Gordon v. State

• Decision Date: 27 September 1988
• Docket Number: No. 76552,76552
• Citation: 533 N.Y.S.2d 219,141 Misc.2d 242
• Parties: Walter GORDON, Claimant, v. The STATE of New York, Defendant. Claim
• Court: New York Court of Claims

Page 219

533 N.Y.S.2d 219

141 Misc.2d 242

Walter GORDON, Claimant, v. The STATE of New York, Defendant.

Claim No. 76552.

Court of Claims of New York.

Sept. 27, 1988.

Robert C. Goldstein, for claimant.

Robert Abrams, Atty. Gen. (Robert S. Hammer, of counsel), for defendant.

OPINION

GERARD M. WEISBERG, Judge.

Walter Gordon filed a claim under the Unjust Conviction and Imprisonment Act of 1984 (L.1984, ch. 1009, adding Court of Claims Act § 8-b) and the State has moved to dismiss. The issue before us is whether the reversal of claimant's conviction as a result of the improper admission of identification testimony tainted by unduly suggestive procedures, and the later dismissal of the indictment in the interest of justice, satisfies the grounds for relief specified in section 8-b(3)(b)(ii) of the Act.

On September 22, 1979, Melvin Penn and Kendall Russell were robbed by five teenagers, three of whom were armed. Two days later, both Penn and Russell viewed some 400 photographs of young males at a police precinct. Although they were seated at opposite ends of a table, they conferred during the selection process. Claimant's identification was the product of a "concensus" between Penn and Russell. (People v. Gaddy, 98 A.D.2d 729, 730, 469 N.Y.S.2d 143.)

On October 8, 1979, the complainants returned to the precinct and separately viewed lineups containing Gordon. They were not told that any of the men whose photographs they had selected would be present. Rather, they were instructed to see if they recognized any of the participants and to make an identification only if they were absolutely sure and 100% positive. Penn made a positive identification of claimant. Russell also selected him but stated that she was only 85% certain that he was one of the robbers.

At the first identification suppression hearing held under the authority of United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 and its progeny, the trial court found that the lineups were fairly conducted and ruled that both Penn and Russell could make in-court identifications and also allowed Penn to testify to his previous lineup selection. At trial, both identified claimant and he was convicted. On appeal, the Second Department remitted for a de novo Wade hearing with the appeal to be held in abeyance pending such review. (People v. Gaddy, 98 A.D.2d 729, 731, 469 N.Y.S.2d 143, supra.)

At the second Wade hearing, it was developed that in addition to allowing the complainants to confer over the selection of photographs, claimant had been the shortest and youngest member of both lineups. Moreover, Russell's recollection of the features of the robber she had identified as claimant was very confused. Based thereon, the trial court found the photograph selection and lineup procedures to be unduly suggestive. The Appellate Division agreed, reversed the conviction and remanded for a new trial at which the only identification testimony to be permitted would be in-court by Penn who was found to have had an independent recollection of the robbers. (People v. Gaddy, 115 A.D.2d 658, 496 N.Y.S.2d 495 cf., United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, supra.)

A new trial never took place, however. After repeated adjournments necessitated by the District Attorney's inability to locate Penn, Criminal Term of the Supreme Court dismissed the indictment, on claimant's motion, in the interest of justice. (CPL 210.20.) The Court felt that Gordon's lack of a criminal record and the burden the repeated court appearances was having on his ability to earn a living justified such relief in the face of the prosecution's lack of diligence. (Cf., Matter of Holtzman v. Goldman, 71 N.Y.2d 564, 528 N.Y.S.2d 21, 523 N.E.2d 297.)

Gordon, who had been allegedly incarcerated for approximately five years at the time of the reversal, then filed a claim for $1,000,000 under section 8-b of the Court of Claims Act. Defendant moves to dismiss asserting that the reversal of claimant's conviction was on constitutional grounds excluded from Court of Claims Act § 8-b(3)(b)(ii).

In order to present a claim under section 8-b, claimant must establish by documentary evidence, among other things, that: "his judgment of conviction was reversed or vacated, and the accusatory instrument dismissed, or if a new trial was ordered, either he was found not guilty at the new trial or he was not retried and the accusatory instrument dismissed; provided that the judgment of conviction was reversed or vacated, and the accusatory instrument was dismissed, on any of the following grounds: (A) paragraph (a), (b), (c), (e) or (g) of subdivision one of section 440.10 of the criminal procedure law; or (B) subdivision one (where based upon grounds set forth in item (A) hereof), two, three (where the count dismissed was the sole basis for the imprisonment complained of) or five of section 470.20 of the criminal procedure law; " (Court of Claims Act § 8-b[3][b][ii].)

Inasmuch as the Appellate Division reversed and remanded, it would appear that that tribunal was acting pursuant to the first paragraph of CPL 470.20, which is the only subdivision of that statute which authorizes a remand. Section 8-b(3)(b)(ii) therefore requires that the reversal have been under paragraphs (a), (b), (c), (e) or (g) of CPL 440.10. These grounds are limited to jurisdictional questions (CPL 440.10[1][a] ); fraud, misrepresentation or duress (CPL 440.10[1][b] ); false material evidence (CPL 440.10[1][c] ); incapacity of the defenda (CPL 440.10[1][e] ); and newly discovered evidence (CPL 440.10[1][g] ). While due process considerations serve as the basis for some or all of these provisions (see, People v. Novoa, 70 N.Y.2d 490, 522 N.Y.S.2d 504, 517 N.E.2d 219), reversals on other constitutional grounds are excluded. (See, 440.10[1][d], [h].)

Claimant asserts that his conviction was reversed under CPL 440.10(1)(b), which authorizes the vacating of a judgment "procured by duress, misrepresentation or fraud on the part of the court or a prosecutor or a person acting for or in behalf of a court or a prosecutor." Claimant argues that the police responsible for conducting what was found to be an unduly suggestive lineup and photograph viewing session were persons acting for or on behalf of the prosecution. While this may be true, it is insufficient to justify relief under CPL 440.10. Implicit in the argument is the assertion that the detectives' conduct was tantamount to fraud, misrepresentation or duress within the meaning of the statute. We disagree.

CPL 440.10 is a codification of the writ of coram nobis. (35 NY.Jur.2d, Criminal Law, § 2968.) Under this doctrine, as found in CPL 440.10(1)(b) and (c), a new trial will be ordered only where a guilty plea was procured through a misrepresentation by the prosecution or court to the defendant concerning a possible sentence (see, e.g., People v. Shelton, 100 A.D.2d 775, 474 N.Y.S.2d 49), or other material element of the case (see, e.g., People v. Pelchat, 62 N.Y.2d 97, 476 N.Y.S.2d 79, 464 N.E.2d 447; People v. Picciotti, 4 N.Y.2d 340, 175 N.Y.S.2d 32, 151 N.E.2d 191), or where a judgment was obtained on the basis of false evidence which a prosecutor knew to be such. (See, e.g., People v. Savvides, 1 N.Y.2d 554, 154 N.Y.S.2d 885, 136 N.E.2d 853; cf., People v. Fancher, 53 A.D.2d 776, 384 N.Y.S.2d 550.) Although presently listed as separate provisions of CPL 440.10, typically the same fact pattern can justify relief under either subdivision. For example, in People v. Robertson, 12 N.Y.2d 355, 360, 239 N.Y.S.2d 673, 190 N.E.2d 19, where the defendant was convicted upon a detective's unintentional false testimony, which he later recanted, the Court reversed and stated: "giving of carelessly false testimony is in its own way as much of a 'fraud' on the court as if it were deliberate."

Thus, a plea or judgment obtained by false testimony is one procured through fraud. However, the sine qua non for relief under either subdivision is that the defendant or court was told something which was not true. While it is possible that the police could so threaten or mislead a witness as to actually create a false identification sufficient to justify CPL 440.10(1)(b) or (c) relief (cf., Lluveras v. State of New York, 136 Misc.2d 171, 518 N.Y.S.2d 548; People v. Attiya, 128 Misc.2d 452, 488 N.Y.S.2d 954, revd., 126 A.D.2d 733, 511 N.Y.S.2d 134), that is not the situation here. The photograph viewing session was tainted by the complainants' conduct alone, and although the lineups failed to pass constitutional muster, the procedures employed were hardly tantamount to fraud. Neither Penn nor Russell were told that the suspects they had selected would be present and they were warned to make an identification only if 100% positive. (Cf., People v. Ballard, App.Div., 528 N.Y.S.2d 615.) Most importantly, Russell never recanted her testimony and asserted that she was 85% certain that claimant was her assailant. The Appellate Division reversal was not based on a false identification having been made but on the grounds that an incorrect identification was possible and that due process considerations prohibited subjecting claimant to such risk. (Cf., People v. Ballott, 20 N.Y.2d 600, 286 N.Y.S.2d 1, 233 N.E.2d 103.) The reversal was therefore on constitutional grounds (see, CPL 440.10[1][h] ) other than those authorized by Court of Claims Act § 8-b(3)(b)(ii). (Forest v. State of New York, NYLJ, Jan. 7, 1988, at 12, col. 5.) The claim fails to allege a cause of action.

An alternative basis for our holding, although not raised by the parties, can be found in the question of whether the trial court's dismissal of the indictment must also come within the statutes listed in section 8-b(3)(b)(ii). That section provides that if a new trial was ordered but the defendant was not retried, in order to be entitled to present a claim before this Court, we must find "that the judgment of...