Estate of Lavell R. Jones v. State of New York

DECISION Claimant Estate of Lavell R. Jones, Sakina M. Mitchell (Sakina) and Tadre R. Jones (Tadre) as Administrators (collectively, Sakina and Tadre shall be referred to as “Claimant”),¹ as Co-Administrators of the Estate of Lavell R. Jones (Jones) seek damages pursuant to Court of Claims Act §8-b for unjust conviction and imprisonment. Allegations stem from Jones’ conviction for the shooting death of Erik Mitchell (Mitchell) following a jury trial on May 26, 1999 to two counts of murder in the second degree, intimidating a witness in the third degree, burglary in the first degree, robbery in the first degree, and robbery in the second degree. On July 6, 1999, Jones was sentenced to an aggregate prison term of 37½ years to life imprisonment. On May 3, 2001, the Appellate Division, Third Department affirmed the judgment of conviction and sentence.² On September 3, 2014, Jeffrey Conrad (Conrad) confessed to the murder of Mitchell. Based upon Conrad’s purported confession, Jones’ conviction involving the shooting death of Mitchell was vacated on July 7, 2016. On that same date, Jones pleaded guilty to robbery in the first degree and sentenced to an indeterminate sentence of 7 to 14 years. Jones thereafter was released as having served his time. On January 9, 2017, Jones filed a Verified Claim. On May 24, 2017, the Court of Claims granted a pre-answer motion to dismiss for failure to state a cause of action.³ On December 27, 2018, the Appellate Division, Third Department reversed the Court of Claims’ judgment dismissing the Claim and reinstated the Claim.⁴ A Verified Answer was interposed on January 16, 2019. On September 3, 2020, the Court ordered a joint trial of this matter and Carl Dukes v. the State of New York (Claim Number 129422) upon consent of the parties.⁵ A unified trial on the issues of liability and damages of said Claims was conducted virtually from March 1, 2021 through March 16, 2021 upon stipulation of the parties.⁶ Claimants marked 56 exhibits for identification of which 39 exhibits, specifically, Exhibits 1 through 13 inclusive, 17 through 35 inclusive, 43 through 49 inclusive were received into evidence. Defendant marked 28 exhibits for identification of which 17 exhibits, specifically, Exhibits C, I, K, L, N through Z inclusive were received into evidence. A total of 18 witnesses testified at trial of which 15 were called by Claimants and 3 were called by Defendant. At the conclusion of Claimants’ cases, Defendant made a motion to dismiss; Claimants opposed; and the Court reserved decision. At the conclusion of Defendant’s case, Claimants moved for a directed verdict on both liability and damages; Defendant opposed and cross-moved for dismissal of the Claims which Claimants opposed. The Court reserved decision on all motions. At the conclusion of trial and in lieu of closing statements, the parties submitted posttrial memoranda. Before the submission of his posttrial memorandum, Jones, as previously noted, passed away. Consequently, the Jones matter was stayed pending substitution of a proper party (see CPLR 1015).⁷ Upon the appointment of co-administrators of Jones’ estate, the parties to the Jones matter submitted posttrial memoranda. EVIDENTIARY ISSUES⁸ Claimants Carl Dukes (Dukes) and Jones marked Exhibits 14, 41 and 42 for identification and offered said exhibits into evidence. Defendant objected. A posttrial conference was held at which time the parties agreed to submit a posttrial memoranda limited to the admissibility of said exhibits. By Decision and Order dated June 16, 2021,⁹ this Court found Exhibits 41 and 42 inadmissible and Exhibit 14 admissible with pages 165, 166, and 167 redacted. Dukes and Jones also marked Exhibits 15 and 16¹⁰ as well as 36 through 39,¹¹ inclusive for identification and offered said exhibits into evidence. Defendant objected. At the conclusion of trial, the Court directed the parties to address the admissibility of Conrad’s statements made to police in their posttrial memoranda. As mentioned above, the submission of posttrial briefs in the Jones matter was stayed due to the death of Jones (see CPLR 1015). However, posttrial briefing proceeded in the Dukes matter with both Dukes and Defendant State of New York addressing the admissibility of Exhibits 15, 16, and 36 through 39, inclusive. After considering the arguments raised by the parties, the Court concluded in its Dukes decision that Exhibits 15, 16 and 36 through 39 inclusive were to be received into evidence over Defendant’s objection (see Dukes v. State of New York, UID No. 2023-058-015 [Ct, C1, Leahy-Scott, J., Mar. 20, 2023]). Neither party to the Jones matter has addressed the admissibility of Exhibits 15, 16, and 36 through 39, inclusive in their posttrial briefs, presumably because of this Court’s decision on the issue in the Dukes matter. Indeed, it appears Defendant would be precluded from arguing against the admission of the aforementioned exhibits under principles of collateral estoppel. “The doctrine of collateral estoppel…precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party” (Ryan v. New York Tel. Co., 62 NY2d 494, 500 [1984]). “The policies underlying its application are avoiding relitigation of a decided issue and the possibility of an inconsistent result” (Buechel v. Bain, 97 NY2d 295, 303 [2001], cert denied 535 US 1096 [2002]; see also Matter of American Ins. Co. [Messinger-Aetna Cas. & Sur. Co.], 43 NY2d 184, 189 n 2 [1977] [recognizing collateral estoppel or issue preclusion arises "where the parties are not the same but nonetheless one of the parties to the subsequent action or proceedings is foreclosed in the second from relitigating an issue which was determined in the first action or proceeding"]). For the doctrine of collateral estoppel to apply, “[t]here must be an identity of issue which has necessarily been decided in the prior action and is decisive of the present action, and there must have been a full and fair opportunity to contest the decision now said to be controlling” (Buechel, 97 NY2d at 303-304). Both requirements are met here. First, the issue involves the admissibility of the same exhibits in both matters. Moreover, Defendant had a full and fair opportunity to contest the admissibility of Exhibits 15, 16, and 36 through 39, inclusive in the context of the Dukes matter. Thus, the Court concludes that its evidentiary rulings in the Dukes matter as it relates to admission of Exhibits 15, 16, and 36 through 39 into evidence over Defendant’s objection are binding upon the parties in this matter. FACTS Burglary and Robbery of Mitchell’s residence Erik Mitchell was victimized on two separate occasions with the last taking his life. On October 4, 1996, Mitchell’s residence, located in a basement apartment at 195 Clinton Avenue, Albany, New York, was the subject of a burglary, with Mitchell’s guests therein assaulted and robbed. Mitchell was not home at the time. It is not in dispute that Jones participated in the burglary and robbery of Mitchell’s home along with Dukes, Matthew Parsons (Parsons), Zakee Abdul-Hameed (Abdul-Hameed) and Pierre Lyons (Lyons). Jones testified at his suppression hearing (Exhibit [Ex] 17) and criminal trial (Exs. 18, 19, 20) that all five participants searched the apartment for marijuana. Jones recalled Parsons had a black .25 automatic handgun. Jones also testified that as he was leaving Mitchell’s apartment through the back window, Parsons showed him two individuals in the bathroom with bags over their heads. The two individuals were Gregson Joseph (Joseph) and Camon Wyatt (Wyatt). A review of Joseph’s and Wyatt’s testimony from Jones’ criminal trial (Ex 18) corroborates the crimes committed at Mitchell’s residence and against their persons. Joseph testified at Jones’ criminal trial that he was at Mitchell’s apartment spending time with Wyatt playing PlayStation while Mitchell was at work. Joseph described there was a knock at the door and heard someone identify themselves as Matt. Joseph described the ensuing grievous events which included a gun being placed to his head, a necklace being ripped from his neck, being “hog-tied” with his own belt confining his hands and feet together (Ex 18 at 148, line 6), being carried by two people to the bathroom, being threatened by the perpetrators that they were going to kill him, having a white, plastic bag placed over his head and a sock stuffed in his mouth, and being sprayed with mace. Joseph further testified that after the perpetrators left and he was able to untie himself, he observed several items missing from Mitchell’s apartment including the PlayStation, a stereo, a television, Joseph’s jacket, and Mitchell’s clothing, among other things. At Jones’ criminal trial, Wyatt also described the harrowing events which occurred at Mitchell’s apartment on the night of October 4, 1996. Wyatt testified that he knew Mitchell from Rochester and was visiting him the night of the burglary and robbery. Wyatt testified that on that night, while sitting on the couch playing PlayStation with Joseph, there was a knock at the door. Wyatt described that the person identified himself as Matt. According to Wyatt, Matt was at the door with another individual and possessed a gun. Wyatt described that he was told to turn around, put his hands up and get on the floor, to which he complied. Wyatt testified he heard three other voices in addition to Matt and did not know any of the individuals who broke into Mitchell’s apartment and robbed them. Wyatt described that a duffel bag was placed over his head. Wyatt explained that an individual escorted him to the bathroom, hit him on the head with a gun, and placed him in the bathtub. Wyatt described that his hands and feet were tied, and a sock was placed in his mouth. Additionally, one of the perpetrators lifted the duffle bag and sprayed the side of Wyatt’s face with mace. Wyatt explained that he heard Joseph near him in the bathroom and, at one point, they were “pleading” for their lives (Ex 18 at 131, line 25). Wyatt testified that he heard one of the perpetrators state they should kill him. One of the perpetrators took $20 from Wyatt’s pocket, a necklace from his neck, and his wallet. Jones has consistently admitted to his participation, culpability, and guilt relative to the burglary at Mitchell’s residence and the robbery of the occupants therein. Murder of Mitchell On February 18, 1997, Mitchell was found dead in his basement apartment doorway by Joseph and Rene Solomon. This was the same apartment which was burglarized on October 4, 1996. Joseph testified at the criminal trial that when he first approached Mitchell’s apartment on February 18, 1997, he observed the door from Mitchell’s vestibule to the outside held open by the feet of an individual laying on the floor (Ex 18 at 168, line 8 to 169, line 2). When Joseph approached the doorway, he observed Mitchell laying on the floor in the vestibule area with his head tilted and observed blood coming from Mitchell’s head. Joseph testified that upon seeing Mitchell, he ran out of the apartment and flagged down a passing City of Albany Police Department (APD) officer, Ricky Vincent (Vincent). Vincent’s trial testimony corroborated Joseph’s observations. Vincent testified that after being flagged down he approached 195 Clinton Street and observed feet protruding from the doorway (Trial Transcript [Tr] 1359 line 23, to 1360, line 2). Upon further inspection Vincent observed Mitchell at an angle with his head resting on a car battery (Tr 1360, lines 9-11). Vincent also testified he was present when emergency medical technicians arrived to render aid to Mitchell who Vincent described was alive when taken from his apartment. Vincent testified that he initially thought Mitchell had a seizure, fallen, and hit his head on the battery (Tr 1360, lines 20-22). APD responded to Mitchell’s apartment and commenced an investigation into Mitchell’s murder. A review of homicide files (Exs 11, 12, 13) coupled with the trial testimony of APD Forensic Detective Michael P. Haggerty (Haggerty) confirms that Mitchell was found in the vestibule of his apartment with his feet at the front door leading to the outside at an angle with his head resting on a battery in the vestibule (Tr 93, lines 21-25). Homicide forensic photographs illustrate Mitchell sustained a gunshot wound over his left ear (Ex 13 at 44, 46) and Mitchell’s blood was found on and near a battery in the vestibule of his apartment as well as on the floor (id. at 69, 71, 73, 87, 90, 92). Police records indicate Mitchell had $91.48 on his person and $1,001.00 in his wallet, which was in his pants (Ex 12 at 22). A .25 caliber projectile was removed from Mitchell’s head at the autopsy and turned over to police (id. at 4, 5). According to Haggerty, a .25 caliber shell casing was recovered at the scene near Mitchell (Tr 79, lines 14-20), but no weapon was ever recovered by police (Tr 79, line 21 to Tr 80, line 3). Haggerty testified that, based upon his observations and conversations with responding officers to the murder scene, Mitchell was not in a seated position (Tr 89, lines 19-25; Tr 94, lines 1-4). During the course of investigating Mitchell’s murder, APD developed a theory that Mitchell was murdered by the individuals who committed the burglary and robbery at his apartment on October 4, 1996 in an effort to prohibit Mitchell from pursuing criminal charges against them. Jones’ Statements and Confession Jones testified at his suppression hearing (Ex 17) that on October 29, 1997 at approximately 10:00 or 11:00 p.m., he was stopped in New York City (NYC) by New York City Police Department (NYPD) while driving a vehicle with a friend who was in the back passenger seat of the vehicle. Jones described that the stop revealed Jones’ friend was in possession of a weapon. Jones stated that he was charged not only for the possession of the weapon found on his friend but also for having improper plates on the vehicle, an unregistered vehicle, and having no license. Jones described he was taken to a holding cell in Brooklyn. Jones testified that thereafter, he was brought to Central Booking in Brooklyn at approximately 4:00 a.m. on October 30, 1997. Jones explained after he was brought to Central Booking, the police transferred him to the 83rd precinct where he was told by a NYPD detective of a domestic incident, filed by his then-girlfriend, Sakina, for which he was to be charged. NYPD also learned that APD wished to meet with Jones regarding the robbery and burglary and the murder of Mitchell. Consequently, NYPD notified APD that they had Jones in custody. Jones described he met APD Detectives Anthony Ryan (Ryan) and Peter J. McKenna (McKenna) for the first time at the 83rd precinct. Jones testified that Ryan indicated it was in Jones’ best interest to talk to them and help himself in light of the pending weapons charge. Jones stated that Ryan indicated he knew the district attorney and could help Jones if Jones spoke with them. When Jones was first questioned regarding the burglary and robbery at Mitchell’s home, he initially denied any involvement. Jones testified that Ryan told him that Dukes, Lyons, Parsons, and Abdul-Hameed, all implicated him in the burglary and robbery. According to Jones, after Ryan showed him Dukes’ statement, Jones admitted to his involvement in the burglary and robbery. The APD detectives then began questioning Jones regarding Mitchell’s murder. According to Jones, Ryan explained to Jones that Sakina was in the precinct and provided a statement implicating him in the murder. Ryan told Jones he should admit to the murder; however, Jones told the APD detectives he did not know Mitchell and repeatedly denied his involvement in Mitchell’s murder. Jones believed he left NYC for Albany between 9:00 p.m. and 10:00 p.m. on October 30, 1997. According to Jones, he traveled with Ryan and McKenna in an unmarked, police vehicle. Jones described he never slept on the trip to Albany, but rather argued with the two detectives the entire trip regarding his lack of involvement in Mitchell’s murder. Jones described that Ryan was calling him names and threatening he was going to jail for the rest of his life. Jones testified at his suppression hearing that when he arrived in Albany, he was placed in an interview room where Ryan and McKenna continued to question him about his involvement in Mitchell’s murder. Jones described that other detectives were alternatively entering the interview room questioning and threatening him. Jones indicated that APD detectives threatened him with the death penalty and with never seeing his unborn child and/or his girlfriend.¹² Jones testified at his suppression hearing that he was never given an opportunity to eat or sleep while being interrogated in NYC. However, Jones stated on his trip to Albany he did receive an iced tea drink. Although APD detectives indicated Jones slept while in the interrogation room in Albany, Jones denied sleeping. Additionally, Jones testified at his suppression hearing that while in the Albany interview room, APD Detective Ronald Matos (Matos) offered to obtain food for Jones whereupon Jones explained he does not eat pork as it makes him sick. Jones stated that Matos returned with juice and two breakfast sandwiches, each sandwich containing pork. Jones stated that he ate exclusively the cheese off the second sandwich and did not consume anything else. Jones’ criminal trial testimony (Ex 19) is largely consistent with his testimony from his suppression hearing. Jones testified, in more detail, to his arrest and statements made. During the trial of this matter, Jones confirmed that he was arrested the night of October 29, 1997 and had nothing to eat that day prior to his arrest (Tr 147, line 25 to 148, line 7). Jones also testified that initially he was brought to the 77th precinct in Brooklyn, then to Central Booking, and eventually to the 83rd precinct where he met Ryan and McKenna. Jones testified that at no time prior to meeting with APD detectives did he have any food, nor did he sleep (Tr 160, lines 11-15). Jones also testified, consistent with previous testimony, that he initially denied to APD detectives his involvement in the burglary and robbery of Mitchell’s residence. After being told that his friends implicated him and being shown Dukes’ statement, Jones admitted to his participation in the burglary and robbery (Tr 165, lines 2-3). Jones, however, quarreled with Dukes’ account that Jones entered Mitchell’s residence with a gun. Jones stated that, although looking to steal marijuana from Mitchell’s home, he did not possess a gun, touch any person within the residence, or take any items from the house. However, he was aware that a co-defendant would “stick a gun in they face” (Tr 167, lines 18-19). After admitting his participation in the burglary and robbery, APD detectives questioned Jones regarding Mitchell’s murder. Jones further testified at the trial of this Claim that when he was transported by Ryan and McKenna to Albany, he was “panicked” in the vehicle (Tr 188, line 2). Jones claims he argued and pleaded with the detectives while driving to Albany regarding his lack of involvement in Mitchell’s murder. Jones further testified that when he was brought to Albany, he was placed in an interview room. The detectives told Jones that Dukes implicated him, and that Jones shot Mitchell. According to Jones, Ryan and McKenna stated that they did not believe Jones committed the murder, but rather Dukes did, and that Jones should not be held responsible for Dukes’ criminal conduct. The detectives explained to Jones this was a “capital offense” (Tr 174, line 24), a term with which Jones conceded he was unfamiliar. The police explained capital offense means Jones could receive the death penalty if found guilty of killing Mitchell (Tr 175, lines 1-15). Jones further testified that the police told him their theory of the case, to wit: Dukes and Jones wanted to silence Mitchell as Mitchell was a witness in the burglary and robbery matter. Jones did not understand this theory as Mitchell was not present for the burglary and robbery, and again denied involvement in Mitchell’s murder (Tr 175, lines 21-25). Jones described that while detectives were accusing him of committing the murder, they also threatened him with the death penalty, called him names, and Ryan hit him in the head with a pad (Tr 179, line 8-16; 180, lines 19-25; 184, lines 16-20). Jones indicated he was crying (Tr 179, lines 1-20). Jones also testified he was shown Sakina’s statement, wherein she implicated Jones in the murder of Mitchell. Although Jones admitted he gave a written statement, he denied being present for Mitchell’s murder (Tr 201, lines 5-16). Jones repeatedly told APD detectives that he was not in Albany at the time of Mitchell’s murder, but rather was residing with Sakina in Queens, New York. Jones further testified that he typed out four additional statements professing his innocence and explaining how “hopeless” he felt (Tr 220, line 18). Jones stated that the police retained three of his typed statements and threw one in the garbage. Jones also testified he was attempting to assert his innocence, but the detectives were not accepting his denials and alibi. The detectives, according to Jones, continually threatened and called him names throughout the interrogation process (Tr 220, line 18 to 221, line 10). Jones further stated that he “finally took [the APD detectives'] advice and let them help me make the statements” (Tr 222, lines 4-6). Jones testified that although he signed and initialed several statements in the presence of the APD detectives, he was not fully aware what Miranda warnings were. Sakina Mitchell Sakina testified at the trial of this Claim that in approximately December 1996, she and Jones first started dating. Sakina recounted that in February 1997 she and Jones were living together in Queens, New York with other family members. Sakina specifically recalled Jones was with her on February 18, 1997, the date Mitchell was murdered. Sakina recounted that she and Jones purchased a dress and shoes for her cousin, Odessa Figueroa (Figueroa), and gave it to her on February 18, 1997, as a gift. Sakina also recalled that she and Jones visited Jones’ grandmother at her home on that date. Figueroa also testified corroborating that Sakina and Jones gave her a present consisting of a dress and shoes on February 18, 1997. Sakina testified that on October 30, 1997, she learned from a friend that Jones was arrested. Consequently, she went to the precinct. When she arrived, she was told to leave as she could not see Jones and thus returned the next day. Sakina explained that she met with APD Detective Ryan the following day. According to Sakina, Ryan questioned her for hours, at times aggressively, regarding a murder Jones purportedly committed (Tr 363, lines 14-19). Sakina testified that she was 22 years old at the time, pregnant with Tadre, Jones’ child, and had never before been interrogated by the police. Sakina testified that the police told her if she did not give a statement, Jones would get the “gas treatment”, her son would never see his father, and that “[her] son was going to be a bastard” (Tr 363, lines 14-19; 365, line 4). Sakina eventually signed a statement implicating Jones being at the murder of Mitchell, but not shooting Mitchell. Sakina denies the contents of her statement, alleging she was coerced by APD to execute same. By signing her statement, Sakina believed she was helping Jones at least avoid the death penalty. Sakina testified that neither she nor Jones were working at the time of his arrest. She explained that her mother had passed away and she was the beneficiary of an $80,000 trust which she and Jones were using to live. Sakina also stated that it was hers and Jones’ intention to move to Alabama to start a new life with their baby, however, that never came to fruition. Sakina explained that, because of Jones’ incarceration, she and her son, Tadre, did not have a close relationship with Jones. Sakina described Jones as very depressed resulting from his incarceration. Sakina claims that she divorced Jones in 2008 and that she and Tadre moved to North Carolina in 2016. Testimony of Police regarding Jones’ Confession Several APD officers testified at Jones’ suppression hearing, criminal trial and at depositions. These officers accounted for the investigation into the burglary and robbery at Mitchell’s home, Mitchell’s death, Jones’ involvement in said crimes, and subsequent confessions. Ryan testified at Jones’ criminal trial on May 14, 1999 and suppression hearing on June 3, 1998 that on October 29, 1997, Jones was arrested and being held by NYPD for being in a vehicle with another individual who possessed a sawed-off shotgun. Ryan testified at Jones’ suppression hearing that he believed NYPD “was going to issue[ ] UTT tickets, traffic summonses” (Ex 17, at 14, lines 6-7) and was not going to charge Jones with the possession of a weapon. Additionally, Ryan was aware Sakina, Jones’ then-girlfriend, filed a domestic violence complaint against Jones for which Jones was also being held. Ryan testified the Manhattan prosecutor made arrangements to release Jones to APD custody after being told Jones was a suspect in a burglary, robbery, and murder in Albany. Ryan testified at Jones’ suppression hearing that he became aware of Jones’ involvement in the murder of Mitchell after Dukes made a statement on September 8, 1997, inculpating Jones. Ryan explained that he and McKenna travelled to NYC on October 30, 1997 and went to a precinct where he interviewed Jones. After McKenna provided Jones with his Miranda rights at 6:40 p.m., Ryan questioned Jones about his involvement with a robbery in Albany. Although Jones initially denied his involvement, shortly thereafter, Jones acknowledged his involvement in the burglary and robbery at Mitchell’s home in October 1996. Jones provided this first statement confessing to his participation in the burglary and robbery to Ryan and McKenna in NYC (Ex 11). This statement was started at 7:35 p.m. and concluded at 7:50 p.m. Ryan described that McKenna first started to handwrite the statement until a typewriter became available. Thereafter, as Jones spoke, McKenna typed the statement. Ryan also described that Jones read the first several lines of the statement out loud and then read the entire statement to himself. When he was finished, Ryan noted if any changes were made, Jones would place his initials next to them. Additionally, Ryan directed Jones to place his initials next to the Miranda warnings and explained to Jones that this was to ensure he understood his rights. Jones signed the statement in Ryan’s presence. According to Ryan, while they were speaking with Jones in the NYC precinct, Sakina was at the precinct for the purposes of withdrawing her domestic violence complaint. After taking Jones’ statement regarding his involvement in the burglary and robbery, Ryan and McKenna took a statement from Sakina. According to Ryan, Sakina implicated Jones as being present for Mitchell’s murder, but indicated that Dukes shot and killed Mitchell. Ryan testified that after Jones confessed to the burglary and robbery, Ryan continued to question Jones about his involvement in Mitchell’s murder. According to Ryan, Jones denied any involvement. Ryan also testified he told Jones in NYC that Dukes implicated him in Mitchell’s murder as the shooter. According to Ryan’s criminal trial testimony, Jones provided an alibi that he was with Sakina on the night Mitchell was murdered. Ryan testified at the suppression hearing that prior to leaving NYC and while speaking with Jones, they offered him pizza and a drink which Jones declined. However, when they stopped at a rest stop, Jones requested and received an iced tea beverage. Ryan explained that during the transport to Albany, McKenna was the driver, Ryan was the front seat passenger, and Jones was in the back seat of the vehicle. Ryan described that Jones was shackled at the ankles and was handcuffed with his hands in front. Although he napped occasionally on the trip to Albany, Ryan recalled Jones initiated conversations in the vehicle regarding Mitchell’s murder. Ryan testified they arrived in Albany at approximately 2:00 a.m. After briefing APD Detective Matos, Ryan did not interrogate Jones further. Ryan denied ever showing Dukes’ statement to Jones at any time. Ryan also indicated that Sakina volunteered the statement of Jones’ involvement in Mitchell’s murder before she commenced her written statement Additionally, Ryan stated that he never threatened Sakina or Jones with the “gas chamber” or death penalty. McKenna’s trial testimony of May 21, 1999 (Ex 19) and suppression testimony of June 3, 1998 (Ex 17) from Jones’ criminal trial in addition to his deposition of January 14, 2019 (Ex 8) are consistent with Ryan’s testimony. Matos testified at Jones’ suppression hearing on June 29, 1998 (Ex 17) which is consistent with his trial testimony at Jones’ criminal trial on May 21, 1999 (Ex 19). Matos explained that at approximately 3:30 a.m. or 4:00 a.m. on October 31, 1997, he met with Ryan and McKenna who provided an overview of the prior evening’s interaction with Jones and requested Matos participate in the interview of Jones. Matos testified he was the original investigator relative to the burglary and robbery at Mitchell’s residence, had interviewed and secured confessions from Dukes, and had conducted investigative work regarding the murder of Mitchell. Prior to interviewing Jones, Matos was aware that Dukes implicated himself, Jones, and Lyons in Mitchell’s murder with Dukes as a lookout, Jones and Lyons going into Mitchell’s house, and Jones as the individual who killed Mitchell. Matos testified that Jones had typed three separate pages of his thoughts while in the APD interview room. According to Matos, Jones typed his first statement prior to receiving a meal. The second statement was typed while a meal for Jones was ordered, and the third statement was typed while Jones was eating. All three statements were taken by Matos from Jones before 5:00 a.m. They were typed using a typewriter in the interview room on APD statement paper found by Jones in the interview room. Matos testified that prior to he and APD Detective Michael Sbuttoni (Sbuttoni) entering the interview room at approximately 5:00 a.m., Jones was provided 2 sausage, egg, and cheese breakfast sandwiches and an orange juice which, according to Matos, Jones consumed. Matos testified that he reminded Jones of the Miranda warnings given by McKenna the previous night before speaking with Jones. He then proceeded to discuss Jones’ involvement in Mitchell’s murder. Jones reiterated to Matos that he was not involved in the murder as he was not in Albany at the time. Matos described this initial conversation occurred for a little over one hour. Matos testified that shortly after 6:00 a.m., Jones was permitted time to sleep. According to Matos, Jones slept in a padded chair in the interview room with the lights turned off and no one present. Matos further testified he re-entered the interview room at approximately 8:45 a.m., woke Jones up, and continued the interview. A police report prepared by Matos indicates that Matos also provided Jones with an orange juice and cigarette at this time (Ex 11 at 183). Matos stated that the information contained in Jones’ second police statement contained information Jones had disclosed prior to sleeping, which was not immediately memorialized, but was to be reduced to writing after Jones had napped. Matos described that he read the Miranda warnings which were contained on the statement to Jones who then placed his initials after each warning. Matos typed Jones’ statement as Jones dictated it to him. Matos testified that at the conclusion of taking this second police statement, he had Jones read a portion of the statement aloud and the balance of the statement to himself. Thereafter, Jones executed the statement, initialed where requested with Matos and Sbuttoni also initialing and signing the statement. Matos testified that the statement started at 8:45 a.m. and ended at 9:21 a.m., which is reflected on the statement. Matos explained that after taking the second police statement, he continued to speak with Jones about Mitchell’s murder. Matos testified he showed Sakina’s statement to Jones as well as provided a synopsis of Dukes’ statement. Matos questioned Jones as to how Sakina knew the details of the murder whereafter Jones purportedly admitted that he told her. At that juncture, Jones allegedly told Matos that he wanted to tell the “real truth” (Ex 17 at 242, line 11) and that he wanted to write out his own statement. According to Matos, Jones admitted that he went to Mitchell’s house with Lyons, but that Dukes shot and killed Mitchell. Matos testified that Jones reduced this statement in his own handwriting. This statement began at 10:30 a.m. and concluded at 11:00 a.m. Matos also believed Jones wanted to make this third statement after reading Sakina’s statement. A police report prepared by Matos (Ex 11, at 183) indicated that Jones told Matos that Dukes admitted in a phone call with Jones that he shot Mitchell. Matos also testified at a deposition on January 23, 2019 (Ex 9) wherein he denied that he did not discuss any legal consequences, death penalty or a lesser sentence with Jones. Matos also stated he did not investigate Jones’ alibi (Ex 9 at 412, lines 24-25). Lastly, Matos testified at his deposition that he took a statement from Lyons in 1997 that implicated Jones in the murder of Mitchell. At that time, Lyons described to Matos that he was not involved in the murder. Matos testified that when co-defendant Lyons was preparing with police to testify at Jones’ criminal trial, Lyons implicated himself as being a lookout for Dukes and Jones as they murdered Mitchell. According to Matos, Lyons had previously pleaded guilty to the robbery at Mitchell’s residence, served his time, and was on probation when he inculpated himself in Mitchell’s murder. Sbuttoni testified at Jones’ criminal trial (Ex 18) and at a deposition (Ex 8) and his testimony is consistent with Matos’ testimony. Sbuttoni testified that Parsons was the individual who identified all co-defendants who participated in the burglary and robbery of Mitchell’s residence. Sbuttoni also outlined that the order of arrests relative to the burglary and robbery charges were Parsons, Lyons, Abdul-Hameed, Dukes with Jones being the last to be arrested. Sbuttoni confirmed that he observed Jones typing three letters while in the APD interview room through a window. He did not stop Jones from typing these letters, and the letters were retained as evidence. Conrad Confession On September 3, 2014, Conrad confessed to the murder of his girlfriend during an interview with the Cuyahoga Falls Police located in Cuyahoga Falls, Ohio. During this interview, Conrad confessed to a murder he committed in Albany, New York. The interview was videotaped (Ex 36). Conrad provided the following specific information: (1) the murder took place in January or February 1997 and was the first killing of the new year (Ex 15 at 2, lines 19-21; 11, lines 5-10); (2) the victim was a black male named Erik Mitchell (id. at 6, lines 11-12, 15) who was in his twenties (id. at 11, lines 15-16); (3) Mitchell lived on Clinton Avenue in Albany, New York (id. at 6, lines 17-18); and (4) the murder occurred approximately between 9:00 p.m. and 12:00 a.m. (id. at 6, lines 22-24). Conrad described that the mother of his child, who lived a few houses from Mitchell, told Conrad that Mitchell sold weed. Conrad testified he bought weed from Mitchell at Mitchell’s apartment. Conrad further described that Mitchell had an “attitude” during the drug transaction. (id. at 8, lines 3-12). Conrad described that sometime after the drug transaction, he went back to Mitchell’s apartment at which time he shot him in a doorway (id. at 8, line 20). Conrad provided additional specific information describing the murder as “[h]e got shot in the head. He got shot on the left side over the eye, if I’m correct.” (id. at 7, lines 4-6). Conrad explained that, after he shot Mitchell, Mitchell fell to a sitting position on the floor (id. at 12, lines 5-7). Conrad told Ohio police that he used a .25 automatic, silver colored gun which he sawed up and threw into the ocean (id. at 7, lines 9-10; id. at 13, lines 19-21). Conrad stated that he killed many people, including individuals in Albany, but he remembered this murder because it was someone he knew (id. at 22, lines 13-15). Conrad also described to Ohio police that he suffers from schizophrenia which made his life difficult (id. at 15, lines 7-8). Specifically, Conrad told police that he does not “know what’s real and what’s not” (id. at 16, line 25 to 17, line 4). On September 14, 2014, APD detectives met with Conrad while he was incarcerated in Cuyahoga Falls, Ohio to discuss the statements made on September 3, 2014 regarding Mitchell’s murder. Conrad repeated information he conveyed to Ohio police and provided additional details when questioned by APD detectives. Conrad stated the mother of his child, Danielle Rancy (Rancy), lived on Clinton Avenue in Albany a few houses from Mitchell’s apartment. Conrad was aware Mitchell lived in a basement apartment (Ex 16 at 9, line 13). Conrad indicated that Rancy told him Mitchell was previously robbed and those individuals were caught. Rancy suggested to Conrad that Mitchell would be a good target for a robbery. Conrad described that he bought weed from Mitchell at his apartment, and Mitchell “acted kind of funny” during that transaction which “pissed me off” (id. at 12, lines 20-21). On that same night Conrad purchased weed from Mitchell, Mitchell went to Rancy’s home complaining about something; and Rancy purchased weed from Mitchell. It was that night that Rancy suggested Conrad rob Mitchell. Sometime after the conversation with Rancy, Conrad went to Mitchell’s apartment to rob him. Conrad described that it was between 9:00 p.m. and 12:00 a.m. (id. at 13, lines 15-16), he went to Mitchell’s apartment and rang the doorbell. Conrad explained that when Mitchell opened the door, Conrad put a gun in Mitchell’s face. Conrad described Mitchell reached for the gun to grab it, and Conrad shot him (id. at 14, lines 7-9). Conrad described that he used a .25 automatic and shot Mitchell above his left eye (id. at 13, lines 20-22). Conrad stated he chopped up the weapon with a hacksaw and threw it away (id. at 23, lines 4-5). Conrad stated after being shot, Mitchell fell in a sitting position leaning against a wall (id. at 34, line 11). Later in the interview when describing events to APD detectives, Conrad stated Mitchell fell against a door in a sitting position (id. at 57, lines 8-9). Conrad described that the murder took place in an alcove area adjacent to Mitchell’s apartment (id. at 14, line 14). Claimant stated he was wearing a black mask during the shooting and did not wear gloves. Conrad thought he touched the doorknob on the way out and was concerned about leaving fingerprints (id. at 31, lines 4-5). Conrad stated since the murder was unexpected, he did not want to rob Mitchell as he did not want to leave fingerprints. Conrad also stated after shooting Mitchell, he “turned around [and] pulled the door closed” (id. at 57, lines 10-11). Conrad believed there were three people incarcerated for the murder of Mitchell. Conrad indicated he was incarcerated with these individuals and tried to obtain information about them while in jail (id. at 8 lines 4-9). Conrad stated that he was incarcerated at the same time as those individuals and was asking questions about them. Conrad stated one of the individuals was on the opposite side of the tier from him in Albany County Correctional Facility (id. at 8, lines 4-13). Conrad was in disbelief that other individuals were convicted and incarcerated for Mitchell’s murder. It was incredulous to him as he purported to be the only person with specific information because he had murdered Mitchell. He also could not understand how or why these individuals made inculpating statements. Conrad reiterated that “they may have robbed him before I killed him, but they didn’t kill him” (id. at 4, lines 1-2). Conrad stated that he watched the news regarding the murder the morning after (id. at 16, lines 5-6). He also recalled this was the first murder of the year. Several times during the interview with APD detectives Conrad became agitated and hostile. The first time was when two APD detectives were initially asking Conrad questions. Conrad became upset and directed one of the detectives to leave the room, which he did. Conrad also became agitated when he was attempting to understand how other individuals confessed to Mitchell’s murder. Conrad requested specifics of the APD investigation into Mitchell’s murder including statements made by witnesses and/or suspects interviewed. Conrad was particularly interested in statements made by Rancy and Cade Pierre. When the APD detective did not supply any information, Conrad became very agitated (id. at 74, lines 7 to 75, line 24). The APD detective attempted to placate Conrad by asking him if he knew certain individuals. Conrad, however, became more agitated and effectively terminated the interview. The Vacatur On May 26, 1999, Jones was convicted by a jury of murder in the second degree, intimidating a victim or witness, burglary in the first degree, robbery in the first degree, and robbery in the second degree. Jones was sentenced on July 6, 1999 to a total of 37½ years imprisonment for his convictions (Ex 21). On September 3, 2014, when Conrad purportedly confessed to the murder of Mitchell, the Albany County District Attorney’s Office commenced a reinvestigation into the murder of Mitchell. David Rossi (Rossi) testified that, in 2014, he served as Albany County Chief Assistant District Attorney. Part of his duties and responsibilities included reviewing conviction integrity issues (Tr 628, lines 15-16). Rossi testified that, in 2014 he reinvestigated Jones’ murder conviction after learning Conrad confessed to the murder of Mitchell. Rossi testified he understood Conrad was in custody in Ohio for the murder of his “wife or a girlfriend” (Tr 629, line 17). Rossi also testified he was aware Ohio detectives videotaped and audio recorded Conrad’s confession. As part of the reinvestigation, Rossi directed APD detectives to interview Conrad in Ohio, which was also audio and video recorded. Rossi testified the reinvestigation included reinterviewing witnesses; reviewing media reports to ascertain what facts were in the public domain; and determining whether Jones and/or Dukes and Conrad were incarcerated in a facility at the same time and had an opportunity to speak to one another. Rossi testified that Conrad and Dukes were in Albany County Correctional Facility at one time together (Tr 650, lines 2-4). Rossi testified he was impressed with the knowledge Conrad possessed relative to Mitchell’s murder. Specifically, Rossi testified that Conrad was familiar with the caliber of the weapon utilized; that the murder occurred at night, although Conrad did not specify an exact time that Mitchell was shot in the head; that Mitchell fell after he was shot; that law enforcement never recovered the weapon utilized in the murder; and that the gun was thrown in the ocean (Tr 631, lines 21 to 632 line 9). Rossi explained the reinvestigation did not identify anyone who witnessed Conrad commit the murder of Mitchell (Tr 658, lines 2-5) and there was no forensic evidence linking Conrad to the Mitchell murder (Tr 658, lines 9-11). Further, during the reinvestigation APD detectives interviewed Lyons. Rossi testified he had “concerns about how forthright” Lyons was in the interview (Tr 633, line 24). Rossi testified the object of the reinvestigation was to determine, for the purpose of a re-trial, as to whether there was reasonable doubt Jones murdered Mitchell (Tr 659, lines 20-23). Rossi testified the existence of Conrad’s confession, created reasonable doubt. Rossi notably testified that Conrad was not arrested for the murder of Mitchell as the confession by Jones and Dukes likewise would potentially create reasonable doubt for a jury. (Tr 662, lines 19 to 663, line 3). Rossi testified the existence of Jones’ and Dukes’ confessions, without determining the veracity of same, potentially creates reasonable doubt if Conrad were charged and tried for murder. (Tr 665, line 1 to 666, line 4). Rossi stated, “I wouldn’t try a case where I had reasonable doubt” (Tr 677, lines 22-23). As a result of the reinvestigation, Rossi testified he made a recommendation to the Albany County District Attorney to vacate Jones’ murder conviction. On July 7, 2016, the District Attorney joined in a motion to vacate Jones’ conviction and to dismiss in the interest of justice pursuant to Criminal Procedure Law §210.40 dismissing all counts of Jones’ indictment save one count of Robbery in the First Degree which the court granted. The District Attorney and Jones’ counsel reached a negotiated plea bargain. Rossi recalled that Jones pleaded guilty to one count of robbery in the first degree in exchange for receiving an indeterminate sentence with a minimum of seven years and a maximum of 14 years. Rossi testified that at the time the murder conviction was dismissed, both Jones and Dukes had already served approximately 19 years in prison. Rossi stated the indeterminate sentence was reached to have Jones released from both prison and parole. Jones, thereafter, commenced this action on January 9, 2017 (Ex 26). Expert Testimony Dr. Richard A. Leo Claimant called Dr. Richard Angelo Leo (Leo), a professor of law and psychology at the University of San Francisco, California, as an expert witness. Leo is an expert in the field of wrongful convictions, interrogations, and confessions. Leo provided expert testimony regarding the four ways to prove a confession as false which include, (1) that the crime did not occur; (2) that it is physically impossible for a person to have committed the crime; (3) that there is dispositive scientific exculpatory evidence that the person did not commit the crime; and (4) that the true perpetrator is found (Tr 833, line 1 to 834, line 1). Leo described three sequential errors involving a false confession which include a misclassification of an innocent person as guilty, coercion, and contamination (Tr 1063, line 18 to 1064, line 21). If any of these sequential errors are missing, then there is no false confession. As to false confessions, Leo explained “you could have a confession that’s false where the person was not legally coerced, but they were stressed into making a false confession” (Tr 1064, lines 13-15). Leo testified that a contaminated confession is where there is a leak or disclosure of facts that are not public and is incorporated into the confession. In describing contamination, Leo elaborated that the police script an incident and then pressure and/or persuade a suspect to adopt it. A contaminated confession may also include an inducement which minimizes conduct and/or maximizes culpability or consequence. Leo describes the best interviews are those which are non-accusatory, with open-ended, non-leading, and non-suggestive questions and are those where the suspect does most of the talking. Leo also discussed risk factors determining a reliable confession. The greater the risks, the greater the false or unreliable confession. Leo described that both situational and individual risk factors are examined. Situational risks include the techniques employed by the interviewer, the environment, and pressures. Individual risk factors include an individual’s personality, their background, age, and intellectual makeup. Leo noted Jones’ age at the time of his confession was 20 years old and commented that males under the age of 25 have brains which are still developing, making these young individuals subject to impulsivity, gullibility and/or suggestibility when providing responses to questions under pressure (Tr 843, lines 11-23). Leo described a “fit standard” as details in a confession that fit the crime scene evidence (Tr 908, line 25 to 909, line 4). Leo explained a reliable “confession fits…with underlying physical and forensic evidence absent contamination” (Tr 909, lines 11-14). Conversely, a confession is deemed unreliable if there is a lack of this fit standard. Leo also testified that a confession is deemed reliable if it is obtained without information from newspapers, community gossip or some individual witnessing the crime (Tr 858, lines 10-15). Leo opined that Conrad’s confession should be deemed reliable as it was not coerced or contaminated and met the fit standard. Leo testified that the police were not trying to obtain a confession regarding Mitchell’s murder; and the Ohio police were not possessed of any information relative to same. Additionally, Leo observed that Conrad provided significant information regarding Mitchell’s murder with details of the confession comporting with APD’s investigation. Leo opined Jones’ confession is false due to guilt-presumptive questioning engaged by police; contamination in that Jones did not provide any new information to police and thus adopted a script provided by the police; and engagement of coercive tactics by APD. Coercive tactics employed by APD included subjecting Jones to an interrogation over a two-day period without the benefit of proper sleep and/or food, name calling, physical abuse, and threats. Leo testified that interrogations generally should be less than four hours and cited to John Reid and Associates as the leading company which sets the national standards for interrogations and confessions taken in the United States (Tr 849, lines 1-24). Leo also referred to studies which show that there are “proven false confessions” with “more than 50 percent of them are [taken] over six hours” (Tr 848, lines 20-21). Leo opined that the length of time an individual is in custody and subjected to an interrogation leads to exhaustion, fatigue, and depleting psychological resources, which impairs decision-making and memory, causing an individual to become more suggestible and/or gullible and impulsive in how to respond to questions (Tr 850, lines 18-23). Leo opined that Jones was subjected to both sleep and food deprivation. Further, Leo described the use of name calling, hitting Jones with a pad, as well as threats of never seeing his unborn child and/or being subjected to the death penalty as all coercive tactics (Tr 861, lines 24 to 863 line 23). Leo described the minimization of Jones’ culpable conduct in his confession as being present but not the shooter, mirroring Dukes’ confession, is also indicia of a coerced confession. Gregg O. McCrary (McCrary) and Michael Gerard (Gerard) Dukes, Jones, and Defendant provided expert testimony relating to proper police techniques and practices primarily as it relates to the homicide investigation of Mitchell, as well as the confessions of Jones and Conrad. Claimants’ expert, McCrary, characterized APD’s investigation as “worse than sloppy” (Tr 1032, lines 21-22), noting several leads and interviews were not conducted, a thorough canvass of the crime scene area was not conducted, witness statements were coerced, and Jones’ alibi was not investigated, among other things. As to Jones’ confession, McCrary found the time period in which the interrogation took place to exceed the bounds of a proper interrogation. Additionally, McCrary opined Jones suffered from both sleep and food deprivation while attempting to speak with APD. McCrary also stated that the use of threats of the death penalty as well as hitting Jones with a pad was highly improper and illegal. McCrary also testified that when Jones began to type his own statements, the police should have immediately ceased the interrogation. McCrary found Conrad’s confession to be credible due to the fact it was a free-flowing narrative containing specific information and was against Conrad’s self-interest, among other reasons. McCrary and Leo both testified that open-ended, non-leading questions are the preferred method of proper police interrogations. Gerard was called as Defendant’s expert. Gerard confirmed he reviewed all investigative steps taken by APD, including the obtaining of Jones’ confession, and opined they followed good, standard police practice. Gerard testified APD detectives followed a chronological and methodical order, basing interviews upon information as it was received (Tr 1581, lines 14-17). Gerard further testified the interview of Jones was conducted appropriately in that he found that Jones understood his Miranda rights; wrote one of the confessions in his own handwriting; read all statements; executed all confessions; was offered food and drink; and was provided multiple opportunities to sleep. Gerard also believed threats of harm or the death penalty were not communicated during questioning. Additionally, Gerard testified the time period when police questioned Jones was reasonable (Tr 1710, lines 10-13). Gerard opined that Jones was not interrogated the entire time he was in police custody, namely from October 29 through October 31, 1997, delineating as separate each time police questioned Jones, i.e. in NYC, in Albany, etc. Further, Gerard opined that any conversations which took place in the police vehicle travelling from NYC to Albany were prompted by Jones and did not constitute an interrogation (Tr 1707, lines 8-9). DISCUSSION “Court of Claims Act §8-b, the Unjust Conviction and Imprisonment Act, provides a mechanism for ‘innocent persons who can demonstrate by clear and convincing evidence that they were unjustly convicted and imprisoned…to recover damages against the state’” (Warney v. State of New York, 16 NY3d 428, 434 [2011], quoting Court of Claims Act §8-b [1]). The clear and convincing standard is defined as one that satisfies the trier of fact that it is “‘highly probable that what [the injured party] claims is what actually happened’” (Salce v. State of New York, 184 AD3d 1037, 1039 [3d Dept 2020], citing NY PJI 1:64; Matter of Duane II. [Andrew II.], 151 AD3d 1129, 1130-1131 [3d Dept 2017], lv denied 29 NY3d 918 [2017]). The evidence must not be “‘equivocal or open to opposing presumptions’” (Salce, 184 AD3d at 1037, quoting Solomon v. State of New York, 146 AD2d 439, 440 [1st Dept 1989]; see also Acosta v. State of New York, 22 AD3d 367 [1st Dept 2005]). Innocence is the linchpin of Court of Claims Act §8-b (see Ivey v. State of New York, 80 NY2d 474, 479 [1992], quoting Rep of NY Law Rev Commn, 1984 McKinney’s Session Laws of NY, at 2930). “An acquittal of criminal charges is not equivalent to a finding of innocence” and the claimant is not afforded a presumption of innocence in prosecuting a civil claim under Court of Claims Act §8-b (Reed v. State of New York, 78 NY2d 1, 7-9 [1991]; Romero v. State of New York, 294 AD2d 730, 733 [3d Dept 2002] ["the reversal of his criminal convictions and dismissal of the indictment on technical grounds was not, as argued by claimant, tantamount to being found innocent"], appeal dismissed 98 NY2d 503 [2002], lv denied 98 NY2d 727 [2002]). As set forth in Pierre v. State of New York (UID No. 2019-051-041 [Ct C1, Martin, J., Sept. 10, 2019]), “[t]o assert a [section 8-b] claim, the statute sets forth two distinct prongs that ultimately must be established by clear and convincing evidence. The first prong, which must be demonstrated by documentary evidence, is that (a) the claimant was convicted of a crime, sentenced to a term of imprisonment, and served at least part of the sentence; (b) the claimant was pardoned on the ground of innocence or, alternatively, the conviction was reversed or vacated and the accusatory instrument was dismissed; and (c) the claim is not time-barred (Court of Claims Act §8-b [3]). The second prong, which does not need to be established by documentary evidence, requires that the claim ‘state facts in sufficient detail to permit the court to find that claimant is likely to succeed’ in carrying his burden at trial 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]).” (see Warney, 16 NY3d at 434; Reed, 78 NY2d at 7). “In its report, the Law Revision Commission listed five examples of misconduct that would bar relief under this paragraph. These are giving an uncoerced confession of guilt, removing evidence, attempting to induce a witness to give false testimony, attempting to suppress testimony or concealing the guilt of another” (Coakley v. State of New York, 150 Misc 2d 903, 910 [Ct C1 1991] [citing Rep of NY Law Rev Commn, 1984 McKinney's Session Laws of NY, at 2932], affd 225 AD2d 477 [1st Dept 1996]; see Turner v. State of New York, 50 Misc 3d 1217[A], 2015 NY Slip Op 51968[U], *5 [Ct C1 2015]). These examples are illustrative, not exhaustive (Coakley, 150 Misc 2d at 910), and “[leave] open to the judiciary the task of determining on a case-by-case basis what conduct would make a claimant ineligible to recover damages for unjust conviction and imprisonment” (Rogers v. State of New York, 181 Misc 2d 683, 686 [Ct C1 1999], affd 280 AD2d 930 [4th Dept 2001]). In short, “[w]hat will undo a claim to recover damages for unjust conviction and imprisonment is a claimant’s knowing withholding of available, admissible, and material exculpatory evidence, or his or her knowing presentation of evidence that is provably false through evidence independent of proof of guilt” (O’Donnell v. State of New York, 26 AD3d 59, 65 [2d Dept 2005]). However, “a claimant’s conduct bars recovery under the statute only if it was the ‘proximate cause of conviction’” (Warney, 16 NY3d at 437, quoting Ivey, 80 NY2d at 482). With respect to confessions, the Court of Appeals has held “a coerced false confession does not bar recovery under section 8-b because it is not the claimant’s ‘own conduct’ within the meaning of the statute” (Warney, 16 NY3d at 436; see Gristwood v. State of New York, 119 AD3d 1414, 1416 [4th Dept 2014]). Conversely, courts have held that providing an uncoerced confession of guilt, even though it is untrue and illegally obtained, is conduct contributing to a person’s own conviction and prevents recovery under Court of Claims Act §8-b (see Ausderau v. State of New York, 130 Misc 2d 848, 851-852 [Ct C1 1985] affd 127 AD2d 980 [4th Dept 1987], lv denied 69 NY2d 613 [1987]). “It is well settled that ‘[t]he voluntariness of a confession can only be determined through an examination of the totality of the circumstances surrounding the confession’” (Gristwood, 119 AD3d at 1416, quoting People v. Leonard, 59 AD2d 1, 12-13 [2d Dept 1977]). In evaluating the confession, courts will consider “‘the duration and conditions of detention, the manifest attitude of the police toward the detainee, the existence of threat or inducement, and the age, physical state and mental state of the detainee’” (Gristwood, 119 AD3d at 1416, quoting Leonard, 59 AD2d at 13). Thus, courts will consider, among other things, whether the detainee was “deprived of food, sleep, bathroom privileges, or the like” (People v. Hasty, 25 AD3d 740, 741 [2d Dept 2006], lv denied 6 NY3d 834 [2006]; see People v. Flint, 151 AD2d 964, 965 [4th Dept 1989] ["(t)he uncontroverted proof at the Huntley hearing demonstrates that (the defendant) remained voluntarily at the Sheriff's Department until (his confession) and was cooperative throughout the day. He was offered coffee, he smoked cigarettes, he said he was not hungry but ate a sandwich at about 8:15 p.m., he had use of the bathroom, and, prior to the polygraph test, he was told explicitly that he was free to leave"], lv denied 74 NY2d 739 [1989]). The Court finds that Claimant has proven the first prong required by Court of Claims Act §8-b [3] by clear and convincing documentary evidence. Specifically, Claimant has established Jones was convicted of (Ex 20 at 78 [1352], line 20 to 81 [1355] line 17); sentenced (Ex 21 at 11, line 18 to 12, line 25); and served part of that sentence (Ex 29 at 3, line 23 to 4, line 4; see also id. at 21, line 1 to 22, line 22). Claimant has also proven that the conviction was vacated, and the accusatory instrument dismissed (Exs 28, 29). Lastly, Jones filed his claim within two years after the dismissal of the accusatory instrument (Ex 26).¹³ The Court further finds Claimant has proven the second prong required by Court of Claims Act §8-b (4) of actual innocence or that Jones did not, by his own conduct, cause or bring about his conviction (see David W. v. State of New York, 27 AD3d 111, 117 [2d Dept 2006], lv denied 7 NY3d 709 [2006]). In reaching this determination, the Court must first note that Claimant has not proven Jones’ actual innocence through the purported confession of Conrad. As the Court previously noted above in determining the admissibility of Conrad’s video/audio recordings and transcripts of same, Conrad was possessed of specific details relative to Mitchell’s murder. However, Conrad’s knowledge of said facts does not establish by clear and convincing evidence that he killed Mitchell. Specifically, the Court notes there were significant press accounts of Mitchell’s murder as it was the first murder of 1997. There was a press release issued by APD containing pertinent information regarding the murder, including the address, date, and the victim being shot in the head (Ex 11 at 143); and a reward notice displaying a photograph of Mitchell with information including Mitchell’s address, age, date of the murder, and description of the shooting (id. at 95). Moreover, Conrad admitted watching and listening to news accounts of Mitchell’s murder (Ex 16 at 15, lines 24-25). Conrad also told police he attempted to gain information about the individuals who were accused of murdering Mitchell when they were all incarcerated at Albany County Correctional Facility. Additionally, this Court questions the veracity of Conrad’s purported confession. In particular, this Court finds that Conrad provided certain details of the murder, which this Court determines were both not trivial, not consistent, and do not meet the “fit standard” comporting with the investigation and/or forensic evidence. Most importantly, Conrad states he shot Mitchell “in the head. He got shot on the left side over the eye, if I’m correct” (Ex 15 at 7, lines 4-6). However, Mitchell was shot in his left temple near his left ear (Ex 13 at 44, 46). Mitchell sustained no injury over his left eye (id. at 43). Equally as important to this Court is the fact that Conrad did not convey the shooting in terms of the first person. Conrad did not state “I shot Mitchell,” but rather “He got shot in the head. He got shot on the left side” (Ex 15 at 7, lines 4-6). Conrad states after shooting Mitchell, he fell against a door or the wall in a sitting position (Ex 16 at 15, lines 1-6, 16; id. at 57, lines 8-9). However, Vincent (Tr 1360, lines 9-22) and Haggerty (Tr 89, lines 19-25; Tr 94, lines 1-4) credibly testified at trial that they found Mitchell laying on the vestibule floor with his head against a battery, and not in a sitting position. Additionally, Conrad stated after shooting Mitchell, he turned around and pulled the door closed (Ex 16 at 57, lines 10-11). However, witnesses and the APD investigation revealed the front door from the street to the vestibule of Mitchell’s apartment was open due to Claimant’s feet blocking the door from closing. Any person who had been in the vestibule would realize how small of a space it was and would also have to step over Mitchell, once he fell, to exit. (Tr 1371, lines 11-25; Tr 1372, lines 1-8). Notably, in Conrad’s confession, he stated he heard Mitchell had $5,000 on his person. However, police records indicate Mitchell had $91.48 on his person and $1,001.00 in his wallet, which was in his pants (Ex 12 at 22). Lastly, Conrad’s statement that he threw the weapon in the ocean is juxtaposed against Dukes’ statement that the gun was thrown into the Hudson River. This Court also questions the mental state of Conrad at the time he provided his statements to police and thus is further skeptical of the veracity of these statements. Conrad appeared agitated, hostile, and uncooperative at times and stated he suffered from schizophrenia (Ex 15 at 15, lines 7-8). Conrad also told police “I don’t know what’s real and what’s not” (id. at 16, line 25; id. at 17, lines 3-4). Further, this Court finds compelling the testimony of Rossi who stated that Conrad was not charged with Mitchell’s murder as both Jones’ and Dukes’ confessions would potentially raise reasonable doubt regarding the guilt or innocence of Conrad just as Conrad’s statement would potentially raise reasonable doubt regarding the guilt or innocence of Jones. Although the standard of proof here does not require evidence beyond a reasonable doubt, this Court concludes that Conrad’s confession is “equivocal and open to opposing inferences, thus rendering it insufficient to sustain [this] claim” (Acosta, 22 AD3d at 368). Stated differently, the confessions provided by Conrad and Jones (as well as Dukes) each contain details that make it unclear which confessions are false. Therefore, based upon the foregoing, this Court finds Claimant did not prove by clear and convincing evidence that Jones is innocent of murdering Mitchell as a result of Conrad’s purported confession. However, this Court views the totality of circumstances unique to this case in making the determination that Jones’ confession was coerced as a result of police misconduct. The Court credits Leo’s testimony where he describes that when obtaining a confession, the higher the situational and/or individual’s risk factors, the higher probability of a false confession. The Court agrees with Leo that Jones’ age, lack of education, background, the length of Jones’ confession, the physical and emotional abuse sustained, and the suggestibility in adopting the police’s theory of the case of minimizing Jones’ involvement in his confession, were all high-risk factors leading to a high probability of a false confession. The most compelling factors leading this Court to find Jones’ confession as coerced includes the length of time involved in obtaining said confession; police techniques employed to obtain a confession; the psychological and emotional abuse suffered by Jones during his interrogation; and the three statements Jones typed while being interrogated by police. In comparing Jones’ testimony taken at his suppression hearing, criminal trial, deposition and this trial, this Court finds Jones testified consistently and, if there were any inconsistencies, such were minor and the product of unintentional, faulty recollection of events which occurred over 20 years ago. Simply stated, Jones was unequivocal as to his innocence of Mitchell’s murder throughout all initial statements made to police as well as all testimony provided in all proceedings. Despite Jones’ assertions that he did not fully understand Miranda warnings, this Court finds that after being provided those warnings both verbally and several times in writing as indicated on no less than three confessions, Jones indeed understood his Fifth Amendment rights. However, this Court further finds that police had Jones in custody commencing the night of October 29, 1997 or the early morning hours of October 30, 1997. APD began interrogating Jones beginning at approximately 6:00 p.m. on October 30, 1997 and did not cease until securing Jones’ last confession at approximately 11:00 a.m. on October 31, 1997. Although there were periods of time when police were not directly questioning Jones, this period of at least 16 hours in which Jones was subjected to police contact all involved an attempt to gain an admission of guilt to Mitchell’s murder. This Court includes the time APD detectives transported Jones from NYC to Albany as part of the interrogation process. Although there were no direct questions by police and some minor periods of time where no conversations took place, this Court does credit Jones’ testimony regarding his anxiousness and concern of being accused of Mitchell’s murder resulting in continued conversations regarding same in the police transport vehicle. This Court finds this continuing conversation was part of police exertion to obtain a confession from Jones. The Court also finds the police refused to consider Jones’ innocence and/or alibi that he was not in Albany at the time of Mitchell’s murder. Indeed, the Court notes APD never investigated Jones’ alibi that he was with Sakina the night Mitchell was murdered and/or lived and was in Queens. Jones described that he was provided statements of both Sakina and Dukes implicating him in Mitchell’s murder. Jones described his confusion in that his purported best friend and girlfriend implicated him in a murder he did not commit. Despite his assertions of innocence, he felt hopeless and agreed to adopt the police version of events and inculpate Dukes, minimizing his own criminal conduct. However, Jones’ purported confessions do not contain any new or different information from Dukes’ confession and generally mirrors Dukes’ confession. Jones’ testimony that police discussed the death penalty as a possible consequence of not providing a confession is indeed highly coercive conduct (see People v. Sanders, 112 AD3d 748, 756 [2d Dept 2013] [Hall, J., dissenting] ["the FBI agent coerced the defendant's confession by threatening him with the possibility of receiving the death penalty"], affd 25 NY3d 337 [2015]). Although police do not recall and/or deny death penalty discussions, Jones’ testimony coupled with Sakina’s testimony is credited as the police either explicitly and/or implicitly suggested Jones’ could be subjected to the death penalty if convicted of Mitchell’s murder. Additionally, police threatened Jones that he would never see his child or girlfriend if convicted of murder, enticing him to provide a statement inculpating Dukes as the person who shot Mitchell as well as inculpating himself as present for the murder. Further, this Court finds that the police engaged in name calling in attempting to secure Jones’ confession as well. The Court credits Jones’ testimony that from the initial APD interaction until the conclusion of Jones’ confession which concluded at 11:00 a.m. on October 31, 1992, police engaged in systematic and consistent name calling. The Court therefore determines, considering McCrary’s testimony, that such threats and name calling utilized while attempting to obtain a confession from Jones may be construed as coercive and inappropriate police techniques to secure a confession. What is dispositive to this Court relative to Jones’ innocence and state of mind at the time of his interrogation are the three personal statements Jones’ typed while in police custody. It is unrefuted that Jones typed these statements while in the APD’s interrogation room outside the presence of Albany police detectives. As Jones typed these statements, police detectives confiscated same one at a time after Jones completed each. It is remarkable that nowhere in the record do any police witnesses testify or make any notes that they discussed with Jones the substance and/or content contained in these typed statements. These contemporaneously typed statements provide the proof necessary from this Court’s perspective as to Jones’ state of mind that he was innocent, that his repeated assertions of innocence were disregarded, and that he had to comply with police suggestions. Jones clearly typed that he must tell the truth even if no one believes him and it “hurts [him] in the long run” (Ex 11 at 160). Further, Jones had been counseled as to the police theory of Mitchell’s murder when he writes that Mitchell was murdered by Dukes to keep the “victem [sic] quiet” (id. at 161). Moreover, in adopting the police’s suggestibility of inculpating Dukes and himself, Jones describes that he cannot “prove that [Dukes] did [it]” or that Dukes murdered Mitchell as he was not present (id.). Jones also includes in his statement the threat that was posed to him that he may “ be deprived of seeing [his] child born and raised” (id.). Jones describes his despair in his typed statements that no one believes him and that “at this point I feel like committing suicide” (id. at 154). The Court also finds that at the time Jones was typing these personal statements and providing confessions, the police deprived him of food, drink, and appropriate rest. It is inconceivable to this Court, considering the importance of securing a murder confession, that police detectives would not ensure a purported perpetrator of a crime of his basic rights of food, drink, and sleep before obtaining a confession. For purposes of proving a claim pursuant to Court of Claims Act §8-b, the issuance of Miranda warnings does not necessarily ensure that a confession is not coerced, but rather it is a confession as well as the conduct employed by police in securing same that must be examined in its entirety (see Gristwood, 119 AD3d at 1416; see generally People v. Aveni, 100 AD3d 228, 238 [2d Dept 2012] ["even with a voluntary, knowing, and intelligent waiver of one's Miranda rights, there are boundaries the police cannot cross during an interrogation"], appeal dismissed 22 NY3d 1114 [2014]; see also Miranda v. Arizona, 384 US 436, 476 [1966] ["any evidence that the accused was threatened, tricked, or cajoled into a waiver will, of course, show that the defendant did not voluntarily waive his privilege"]). On its face, the act of providing Miranda warnings both verbal and written to the accused may be illustrative in safeguarding and protecting the accused’s rights. In this case, however, such warnings were illusory, subterfuge, and an attempt to conceal police misconduct. This Court finds that it was under these circumstances that Jones provided his last written statement purportedly admitting his participation in Mitchell’s murder. Therefore, this Court finds Jones’ confession was coerced and false as a result of police misconduct. Therefore, upon consideration of the testimony of the trial witnesses, observing their demeanor and assessing their credibility as well as reviewing all exhibits received at trial and reviewing the applicable law, this Court hereby finds and determines that Claimant has proven by clear and convincing evidence that, pursuant to Court of Claims Act §8-b, Jones was unjustly convicted and imprisoned. The Court will now address the issue of damages. DAMAGES “Pursuant to Court of Claims Act §8-b (6), upon finding that the claimant is entitled to a judgment, the court ‘shall award damages in such sum of money as the court determines will fairly and reasonably compensate him’” (Gristwood, 119 AD3d at 1417). The amount of damages to be awarded “should be determined in accordance with ‘traditional tort and other common-law principles’” (id., quoting Carter v. State of New York, 139 Misc 2d 423, 427 [1988], affd 154 AD2d 642 [2d Dept 1989]). “The relevant period for awarding damages is 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 the conviction and imprisonment (id. at 1417-1418, quoting Carter, 139 Misc 2d at 429). Because “a necessary element of this claim is to establish injury as a result of imprisonment” (Fudger v. State of New York, 131 AD2d 136, 140 [3d Dept 1987], lv denied 70 NY2d 616 [1988]), a claimant’s recovery may be limited if the claimant would have remained incarcerated on a separate conviction following the reversal of the underlying conviction supporting the 8-b claim (see id. ["we observe that claimant is not entitled to redress under Court of Claims Act §8-b since he remained imprisoned on the separate burglary charge after the reversal of his arson conviction"]; Ortiz v. State of New York, UID No. 2000-017-001 [Ct C1, O'Rourke, J., Mar. 28, 2000] ["(t)he portion of the term of incarceration attributable to an unrelated conviction cannot serve as a basis for an award of damages here"]). The Law Revision Commission Report specifies that both pecuniary and non-pecuniary damages can be recovered under Court of Claims Act §8-b (see 1984 Rep of NY Law Rev Commn, 1984 McKinney’s Session Laws of NY, at 2932-2933). ‘”Guiding this Court in its determination of the elements of and amount for non-pecuniary damages is the body of case law that eloquently addresses the grievous suffering, mental anguish, loss of liberty, degradation, loss of reputation, humiliation and other injuries of those unjustly convicted and imprison[ed]‘” (Gristwood, 119 AD3d at 1417, quoting Gonzalez v. State of New York, 26 Misc 3d 1212[A], 2009 NY Slip Op 52714[U], *12 [Ct C1 2009]). Courts have consistently refused to adopt a formula in determining the amount of non-pecuniary damages to be awarded to an unjustly convicted claimant and, instead, have focused on the particular circumstances of each case (see e.g. Gristwood, 119 AD3d at 1417; Newton v. State of New York, UID No. 2017-049-105 [Ct CI, Weinstein, J., Nov. 2, 2017], affd in part & mod in part 165 AD3d 421 [1st Dept 2018], lv denied 34 NY3d 913 [2020]; Carter, 139 Misc 2d at 430). Nevertheless, a court may look at comparable cases to assess the general range in which non-pecuniary damages may fall (see e.g. Newton, UID No. 2017-049-105 [noting the highest non-pecuniary damages award upheld by the Court of Appeals was $466,000 per year and most recent cases awarded such damages "in the same general ballpark" ranging from $250,000 to $300,000 per year]; Baba-Ali v. State of New York, 24 Misc 3d 576, 595 [Ct CI 2009] [refusing to adopt the defendant's per annum formula is assessing non-pecuniary damages and surveying verdicts and settlements in cases commenced pursuant to Court of Claims Act §8-b in awarding damages], affd in part & revd in part 76 AD3d 940 [2d Dept 2010], affd as mod 19 NY3d 627 [2012]; see also Jackson v. State of New York, UID No. 2009-038-105 [Ct CI, DeBow, J., Dec. 21, 2009] ["(i)t is proper for a court to look at other similar cases to determine what would be a reasonable award" in assessing damages for loss of liberty]). A court may also award an unjustly convicted claimant past and future lost earnings proximately caused by the claimant’s incarceration provided the claimant proves “such damages by a reasonable certainty” (Baba-Ali, 19 NY3d 627, 641 [2012] [internal quotation marks and citations omitted]). With respect to past earnings, courts have considered a claimant’s employment history prior to the conviction, including whether the claimant lost employment as a result of the conviction (see Coakley, 225 AD2d 477, 478 [1st Dept 1996]), as well other relevant factors including, a claimant’s level of education, marital status, drug use, if any, and prior criminal history, if any (see Gonzalez, 2009 NY Slip Op 52714[U], *5-6; Ortiz, UID No. 2000-017-001; see also Newton v. State of New York, 165 AD3d 421, 423 [1st Dept 2018] ["the testimony of (the) claimant's vocational rehabilitation expert that the prior conviction would have no effect on claimant's employability is incredible, as well as inconsistent with his conclusion that the present wrongful conviction affected his employability"]). With respect to future lost earnings, “[a] claimant must establish that his future inability to earn at his pre-conviction/incarceration earning capacity has been proximately caused by those events” (Baba-Ali, 24 Misc 3d at 581). Past and future lost earning claims are often presented through the testimony of expert witnesses whose credibility and factual assumptions this Court must assess in awarding said damages (compare Newton, 165 AD3d at 423 [holding the claimant failed to prove lost earnings by a reasonable certainty because his experts' analyses were based on assumptions not supported by the record], and Ortiz, UID No. 2000-017-001 [rejecting the conclusions of the claimant's experts which were "were concededly based on statistical averages and not on (the) claimant's actual past earnings history and did not account for claimant's level of education, marital status and drug use --- all factors that (the expert) considered significant indicators of earning capacity"], with Gonzalez, 2009 NY Slip Op 52714[U], *5 [awarding the claimant past and future lost earnings where the claimant's expert, utilizing data specific to the claimant, "averaged what (the claimant) would have earned but for the imprisonment, subtracted monies previously earned at or that would be earned at (the claimant's) reduced employability, and, through a series of calculations and appropriate adjustments, determined claimant's lost earnings, past and present"]). In the first instance the Court must decide how much time Jones was wrongfully incarcerated. Jones was convicted on May 14, 1999 (Exs 20, 30, 31) of murder with said conviction vacated on July 7, 2016 (Ex 29). As previously cited herein, Jones’ vacatur included a dismissal of the murder charge and a plea to robbery in the first degree with an indeterminate sentence of 7 to 14 years in prison. The sentence, as testified to by Rossi, contemplated Jones’ immediate release from prison as well as parole supervision. A complicating factor in making this determination is how much time, if any, Jones would have served in prison as a result of his plea to robbery in the first degree. It is clear to this Court that a sentence of 7 to 14 years in prison was an accommodation to effectuate Jones’ immediate release and not a true reflection of a proper sentence that would have been imposed had Jones not been convicted of murder. Claimant presented two witnesses at trial to illuminate this issue. Larry Rosen (Rosen) testified he served as Albany County Court Judge from 1994 to 2001. Rosen provided his opinion relative to possible sentences and factors considered by judges when sentencing a defendant in 1999. Assuming the absence of the murder charge, Rosen opined that an individual convicted of robbery in the first degree in 1999 may have been sentenced to a range of no incarceration to minimal incarceration in local jail but would certainly include a term of probation. Rosen testified that he would not have imposed an indeterminate sentence to state prison. Rosen also explained that as a sentencing judge, he may sentence an individual to a harsher sentence dependent upon the individual’s participation in a crime. Rosen generally described that when sentencing an individual, the person’s involvement in the crime to which they were convicted as well as any prior criminal record are taken into consideration. Rosen testified that Albany County Court Judge Thomas Breslin presided over the trial and sentencing of Jones. Rosen presided over the trial and sentencing of Dukes. Rosen speculated that Dukes’ sentence, which occurred prior to Jones’, would potentially have had an impact on Jones’ sentence; however, Rosen recognized that he “can’t speak for what Judge Breslin necessarily would have done” (Tr 766, line 20 to 767, line 5). Rosen conceded that a charge of robbery in the first degree is “a violent felony and a very serious charge” (Tr 770, line 19). Cheryl Coleman (Coleman) testified that she worked for the Albany County District Attorney’s Office as an Assistant District Attorney and prosecuted Jones. Coleman explained that the initial murder charge against Jones was a death penalty eligible case which the then-Albany County District Attorney de-certified, meaning the death penalty would not be pursued as a sentencing option if Jones were convicted of murder. Coleman testified that in her experience as a prosecutor, defendants received higher sentences after trial than if their case was disposed of via a plea bargain (Tr 698, lines 19-24). Assuming the absence of a murder charge, Coleman testified she would consider an individual’s criminal history and culpability in the commission of the crime when offering a sentencing recommendation. Coleman explained that very few plea bargains involved a plea to the first and/or highest count in an indictment. Coleman confirmed that burglary and robbery in the first degree in 1999 were B violent felonies and are “serious violent felonies” (Tr 738, line 14). Coleman opined that when recommending a plea bargain, those charges would have been reduced to a C felony. Coleman also testified that she would offer immunity to individuals who cooperated and/or had a minimal role in the commission of the crime. Coleman averred that Jones’ previous convictions of only misdemeanor crimes would not serve as a basis to recommend a harsher sentence if Jones was sentenced on just burglary and robbery charges. Further, Coleman opined that she would also potentially agree to a plea to a non-violent felony. Commensurate with a plea to a non-violent felony, Coleman testified she would recommend local incarceration and probation, one year incarceration in local jail or possibly an indeterminate sentence of one to three years in state prison (Tr 709, lines 2-9). Coleman testified that she believed Jones’ involvement was minor compared to others involved in the burglary and robbery. The Court has reviewed the sentences received by other individuals who participated in the burglary and robbery of Mitchell’s home and find those sentences do not assist the Court in making a determination relative to Jones’ sentence, as each participants’ pleas consider a unique issue. For instance, co-defendant Abdul-Hameed received an indeterminate sentence of 3 to 6 years in state prison taking into account that Abdul-Hameed purportedly perjured himself in a grand jury proceeding. Additionally, when co-defendant Lyons was preparing with police to testify at Jones’ trial, he implicated himself in Mitchell’s murder. Lyons was acquitted after trial of murder but was convicted of intimidating a witness, a Class E felony (Tr 737, lines 10-13) for which he received an indeterminate sentence of up to four years in state prison. The Court finds that Rosen’s testimony relative to potential sentencing of Jones absent the murder charges is speculative at best and does not provide this Court with any guidance. Coleman’s testimony provided guidance to this Court as to potential sentencing relative to the sentencing of Jones’ co-defendants and their circumstances relative to the burglary and robbery. In its posttrial brief, Claimant, in an effort to advance the rationale for the receipt of a lesser sentence for Jones’ robbery, argues that Jones at all times admitted his culpability relative to the robbery in the first-degree charge. Claimant further espouses that Jones, if given the opportunity, would have pleaded guilty to robbery in the first degree if it stood alone and not coupled with the murder charge. Further, Claimant also argues that Jones pleaded guilty to the robbery charge rather than seeking a retrial. The Court is unpersuaded by these arguments. The Court determines that Jones pleaded guilty to the robbery in the first-degree charge rather than seek a retrial, as a direct result of a sentence structured that guaranteed his immediate release from prison and parole. Further, the Court is not convinced that Jones would have pleaded guilty to robbery in the first degree, if only charged with that crime. Jones initially denied his culpability in the burglary of Mitchell’s home and the robbery of its occupants. It was only after being questioned relative to his participation of Mitchell’s murder and that other participants implicated him that he admitted to participating in the robbery and burglary. Additionally, at the time police interviewed Jones in October of 1997, Jones was aware co-defendants who participated in the burglary and robbery were arrested, charged, and/or prosecuted. At no time did Jones make himself available to police or voluntarily present himself to law enforcement relative to his participation in the burglary and robbery. This Court also finds it highly speculative that Jones would have cooperated or would have pleaded guilty to the burglary and/or robbery rather than exercise his right to trial. The Court finds, faced with the prospect of being charged with murder, Jones confessed to his culpability in committing the burglary and robbery at Mitchell’s house. Of course, the Court is also cognizant that it is indeed the coerced confession and the police misconduct surrounding the taking of that confession which led to Jones’ admission to committing the burglary and robbery as well the murder. However, the Court does not find that it necessarily flows that if not charged with the murder of Mitchell, Jones would have taken responsibility for the burglary and/or robbery and immediately plead guilty. This Court does, however, find Jones’ participation in the burglary and robbery of Mitchell’s home minimal as compared to his co-defendants. Nevertheless, this Court finds Jones was aware that co-defendants had weapons and were going to, at the very least, threaten the occupants of the Mitchell residence with those weapons. And that indeed did occur. The Court cannot overlook that Jones participated in the commission of violent felonies. The testimony from Joseph and Wyatt from Jones’ criminal trial starkly illuminates the absolute violence and terror these two young men endured at the hands of Jones and his co-defendants. The Court also notes and considers that Jones did not have a significant criminal history which would have resulted in an enhanced sentence. Therefore, on balance, the Court finds Jones would have been sentenced to an indeterminate sentence of at least 3 to 6 years in state prison. It is likely Jones would have been released to parole after serving four years in prison. Jones’ incarceration began after his conviction on May 14, 1999, terminating upon his release from prison on July 7, 2016, having served 17 years and two months in prison. Therefore, this Court finds Jones was wrongly confined for 13 years and 2 months. The Court finds from trial testimony that Jones suffered greatly because of his lengthy incarceration. Notably, the Court finds Jones personal relationships were adversely affected the most, to wit: his son, Tadre; his then-girlfriend/wife, Sakina; and his grandmother. Claimant produced Dr. Karen Rosenbaum (Rosenbaum), a forensic psychologist, who evaluated Jones and provided a diagnosis that Jones developed Adjustment Disorder with Depressed Mood as well as Post-Traumatic Stress Disorder (PTSD). The Court credits Rosenbaum’s testimony. Rosenbaum testified that several events led to her diagnoses of Jones. Those events, among others, include the significant time Jones spent in solitary confinement. Rosenbaum described that individuals subjected to such confinement may develop psychosis. Notably, Rosenbaum testified that Jones described he thought he saw a hanging rope or sheet in his cell and that a dead person was speaking with him from it. According to Rosenbaum, Jones believed he spoke with a dead person even upon discharge from prison. Additionally, Rosenbaum described that Jones viewed himself as helpless. As examples, Rosenbaum related that Jones tried to prove his innocence at trial, but despite his best efforts, failed. Another example included that Jones had developed a board game in prison which was utilized for a few months only to have it confiscated and Jones charged with a prison violation. Jones tried to defend himself on those charges but did not prevail. Rosenbaum described that Jones attempted to prove himself but consistently failed. Additionally, as to the diagnosis of Adjustment Disorder, Rosenbaum testified that Jones had difficulty navigating daily life outside of prison. Rosenbaum provided examples which included Jones being overwhelmed by outside stimuli; trouble with technology, such as texting; sleeping in a closet; poor adjustment to utilizing a soft bed, sleeping and/or sleeping with someone; difficulty with relationships; suffering nightmares and/or flashbacks, among other things (Tr 1463, lines 5-13; Tr 1467, lines 15-25). Rosenbaum, like Leo, testified that the human brain is still developing when an individual is in their early twenties (Tr 1463, lines 18-21). Jones who was arrested, convicted, and imprisoned at that age, did not have the opportunity to develop neurologically and was subjected to the difficulties of imprisonment (Tr 1461, lines 20-23; Tr 1463, lines 18-23). Rosenbaum also described Jones’ inability to obtain employment. Rosenbaum described “institutionalization” which is the inability of an individual to function outside of an institution like prison, the military or even a school setting (Tr 1461, lines 7-23). Rosenbaum testified that individuals subconsciously wish to return to their institutionalized setting to avoid the difficulties of daily life outside the institution. Rosenbaum opined this was true with Jones, serving as the possible reason for his re-arrest after being released from prison (Tr 1462, lines 2-12). Rosenbaum opined that Jones’ difficulties were all caused by his lengthy incarceration. Rosenbaum explained that although Jones’ prognosis was fair, he would need to take medication, participate in psychotherapy twice a week, and see a psychiatrist once a week for the balance of his life. Rosenbaum hauntingly opined the absence of such treatment would result in causing “himself harm or bad decision-making if he’s not treated for the rest of his life” (Tr 1467, lines 8-10). This Court observed and was impressed by Jones’ demeanor while testifying, clearly demonstrating the suffering he endured from his psychological disorders. Jones was very soft spoken, looked down at his hands, fidgeted, and at times was uncontrollably crying when discussing his prolonged incarceration as well as his experiences both in and out of prison. The Court notes that it had to take brief pauses in Jones’ testimony so that he could compose himself and continue. Jones described what he endured while incarcerated. He testified he was in six prisons, strip searched thousands of times, and subjected to verbal and physical abuse by correction officers. Jones also described he was confined to the Special Housing Unit (SHU) on a few occasions with the longest time being approximately four to six months. Jones explained he stayed in the SHU for 23 hours a day. Jones testified to three incidents which resulted in his placement in SHU. The first incident Jones stated he was found in possession of a sewing needle. The second incident Jones described he was charged with displaying his genitals to a correction officer. The third incident involved his creation of a board game which was later determined by the Department of Corrections and Community Supervision (DOCCS) to be gambling paraphernalia. In describing these three incidents resulting in his placement in SHU, the Court finds Jones minimized his culpable conduct relative to those violations. Nonetheless, despite such minimization, the Court credits Jones’ testimony as to the austere and severe sanction of being confined in SHU for 23 hours per day and the psychological affects suffered by Jones as a result thereof. Further, the Court notes and credits Jones’ disturbing testimony that he wanted to stay in SHU rather than be released as he felt the SHU provided a safer environment (Tr 247, lines 19-22). The Court credits Jones’ testimony regarding his inability to sleep, sleep in closets, and/or sleep in a bed. The Court additionally finds that because of Jones’ prolonged incarceration, he suffered from difficult and/or failed relationships, including two failed marriages. Most significant was the loss of relationship with his son, Tadre. As described by Jones, after his relationship with Sakina deteriorated, Sakina ceased bringing Tadre to prison to visit with Jones. As a result, Jones had no relationship with his son. After his release from prison, Jones described he attempted to re-establish a relationship with his son, however, it was strained. Jones also described that his life became pointless, and he contemplated suicide (Tr 258, lines 8-19). Lastly, Jones testified that after his release from prison he was arrested for drug possession and returned to prison for approximately 21/2 years. Consistent with Rosenbaum’s testimony relative to institutionalization, Jones described that he felt relieved returning to prison as it was a place which he understood, and it was “predictable” (Tr 270, line 16). The Court has reviewed prior court decisions and relevant law as hereinbefore described in providing guidance relative to the issue of damages. This Court awards Claimant $300,000 per year for 13 years and 2 months which represents as hereinbefore described each year Jones was wrongfully confined for a total of $3,950,000.00. In awarding compensation for Jones’ post-release pain and suffering the Court is limited as Jones died on June 5, 2021. Therefore, this Court calculates from the time Jones was released from incarceration until his untimely death as 4 years and 11 months. For the reasons set forth above and underscoring the difficulty Jones sustained while adjusting to his new-found liberty and socialization, the Court awards $350,000 per year for a total of $1,720,833.34 for post-release pain and suffering. Claimant also sought compensation for Jones’ lost wages and, in support of said damages presented the testimony of Gary Young (Young), a vocational expert who performs vocational evaluations. Young testified he reviewed various documents and interviewed Jones. Young testified he did not conduct any testing as Jones had a “clear vocational plan” (Tr 1235, lines 23-24). Young testified that Jones was born September 27, 1977, and although he did not graduate from high school, he “earned that while he was in prison” (Tr 1236, lines 21-22). When interviewing Jones, Young learned Jones had an interest in becoming a personal trainer. Young testified Jones indicated he aspired to sell real estate in Alabama prior to incarceration. At the time of Young’s interview, Jones was employed as a home health aide taking care of his mother, although trial testimony and exhibits reveal he was subsequently imprisoned and unemployed. Young opined that despite the challenges Jones faced from suffering from adjustment disorder with depression and post-traumatic stress disorder, Jones was employable (Tr 1239, lines 23-25). Young also opined that Jones was not a candidate for a high stress job (Tr 1240, lines 8-12). Based upon his review of documents and his interview of Jones, Young considered possible employment for Jones to include a personal trainer, selling real estate, construction laborer, and a construction supervisor with the average salaries of those types of employment being approximately $48,000 per year (Tr 1239, lines 7-18). This Court finds Young’s assumptions and methodologies seriously flawed. Young’s methodology in calculating lost wages includes Jones’ earning capacity from possible positions and employment established prior to his incarceration and deducting it from potential earnings after incarceration. Young’s methodology is flawed in opining possible employment for Jones prior to his incarceration as it did not consider his lack of education and employment history, criminal conduct, among other things. As for establishing Jones’ earning potential post-incarceration, Young failed to consider Jones’ reincarceration. Using such methodology and assumptions to estimate employment and salaries and attributing same to Jones’ lengthy incarceration is unreasonable (see Lowe v. State of New York, 194 AD2d 898 [3d Dept 1993]; Newton, UID No. 2017-049-105). This Court finds that prior to his incarceration Claimant was 20 years old, not employed, did not graduate from high school or obtain his General Equivalency Diploma (GED), and was engaged in criminal activity, i.e. selling drugs, burglary, robbery, domestic violence, etc. Further, Jones purportedly purchased a home in Alabama and intended to start a new life with Sakina and open a New York style clothing store in Alabama (Tr 1476, lines 20-22). However, after the purported purchase of this home, Jones returned to New York, was unemployed and engaged in criminal activity. Jones took no objective steps toward achieving any of his articulated goals. Although many vocations considered by Young, as articulated by Jones were aspirational, this Court does not credit Young’s evaluation and/or employment assumptions. Young did not account for Jones’ lack of employment both before and after his periods of incarceration. Young conceded that Jones had some jobs but nothing of significance prior to his incarceration (Tr 1248, lines 16-18). Further, Young was aware Jones moved to Alabama in 1997 purportedly to open a clothing store and/or sell real estate and none of these plans came to fruition (Tr 1262, lines 11-15). Young also did not consider in his evaluation Jones’ re-incarceration after his release from prison in 2017, opining that Jones would not have been incarcerated the second time if he had not been incarcerated the first time (Tr 1260, lines 1-16).¹⁴ Because Young dismissed Jones’ limited and insignificant work history prior to his incarceration; did not consider Jones’ lack of any employment in Alabama; did not consider Jones’ prior criminal conduct and potential for recidivism; did not consider problems encountered in his personal relationships; and did not include any adjustments for his subsequent incarceration, this Court find Young’s opinions unreasonable in estimating Jones’ future earnings as well as potential earnings during his wrongful confinement. Lost earnings must be shown by a reasonable certainty (see Baba-Ali, 19 NY3d at 641). Claimant’ expert failed to meet this standard. Therefore, this Court finds Claimant failed to present sufficient proof that Jones sustained any loss of past or future earnings and does not award monetary damages for same. Therefore, upon consideration of the testimony of the trial witnesses, observing their demeanor and assessing their credibility as well as reviewing all exhibits received at trial and reviewing the applicable law, and this Court hereinbefore finding and determining that Claimant has proven by clear and convincing evidence that pursuant to Court of Claims Act §8-b Jones was unjustly convicted and imprisoned, this Court now awards Claimant as follows: Non-pecuniary Damages: Pain and Suffering for Wrongful Conviction  $3,950,000.00 Pain and Suffering Post Release from Incarceration     $1,720,833.34 Pecuniary Damages: Lost Wages $0 Total Damages Awarded   $5,670,833.34 To the extent Claimant has paid a filing fee, it may be recovered pursuant to Court of Claims Act §11-a (2). Claimant is entitled to statutory interest, if any, pursuant to Civil Procedure Law and Rules §5002. Any and all other evidentiary rulings and motions upon which the Court may have previously reserved, or which were not previously determined are hereby denied. LET JUDGMENT BE ENTERED ACCORDINGLY. Dated: October 18, 2023