Opinion
Claim No. 118248
06-09-2016
BLAKE WINGATE v. THE STATE OF NEW YORK
Claimant's attorney: Blake Wingate, Pro Se. Defendant's attorney: Eric T. Schneiderman, New York State Attorney General By: Janet L. Polstein, Assistant Attorney General.
Unpublished Opinion
Claimant's attorney: Blake Wingate, Pro Se.
Defendant's attorney: Eric T. Schneiderman, New York State Attorney General By: Janet L. Polstein, Assistant Attorney General.
Synopsis
The Court granted defendant's motion to dismiss a claim brought pursuant to section 8-b of the Court of Claims Act. Claimant failed to satisfy the pleading requirements of paragraphs 3 and 4 of the statute, and his various common law tort claims do not lie against the State, as it had no role in his arrest and prosecution.
DECISION
DAVID A. WEINSTEIN Judge.
By a claim filed April 8, 2010, claimant pro se Blake Wingate, seeks to hold defendant State of New York liable for damages pursuant to the Unjust Conviction and Imprisonment Act of 1984, codified as section 8-b of the Court of Claims Act. The claim also alleges causes of action for negligence, intentional infliction of emotional distress, and malicious prosecution.
Wingate was represented by counsel when he filed the claim. By stipulation filed September 6, 2011, his counsel was released as attorney of record, and thereafter claimant proceeded pro se.
The facts underlying the claim are as follows: In connection with an arrest on April 9, 2003, Wingate was indicted for fourth-degree criminal possession of stolen property (Penal Law § 165.45[5]), and seventh-degree criminal possession of a controlled substance (Penal Law § 220.03). As described in the New York Court of Appeals opinion in the case, he was charged "after the police found him sitting in a stolen van and recovered a crack pipe from his pocket." (People v Crampe, 17 N.Y.3d 469, 474 [2011] [decided with Wingate]). The matter was prosecuted by the Queens County District Attorney's Office. Wingate, who conducted his own defense, was convicted of both charges following a jury trial, and was sentenced to concurrent terms of two to four years for criminal possession of stolen property, and one year on the controlled substance count (id. at 480). He served 18 months in prison until he was released on parole (Claim ¶ 13).
Wingate's appeal was heard together with Crampe's.
On direct appeal, Wingate argued that the evidence was legally insufficient to establish that he was in possession of the stolen van. The Second Department found this issue unpreserved, but invoked its interest of justice jurisdiction to address it (see CPL 470.15[3][c]). It vacated the stolen property conviction and dismissed that count of the indictment, on the ground that the evidence supporting it was legally insufficient (People v Wingate, 70 A.D.3d 734 [2d Dept 2010]; App. in Supp., Ex. D). It affirmed the controlled substance conviction, however.
Subsequent to the filing of the present claim, the Court of Appeals granted Wingate leave to appeal the remainder of his conviction (People v Wingate, 15 N.Y.3d 780 [2010]). The Court held that the trial court's colloquy was insufficient to show that he knowingly and voluntarily waived his right to be represented by counsel when he proceeded pro se at the pretrial suppression hearing. It remitted the matter for a new suppression hearing, to be followed by a new trial if Wingate prevailed at the hearing (Crampe, 17 N.Y.3d at 484).
The only indication in the Court's file of what occurred after the remand is a document submitted by claimant during the pendency of this claim. It is from the Supreme Court of the State of New York Criminal Term, dated February 10 2014, and states:
Though the page was partially cutoff, based upon the address listed on the document, it appears that it was from Queens Criminal Court.
"YOUR PAPERS ARE BEING RETURNED TO YOU YOUR CASE INDICTMENT # 941-2004 WAS DISMISSED ON 12-11-2013. IF YOU WOULD LIKE TO FILE ART 78 PROCEEDING THAT MUST BE FILED IN SUPREME COURT"
Defendant now moves to dismiss the claim for Unjust Conviction because it does not meet the pleading requirements of section 8-b(3) and (4) of the Court of Claims Act, and the remaining counts as failing to state a claim.
Claimant opposes the motion, and cross moves under CPLR 2221 for reargument and renewal of a letter opinion issued by the Court on December 9, 2015, which denied his application for appointment of counsel and to obtain various records.
Discussion
To plead a sufficient claim under section 8-b, the claimant must:
"establish by documentary evidence that: (a) he 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) . . . (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" (Court of Claims Act § 8-b[3]).
As a threshold matter, Wingate did not submit with his claim any of the documentary evidence needed to establish his conviction or its reversal, nor has he moved to amend the claim to address this shortcoming. The pleading defect is "waivable," however, provided claimant can prove the factual underpinnings of his claim (see Harris v State of New York, 38 A.D.3d 144, 150 [2d Dept 2007], quoting Long v State of New York, 7 N.Y.3d 269, 276 [2006] ["It is the existence of the fact, as opposed to the documentation of the fact, that is a 'statutory requirement [] conditioning suit'"]).
In this case, the appellate rulings cited above establish the fact of Wingate's convictions. But he has failed to demonstrate that the convictions were overturned on any of the grounds specifically set forth in section 8-b(3). His claim must therefore fail.
The stolen property count was dismissed by the Second Department for legally insufficient evidence. This ground falls within those set forth in CPL 470.20(3), which can serve as a basis for a wrongful conviction claim under section 8-b. But that is only the case "where the count dismissed was the sole basis for the imprisonment complained of" (see Court of Claims Act § 8-b[3][b]). In this case, Wingate was also sentenced and imprisoned for one year for criminal possession of a controlled substance, and that charge was not reversed on a ground recognized under section 8-b.
CPL 470.20(3) states: "Upon a modification of a judgment after trial for legal insufficiency of trial evidence with respect to one or more but not all of the offenses of which the defendant was convicted, the court must dismiss the count or counts of the accusatory instrument determined to be legally unsupported and must otherwise affirm the judgment. In such case, it must either reduce the total sentence to that imposed by the criminal court upon the counts with respect to which the judgment is affirmed or remit the case to the criminal court for re-sentence upon such counts; provided that nothing contained in this paragraph precludes further sentence reduction in the exercise of the appellate court's discretion pursuant to subdivision six."
Although the Court of Appeals did not set forth the provision of the Criminal Procedure Law governing its reversal of the drug possession charge, the relevant provision would appear to be CPL § 470.20(1), which provides for reversal of "a judgment after trial for error or defect which resulted in prejudice to the defendant or deprived him of a fair trial." A conviction reversed on this basis can only serve as the basis for a section 8-b cause of action when it is predicated upon the CPL 440.10(1) grounds enumerated in section 8-b(3)(ii)(A). Those grounds are:
CPL 470.20 governs the rulings of the Appellate Division, while CPLR 470.40 governs the Court of Appeals. The latter provision is not referenced in section 8-b. When the Court of Appeals modifies a determination of the Appellate Divsion, however, it "must take or direct such corrective action as the intermediate appellate court would, pursuant to section 470.20, have been required or authorized to take or direct had it reversed or modified the criminal court judgment, sentence or order upon the same ground or grounds" (CPL 470.40[1]). That is what occurred in this case, and thus as a technical matter, the remand ultimately occurred pursuant to section 470.20.
"(a) The court did not have jurisdiction of the action or of the person of the defendant; or
(b) The judgment was procured by duress, misrepresentation or fraud on the part of the court or a prosecutor or a person acting for or in behalf of a court or a prosecutor; or
(c) Material evidence adduced at a trial resulting in the judgment was false and was, prior to the entry of the judgment, known by the prosecutor or by the court to be false; or . . .
(e) During the proceedings resulting in the judgment, the defendant, by reason of mental disease or defect, was incapable of understanding or participating in such proceedings; or . . .
(g) New evidence has been discovered since the entry of a judgment based upon a verdict of guilty after trial, which could not have been produced by the defendant at the trial even with due diligence on his part and which is of such character as to create a probability that had such evidence been received at the trial the verdict would have been more favorable to the defendant; provided that a motion based upon such ground must be made with due diligence after the discovery of such alleged new evidence."
The Court of Appeals modification and remittal in this case was not based upon any of the foregoing grounds. Rather, the Court of Appeals held that the pre-suppression hearing warnings to Wingate were constitutionally inadequate. Convictions overturned on constitutional grounds cannot, however, serve as the basis for a unjust conviction claim under the Court of Claims Act(see Baba-Ali v State of New York, 19 N.Y.3d 627, 633 n 5 [2012] ["[c]onspicuously omitted as a ground for Court of Claims Act § 8-b recovery is that set forth in CPL 440.10(1)(h), namely, that '[t]he judgment was obtained in violation of a right of the defendant under the constitution of this state or of the United States'"]; Fudger v State of New York, 131 A.D.2d 136, 139, 520 N.Y.S.2d 950 [3d Dept 1987] ["in defining the statutory coverage, the Legislature notably excluded a dismissal premised on CPL 440.10 (1) (h)," which covers judgments 'obtained in violation of a right of the defendant under the constitution of this state or of the United States'"]).
Section 8-b specifically excludes the following CPL 440.10 paragraphs, which therefore cannot serve as the basis for presenting a claim for unjust conviction: "(d) Material evidence adduced by the people at a trial resulting in the judgment was procured in violation of the defendant's rights under the constitution of this state or of the United States; or . . . (f) Improper and prejudicial conduct not appearing in the record occurred during a trial resulting in the judgment which conduct, if it had appeared in the record, would have required a reversal of the judgment upon an appeal therefrom; or . . . (h) The judgment was obtained in violation of a right of the defendant under the constitution of this state or of the United States."
While a reversal need not be predicated on one of the enumerated section 440.10(1) grounds when there is a retrial and acquittal (see Ivey v State of New York, 80 N.Y.2d 474, 480-481 [1992]), there is no indication that such occurred here. In fact, the communication from Queens Criminal Court referenced above reflects otherwise. In any case, claimant's filings do not address this issue, or allege that this is what occurred.
In sum, Wingate was convicted on two counts. The drug possession count was reversed on a ground that does not allow for a section 8-b claim under any circumstances, and the stolen property count was reversed under a provision that only allows for 8-b relief in cases where the dismissed count was the only basis for claimant's imprisonment. Under these circumstances, he cannot prevail on his section 8-b claim (see Pough v State of New York, 153 Misc.2d 490 [Ct Cl 1992], affd 203 A.D.2d 543 [2d Dept 1994], lv denied 85 N.Y.2d 803 [1995] [to sustain section 8-b claim, claimant "must satisfy the statutory preconditions of section 8-b with respect to every count of his indictment"]).
The drug possession count carried only a one-year sentence, and thus the last six months of the 18 months served by Wingate were entirely the result of the stolen property charge. Thus an argument could be made that this latter charge was the "sole basis" for some of Wingate's imprisonment. But that reading of the statute is inconsistent with section 8-b(4), discussed further below, which requires that claimant show that he did not commit "any of the acts" charged in the indictment. If I were to find that an 8-b claim could be premised on the dismissal of only some of the charges of the indictment for which a claimant was incarcerated - i.e., those charges responsible for the full length of the sentence - then the claimant would have to prove his or innocence as to counts of the indictment that had not been reversed on a permissible ground. Such a reading would lead to cumbersome procedures, requiring proof of innocence for charges reversed on grounds that fall outside the statute, or which were not reversed at all. I see no basis in the statute for such an unwieldy process, and instead hold that a section 8-b claim cannot be premised on a partial reversal when that reversal occurs pursuant to CPL § 470.20(3).
Further, the claim must also be dismissed because it fails to meet the pleading requirements of section 8-b. The statute requires that the claim "state facts in sufficient detail to permit the court to find that claimant is likely to succeed at trial in proving that (a) he 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 (b) he did not by his own conduct cause or bring about his conviction" (Court of Claims Act § 8-b[4]). If the court finds after reading the claim that claimant is not likely to succeed at trial, "it shall dismiss the claim, either on its own motion or on the motion of the state" (id.).
Under this "higher pleading standard" (see Warney v State of New York, 16 N.Y.3d 428, 435 [2011]), the "allegations in the claim must be of such character that, if believed, they would clearly and convincingly establish the elements of the claim, so as to set forth a cause of action" (id., quoting Solomon v State of New York, 146 A.D.2d 439, 442 [1st Dept1989]). While the claim in this case notes the absence of evidence supporting the stolen property claim, it presents no allegations or facts which support a claim of innocence. The mere fact that there was insufficient proof to sustain a conviction does not suffice for this purpose (see Ivey, 80 N.Y.2d at 479, citing Reed v State of New York, 78 N.Y.2d 1, 7 [1991] [""an acquittal is not, ipso facto, equivalent to a determination of innocence, generally or for purposes of [Court of Claims Act § 8-b]"]). And the claim does not address the controlled substance charge at all, much less allege facts that would show he was innocent of it. Thus, the allegations Wingate's pleadings do not adequately show that he "did not commit any of the acts charged in the accusatory instrument" (Court of Claims Act § 8-b[4]). His section 8-b claim must therefore be dismissed.
As to the claims sounding in common law tort, "public policy prohibits the maintenance of a suit against the State for intentional infliction of emotional distress" (Brown v State of New York, 125 A.D.2d 750, 752 [3d Dept 1986], appeal dismissed 70 N.Y.2d 747 [1987]; see also Lynn v State of New York, 33 A.D.3d 673, 675 [2d Dept 2006]). Claimant also does not have a cause of action against the State premised on malicious prosecution, since the State played no role in his criminal case (see Fisher v State of New York, 10 N.Y.2d 60 [1961] [Assistant District Attorney of New York County is not a "state officer" for whose acts the State may be held liable]; Fuller v State of New York, 11 A.D.3d 365 [1st Dept 2004] [same]). For the same reason, there are no specific allegations of negligence that can be maintained against the State.
Finally, claimant's application for reargument of my December 9 rulings is denied. There is no showing that the Court overlooked or misapprehended matters relevant facts or misapplied the controlling principle of law in its ruling issued on December 9, 2015. In any event, the matter is now moot.
Accordingly, it is
ORDERED that defendant's motion no. M-88233 is granted and claim no. 118248 is dismissed, and it is further
ORDERED that claimant's motion no. M-87916 is denied. June 9, 2016 Albany, New York DAVID A. WEINSTEIN Judge of the Court of Claims Papers considered:
1. Claimant's Notice of Motion, "CPLR 221 Permission to reargue/renew," and exhibits annexed thereto.
2. Defendant's Notice of Motion, Affirmation in Support of Defendant's Motion to Dismiss Claim, and exhibits annexed thereto.
3. Claimant's Rebuttal in Opposition and Affirmation to Dismiss Claim.