Published on:

Defendant Brings an Action for Unjust Conviction

The State of New York appeals from an order, inter alia, denying its motion for summary judgment dismissing the claim against it on the ground that claimant fails to meet the statutory criteria to maintain an action for wrongful conviction.

A New York Criminal Lawyer said the issue in this case is whether claimant is entitled to his action for wrongful conviction.

The Court said that, to maintain an action for unjust conviction against the State within the ambit of Court of Claims Act 8-b(3)(b)(ii), “claimant must establish by documentary evidence that his judgment of conviction was reversed or vacated, and the accusatory instrument dismissed” on one of the grounds stated in CPL 440.10(1)(a), (b), (c), (e), or (g). As pertinent to the facts of this case, claimant must show that: “(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”. As he alleges no prosecutorial misconduct, in order to proceed, claimant must demonstrate that the court employed “duress, misrepresentation or fraud” in obtaining his plea of guilty to the reduced charge. A New York Criminal Lawyer said the statutory pleading requirements are explicit: The claim shall 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. The claim shall be verified by the claimant. 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.

The documentary evidence submitted in connection with the claim includes the record of the proceedings in the criminal prosecution underlying this action, conducted in Supreme Court, New York County. Claimant entered a plea of guilty to the reduced charge of attempted rape in the first degree in satisfaction of indictment, charging him with rape in the first degree, sodomy in the first degree and sexual abuse in the first degree. Three weeks after it was entered, claimant moved to vacate his plea on the ground that it “was involuntary and was taken only because of the enormous pressure put upon me by former legal aid counsel and his supervisor from the legal aid society.” The supporting affidavit further alleges that, from the outset, claimant had told his Legal Aid attorney, “I did not want to hear from him about taken a plea that I believed my innocence could and would be proven in court.” Claimant describes the performance of his attorneys as “coercive and also ineffective”, and asserts that counsel should have withdrawn from claimant’s defense. Significantly, the affidavit makes no mention of any coercion on the part of the court.

Claimant’s portrayal of events in general, and particularly those surrounding the entry of his guilty plea, is distorted and self-serving. A Nassau County Sex Crimes Lawyer said an examination of the circumstances culminating in the motion to vacate his plea demonstrates that claimant’s allegations of coercion, ineffective representation and unfair surprise are contradicted by the record.

At this juncture, claimant conferred with defense counsel, following which he entered a plea of guilty. As noted, claimant’s ensuing motion to vacate his guilty plea was grounded on the pressure alleged to have been applied by his Legal Aid lawyers, not by the court. Similarly, in its order ultimately vacating the plea, Supreme Court determined that “counsel’s reluctance, derelictions or incompetence made his client unfit to properly and fairly consider the plea offered, or consider it from a fair and sound position.” The Court of Claims, however, selectively quoting from the colloquy set forth above, concluded that “claimant satisfies paragraph (b) of 440.10.1 of the Criminal Procedure Law for the purposes of 8-b of the Court of Claims Act.” In other words, the Court of Claims found that Supreme Court’s remarks constitute “duress, misrepresentation or fraud on the part of the court”.

For purposes of this action against the State, claimant alleges that the original offer of 3 to 6 years in exchange for a guilty plea to a reduced count was withdrawn at the last minute; that he was unfairly surprised by the new offer of 4 to 8 years; that he had insufficient time to consider the plea; that it was always his intent to proceed to trial; that his waiver of the right to trial was ineffective because he was not aided by effective counsel upon entering his plea; and that his freedom of choice was overcome by the court’s threat to impose a sentence near to the maximum should he be convicted after trial. However, the record of the proceedings before Supreme Court does not support claimant’s account.

As of March 6, 1991, the adjourned date for trial, claimant had been contemplating the entry of a guilty plea in exchange for a sentence of 3 to 6 years since July of 1990, a period of some eight months. His first remark that “the D.A. doesn’t want to stand by the original offer of three to six” confirms as much. Moreover, claimant’s strenuous objection in response to the revocation of that offer is completely at odds with the representation made in his moving affidavit, in which claimant alleges telling counsel “I did not want to hear from him about taken a plea.” The argument now advanced by claimant that he was unfairly surprised by the withdrawal of the People’s original offer is inconsistent with the representation, made upon entry of the plea that “we really never communicated because I thought the thing was going to trial.” It is also contradicted by claimant’s insistence, in his brief, that he “consistently maintained his innocence of the charge and sought to be tried by a jury.”

Logically, if it had been claimant’s steadfast intention to proceed to trial, the proffered sentence–whether 3 to 6 years or 4 to 8–should have made no difference. In any event, a court does not apply duress by requiring that a defendant elect between proceeding to trial and entering a plea of guilty to whatever reduced charge is offered by the People, especially when the defendant has been afforded ample opportunity to consider his alternatives. A Queens Sex Crimes Lawyer said at a minimum, this includes the adjournment from March 4, the date originally set for hearing and trial, and two hours on March 6, the date the plea was entered. Claimant’s subsequent representation, at sentence, that “I got one minute to make a decision” is a gross distortion of the record.

Claimant’s attempt to exploit the perceived differences with his attorney to derive a monetary award from State coffers should be similarly rejected. Whatever strategy defense counsel may or may not have formulated to defend claimant against the charge of rape, claimant’s own strategy is apparent to delay trial as long as possible. When confronted with the commencement of hearings, claimant professed a need for time to consider the People’s offer of a plea to obtain an adjournment. When no further adjournment could be obtained, he entered a plea. Immediately after pleading guilty, claimant moved to vacate the plea, now professing a long-standing and steadfast intention to establish his innocence at trial. Claimant thus elevated indecision to an art form, delaying and ultimately denying justice while stating no cognizable defense to the charge against him.

As Supreme Court stated before its epiphany, “The defendant is knowledgeable about the court system. He has a number of arrests and convictions. He’s not a stranger to it.” What is truly lamentable is that the tactics utilized by claimant–delay, distort and disrupt–have proven to be remarkably effective, not only in preventing a trial of this matter but in ultimately securing the dismissal of the indictment against him. As Supreme Court comprehended all too well, the complaining witness had no desire to testify in open court, especially after the passage of time allowed her to put the experience behind her. In the absence of any other witness, it was impossible for the People to go forward with the prosecution of the rape charge. Claimant would now extend his victory by exacting a monetary award from the State.

The affirmation in opposition to the State’s motion to dismiss the claim and in support of claimant’s cross motion for summary judgment asserts that his mental condition rendered involuntary the entry of his plea and the waiver of the right to trial. Quoting Supreme Court’s words, it contends that “his ‘agitated state of mind’ rendered claimant ‘unfit’ and precluded a knowing and voluntary waiver. Such grounds demonstrate the mental disease claimant suffered at the time of the plea proceedings, grounds enumerated under the Act pursuant to CPL 440.10(l)(e).” Whether claimant’s entry of a guilty plea was the product of intimidation that produced an “agitated state of mind”, to use Supreme Court’s words, or merely the consequence of a calculated strategy by a manipulative defendant intent upon postponing trial indefinitely is central to our consideration of this appeal. Claimant does not suggest that, in weighing the sufficiency of his claim, this Court is required to draw every factual inference in his favor. To the contrary, even at the pleading stage, the statutory standard of sufficiency of a claim for unjust conviction and imprisonment is whether the claimant can demonstrate the likelihood that he will be able to establish his innocence and lack of contribution to his conviction. In any event, this Court is not required to accept claimant’s rendition of events when his account is directly contradicted by the record.

Vacillation between entering a plea and proceeding to trial was a strategy claimant employed for eight months prior to pleading guilty, and it was promptly resumed only a few weeks later by his motion to vacate that plea.

This Court can now add that the purpose of the statute is not to provide a windfall to a criminal defendant who is sufficiently experienced with the judicial process to exploit it to his own advantage.

The Court held that claimant has failed to meet the statutory criteria to pursue this claim for unjust conviction. First, he has not established coercion on the part of the court. Second, if the People cannot establish claimant’s guilt in the absence of the complaining witness, neither can claimant show that he will be able to demonstrate his innocence for purposes of satisfying the statutory prerequisite to suit. Granted, the test does not require documentary evidence of innocence at this preliminary stage of the proceedings.

Nevertheless, it is appropriate to dismiss suits such as this where the claimant can point to no means by which he might be able to meet the strict condition imposed for recovery of damages–that innocence be established “by clear and convincing evidence”. Contrary to claimant’s contention, the dismissal of the indictment against him does not serve to demonstrate that he is innocent; it merely indicates that, without the testimony of the complaining witness, the People are unable to establish his. Third, his guilty plea was merely part of a strategy to delay trial. Finally, ineffective assistance of counsel is not a basis for recovery under the statute.

From the record before this Court, it is clear that claimant’s chosen strategy of delay, distort and disrupt, and not any pressure applied by Supreme Court or counsel, culminated in the entry of his guilty plea.

Accordingly, the order of the Court of Claims of the State of New York, County of New York, which denied defendant’s motion to dismiss the claim and which granted so much of claimant’s cross motion for summary judgment as sought leave to amend his claim, should be reversed, on the law and the facts, without costs, and the claim dismissed.

Ineffective assistance of counsel is not a basis for recovery under the statute. If you feel that your counsel is ineffective, seek the help of a New York Rape Attorney and/or New York Criminal Attorney. At Stephen Bilkis and Associates, we can assure you that you will be represented by our competent and effective counsel of your choice.