Wilson v. State
| Decision Date | 19 March 2013 |
| Docket Number | No. 120470.,120470. |
| Citation | 971 N.Y.S.2d 75,2013 N.Y. Slip Op. 50738,39 Misc.3d 1226 |
| Parties | Abdullah WILSON a/k/a George Wilson, Claimant, v. The STATE of New York, Defendant. |
| Court | New York Court of Claims |
OPINION TEXT STARTS HERE
Ameer Benno, Esq., Benno & Associates, P.C., for claimant.
Eric T. Schneiderman, NYS Attorney General, by Janet Polstein, Assistant Attorney General, for defendant.
Claimant Abdullah Wilson alleges a cause of action against the State of New York pursuant to the Unjust Conviction and Imprisonment Act of 1984, codified as section 8–b of the Court of Claims Act. The claim arises out of Wilson's 1995 conviction for robbery in the second degree, overturned in 2009 by the United States Court of Appeals for the Second Circuit on a petition for a writ of habeas corpus ( see Wilson v. Mazzuca, 570 F.3d 490 [2d Cir2009] ). Specifically, the Second Circuit directed that the writ be issued unless Wilson was promptly retried. The State Supreme Court then granted the People's motion to dismiss the indictment in the interest of justice, and this action followed.
Defendant State of New York now moves to dismiss the claim on the grounds that it fails to state a cause of action, and fails to comply with the requirements of Court of Claims Act § 8–b (3) and (4).1 Claimant opposes defendant's motion and cross-moves for leave to amend his claim pursuant to CPLR 3025(b).2 Defendant opposes the cross motion.
On December 22, 1992, Roger Erra was robbed at gunpoint by two men at his place of business.3 On October 27, 1994, Wilson was arrested for an unrelated offense. Erra picked Wilson out of a line-up the following day, and Wilson was then charged with robbery in the first and second degree.
Wilson was tried before a jury in New York State Supreme Court, Queens County, in September 1995. In the midst of the trial, the judge placed on the record his concern that Wilson might not be receiving effective representation, based on certain decisions made by defense counsel Frank GaNun. Specifically, the judge recounted what he believed to be counsel's mistakes, and then stated the following: (Wilson, 570 F.3d at 495). In response, GaNun assured the court that he had a trial strategy underpinning his various decisions, and the case proceeded to verdict ( id.). On October 4, 1995, Wilson was found guilty of robbery in the second degree (Penal Law § 160.10), but was acquitted of the first-degree charge.
On November 15, 1995, Wilson was sentenced to a prison term of seven-and-one-half to fifteen years. He appealed the conviction, but the appeal was not perfected until November 1999. While the appeal was pending, in October 1998 Wilson filed a motion with the trial court to set aside the judgment pursuant to Criminal Procedure Law § 440.10, on the ground that his trial counsel had been ineffective. The motion was denied.
The Second Department affirmed Wilson's conviction, and stated that “defendant's contention that he was denied the effective assistance of counsel is without merit” (People v. Wilson, 272 A.D.2d 633, 633, 709 N.Y.S.2d 415 [2d Dept 2000] ). Leave to appeal was denied ( People v. Wilson, 95 N.Y.2d 940 [2000] ).4
On April 9, 2001, Wilson filed a petition for a writ of habeas corpus pursuant to 28 USC § 2254 in the United States District Court for the Eastern District of New York. The petition asserted, inter alia, that Wilson had been convicted in violation of his Sixth Amendment right to effective assistance of trial counsel. The District Court referred the matter to a magistrate judge, who recommended denying the petition ( Wilson v. Mazzuca, 2003 U.S. Dist LEXIS 27420 [ED NY, Jan. 16, 2003] ). The recommendation was adopted by the District Court ( Wilson v. Mazzuca, 2003 U.S. Dist LEXIS 27421 [ED NY, May 30, 2003] ), but the Court of Appeals for the Second Circuit vacated the denial and remanded the matter to “afford Wilson's trial counsel the opportunity to explain his actions” (Wilson v. Mazzuca, 119 Fed Appx 336, 337 [2d Cir2005] ).
The District Court again referred the petition to a magistrate judge, who conducted an evidentiary hearing at which GaNun testified about his conduct at the criminal trial. On June 30, 2006, the magistrate found that Wilson had established a valid claim of ineffective assistance of counsel, and recommended granting the petition (Wilson v. Mazzuca, 2006 WL 4401020 [ED NY, June 30, 2006] ). The magistrate applied the two-pronged test for ineffective assistance set forth in Strickland v. Washington (466 U.S. 668 [1984] ). Under the Strickland test, a party asserting that he or she was convicted in violation of the Sixth Amendment right to effective assistance of counsel must show that: (1) counsel's performance was constitutionally deficient (the “performance” prong), and (2) but for counsel's unprofessional errors, there is a “reasonable probability” that the outcome of the proceeding would have been different (the “prejudice” prong).
The magistrate judge found that, as to the performance prong, “the cumulative weight of GaNun's errors deprived Wilson of his Sixth Amendment right to counsel” (Wilson, 2006 WL 4401020, at *15). Specifically, the magistrate held that counsel: 1) opened the door to the introduction of his client's criminal history by presenting character testimony; 2) introduced into evidence a 1994 police complaint report against Wilson; 3) opened the door to Erra's photo array identification of Wilson; 4) failed to object to the use of the term “mugshots” and “mug books” or to seek redaction of the “mugshot” photo to remove the booking plate; and 5) elicited testimony from the complainant regarding his fear of retaliation. As to the prejudice prong, the magistrate concluded: “there is a reasonable probability that, but for GaNun's errors, the jury would not have reached a unanimous verdict of guilt” ( id. at *17).
The District Court declined to follow the magistrate's recommendation. Though the court agreed that aspects of the performance by Wilson's trial counsel were constitutionally deficient, it determined that Wilson had failed to show sufficient “prejudice,” stating: “it cannot be said, to a reasonable degree of probability, that even a mistake-free presentation of the defense offered at trial, would have resulted in an outcome other than a verdict of guilty” (Wilson v. Mazzuca, 2007 WL 952037, *20 [ED NY, June 29, 2007] ).
The matter was appealed to the United States Court of Appeals for the Second Circuit, which reversed. The Second Circuit found that but for the substantial errors committed by trial counsel, there was a “reasonable probability” that Wilson would not have been convicted, and that it was an “unreasonable application of Strickland for the Appellate Division to deny Wilson's claim of ineffective assistance of counsel” 5 ( Wilson v. Mazzuca, 570 F.3d 490, 508 [2d Cir2009] ). The Court of Appeals directed the District Court to issue a writ of habeas corpus to Wilson, unless the District Attorney took substantial steps to expeditiously retry Wilson ( id. at 508).
On October 19, 2009, the Queens County District Attorney opted not to retry the case and moved to dismiss the indictment in the interest of justice. The prosecutor noted that Wilson had already served his entire prison sentence, and had been released from parole approximately one year earlier.6 Thus, he opined that “nothing is to be gained from retrying the case” (Proposed Amended Claim, Ex. R). The Supreme Court, Queens County, granted the People's motion and dismissed the case ( id.).
Wilson filed the present claim pro se on October 14, 2011. In the claim, Wilson contends inter alia that the case against him was based on a single eyewitness (Erra), whom he asserts had lied in his testimony; that Erra's testimony should have been discredited by the findings of a private investigator; that John Lucas—an employee of Erra's who was present during the robbery—was available to testify at the time, although Erra claimed he was not; and that Lucas would have given testimony favorable to Wilson.
Defendant now moves to dismiss the claim on three grounds: (1) claimant has failed to meet the pleading requirements of Court of Claims Act § 8–b (3), since neither of the bases on which his conviction was overturned—ineffective assistance of counsel and dismissal in the interest if justice—constitutes a predicate ground for vacatur as required by the Act; (2) claimant has failed to provide the documentary evidence required by section 8–b (3); and (3) claimant has failed to meet the pleading requirements of Court of Claims Act § 8–b (4), since he has not shown that he is likely to succeed at trial. Claimant, now represented by counsel, has filed papers in opposition to the motion, and cross-moves to file an amended claim.
To state a claim for wrongful conviction under Court of Claims Act § 8–b, the claimant must demonstrate as “step one” that his conviction was overturned under one of the grounds specifically set forth in section 8–b (3) (David W. v. State of New York, 27 A.D.3d 111, 114, 808 N.Y.S.2d 741 [2d Dept 2006] ). For reasons set forth below, I find that claimant has not made that showing. Because this finding compels dismissal, I need not address the other grounds raised in defendant's motion.
As relevant here, section 8–b (3)(b)(ii) provides that to present a claim for unjust conviction, claimant must establish by documentary evidence that the vacatur of his conviction was based upon any of the grounds set forth in CPL 440.10(1)(a), (b), (c), (e), or (g)7
The CPL 440.10(1) predicate grounds are as follows:
“(a) The court did not have jurisdiction of the action or of theperson of the defendant; or
(b) The judgment was procured by duress,...
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