Washington v. State

DAVID A. WEINSTEIN

Synopsis Case information

Defendant(s):

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):

Cross-motion number(s):

Judge:

Signature date:

Official citation:

Appellate results:

See also (multicaptioned case)

UID:	2019-049-003
Claimant(s):	JABBAR WASHINGTON
Claimant short name:	WASHINGTON
Footnote (claimant name) :
		THE STATE OF NEW YORK
Footnote (defendant name) :
		130708
Motion number(s):
		DAVID A. WEINSTEIN
Claimant’s attorney:	Law Offices of Joel B. Rudin, P.C. By: Joel B. Rudin, Esq., and Jacob Loup, Esq.
Defendant’s attorney:	Letitia James, New York State Attorney General By: Giyang An, Assistant Attorney General
Third-party defendant’s attorney:
		February 4, 2019
City:	Albany
Comments:

Decision

This Decision and Order addresses an application made by claimant Jabbar Washington to file and serve an Amended Claim in this action brought for wrongful conviction under section 8-b of the Court of Claims Act. The application was made in a letter to the Court dated January 24, 2019. The proposed amendments were appended to the letter, and a black-lined version of the full Amended Claim was attached to a reply submission. Specifically, claimant seeks to have his claim reflect an order issued by the trial court nunc pro tunc revising a prior order vacating Washington’s conviction nunc pro tunc. Defendant opposes the motion.

This case arises out of Washington’s 1997 conviction for felony murder and other charges, on which he received a prison sentence of 25 years to life. Under circumstances explained further below, Washington moved to vacate his conviction pursuant to Criminal Procedure Law (“CPL”) § 440.10(1)(c), (d) and (g) (Claim, Ex M [“Tr”] at 2). The application was joined by the Kings County District Attorney (“KCDA”), but only as to paragraph (d) (id.). The matter was heard before Justice Matthew D’Emic of Kings County Supreme Court on July 12, 2017.

The hearing on the motion – a transcript of which is appended to the initial Claim – consisted primarily of a presentation made by Assistant District Attorney Mark Hale. Hale indicated that Washington was one of seven individuals convicted by jury verdict in January 1995 for charges brought following a robbery at an apartment where crack cocaine was distributed, during which five men were wounded by gunfire, one fatally (Tr at 3). According to Hale, a review by the KCDA’s Conviction Review Unit revealed that prior to trial, there had been a “non-disclosure of critical Brady information” (id. at 4). Specifically, while the purported identification of Washington by victim and witness Lisa Todd was one of the bases for authorizing his arrest, Todd told the grand jury two days later that she had not identified Washington as a perpetrator, but simply as someone she knew from her building (id. at 4). Hale averred that while the grand jury assistant made a note of the recantation, that note was not turned over to the defense (id.). The ADA characterized this as “an intentional withholding of that particular information to put the defense at a disadvantage in terms of the trial” (id. at 5).

Further, Hale indicated that Todd was questioned at trial in a manner “intended . . . to imply to the jury . . . that [Todd] had, in fact, made an identification of the defendant as a perpetrator in the lineup” (id. at 7). The position taken by the KCDA at the hearing was that “this was done intentionally to give that impression to the jury to get evidence which would not be otherwise admissible” (id.).

In regard to the remainder of the indictment, Hale indicated that in light of Ms. Todd’s subsequent passing, the KCDA could not “retry Mr. Washington in a way which comports with due process and the right to confrontation.” He therefore asked the Court to dismiss the indictment in the interest of justice (id. at 14).

At the close of the hearing, Justice D’Emic granted the joint motion to vacate without specifying the paragraph(s) of section 440.10(1) on which his ruling was based. He also dismissed the remainder of the indictment in the interest of justice (id.).

The present claim followed. After joinder of issue, the parties completed discovery and a liability trial was scheduled. Then, in a letter to the Court dated January 4, 2019, defendant State of New York averred that claimant had never provided it with the written order issued by Justice D’Emic vacating the conviction and dismissing the indictment, since claimant had indicated that it did not have a copy. Therefore, defendant obtained a copy from some other, unidentified source. The order, which was subsequently provided to the Court, indicated that the indictment had been dismissed on constitutional grounds pursuant to CPLR § 440.10(1)(d). Defendant argued that as this is not one of the grounds enumerated in section 8-b(3) which may serve as a predicate for relief under the statute, claimant would not be able to prove his case at trial.

The Court set a schedule for briefing a motion to dismiss. Prior to the submission of the initial motion papers, however, claimant wrote the Court to indicate that Justice D’Emic had issued an order “correcting” and “clarifying” his original written order. The new Decision and Order, dated “January 11, 2019, nunc pro tunc to 7/12/17” (the “January 11 D&O”) states that claimant’s vacatur motion had been brought under CPL § 440.10(1)(c), (d) and (g), and had been granted on all those grounds.

Defendant wrote the Court on January 16 to indicate that it would not be moving to dismiss the claim, but “preserves all of its defenses filed at the time of its verified answer.”

By letter dated January 24, claimant then made the present application seeking leave of the Court to file an Amended Claim. The proposed amendments would (1) add to Exhibit M of claimant’s documentary appendix (which contained the transcript) a copy of the January 11 D&O; (2) amend the reference to the vacatur of Washington’s conviction to indicate it was made under CPL § 440.10(c), (d) and (g); and (3) make other conforming changes, as well as minor, non-material edits.

The State has submitted a letter in opposition to the proposed amendment. It argues that the documentary evidence initially appended to the claim – the transcript of the hearing on Washington’s motion to vacate – “does not support claimant’s assertion that his conviction was vacated on an enumerated ground,” and when defendant was able to secure a copy of the relevant order, it confirmed that this was the case. The letter characterizes the nunc pro tunc order as a “new decision,” which does not change the fact that the original vacatur decision from which this action arises was not premised on an enumerated ground (Def Ltr to Ct of 1/25/19 at 1.). This is, defendant maintains, an “incurable defect” (id. at 2).

Claimant submitted a letter in reply, and the matter is now ripe for decision.

Leave to amend is to be “freely given upon such terms as may be just” (CPLR § 3025[b]). Thus, an amendment to the pleadings should be allowed where the opposing party will be neither prejudiced nor surprised thereby, and where the amendment is not devoid of merit (see Lucido v Mancuso, 49 AD3d 220, 222 [2d Dept 2008]). The State does not specify any prejudice it would suffer from the amendment proposed here, and none is apparent. Rather, it essentially argues that the amendment is mertiless, because the grounds set forth in the January 11 D&O do not reflect the actual basis upon which Justice D’Emic actually vacated the conviction.

Section 8-b (3) requires that a claimant in an action for wrongful conviction 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.”

While the vacatur of a conviction on one of the grounds delineated in section 8-b(3)(b) is a “prerequisite to a claim to recover damages for unjust conviction and imprisonment, the failure to submit a document demonstrating that fact is a waivable defect . . . [as i]t is the existence of the fact, as opposed to the documentation of the fact, that is a statutory requirement[ ] conditioning suit” (Harris v State of New York (38 AD3d 144 [2d Dept 2007]) [internal quotations and citations omitted]). Moreover, claimant’s failure to provide the specific evidence listed in the statute is not fatal to the claim so long as the materials that are submitted prove all the factual matters set forth in section 8-b(3), even if by way of inference (see Lanza v State of New York, 130 AD2d 872, 873 [3d Dept 1987]).

The essence of the defendant’s argument here is that the basis for the vacatur of the conviction was established at the July 12, 2017 hearing, and that the hearing transcript makes clear that the conviction was not overturned on any of the grounds which may give rise to a section 8-b claim, whatever the nunc pro tunc order purports to say.

In addressing this argument, and determining whether claimant’s proposed amendment has met the statutory prerequisite for pleading purposes, I am guided by the Court of Appeals’ decision in Baba-Ali v State (19 NY3d 627 [2012]). In that case, claimant’s conviction had been reversed by the Appellate Division due to “the manner in which certain evidently exculpatory evidence had been dealt with, both by the trial prosecutor and defense counsel,” and in particular the prosecution’s withholding of an exculpatory report that had been disclosed only on the eve of trial (id. at 631). While the reversal was premised specifically on ineffective assistance of counsel, the appellate court indicated that had the report been timely disclosed, there was a reasonable possibility the trial outcome would have been different (id. at 632). After the reversal, Baba-Ali brought an 8-b claim, which the State moved to dismiss on the ground that neither ineffective assistance of counsel nor the Brady violation described in the opinion reversing his conviction were cognizable bases for a wrongful conviction suit in the Court of Claims under section 8-b(3).

The Court of Appeals found, however that there was evidence in the record that was sufficient at the pleading stage to support an allegation that the reversal of the conviction had been premised on fraud by the prosecutor under section 440.10(1)(b), a ground which can sustain an 8-b claim. The Court reasoned that “[f]or purposes of presenting a claim pursuant to Court of Claims Act § 8–b (3)(b), it is sufficient that there is documentary evidence to place the claim within one of the allowed CPL 440.10 predicates,” which was satisfied by the Appellate Division ruling.

I take from the teaching of Baba-Ali two points which are relevant to the present motion. First, the Court of Appeals made clear that a formalistic approach to the 8-b prerequisites is not warranted, and the Court must look to the facts underlying the decision vacating the conviction to determine whether it meets one of the predicate grounds. Second, where the sufficiency of the pleadings is at issue, the Court must consider whether there is any potential ground in the record which would justify an 8-b claim.

With this guidance in mind, I turn to the proposed Amended Claim, and find it clearly would not be futile.

For one thing, the proposed amendments simply reflect the fact that the trial court amended its original order nunc pro tunc. There is nothing inaccurate in such allegations, and amending a claim to correctly state the contents of a trial court order cannot, on its face, be a frivolous exercise (cf. Vidal v Claremont 99 Wall, LLC, [2d Dept 2015] [allowing amendment to correct factual error in the original complaint]).

In addition, the trial court itself had the opportunity to consider the question of whether the evidence before it justified the alternative grounds for relief, and addressed it in the January 11, 2019 D&O, clarifying that the conviction was also reversed on the other grounds stated. This was not inconsistent with the Court’s initial ruling, as nothing in the transcript or the original order indicated that it was rejecting the alternative grounds for relief. It simply did not address them, but rather ruled on the one ground for vacatur as to which both the prosecution and Washington agreed. Moreover, the transcript of the hearing makes clear, as noted above, that Washington did, in fact, seek to vacate his decision on section 440.10(1)(c), (d), and (h), and not only under paragraph (d) as stated erroneously in the original order.

Thus, the adoption of defendant’s argument would require that I call into question the basis for another trial court’s ruling in a matter directly before it. At very least, I see no basis to do so on a motion to amend a pleading to reference that other Court’s Order.

Finally, a review of the transcript of the hearing provides a factual basis for claimant’s allegation that the conviction was vacated on all three grounds cited in the revised order, at least as regards the sufficiency of the allegations in the proposed pleading. As noted, the KCDA acknowledged both that the prosecutor presented testimony which implied that Todd had identified Washington as the perpetrator although the prosecutor knew she had not, and that an exculpatory note in the grand jury file had been withheld and not disclosed until after claimant’s conviction. It is not futile for claimant to allege that these contentions provided a basis for vacatur under sections 440(1)(c) and (g) respectively.

All of the above, of course, is not intended to express any view as to whether claimant’s proof at trial will bear out the allegations in the claim or any others described above. But for present purposes, claimant has met the test for amendment, and the application is therefore granted.

By prior agreement of the parties, claimant shall immediately file and serve the proposed amendment. Defendant shall serve its responsive pleading on or before February 21, 2019.

February 4, 2019

Albany , New York

DAVID A. WEINSTEIN

Judge of the Court of Claims Papers Considered: 1. Claimant’s letter to the Court, dated January 24, 2019; 2. Defendant’s letter to the Court, dated January 25, 2019; and 3. Claimant’s letter to the Court, dated January 29, 2019.