against him. In the course of his pleading, he alleges that "police and Queens County prosecutors... submitted manufactured, unsupported, and logic-defying allegations against [him], and, that evidence demonstrates a number of Queens County prosecutors were willing to say anything necessary to convict [him] and to ensure that his conviction remained in place" (id. ¶ 103).
The State filed its answer on October 19, 2021, and discovery ensued.
In the course of discovery, claimant's counsel applied to this Court for and received two Judicial Subpoenas to serve on the QDA, dated November 17, 2021 (the "November Subpoena") and June 2, 2022 (the "June Subpoena"), respectively.
With the November Subpoena, claimant sought his complete QDA file and all QDA records, including grand jury information relating to his arrest, the investigation of the matters for which he was convicted, and the conviction itself, along with all QDA records relating to his post-conviction appeals, motions and the QDA's subsequent investigation into the conviction and its ultimate vacatur - including all records concerning allegations of prosecutorial and police misconduct relating to claimant's arrest and conviction (NYSCEF DOC No. 57). The QDA responded to the November Subpoena without any judicial involvement after the subpoena was signed.
The June Subpoena sought fifteen broad categories of documents relating to the operation of the QDA, not specifically tied (except in one instance described below) to the matter of Roman's prosecution. These included: documents from the years 1981 to 1996 relating to QDA training of staff attorneys and the duties and obligations of QDA staff attorneys; guidelines on attorney misconduct and penalties for engaging in misconduct; communication with the Committee on Professional Standards and the Attorney Grievance Committee; personnel disciplinary histories and evaluations for certain Assistant District Attorneys ("ADAs") , including a list of all cases handled by such attorneys, along with records of reversals of their convictions, and their salaries and raises; and protocols concerning allegations of witness tampering; and procedures for witness protection and relocation (NYSCEF DOC No. 65). In the one specification directly related to Roman's case, the subpoena sought QDA criminal record files for one Jomo Kenyatta, a prosecution witness at Roman's trial whom the complaint describes as "a feared and violent drug boss with many enemies who was wanted for several violent crimes and homicides, including at least one in Queens County" (Verified Claim ¶ 19).
These were, presumably, the individuals involved in Roman's prosecution.
The QDA now moves to quash the June Subpoena pursuant to CPLR 2304, averring that before filing its motion it conferred with claimant's counsel in hopes of resolving this dispute, without success (Affirmation in Support of the People's Motion to Quash Judicial Subpoena Duces Tecum of Amanda R. Iannuzzi, Esq., dated July 1, 2022 ["Iannuzzi Aff"] ¶ 18). It argues that the materials sought by claimant relate to general QDA practices irrelevant to this case, and which are being sought improperly in this Court of Claims matter solely to yield discovery for an alleged "yet-to-be-filed companion matter," as was stated in the affirmation of claimant's counsel in support of the June Subpoena (id. ¶¶ 1, 16).
In an opposing affirmation from counsel, claimant argues that the material sought bears directly on the issue of whether the QDA "falsely orchestrated" Roman's conviction as part of the office's alleged "pattern and practice of ginning up false convictions" (Affirmation of James Henning, Esq., dated July 25, 2022 ["Henning Aff"] ¶ 9). Claimant further asserts that the requested documents will aid in demonstrating that the trial prosecutor was unqualified and unfit to try homicide cases (id.). In sum, through the information sought in the June Subpoena, claimant contends that he will be able to demonstrate that the QDA "and their agents engaged in a wider pattern and practice of corruption exemplified by their persistent misconduct leading to numerous wrongful convictions" that spanned far beyond that of Roman (id. at 11).
Although labeled an "affirmation," after a few pages the document morphs into a legal brief, ceasing to use numbered paragraphs, and not signed under penalty of perjury as required for an affirmation.
In a reply affirmation, the QDA notes that it fully complied with the November Subpoena, which included disclosure of all of the materials and evidence gathered by its Conviction Integrity Unit (Affirmation and Memorandum of Law in Reply to Plaintiff's Opposition to the QDA's Motion to Quash Judicial Subpoena Duces Tecum of Amanda R. Iannuzzi, Esq., dated August 4, 2022 ["Reply Aff"] ¶ 5). Moreover, it avers that it has agreed to further disclosure of previously withheld materials, including handwritten notes on Jomo Kenyatta's prior convictions, and a previously filed complaint report naming Kenyatta as the suspect - and this reevaluation process on the production of documents continues (id. ¶ 3). However, the QDA contends that the other materials requested in the June Subpoena continue to be irrelevant to the issues before this Court.
Although claimant never requested permission to submit a sur-reply, he did so in a letter from counsel dated August 12, 2022 (James Henning, Esq. Correspondence, dated August 12, 2022 ["Henning Letter"] at 1). According to that letter, the discovery sought with the June Subpoena is not "utterly irrelevant" to the claim before me, as it will assist claimant in demonstrating that he too was a victim of the QDA's alleged "systemic misconduct.. [i.e.] their practice of fabricating evidence, getting it past judicial review once manufactured, and using it to dupe a jury" (id. at 1-2). Claimant argues that such information is relevant to the section 8-b claim now before me (id. at 2).
Discussion
In seeking to quash a subpoena served pursuant to CPLR 3101(a)(4), a nonparty like the QDA "bears the initial burden of showing that the discovery sought is utterly irrelevant or that the futility of the process to uncover anything legitimate is inevitable or obvious" (Kapon v Koch, 23 N.Y.3d 32, 34 [2014]; see also Taylor v State, 66 Misc.3d 1229[A], *3 [Ct Cl 2019]). Relevance is determined according to CPLR 3101, which provides that "[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof." This standard is "to be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity" (Forman v Henkin, 30 N.Y.3d 656, 661 [2018], citing Allen v Crowell-Collier Publ. Co., 21 N.Y.2d 403, 406 [1968]).
In applying these liberal standards, I must look to "the issues framed by the pleading," and items subject to discovery are those relevant "to the allegations of the complaint" (see Kern v City of Rochester, 261 A.D.2d 904, 905 [4th Dept 1999]; see also Avco Sec. Corp. of NY v Post, 42 A.D.2d 395, 397 [4th Dept 1973] [materiality of an item of discovery is based on the "relevancy of the material to the issues pleaded"]). In this case, the only cause of action pleaded is for wrongful conviction under section 8-b.
Under Court of Claims Act § 8-b(5), for a claimant to obtain a judgment in his favor on such a claim, he must prove by clear and convincing evidence that he was convicted of at least one felony or misdemeanor and:
"he has been pardoned upon the ground of innocence of the crime or crime for which he was sentenced and which are the grounds of 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 judgment 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 ... and (c) he did not commit any of the acts charged in the accusatory instrument... and (d) he did not by his own conduct cause or bring about his conviction."The "linchpin of a section 8-b claim" is a showing of "innocence" (id.; see also David W. v State, 27 A.D.3d 111, 117 [2d Dept 2006] lv denied 7 N.Y.3d 709 [2006] [in enacting section 8-b, the legislature placed emphasis on "actual innocence"]).
The motion to vacate Mr. Roman's conviction made jointly by his counsel and the QDA, a copy of which is appended to the claim, was made under CPLR 440.10(1)(g) (see Claim, Ex 4).
Claimant has conceded that he is not seeking the documents identified in the June 4 Subpoena solely for use in proving actual innocence or any other statutory element of section 8-b; rather he wants to demonstrate that QDA had a "larger pattern and practice of ginning up false convictions," and that the ADAs who prosecuted the case were not qualified to do so (Henning Aff at 9, 11). But evidence of a prosecutor's fitness, or a history of misconduct by an individual ADA or the district attorney's office as a whole, is not an element of an 8-b cause of action. While a prosecutor's misconduct in the conviction at issue may be relevant in certain circumstances to a wrongful conviction claim, there is no conceivable scenario where an DA's training, disciplinary process, supervision or other matters covered by the June Subpoena would have any bearing whatsoever to an action brought under Court of Claims Act § 8-b, or more specifically on the claim before me. That is: If the claimant in this case can prove by clear and convincing evidence that he was innocent of all charges against him and did not bring about his conviction by his own conduct, then he will prevail without any need to show misconduct by the prosecutor. If he cannot make these showings, then his claim must be dismissed, even if he has proven such misconduct. Accordingly, the records sought in the June Subpoena are irrelevant to the cause of action pled in the claim.
For example, the question of whether a conviction was overturned as a result of prosecutorial misconduct amounting to fraud may be relevant to whether a claimant meets one of the predicate means by which the reversal of a conviction may give rise to a section 8-b cause of action, under Court of Claims Act §§ 8-b(3)and 8-b(5)(i) (see generally Baba-Ali v State, 19 N.Y.2d 627 [2002]). That is not, however, an issue in this case.
Claimant essentially concedes as much. As noted, the affidavit supporting the subpoena averred that the documents sought were relevant to an as yet unfiled companion matter, and counsel makes clear in his present submissions that he does not seek the information in the June Subpoena to demonstrate his own innocence, but rather to demonstrate a broader pattern of misconduct "leading to numerous wrongful convictions" (Henning Aff at 1). But this Court does not have broad oversight authority over the legal world at large to issue a subpoena to find wrongdoing wherever it may exist. I can only uphold a subpoena seeking information relevant to the matter before me.
Claimant assures the Court that to the extent he is seeking this information as needed for a companion federal action, "any federal suit filed by Mr. Roman would be related to his 1990 wrongful conviction at the hands of the People and their agents and accordingly, entirely related to the Claim before this Court" (Henning Aff at13). Thus, "[s]uch cases would by their very nature entail related discovery" (id.).
That is not the appropriate standard for relevance. Claimant points to no statute or rule which allows this Court to issue a subpoena for information not tied to the case before me, but sought in an entirely different matter, so long as they are "related." To the contrary, requiring third-party production on this basis would be directly contrary to the principle that relevance must be determined on the basis of the pleadings at issue (see supra p 5). That principle is particularly salient here, where the "related" action has not even been filed, and thus I am asked to presume that the records at issue are relevant to this future suit, sight unseen. That I cannot do.
Finally, claimant argues that evidence of misconduct by the QDA is relevant to this matter because "Mr. Roman will also show that the People's conduct was reprehensible and wanton" and "New York law allows Mr. Roman to do this" (Henning Aff at 9). Claimant does not explain why such a showing would be material to this case, and does not cite the "New York law" which permits such discovery. To the extent the reference to "wanton" misconduct refers to an effort to obtain punitive damages here, it is of no aid to claimant. No such damages were sought in the claim (Verified Claim at 35-36), nor could they have been, as punitive damages are unavailable in the Court of Claims (see Gutterman v State, 74 Misc.3d 465 [Ct Cl 2021]). And there is yet another problem with claimant's effort to use the subpoena power of this Court to conduct a wholesale investigation of the QDA's practices: the QDA is not the defendant here. Rather, the defendant is the State of New York - the entity designated by the Legislature to serve as the vehicle for compensating those who were wrongly incarcerated and are later able to prove their innocence. Thus, whether or not the third-party District Attorney has or has not engaged in some pattern of misconduct in other matters is just not at issue in this case.
In sum, I find that the information sought in the June Subpoena is utterly irrelevant as to Roman's claim that he was wrongfully convicted under section 8-b of the Court of Claims Act (see In re Office of the Attorney General of the State of New York, 269 A.D.2d 1, 13 [1st Dept 2000] ["a subpoena should be quashed when the materials sought are, in fact, irrelevant to a legitimate subject of inquiry, or when the subpoena is being used for a fishing expedition to ascertain the existence of evidence"]).
I exclude from this conclusion the information sought on Kenyatta, which is relevant to the matter at hand. But since the QDA represents that it has been and continues to provide information responsive to this specification, and as claimant nowhere contests this assertion or otherwise premises its opposition to the motion to quash on this issue, I cannot deny the motion on this basis.
Accordingly, it is
ORDERED that the QDA's motion (No. M-98253) is granted and the June 2, 2022 Subpoena Duces Tecum is hereby quashed.