In rendering its decision, the Court read and considered the following papers: 1. Notice of motion filed on May 17, 2023; 2. Affirmation in support by Akosua K. Goode, AAG dated May 17, 2023 along with exhibits A through H; 3. Affirmation in opposition by Ilya Novofastovsky, Esq. dated August 14, 2023; 4. Affirmation in reply by Akosua K. Goode, AAG dated August 23, 2023; 5. Verified claim filed on May 17, 2021 with an exhibit; and 6. Verified answer filed on June 30, 2021. DECISION AND ORDER Claimant Thomas Hernandez filed this claim on May 17, 2021 to recover damages pursuant to the Court of Claims Act §8-b. The claim alleges that Mr. Hernandez was wrongfully convicted of murder in the second degree and, as a result of that wrongful conviction, he was incarcerated for more than 17 years. (see claim at 1-2.) Defendant answered the claim on June 30, 2021, generally denying the allegations and asserting five affirmative defenses including that claimant did not comply with Court of Claims Act §8-b (3) (b) (ii) and §8-b (4) in that claimant failed to submit documentary evidence that the accusatory instrument was dismissed and that he failed to state facts in sufficient detail to allow the court to find that claimant is likely to succeed at trial that he did not commit any of the acts charged in the accusatory instrument. (see answer at 2-4.) Defendant now moves to dismiss the claim pursuant to CPLR 3211 (a) (2) and (7). Claimant opposes the motion. For the reasons set forth below, the motion must be granted because the claim does not meet the Court of Claims Act statutory requirements. Background Claimant was convicted following a jury trial of depraved indifference murder and criminal possession of a weapon in the fourth degree. The claimant (then defendant) appealed without “challeng[ing] the legal sufficiency or weight of the evidence of depraved indifference murder” and the Second Department affirmed the conviction. The Court of Appeals denied leave to appeal on November 17, 2004 and Mr. Hernandez’s conviction became final on February 15, 2005. (People v. Hernandez, 167 AD3d 936, 937-39 [2d Dept 2018].) However, after the Second Department affirmed the conviction but before claimant’s conviction became final, the Court of Appeals issued a decision in People v. Payne (3 NYS3d 266 [2004]) changing the law of depraved indifference murder. As a result, claimant moved, pursuant to CPL 440.10, to vacate the depraved indifference murder conviction. On December 19, 2018, the Second Department vacated claimant’s criminal conviction for depraved indifference murder based on the retroactive application of the Court of Appeal’s decision in People v. Payne. (People v. Hernandez, 167 AD3d at 940.) Law and Analysis The Unjust Conviction and Imprisonment Act, Court of Claims Act §8-b, provides a way for “innocent persons who can demonstrate by clear and convincing evidence that they were unjustly convicted and imprisoned…to recover damages against the state.” (Court of Claims Act §8-b [1]; see also Warney v. State of New York, 16 NY3d 428, 434 [2011] quoting Ivey v. State of New York, 80 NY2d 474, 479 [1992].) To set forth a cause of action for unjust conviction and imprisonment under Court of Claims Act §8-b, a claimant must, in relevant part, establish by documentary evidence that “his judgment of conviction was reversed or vacated, and the accusatory instrument was dismissed” (emphasis added). (Court of Claims Act §8-b [3].) Additionally, the statute mandates that “[t]he claim shall state facts in sufficient detail to permit the court to find that claimant is likely to succeed at trial in proving that (a) he did not commit any of the acts charged in the accusatory instrument or his acts or omissions charged in the accusatory instrument did not constitute a felony or misdemeanor against the state” (emphasis added). (Court of Claims Act §8-b [4].) The statute expressly requires dismissal of the claim, either on its own motion or on the motion of the state, if, after reading the claim, the Court finds that claimant is not likely to succeed at trial. (Id.) The requirements of Court of Claims Act §8-b require strict compliance. (Reed v. State, 78 NY2d 1, 5 [1991], ["Examination of the extensive legislative history of Court of Claims Act §8-b compels the conclusion that the provisions of this statute must be strictly construed"].) It is well settled that when reviewing a motion to dismiss pursuant to CPLR 3211 on the ground that the claim fails to state a cause of action, the pleading is to be afforded a liberal construction. (see CPLR 3026; see also Leon v. Martinez, 84 NY2d 83, 87-88 [1994].) However, Court of Claims Act §8-b “imposes a higher pleading standard than the CPLR. The Court must consider whether the allegations are sufficiently detailed to demonstrate a likelihood of success at trial.” (Warney v. State of New York, 16 NY3d 428, 435 [2011].) It has repeatedly been held that to survive a motion to dismiss an 8-b wrongful conviction claim, the Court of Claims Act §8-b “places the burden on the claimant to provide the requisite documentary evidence” establishing that the entire conviction was vacated based upon one of the grounds enumerated in Court of Claims Act §8-b (3) (b). (Guce v. State of New York, 493 [2d Dept 1996], lv denied 88 NY2d 805 [1996]; see McFadden v. State of New York, 151 AD2d 730 [2d Dept 1989], lv denied 74 NY2d 615 [1989]; Stewart v. State of New York, 133 AD2d 112 [2d Dept 1987], lv denied 72 NY2d 807 [1988].) Although this is not the time to be making credibility and factual determinations, the Court must determine whether the strict pleading standards have been met and evaluate whether the allegations clearly and convincingly establish the elements of the claim. (Id.) The claim states that Mr. Hernandez was “wrongfully convicted of murder in the second degree” (claim at 2 4), that “the Appellate Division, Second Department[] held that “the trial evidence was not legally sufficient to support a verdict of guilt’1 by [sic] Mr. Hernandez and dismissed the indictment” (claim at 2 8), and that “[a]t all times relevant herein, Mr. Hernandez did not commit the crimes charged in the indictment and consistently maintained his innocence.” (claim at 2 6.) The claim omits any reference to claimant’s conviction on the criminal possession of a weapon in the fourth degree. (People v. Hernandez, 167 AD3d 936, 937 [2d Dept 2018].) Defendant argues in its motion to dismiss that (1) claimant’s conviction was not vacated in its entirety since a jury convicted claimant of both depraved indifference murder and one count of criminal possession of a weapon and (2) that claimant is unlikely to be able to establish his innocence at trial both of which are required by Court of Claims Act §8-b. (affirmation of defendant’s counsel at 8-19.) Claimant counters in his opposition to the motion to dismiss that the Court of Claims Act §8-b should apply to the vacated murder conviction despite the remaining weapon possession conviction and that claimant “deserves the chance to prove his actual innocence at trial.” (affirmation of claimant’s counsel at 3-5.) Defendant submitted an affirmation in reply essentially reiterating the arguments in its motion to dismiss. While the Court understands that dismissing the claim at this time feels “unjust,” that is what the Court of Claims Act requires. Dismissal is required because claimant cannot establish by documentary evidence that the judgment was vacated and the accusatory instrument2 was dismissed. There is no dispute that a jury found Mr. Hernandez guilty of depraved indifference murder and a weapons possession charge. (People v. Hernandez, 167 AD3d 936, 937 [2d Dept 2018].) There can also be no dispute that the Second Department’s decision, grounded in a change to the law related solely to the mens rea for depraved indifference murder, vacates only the depraved indifference murder conviction and does not reach the weapons conviction. (see People v. Hernandez, 167 AD3d 936, 940 [2d Dept 2018] ["the trial evidence was not legally sufficient to support a verdict of guilt of depraved indifference murder. Accordingly, the Supreme Court should have granted the defendant's motion pursuant to CPL 440.10 to vacate so much of the judgment of conviction as convicted him of depraved indifference murder, and dismissed that count of the indictment"] [emphasis added, internal citation omitted].) The language used by the Second Department in this decision demonstrates that it understood that there was more than one count of the indictment and that it was vacating only one. Claimant insists in his opposition to the motion that Section 8-b (3) does not require the dismissal of both counts and offers several theories about why that is so. For example, he argues that wielding a bat without intent to endanger someone is not a crime (affirmation of claimant’s counsel at 3, para 11); the Second Department invalidated the “crux” of the indictment (affirmation of claimant’s counsel at 4, para 14); “there is no free-standing felony” (affirmation of claimant’s counsel at 5, para 17); and the Court may “sever” the murder conviction and the weapon possession (affirmation of claimant’s counsel at 5, para 18). However, he is incorrect. Court of Claims Act §8-b (3) (b) is explicit that the claim must establish by documentary evidence that “his judgment of conviction was reversed or vacated, and the accusatory instrument was dismissed….” (§8-b [3] [b] [ii]; see also Dixon v. State of New York, UID No. 2021-053-518 [Ct C1, Sampson, J., Apr. 16, 2021] [claimant's argument that §8-b (3) does not require dismissal of the "entire" accusatory instrument is unsupported]; Pough v. State of New York, 153 Misc2d 490, 493-94 [Ct C1 1992], affd 203 AD2d 543 [2d Dept 1994], lv denied 85 NY2d 803 [1995] [The basic structure and requirements of the Court of Claims Act §8-b mandates that claimants prove that their convictions have been reversed or vacated on specified grounds and prove that they did not commit any of the acts charged in the accusatory instrument under which they were convicted].) Because only the depraved indifference murder charge was vacated and the weapons charge remains, the claimant has not and cannot establish by documentary evidence that the judgment was reversed or vacated and the accusatory instrument dismissed. The claim therefore must be dismissed. Even if claimant was successful in arguing that the two convictions could be separated, or that reversal of the more serious murder charge was sufficient for bringing a claim under Section 8-b despite the outstanding weapons conviction, dismissal of the claim would still be required because the claim fails to “state facts in sufficient detail to permit the court to find that claimant is likely to succeed at trial in proving that…he did not commit any of the acts charged in the accusatory instrument or [that the] acts…charged in the accusatory instrument did not constitute a felony or misdemeanor (emphasis added).” (Court of Claims Act §8-b [4].) The claim merely asserts that “Mr. Hernandez did not commit the crimes charged in the indictment and consistently maintained his innocence” (claim at 2 para 6) but is devoid of any detail — let alone sufficient detail — that would permit the Court to find that claimant is likely to succeed at trial. The claim must therefore be dismissed. (Court of Claims Act §8-b [4] ["If the court finds after reading the claim that claimant is not likely to succeed at trial, it shall dismiss the claim, either on its own motion or on the motion of the state"].) While the Court understands claimant’s desire to prove his innocence, it has no foundation in law. The legislative history is clear that the Court of Claims Act 8-b “was not designed to afford an accused a further opportunity to retry his case before the Court of Claims (Report of NY Law Revision Commission, 1984 McKinney’s Session Laws of NY, at 2927).” (Fudger v. State, 131 AD2d 136, 140 [3d Dept 1987].) Accordingly, it is: ORDERED, that defendant’s post answer motion to dismiss (M-99433) is granted and claim no. 136360 is dismissed, with prejudice. Dated: November 9, 2023
