Hopwah v. The State of New York

John J. Hopwah,¹ Claimant v. The State of New York, Defendant Papers Considered: Claim & Exhibit Annexed  1-2 Notice of Motion, Affirmation & Exhibits Annexed         3-5 Notice of Cross Motion to Amend, Affirmation & Exhibits Annexed             6-16 Affirmation in Support of Motion & Opposition to Cross Motion 17 Correspondence & Argument received February 1, 2024              18-19 DECISION AND ORDER Upon the foregoing papers and for the following reasons, the Motion by Defendant State of New York (hereinafter “State”), seeking the dismissal of the instant Claim, is granted and the cross-motion by Claimant John P. Hopwah (hereinafter “claimant”), for an amendment, is denied as provided hereinbelow. By Claim filed March 8, 2023, claimant commenced this action against the State seeking damages for unjust conviction and imprisonment, pursuant to Court of Claims Act §8-b, alleging in a conclusory manner that on or about December 17, 2011, he was arrested, charged with various counts of assault, including Penal Law §§120.10(1), 120.05(1) and 120.05(2), and subsequently convicted by a jury trial in Supreme Court, New York County, of felony assault with intent to cause serious injury (see Penal Law §120.05[2]; Claim at 2,

4, 5). He was acquitted of the other charges based on a finding of justification, and immediately began to serve his sentence (see Claim at 2, 4). Without detailing the underlying facts of the offenses or his involvement, claimant alleges that he “did not commit the crimes charged in the indictment and consistently maintained his innocence” (Claim at 2, 6). He alleges that, based on the acquittals and subsequent dismissal, his “status as a convicted assailant was vitiated in the State of New York [and] the New York County District Attorney’s Office chose not to prosecute [him] any further” (id. at 2, 8). According to the three-page Claim, “[b]y the time of his release, [c]laimant had been subjected to an unjust prosecution and jail time of almost 11 years” (Claim at 2, 9). Claimant affirms that he did not bring about his own conviction but “was actually targeted by the authorities who engaged in misconduct” (id. at 2, 10). Per claimant, he brought the “claim within at least one of the covered grounds” under Court of Claims Act §8-b(3)(b)(ii)(A) and (C) (Claim at 2, 11). Claimant further alleges that he suffered tremendously and incurred substantial damages for about 11 years for the indignity of prosecution, incarceration and conviction for a crime that he did not commit (see Claim at 3, 13). As a result, the claimant seeks damages in the amount of $10,000,000, for “personal injuries; physical injuries; emotional distress and depression; loss of income and impairment of future earnings capacity; humiliation, indignity and embarrassment; degradation and damage to reputation; restriction of personal freedom and the indignity and deprivation of liberty” (id. at 3, 15). In support, claimant only attached the New York County Supreme Criminal Court’s Certificate of Disposition dated December 8, 2022, indicating the acquittals and dismissal (see Claim, Exh. A). Claimant asserts that “further evidence and exhibits are available (upon demand) to support all of the necessary elements for the institution and success of this claim” (Claim at 3, 12). On April 17, 2023, the State filed a Notice of Motion to dismiss the Claim pursuant to Court of Claims Act §8-b(3), (4) and CPLR 3211(a)(7), arguing that claimant fails to satisfy the heavy burden of proof and pleading requirements set forth in the Unjust Conviction and Imprisonment Act (Court of Claims Act §8-b[3]), by the fatal absence of documentary or any other evidence to support certain facts, such as that claimant was convicted, sentenced and served part or the entire term of imprisonment. The State further argues that claimant has not made the proper showing as required by Court of Claims Act §8-b(3)(b) in that claimant has failed to illustrate that his conviction was vacated on an enumerated ground under that statute. While the Claim alleges in conclusory manner that he brought the Claim under one of the covered grounds, it fails to specify on which ground and under what circumstances the vacatur of conviction occurred. Dismissal is also warranted, according to the State, as claimant has failed to demonstrate the likelihood of success at trial as required by Court of Claims Act §8-b(4), and prove by clear and convincing evidence that he is innocent and did not cause or bring about his conviction. By Notice of Cross-Motion and Affirmation in Opposition filed November 1, 2023, the claimant opposes the Motion to dismiss and cross-moves for leave to amend his Claim pursuant to CPLR 3025(b), arguing that he deserves a chance to prove his unjust conviction claim at trial, and his Cross-Motion properly seeks to cure the purported defects with the Claim by setting forth additional or subsequent transactions or occurrences.² Per claimant, he has secured additional information and documentation such as the relevant court materials that he did not have when the Claim was filed. Claimant argues that the Claim satisfies at least three of the subsections of Criminal Procedure Law [CPL] §440.10(1)(c), in that material evidence adduced at trial resulted in a false judgment known by the prosecutor because the jury found that claimant was justified in defending himself against the complaining witness, Mr. Samuel Walker, but that the prosecution and the court directed the jury continue to deliberate on the lesser included charges, such as assault in the second degree, which were precluded by the justification defense. As detailed in the amended claim, claimant alleges that there are numerous false statements and misrepresentations in the course of the underlying prosecution which establish that the Claim also satisfies CPL 440.10(1)(b), in that the judgment was procured by misrepresentation or fraud.³ Furthermore, the claimant contends that, when viewing the voluminous allegations in the light most favorable and according him the benefit of every possible inference as required under CPLR 3211(a)(7), the Court should find claimant innocent of all charges at issue as the jury found that claimant was justified in his actions defending himself from Mr. Walker. In addition, claimant maintains that the Appellate Division, First Department, applied the justification defense on his successful appeal, forcing the prosecution to completely dismiss the indictment thereafter (see People v. Wah, 171 AD3d 574 [1st Dept 2019]). By Affirmation in Further Support of the Motion filed November 29, 2023, the State argues that the Claim and amended claim still fail to satisfy the requirements of Court of Claims Act §8-b(3) and should be dismissed in their entirety. Per the State, claimant has failed to satisfy the statute’s requirements in establishing that: (a) that he was convicted of a felony or misdemeanor, sentenced to a term of imprisonment, and has served all or part of the sentence; and (b) that the vacatur of the conviction was either the result of a pardon or based upon one of the grounds set forth in Criminal Procedure Law §§440.10(1)(a), (b), (c), (e), or (g). Although claimant attached 12 exhibits that purport to support the sufficiency of the amended claim, the States affirms that the proof continues to be deficient. Specifically, although the transcript of claimant’s sentencing on July 17, 2015 could be seen as satisfying two of the three requirements, the amended claim fails to demonstrate that claimant served all or part of the sentence imposed or that the conviction was vacated on one of the specified enumerated grounds of Court of Claims Act §8-b(3)(b). The State further argues that claimant’s failure to identify the basis for the vacatur renders the Claim jurisdictionally defective which cannot be cured by way of amendment. While claimant argues that the material evidence adduced at the criminal trial was false within the meaning of CPL 440.10(1) and that the underlying criminal judgment was procured by misrepresentation or fraud within the meaning of CPL 440.10(1)(b), the State notes that claimant provides no support that the vacatur was premised on those bases. To the contrary, the State affirms that claimant’s underling criminal judgment was vacated by the First Department after finding a trial court error on the jury instructions (see People v. Wah, 171 AD3d at 575), which is not an enumerated ground under Court of Claims Act §8-b(3)(b). In further opposition, the claimant himself⁴ mailed an undated letter and “Argument” opposing the State’s Motion to dismiss, which was received by the Court after final submission of the Motion on February 1, 2024. Consistent with his counsel, he essentially maintains that his Claim must be heard to expose constitutional violations and prosecutorial misconduct committed during his prosecution because there were factual disputes and perjured testimony as to the extent of Mr. Walker’s mouth injuries. As far as can be discerned from his papers, the claimant insists that the State somehow conspired with the New York County District Attorney’s Office and Supreme Court Justice Bruce Allen to unlawfully prosecute and find him guilty. However, he merely raises arguments regarding the sufficiency of the testimonial and medical evidence in the criminal case and never once proclaims his actual innocence of the charges. After considering all the submitted papers, the Court finds that the claimant is incorrect. The Unjust Conviction and Imprisonment Act “was enacted to provide redress to innocent persons who prove 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 Ivey v. State of New York, 80 NY2d 474, 479 [1992]; Isaac v. State of New York, 78 Misc 3d 473 [Ct Cl, Vargas, J., Jan. 18, 2023]). To successfully maintain a claim for unjust conviction, the statute requires that claimant set forth two distinct prongs which ultimately must be established by clear and convincing evidence (see David W. v. State of New York, 27 AD3d 111, 114-115 [2d Dept 2006]; Spinks v. State of New York, UID # 2021-051-012 [Ct Cl, Martin, J., April 22, 2021]). First, claimant must demonstrate by documentary evidence that: (a) he was convicted of a crime, “sentenced to a term of imprisonment, and has served all or any part of that sentence; and (b)(I) he has been pardoned upon the ground of innocence…; or his judgment of conviction was reversed or vacated, and the accusatory instrument was dismissed or, if a new trial was ordered, either he was found not guilty at the new trial or he was not retried and the accusatory instrument dismissed; provided that the judgment of conviction was reversed or vacated, and the accusatory instrument was dismissed, on any of limited and specific grounds;⁵ and (c) the claim is not time barred (Court of Claims Act §8-b[3]; see Heiss v. State of New York, 143 AD2d 67, 69 [2d Dept 1988]; Isaac v. State of New York, 78 Misc 3d at 474). The failure to include such documentary evidence with the claim requires dismissal of the claim (see Vigliotti v. State of New York, 24 AD3d 1217, 1218 [4th Dept 2005]; Stewart v. State of New York, 133 AD2d 112, 113 [2d Dept 1987], lv denied 72 NY2d 807 [1988]). In the second prong, which need not be established by documentary evidence, a claimant must state, in the verified claim, “facts in sufficient detail to permit the court to find that claimant is likely to succeed at trial in proving that (a) he did not commit any of the acts charged in the accusatory instrument or his acts or omissions charged in the accusatory instrument did not constitute a felony or misdemeanor against the state, and (b) he did not by his own conduct cause or bring about his conviction” (Court of Claims Act §8-b[4]; see Reed v. State of New York, 78 NY2d 1, 9 [1991]; Nieves v. State of New York, 186 AD2d 240, 241 [2d Dept 1992]). “If the court finds after reading the claim that claimant is not likely to succeed at trial, it shall dismiss the claim” (Court of Claims Act §8-b(4); see David W. v. State, 27 AD3d at 116; Stewart v. State of New York, 133 AD2d at 114). Only claims satisfying these threshold “strict pleading and evidentiary burdens” may be heard on the merits (Warney v. State of New York, 16 NY3d 428, 434 [2011]; Reed v. State of New York, 78 NY2d at 10). It is well settled that when reviewing a motion to dismiss pursuant to CPLR 3211(a)(7) 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; Leon v. Martinez, 84 NY2d 83, 87-88 [1994]; Gioeli v. Vlachos, 89 AD3d 984 [2d Dept 2011]). 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” (Hernandez v. State of New York, 2023 NY Slip Op 23421 [Ct Cl, Marnin, J., 2023], quoting Warney v. State of New York, 16 NY3d at 435). That being said, “[t]he requirements of the statute are to be strictly construed” (Groce v. State of New York, 272 AD2d 519, 520 [2d Dept 2000]; see Chalmers v. State of New York, 246 AD2d 620 [2d Dept 1998]). Bare legal conclusions with no factual specificity do not suffice to withstand a motion to dismiss for failure to state a cause of action (see Matter of Holterbosch, 216 AD3d 783 [2d Dept 2023]; Barnes v. Hodge, 118 AD3d 633 [1st Dept 2014]). Applying these principles to the matter at bar, the State has sufficiently established its entitlement to the Claim’s dismissal because claimant has not fulfilled all of the strict statutory requirements of Court of Claims Act §8-b (see Bumbury v. State of New York, UID No. 2006- 030-523 [Ct Cl, Scuccimarra, J., March 30, 2006]). With respect to the first prong of Court of Claims Act §8-b(3), the Claim alleges that he was “subject to an unjust prosecution and jail time of almost 11 years” following a jury trial which convicted him of felony assault with intent to cause serious injury (Claim at 2, 9). He refers to the subsequent dismissal of his charges without specifying a date of dismissal or how these charges were ultimately dismissed. Though he maintains that he spent “almost 11 years” of imprisonment, claimant makes no factual presentation as to the actual number years he was sentenced or when he was finally released. Absent from the Claim is the Appellate Division decision that reversed his conviction or, any documentation, demonstrating that claimant served all or any part of his sentenced imposed (see Vigliotti, 24 AD3d at 1218). In fact, the claimant later asserted that he served three years of imprisonment (see amended claim at 3, 8). The only documentary evidence that claimant provided to support his Claim is his Certificate of Disposition from the Supreme Court. Granted that claimant’s criminal matter was vacated and dismissed without a retrial, he has to demonstrate by “documentary evidence” that his case was reversed under one of the covered grounds (Court of Claims Act §8-b[3][ii]; see Bumbury v. State of New York, UID No. 2006-030-523). Without specification or documentation, he vaguely alleges that he brought his Claim pursuant to “at least one of the covered grounds under Court of Claims Act §8-b(3)(ii)” (Claim at 2-3, 11). However, the Appellate Division decision clearly reveals that the reversal of claimant’s criminal matter was based on an improper jury instruction, which is not one of the covered grounds under the statute (see People v. Hop Wah, 171 AD3d at 575). Whenever the judgment of conviction is vacated because of a non-enumerated ground, as here, claimant has failed to state a cause of action within the meaning of Court of Claims Act §8-b (see Isaac v. State of New York, 78 Misc 3d at 480; Bumbury v. State, UID No. 2006-030-523). With his scantily drafted three-page Claim, providing very little information, the Court finds that the Claim must be dismissed for failing to annex the supporting documentation and for failing to state a cause of action (id.; see Knight v. State of New York, UID No. 2013-038-532 [Ct Cl, DeBow J., June 3, 2013]). Even if this Court were to obviate that fatal mistake, other grounds support a dismissal. With respect to the second prong, the record reflects that the Claim was not pled in sufficient detail to permit the Court to find that claimant is likely to succeed at trial (see id.; Savage v. State of New York, UID No. 2018-053-525 [Ct Cl, Sampson, J., May 15, 2018]). A review of the Claim reveals that claimant only makes conclusory statements regarding his innocence such as that “he did not commit the crimes charged in the indictment and consistently maintained his innocence;” and that “he did not bring about his own conviction, but rather was actually targeted by the authorities who engaged in misconduct” (Claim at 2,