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

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Op 30001(U), are republished from various New York

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This opinion is uncorrected and not selected for official

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KIRK v. THE STATE OF NEW YORK, #2001-013-

027, Claim No. 104652, Motion No. M-63929 

Synopsis 

A criminal conviction that is reversed on the ground that the defendant's right to counsel was violated does not 

give rise to a cause of action for unjust conviction (Court of Claims Act §8-a). 

Case Information 

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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 of the State of New 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 of dismissal: 
1. Notice of Motion and Supporting Affirmation of Thomas G. Ramsay, Esq. ("Ramsay Affirmation"), with 

annexed Exhibits and Memorandum of Law 

2. Affidavit in Opposition (" Answering Affidavit") of Wesley A. Kirk, pro se ("Kirk Affidavit") 

3. Reply Affirmation of Thomas 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 

imprisonment for the crimes of burglary, criminal mischief and 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 of action: (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 of process, acts/omissions." Defendant now moves for an 

order dismissing the claim on the ground that none of the allegations set forth a viable cause of action against the 

State of New York. 

Claimant's first cause of action, purportedly for false arrest, is based on the alleged actions of officers of the 

Dansville Police Department, the Livingston County District Attorney, and a private party. None of these 

individuals are State employees, nor were they acting as agents of the State when carrying out the actions in 

question. Similarly, the second, third, sixth, seventh, and ninth causes of action 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 of action, denominated as one for false imprisonment, relates to the State only because he 

was incarcerated in facilities operated by the Department of Correctional Services. That confinement was 

privileged, however, because he was lawfully imprisoned pursuant to a sentencing order from an appropriate 

court .(Broughton v State of New York, 3 7 NY2d 451 ). To the extent that any part of the fifth cause of action, 

asserting various violations of the United States Constitution, may relate to State actions or State officers, they 

also must fail, because there exists no cause of action against the State of New York for alleged violations of an 

individual's rights under the United States Constitution (Davis v State of New 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 in the fifth cause of action are allegations that during the period from August 1997 to 

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 of action, which 

could properly be brought against the State, is untimely. Claimant's effort to argue that this conduct continued 

until the date of his release, October 2000, is unavailing, because a notice of intention was not served nor was a 

claim served and filed within ninety days of that date (Court of Claims Act §10[3]). 

The only part of the tenth cause of action that relates to State officials is based on allegations that the Appellate 

Division, Fourth Department wrongfully failed to grant a motion for summary judgment 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 its judges (HarleY. v State of New York, 186 AD2d 324). 

Claimant's eighth cause of action alleges that he is entitled to money damages for unjust conviction and 

detention, pursuant to Court of Claims Act §8-b, for the 1,451 days of his sentence that he served before being 

released from prison. The basis of that reversal was the Fourth Department's determination that there had been a 

violation of Claimant's right to counsel at a critical stage of the criminal proceedings (Peo12le v Kirk 275 AD2d 

983, supra). 

In order to successfully maintain a claim for unjust conviction, the statute requires that a claimant prove, among 

other things, that he was pardoned on the ground of innocence, or that the accusatory instrument was dismissed, 
or he was found not guilty after a new trial after his conviction was reversed or vacated on one of the following 

grounds: 

(A) CPL §440.10 (1) (a) lack of personal or subject matter jurisdiction 

CPL §440.10 (1) (b) duress, misrepresentation, or fraud 

CPL §440.10 (1) (c) false evidence 

CPL §440.10 (1) (e) incapacity of defendant 

CPL §440.10 (1) (g) newly discovered evidence 

(B) CPL §470.20 (1) reversal -- if based on one of the grounds in (A) -- and new trial 

CPL §470.20 (2) reversal on grounds of legal insufficiency and entire accusatory instrument must be dismissed 

CPL §470.20 (3) modification of judgment for legal insufficiency and dismissal of one count, if count dismissed 

was sole basis of imprisonment 

CPL §470.20 (5) reversal or modification as against the weight of the evidence, accusatory instrument must be 

dismissed 

(C) comparable provisions of former Code of Criminal Procedure 

(D) the criminal statute, or application thereof, violated the state or federal Constitutions 

Claimant's conviction was reversed pursuant to CPL §470.20(1), which permits reversal "for error or defect 

which resulted in prejudice to the defendant or deprived him of a fair trial." As indicated above, however, in 

order to give rise to a cause of action for unjust conviction, such a reversal must be "based upon grounds set forth 

in item (A) hereof', i.e., for lack of personal or subject matter jurisdiction; duress, misrepresentation, or fraud; 

false evidence; incapacity of defendant; or newly discovered evidence. Subdivision (h) of CPL §440.10(1 ), which 

permits reversal of judgments "obtained in violation of a right of the defendant under the constitution of this state 

or of the United States" -- which includes the right to the assistance of counsel at critical stages in the 

proceedings (PeoJlle v ChaJlman 69 NY2d 497; Coleman v Alabama 399 US 1, 7) -- is not listed as one of the 

statutory grounds recognized by Court of Claims 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 of action for unjust 

conviction and imprisonment, because such a reversal is not based on one of the grounds enumerated in the 

statute (see, Fudger v State of New York, 131 AD2d 136 [double jeopardy]; Gordon v State of New York, 141 

Misc 2d 242 [due process: tainted identification procedure]; see also, TY.son v State of New 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 on the criminal court's lack of jurisdiction, which is one of the enumerated grounds. 

In light of these rulings, the Court need not address Defendant's arguments regarding the timeliness of the various 

causes of action. 

Defendant's motion is granted, and Claim No. 104652 is dismissed. 

November 13, 2001 

Rochester, New York 

HON. PHILIP J. PATTI 

Judge of the Court of Claims 

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