Khatibi v. State

• Decision Date: 28 February 2012
• Docket Number: No. 117567.,117567.
• Citation: 951 N.Y.S.2d 86,35 Misc.3d 1211,2012 N.Y. Slip Op. 50654
• Parties: Kian KHATIBI, Claimant(s) v. The STATE of New York, Defendant(s).
• Court: New York Court of Claims

35 Misc.3d 1211
951 N.Y.S.2d 86
2012 N.Y. Slip Op. 50654

Kian KHATIBI, Claimant(s)
v.
The STATE of New York, Defendant(s).

No. 117567.

Court of Claims of New York.

Feb. 28, 2012.

Benno & Associates, P.C. by Ameer Benno, Esq., Sullivan Law Offices, P.C., by Donald J. Sullivan, Esq., Of Counsel, for Claimant(s).

Eric T. Schneiderman, Attorney General for the State of New York, by Robert Schwerdt, Assistant Attorney General, for Defendant(s).

TERRY JANE RUDERMAN, J.

Kian Khatibi brings this claim pursuant to Court of Claims Act § 8–b. He alleges that his conviction of Assault in the First Degree and Criminal Possession of a Weapon in the Fourth Degree, for which he was sentenced to a term of imprisonment of seven to fourteen years, was unjust. In December 2001, his criminal conviction was affirmed on appeal ( see People v. Khatibi, 289 A.D.2d 593,lv denied97 N.Y.2d 756). Despite his numerous unsuccessful attempts to overturn his conviction, claimant steadfastly maintained his innocence throughout the more than nine years he served in prison. In November 2007, claimant's older brother, Kayvan Khatibi, confessed to the crimes at a family Thanksgiving celebration. Claimant first learned this information when it was reported to him later that month by his father during a prison visit.

The criminal charges arose out of a fight that erupted in the early morning hours of January 11, 1998 outside the Lock, Stock and Barrel, a “college bar” in the Village of Pleasantville (T:677).¹ Bar patrons Brian Duffy and William Boyar sustained several stab wounds in the altercation. Claimant, who was 22 years old at the time, had been to the bar earlier that evening and had witnessed a fight outside the bar; however he maintains that he had no involvement in the fight. Rather, it is claimant's contention that his brother, Kayvan Khatibi, who is 16 months older and two inches taller than claimant, was the perpetrator of the crimes.

In April 2008, claimant filed a motion in Westchester County Court, pursuant to CPL § 440.10(1)(g), seeking to vacate his conviction based upon newly discovered evidence, i.e., that his brother had confessed to the crimes. At the hearing, the judge appointed counsel for Kayvan who then invoked his right against self-incrimination and refused to provide any testimony regarding either the events of the night in question or his confession to the crimes. Claimant's sister Sheila testified to Kayvan's confession. On September 9, 2008, claimant's motion to vacate his conviction was granted; the indictment was reinstated and a new trial was ordered (Ex. 1).

On September 23, 2008, claimant's 33rd birthday, he was released on his own recognizance after serving more than nine years in prison. Thereafter, upon motion by the District Attorney's office, the indictment against claimant was dismissed in December 2008 (Exs.4, 5).

Court of Claims Trial

The trial of this claim was bifurcated and this Decision pertains solely to the issue of liability. Claimant testified that on the evening of January 10, 1998, he went to Pleasantville to a friend's home and then later proceeded to the bar. Claimant was wearing a brown jacket with a white collar and was not wearing his driving glasses (T:728–30, 737, 796–97). Claimant had consumed one or two beers when he felt someone bump into him at the noisy, crowded bar. This person was later learned to be William Boyar. Boyar grabbed claimant by his shirt and started to lift claimant off the ground (T:682–84, 736, 803). Before the encounter escalated, and within seconds, the bouncer grabbed claimant and dragged him out of the bar (T:804). Claimant did not recall seeing his brother Kayvan or his brother's friend and housemate Eric Freud at the bar; however claimant assumed that they would be there at some point that evening.

Once outside, claimant sat down on the steps in front of a building across the street from the bar. He then decided to go to 7–Eleven for a snack. He took a shortcut through the parking lot and walked through the alley leading to the store. Claimant bought some candy and a cup of coffee and then retraced his steps back toward the bar hoping to meet a friend and get a ride home to Yonkers (T:690–91, 792, 801–02). En route, claimant saw four young men arguing, close together, near the exit of the parking lot. Two were dressed in jackets and two were in summer-type clothing. They were shouting and pushing each other. As claimant approached, he recognized Eric Freud fighting with an individual later learned to be Brian Duffy. Claimant tried to walk around the group, keeping his distance from the fight. One of them pointed at claimant screaming something like, “there's the guy” (T:694). Looking back, claimant recognized William Boyar as the person who had lifted claimant off his feet inside the bar. Claimant did not observe any weapons or knives and he did not see the face of the fourth individual involved in the fight.

While claimant testified that he only recognized Freud and Boyar, on cross-examination, claimant was confronted with his criminal trial testimony that he had also recognized Brian Duffy as someone whom claimant had seen earlier in the bar. At the Court of Claims trial, claimant maintained that he did not recall his criminal trial testimony and did not remember if he recognized two or three of the individuals; however he certainly did not see the face of the person now known to be claimant's brother Kayvan.

Claimant walked to the train station. He was alone on the platform when he heard screaming, yelling and tires screeching. He feared that he might be attacked, so he went to the local police station seeking help. A surveillance video at the entrance of police headquarters showed claimant entering at 1:12 a.m. and leaving five minutes later (Ex. 18).² Police Officers Mary Dennehy Hansen and Stanley Schepis were on duty. Claimant asked Schepis for a ride to the nearby Hawthorne train station because claimant was afraid to be alone at the Pleasantville station. According to claimant, Schepis agreed to transport claimant, but then could not because Schepis had to respond to a police call. After a few minutes, claimant left the police station and returned to his friend's house to use the telephone. Claimant called his sister Sheila, who was at their mother's home in Pleasantville, for a ride back to Yonkers. Within approximately 15 minutes, Sheila picked up claimant and drove him home.

When claimant learned that the police were looking for him and wanted to arrest him regarding the fight, he voluntarily went to the police station and was arrested.³ Claimant pled not guilty to the charges. At the criminal trial, the two bar patrons who had been stabbed in the fight identified claimant as someone at the scene. Kayvan and Freud also testified at the criminal trial. Kayvan denied having possession of a knife or seeing Boyar, Duffy or Kian outside the bar. Freud testified that Kayvan was not a participant in the fight and was not present at the bar that evening. The jury found claimant guilty.

After an unsuccessful appeal of his criminal conviction, claimant proceeded pro se with several actions including an Article 78 proceeding, a Federal Writ of Habeas Corpus and 30 to 40 Freedom of information requests and appeals.⁴ In 2007, nearly 10 years after the incident, claimant learned from his father that, at a recent Thanksgiving dinner, Kayvan had confessed to the stabbing. Claimant's response was one of relief because he had been trying to show that he did not commit the crimes for which he had been convicted. When claimant learned that Kayvan was resisting going to the District Attorney's Office to confess, claimant suggested that the family prepare notarized statements regarding Kayvan's confession.

Claimant maintained his innocence throughout his incarceration. At his parole hearing in 2006, seven years after his conviction, claimant refused to admit to the crimes, despite his awareness that this would jeopardize his chances for parole because it would be considered a failure to show remorse (Ex. 24). Indeed, claimant was denied parole on that very basis. Nonetheless, claimant asserted that he would rather spend his life in prison than admit to crimes he had not committed.

Claimant described his relationship with Kayvan since their mid-teens as strained and worsening as they grew older because of Kayvan's selfishness. According to claimant, Kayvan had a history of drug and alcohol abuse before the incident. Since Kayvan's confession, their relationship has been nonexistent. Claimant did concede, however, that Kayvan had visited during claimant's incarceration.

Detrix Richards testified that he did not know any of the people involved in the fight he witnessed on January 11, 1998 when he was seated in the front passenger seat of a car parked across the street from the bar. Richards was listening to music for approximately 10 minutes, when he observed four individuals shouting and fighting outside the bar. He described the location of the fight as the exit of the parking lot a few doors south of the bar. An alleyway from the parking lot led to a shortcut to a nearby 7–Eleven store. According to Richards, two of the young men were obviously intoxicated and yelling at the top of their lungs. He described them as wearing white tee shirts, above average in height and muscular. The other two involved in the fight were wearing jackets and were also above average height.

The fight was in progress when a fifth male, now known to be claimant, appeared. He was wearing a brown jacket with a white collar and was shorter than the others.⁵ Richards further described claimant as having distinctively short, slicked-back hair. Richards observed claimant coming through the alleyway, calm and nonchalant; he tried to walk around the fight and not get involved. Claimant made a hand motion described by Richards as “like we don't need to fight, we don't need to fight” or leave me out...