### Kirk v State of New York 2001 NY Slip Op 30104(U) November 13, 2001

Court of Claims Docket Number: Claim No. 104652 Judge: Philip J. Patti Cases posted with a "30000" identifier, i.e., 2013 NY Slip

Op 30001(U), are republished from various New York State and local government sources, including the New

York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.<& /claims/inclusions/header.htm &> 

# KIRK

# v. THE STATE OF NEW YORK, #2001-013- 027, Claim No. 104652, Motion No. M-63929 Synopsis

A criminal conviction that is reversed onthe ground that the defendant's rightto counsel was violated does not give rise to a cause ofaction for unjust conviction (Court ofClaims Act §8-a). 

# Case Information

UID: Claimant(s): Claimant short name: Footnote (claimant name): Defendant(s): Footnote (defendant name): Third-party claimant(s): Third-party defendant(s): Claim number(s): Motion number(s): Cross-motion number(s): Judge: Claimant's attorney:
Defendant's attorney: Third-party defendant's attorney: Signature date: City: Comments: Official citation: Appellate results: See also (multicaptioned case)

Decision 2001-013-027 WESLEY A. KIRK KIRK
THE STATE OF NEW YORK

104652 M-63929
PHILIP J. PATTI WESLEY A. KIRK, Pro Se HON. ELIOT SPITZER Attorney General ofthe State ofNew York BY: THOMAS G. RAMSAY, ESQ.Assistant Attorney General

November 13, 2001 Rochester

On September 19, 2001, the following papers were read on Defendant's motion for an order ofdismissal:1. Notice ofMotion and Supporting Affirmation ofThomas G. Ramsay, Esq. ("Ramsay Affirmation"), with annexed Exhibits and Memorandum ofLaw 2. Affidavit in Opposition ("Answering Affidavit") ofWesley A. Kirk,

### pro se ("Kirk Affidavit") 3. Reply Affirmation ofThomas G. Ramsay, Esq. ("Ramsay Reply Affirmation") 4. Filed papers: Claim

The many factual allegations in the claim relate to Claimant's 1996 arrest and 1997 conviction and subsequent imprisonmentfor the crimes ofburglary, criminal mischiefand contempt. On appeal to the Fourth Department, the conviction was reversed and the indictment was dismissed (Peo12le v Kirk, 275 AD2d 983, 

### rearg denied

__ AD2d

__ , 

### Iv denied 96 NY2d 736), and Claimant was released from prison on October 11, 2000. Claimant characterizes his claim as asserting the following causes ofaction: (1) false arrest; (2) "false words causing special damages;" (3) malicious prosecution; (4) false imprisonment; (5) constitutional violations; (6) abuse of process; (7) fraud and misrepresentation; (8) unjust conviction and detention; (9) "liability imposed by statute;" and (10) "fraud & misrepresentation, negligence, abuse ofprocess, acts/omissions." Defendant now moves for an order dismissing the claim onthe ground that none ofthe allegations set forth a viable cause ofaction against the State ofNew York. Claimant's first cause ofaction, purportedly for false arrest, is based onthe alleged actions ofofficers ofthe Dansville Police Department, the Livingston County District Attorney, and a private party. None ofthese individuals are State employees, nor were they acting as agents ofthe State when carrying outthe actions in question. Similarly, the second, third, sixth, seventh, and ninth causes ofaction relate only to statements made and actions taken by private parties, Dansville Police officers, the District Attorney, and other Livingston County authorities. Claimant's fourth cause ofaction, denominated as one for false imprisonment, relates to the State only because he was incarcerated in facilities operated bythe Department ofCorrectional Services. That confinement was privileged, however, because he was lawfully imprisoned pursuant to a sentencing order from an appropriate court .(Broughton v State ofNew York, 37 NY2d 451). To the extentthat any part ofthe fifth cause ofaction, asserting various violations ofthe United States Constitution, may relate to State actions or State officers, they also must fail, because there exists no cause ofaction againstthe State ofNew York for alleged violations ofan individual's rights under the United States Constitution (Davis v State ofNew York 124 AD2d 420; Matter of Thomas v New York Tem12orarY. State Comm. on Regulation ofLobbY.ing, 83 AD2d 723, 

### affd 56 NY2d 656), and the State is not a "person" amenable to suit under 42 USC § 1983 (Will v Michigan De12t. of State Police 491 US 58). Also included inthe fifth cause ofaction are allegations that during the period from August 1997to April 1999, Claimant's prison cell was searched every few weeks by prison guards and his property was confiscated or destroyed. Inasmuch as the claim in this action was filed in July 2001, this cause ofaction, which could properly be brought againstthe State, is untimely. Claimant's effort to argue thatthis conduct continued until the date ofhis release, October 2000, is unavailing, because a notice ofintention was not served nor was a claim served and filed within ninety days ofthat date (Court ofClaims Act §10[3]). The only part ofthe tenth cause ofaction that relates to State officials is based on allegations thatthe Appellate Division, Fourth Department wrongfully failed to grant a motion for summaryjudgment in a December 1997 decision. The official actions of judges are entitled to absolute immunity (Fields v Soloff, 920 F2d 1114, 1119 [2nd Cir. 1990]), an immunity which bars any suit in this Court which seeks to impose liability on the State based on decisions issued by itsjudges (HarleY. v State ofNew York, 186 AD2d 324). Claimant's eighth cause ofaction alleges that he is entitled to money damages for unjust conviction and detention, pursuantto Court ofClaims Act §8-b, for the 1,451 days ofhis sentence that he served before being released from prison. The basis ofthatreversal was the Fourth Department's determination thatthere had been a violation ofClaimant's right to counsel at a critical stage ofthe criminal proceedings (Peo12le v Kirk 275 AD2d 983, 

### supra). In order to successfully maintain a claim for unjust conviction, the statute requires that a claimantprove, among other things, thathe was pardoned on the ground ofinnocence, orthat the accusatory instrument was dismissed,or he was found not guilty after a new trial after his conviction was reversed orvacated on one ofthe following grounds: (A) CPL §440.10 (1) (a) lack ofpersonal or subject matterjurisdiction CPL §440.10 (1) (b) duress, misrepresentation, orfraud CPL §440.10 (1) (c) false evidence CPL §440.10 (1) (e) incapacity ofdefendant CPL §440.10 (1) (g) newly discovered evidence (B) CPL §470.20 (1) reversal

-- ifbased on one ofthe grounds in (A)

-- and new trial CPL §470.20 (2) reversal on grounds oflegal insufficiency and entire accusatory instrument must be dismissed CPL §470.20 (3) modification of judgmentfor legal insufficiency and dismissal ofone count, ifcount dismissed was sole basis ofimprisonment CPL §470.20 (5) reversal ormodification as against the weight ofthe evidence, accusatory instrument must be dismissed (C) comparable provisions offormer Code ofCriminal Procedure (D) the criminal statute, or application thereof, violated the state or federal Constitutions Claimant's conviction was reversed pursuantto CPL §470.20(1), which permits reversal "for error or defect which resulted in prejudice to the defendant or deprived him ofa fair trial." As indicated above, however, in orderto give rise to a cause ofaction for unjust conviction, such a reversal must be "based upon grounds set forth in item (A) hereof', i.e., for lack ofpersonal or subject matterjurisdiction; duress, misrepresentation, or fraud; false evidence; incapacity ofdefendant; or newly discovered evidence. Subdivision (h) ofCPL §440.10(1), which permits reversal of judgments "obtained in violation ofa right ofthe defendant underthe constitution ofthis state or ofthe United States"

-- which includes the right to the assistance ofcounsel at critical stages in the proceedings (PeoJlle v ChaJlman 69 NY2d 497; Coleman v Alabama 399 US 1, 7)

-- is not listed as one ofthe statutory grounds recognized by Court ofClaims Act §8-b. Consequently, a criminal conviction that is reversed on the ground that the defendant's right to counsel was violated cannot give rise to a cause ofaction for unjust conviction and imprisonment, because such a reversal is notbased on one ofthe grounds enumerated in the statute (see, Fudger v State ofNew York, 131 AD2d 136 [doublejeopardy]; Gordon v State ofNew York, 141 Misc 2d 242 [due process: tainted identification procedure]; seealso, TY.son v State ofNew York, 182 Misc 2d 707 [reversal based on CPL §440. l0(l)(f)]). I find no merit to Claimant's argument that the reversal was also based onthe criminal court's lack of jurisdiction, which is one ofthe enumerated grounds. In light ofthese rulings, the Court need not address Defendant's arguments regarding the timeliness ofthe various causes ofaction. Defendant's motion is granted, and Claim No. 104652 is dismissed.

November 13, 2001 Rochester, New York HON. PHILIP J. PATTI Judge ofthe Court ofClaims

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