Owens v. State

• Decision Date: 23 December 2021
• Docket Number: 873 CA 20-01569
• Parties: PHILLIP H. OWENS, CLAIMANT-APPELLANT, v. STATE OF NEW YORK, DEFENDANT-RESPONDENT. (Claim No. 133716)
• Court: New York Supreme Court

2021 NY Slip Op 07374

PHILLIP H. OWENS, CLAIMANT-APPELLANT,
v.
STATE OF NEW YORK, DEFENDANT-RESPONDENT. (Claim No. 133716)

No. 873 CA 20-01569

Supreme Court of New York, Fourth Department

December 23, 2021

ROTH & ROTH, LLP, NEW YORK CITY (ELLIOT D. SHIELDS OF COUNSEL), FOR CLAIMANT-APPELLANT.

LETITIA JAMES, ATTORNEY GENERAL, ALBANY (FRANK BRADY OF COUNSEL), FOR DEFENDANT-RESPONDENT.

PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, NEMOYER, AND CURRAN, JJ.

Appeal from an order of the Court of Claims (Renee Forgensi Minarik, J.), entered May 18, 2020. The order, insofar as appealed from, granted defendant's motion to dismiss and dismissed the amended claim.

It is hereby ORDERED that the order insofar as appealed from is unanimously reversed on the law without costs, the motion is denied, and the amended claim is reinstated.

Memorandum: Claimant commenced this action pursuant to Court of Claims Act § 8-b seeking damages based on allegations that he was wrongly convicted and imprisoned by defendant, State of New York (State). We agree with claimant that the Court of Claims, after granting his cross motion to amend the claim, erred in granting the State's motion to dismiss.

Claimant's criminal prosecution arose from an alleged incident in which claimant, while in a vehicle located in a convenience store parking lot, fired gunshots at a vehicle being driven by claimant's now ex-wife (see People v Owens, 159 A.D.3d 1349, 1350 [4th Dept 2018]). The evidence at the jury trial established that the ex-wife made a 911 call approximately one hour after the shooting in which she reported that she was driving down a street in a green Lexus with the then-four-year-old son of the ex-wife and claimant, and that she was approaching the intersection where the convenience store was located when claimant fired gunshots from a vehicle in the convenience store parking lot. During the intervening hour before the 911 call, the ex-wife had made a significant number of phone calls, including to her divorce attorney. The ex-wife testified regarding the route that she took to the intersection and described seeing claimant firing a gun at her (see id.).

Although multi-camera surveillance video from the convenience store at the intersection where the shooting occurred was admitted in evidence during the prosecution's case-in-chief, it was not played in court until summations (see id. at 1351). Upon watching the video played during the prosecutor's summation, including camera angles from inside the store, claimant recognized the ex-wife as the woman purchasing items and then exiting the convenience store parking lot with two children in a blueish-gray Nissan, which was different from the green Lexus that the ex-wife was supposedly driving when the shooting occurred at the intersection less than two minutes later. Thus, the video evidence depicted the ex-wife leaving the convenience store parking lot in a vehicle with two children even though the prosecution's theory at trial, as supported by the ex-wife's testimony, was that the ex-wife arrived at the scene less than two minutes later, approaching the intersection on a different street from the opposite direction in a different vehicle, with just the son in the back seat (see id.).

The criminal court denied claimant's motion to reopen the proof to recall the ex-wife for further cross-examination about the video evidence. Thereafter, claimant was convicted of one count each of attempted assault in the first degree (Penal Law §§ 110.00, 120.10 [1]) and criminal possession of a weapon in the third degree (§ 265.02 [1]) and two counts of criminal possession of a weapon in the second degree (§ 265.03 [1] [b]; [3]). Claimant was sentenced to a controlling determinate term of imprisonment of 13 years.

On appeal, we reversed the judgment of conviction on two grounds, including that the criminal court abused its discretion in denying claimant's motion to reopen the proof (see Owens, 159 A.D.3d at 1351-1353). We noted that defense counsel "set forth a proffer of material evidence that was directly relevant to the issue whether the alleged victim and sole eyewitness had fabricated her story or...