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Claimant relies on the testimony of his economist

Claimant ABA was wrongfully convicted on charges that he sexually abused his four-year-old daughter, including rape and sodomy. He was imprisoned for over two years—783 days—on multiple concurrent sentences, the longest of which was for 8 1/3 to 25 years, primarily in maximum security prisons, before his conviction was reversed on grounds of ineffective assistance of counsel and prosecutorial misconduct.

As prosecutors prepared to re-try ABA, it was confirmed that the only witness who had presented evidence of such abuse had lied and, in fact, that there was no credible evidence his daughter ever had been molested. The sex indictment against claimant then was dismissed. He subsequently commenced this action for unjust conviction pursuant to Court of Claims Act § 8-b.

Defendant moved pursuant to CPLR 3211 (a) (7) to dismiss for failure to state a cause of action and claimant cross-moved for summary judgment. The Appellate Division, Second Department, granted claimant’s motion for summary judgment, reversing the trial court and finding the State liable. This was the first time in the history of the unjust conviction statute since it was enacted in 1984 that the Appellate Division, on a motion record, found that claimant had satisfied all requirements of section 8-b—including, of course, his innocence—by clear and convincing evidence without defendant having raised an issue of fact warranting a liability trial. That this appellate court finding was made in a case that did not involve DNA evidence is all the more remarkable. The Appellate Division’s observations pertaining to liability bear repetition as this court turns to the issue of damages here:

“During an extremely unpleasant and highly bitter divorce and custody battle, the claimant was accused by his estranged wife of raping and sexually abusing his then four-year-old daughter. By judgment of the Supreme Court, Queens County, rendered December 5, 1989, the claimant was convicted of two counts of rape in the first degree, two counts of sodomy in the first degree, four counts of sexual abuse in the first degree, two counts of incest, and three counts of endangering the welfare of a child for acts involving his daughter.”

It is the defendant’s contention that the reversal of his conviction was based, in part, on the ground that the judgment was procured by prosecutorial misconduct that was tantamount to fraud in accordance with CPL 440.10 [1] [b]. The prosecutor’s deliberate withholding of evidence which tended to exonerate the claimant constituted a fraudulent act, which is conduct involving bad faith, or dishonesty as well as a fraud on the court, which is a lawyer’s misconduct in a judicial proceeding so serious that it undermines the integrity of the proceeding. The claimant also demonstrated that the dismissal of the indictment, at the request of the People, was based, in part, on newly-discovered medical evidence based on CPL 440.10 [1] [g].

At the claimant’s criminal trial, his daughter did not specifically implicate him, and her pediatrician could not conclude with any degree of medical certainty that she had been sexually abused other than concluding that that the claimant’s daughter was missing her hymen. However, this Court noted that her estimation of when the sexual abuse occurred was as consistent with the claimant’s innocence as it was with his guilt. The court finds no evidence of the sexual abuse reported by Dr. S and her contradicting conclusion that the child had no hymen, the only evidence of the claimant’s guilt. In opposition to the claimant’s prima facie showing of entitlement to summary judgment, the defendant failed to raise a triable issue of fact.

At trial here, claimant presented testimony and other evidence to document his lost wages; the conditions of his incarceration; the social, emotional and mental impact that conviction and incarceration had on his life; and the loss of his relationship with his daughter.

The court’s findings of fact and conclusions of law follow.

Pursuant to Court of Claims Act § 8-b [6], a finding of defendant’s liability having previously been made by summary judgment, claimant is entitled to an award of damages in such sum of money as the court determines will fairly and reasonably compensate him. It was held in Carter v State of New York that an individual who has been wrongfully convicted and incarcerated and who meets the requirements of the statute is entitled to an award of damages, the amount of which is determined in accordance with traditional tort and other common-law principles. The award is to provide compensation for lost wages, physical or mental problems caused by the incarceration, and pain and suffering, which can encompass the conditions of incarceration loss of freedom while imprisoned, separation from children, humiliation, interference with personal relationships and damage to reputation as held in Johnson v State of New York and McLaughlin v State of New York. The relevant period for determining damages is from the date of conviction to the end of imprisonment, and damages also may be awarded for any subsequent or continuing damages shown to have proximately resulted from those incurred during said period. Time spent incarcerated prior to conviction cannot serve as a basis for an award as held in Fudger v State of New York.

The amount of damages, even for claimants that have been incarcerated for similar periods of time, may vary depending on each claimant’s individual circumstances and the course of his imprisonment. Among the circumstances the court may consider are the stigma attached to the type of conviction, whether the individual previously was incarcerated, the presence or absence of a significant criminal history prior to the unjust conviction and the basis for the prior conviction.

Claimant relies on the testimony of his economist to support and then compute his claim to lost wages, past and future, as well as for the computation of his claim for the costs of future psychotherapy. Hi economist relied on claimant’s actual earnings from 1986 to 2005, as evidenced by his W-2 forms from 1986 to 2005 and his tax returns prior to 1989.

In awarding past lost earnings, the court accounts for the actual period of claimant’s confinement from the date of conviction on 15 November 1989 until his release from prison on 27 January 1992, and also adds a subsequent period through 1999 due to claimant’s psychological impairment, that is, for a period when he suffered from the disabling effects of a severe depression which the court finds properly attributable to his unjust conviction/incarceration. The court credits the psychiatric testimony of his economist and the claimant’s own testimony in this regard.

The court thus finds this period of earnings impairment to be compensable in that it is directly attributable to a depression caused by his conviction, and awards damages for claimant’s past lost earnings capacity amounting to $343,428.2

The claim for future lost earnings is another matter, however. A claimant, of course, bears the burden of establishing lost earnings with reasonable certainty. Claimant must establish that his future inability to earn at his preconviction/incarceration earning capacity has been proximately caused by those events. Claimant has not met his burden with regard to his alleged diminished future earnings capacity.

As to pecuniary claims, the court finds claimant has not proven that the lingering psychological problems claimant now grapples with and which his economist could be allayed with psychotherapy are primarily attributable to his conviction/incarceration as to warrant an award of future psychotherapy costs.

As regards claimant’s claim for nonpecuniary damages comprising of the damages claimant suffered during his period of incarceration following conviction and then those he suffered following his release which resulted from his unjust conviction and incarceration, the first category, the “principal elements” of damages include “loss of reputation,” mental anguish and, above all, the “loss of liberty. The mental anguish suffered by an inmate while he is in prison encompasses his discomfort, fear, lack of privacy and degradation. It is distinct from the continuing type of emotional damage he may suffer after his release from prison. In this case, there is also a significant damage component for claimant’s loss of the relationship with his daughter.

In the case at bar, claimant stresses the heinous nature of the crimes against his own four-year-old daughter of which he was unjustly convicted: two counts of rape in the first degree, two counts of sodomy in the first degree, four counts of sexual abuse in the first degree, two counts of incest and three counts of endangering the welfare of his own four-year-old daughter. There is no question the nature of this particular conviction further exacerbated claimant’s mental anguish. The court also recognizes the toll the heinous nature of these crimes of moral turpitude has taken on claimant’s reputation.

The court takes account of claimant’s tragic loss of the relationship with his daughter. As her father, claimant enjoyed an extraordinarily loving and close relationship with her literally from the day she was born through the first four years of her life. For most of that time claimant was his daughter’s primary caregiver as his ex-wife pursued a college education, and then a demanding career which prevented her from providing the parental care that claimant was in a position to provide his daughter. Defendant argues that claimant has not proven it was the conviction itself which was primarily responsible for the end of claimant’s relationship with his daughter because it already had been damaged, perhaps immeasurably and irretrievably, prior to his arrest, let alone conviction.

The court does not agree. The evidence reveals a close and loving father-daughter relationship between claimant and his daughter. Although that relationship had been placed in jeopardy by his wife’s malicious allegations of sexual abuse, it was claimant’s conviction and incarceration that shut the door on any chance claimant had to quickly resuscitate it. His daughter was still young enough at that point not to have appreciated the import of these erroneous charges or to have suffered psychological scars from them.

The court next considers whether claimant is entitled to additional damages because he allegedly suffers from posttraumatic stress disorder (PTSD) as a result of his wrongful conviction and imprisonment. The court here finds that the evidence in this case shows claimant has suffered from a number of the symptoms of PTSD, and that these proximately resulted from his unjust conviction.

The court is asked to include in its damages award the value of what really is an incalculable loss: to place itself within the experience of this claimant and follow his every moment, from the time he heard the “guilty” verdict that extinguished his flame of trust and confidence in a successful outcome born of the certainty of his innocence, to his ensuing despair while incarcerated as a convicted felon in a maximum security prison. It is within this set of circumstances that this Court must award damages; stating again that the liberty one so cherishes is absolute and the loss of it a tragedy of incalculable value.

In Walsh v Kings Plaza Replacement Serv. and Ramos v Ramos, the court is mindful that courts are asked to look to prior awards approved in other, comparable cases in their determination of what is “reasonable compensation. Courts do start with the nature of the crime involved in the conviction and the amount of time incarcerated. But their inquiries hardly end there. The court thus does not view these prior awards as approaching either in kind or amount what it finds necessary to satisfy the statutory requirement of fair and just compensation for this claimant here.

For claimant’s mental anguish and degradation occasioned by being labeled a convicted child molester of his own four-year-old daughter; for the irretrievable loss of his relationship with his daughter proximately caused by his conviction; for his loss of liberty into the most fearsome maximum security prison environment that an innocent man with no prior criminal history may be thrust; and for the psychological damage claimant sustained following his conviction, both while incarcerated and post-incarceration as a result of all this, the court finds claimant is entitled to $1.75 million in nonpecuniary damages.

In sum, the court awards claimant the following: past lost earnings – $343,428 and nonpecuniary damages – $1,750,000. The total amount of damages awarded to claimant is $2,093,428.

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