SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

646 

CA 13-01679 

PRESENT: SCUDDER, P.J., FAHEY, CARNI, VALENTINO, AND WHALEN, JJ. 

 

DANIEL G. GRISTWOOD, CLAIMANT-RESPONDENT, 

V MEMORANDUM AND ORDER

STATE OF NEW YORK, DEFENDANT-APPELLANT. 

(CLAIM NO. 114040.) 

 

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (ROBERT M. GOLDFARB OF

COUNSEL), FOR DEFENDANT-APPELLANT. 

LYNN LAW FIRM, LLP, SYRACUSE (PATRICIA A. LYNN-FORD OF COUNSEL), FOR

CLAIMANT-RESPONDENT. 

 

Appeal from a judgment of the Court of Claims (Nicholas V. Midey,

Jr., J.), entered May 7, 2013. The judgment awarded claimant money

damages after a trial for unjust conviction and imprisonment. 

It is hereby ORDERED that the judgment so appealed from is

unanimously affirmed without costs.

Memorandum: In this action for damages for wrongful conviction

and imprisonment pursuant to Court of Claims Act § 8-b, defendant,

State of New York (State), appeals from a judgment that, after a

bifurcated trial, awarded claimant damages in the sum of $5,485,394. 

In 1996, claimant was convicted of attempted murder in the second

degree (Penal Law §§ 110.00, 125.25 [1]) and criminal possession of a

weapon in the fourth degree (§ 265.01 [2]) following an assault upon

his wife that occurred on January 12, 1996. The only evidence linking

claimant to the crime was an inculpatory statement he made to the

police, and claimant otherwise maintained his innocence throughout the

criminal proceeding.

Claimant was sentenced to concurrent terms of incarceration of

121⁄2 to 25 years on the attempted murder count and one year on the

criminal possession of a weapon count. However, in 2003, an

individual came forward and gave statements to the New York State

Police in which he confessed to the attack on claimant’s wife and

provided extensive details that accurately described the crime scene

and the attack. Claimant moved pursuant to CPL 440.10 (1) (g) to

vacate the judgment of conviction on the ground that the individual’s

statements constituted “newly discovered evidence.” Following a

hearing, County Court granted the motion, and the indictment was

dismissed on July 20, 2006. As a result, claimant was released from

prison after being incarcerated for more than nine years, and he
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thereafter brought this claim. 

We reject the State’s contention that the Court of Claims erred

in excluding the transcripts of claimant’s criminal trial. Whether

evidence should be excluded as cumulative is a determination that

rests within the sound discretion of the court, and we conclude that

the exclusion of the transcripts was not an abuse of discretion in

this case (see generally Cor Can. Rd. Co., LLC v Dunn & Sgromo Engrs.,

PLLC, 34 AD3d 1364). The State failed to offer the transcripts of the

CPL 440.10 hearing in evidence and thus has failed to preserve for our

review its contention that those transcripts should have been admitted

in evidence (see Goncalves v State of New York, 1 AD3d 914, 914). 

We reject the State’s further contention that claimant failed to

establish by the requisite clear and convincing evidence that he “did

not commit any of the acts charged in the accusatory instrument”

(Court of Claims Act § 8-b [5] [c]). A determination of the Court of

Claims will not be set aside unless the court’s conclusions could not

have been reached upon any fair interpretation of the evidence (see

Supensky v State of New York, 2 AD3d 1436, 1437). We conclude that

the court properly determined that the statements of the individual

who came forward in 2003, which were amply corroborated by other

evidence, and the absence of any other evidence linking claimant to

the crime, established by the appropriate quality of proof that

claimant did not commit the acts alleged in the accusatory instrument

(see § 8-b [5] [c]).

We reject the State’s further contention that, because claimant

made an inculpatory statement, the record does not support the

determination that claimant established by clear and convincing

evidence that he did not “by his own conduct cause or bring about his

conviction” (Court of Claims Act § 8-b [5] [d]). Claimant

consistently maintained his innocence and contended that his

inculpatory statement was coerced. “[A] coerced false confession does

not bar recovery under section 8-b because it is not the claimant’s

‘own conduct’ within the meaning of the statute” (Warney v State of

New York, 16 NY3d 428, 436). It is well settled that “[t]he

voluntariness of a confession can only be determined through an

examination of the totality of the circumstances surrounding the

confession” (People v Leonard, 59 AD2d 1, 12; see Clewis v Texas, 386

US 707, 708-711). “Relevant criteria include the duration and

conditions of detention, the manifest attitude of the police toward

the detainee, the existence of threat or inducement, and the age,

physical state and mental state of the detainee” (Leonard, 59 AD2d at

13; see also Brown v United States, 356 F2d 230, 232). The use or

misuse of a polygraph examination is also a factor to be considered in

determining whether there was impermissible coercion (see Leonard, 59

AD2d at 14-15). 

Here, we conclude that the record fully supports the court’s

determination that claimant’s inculpatory statement was the product of

police misconduct (see Warney, 16 NY3d at 436). Claimant was awake

for 34 hours before making his only inculpatory statement, which was
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CA 13-01679 

the second statement he made. He had been interrogated for 15 hours

in a six- by eight-foot windowless room. He ate nothing and drank

only one can of soda and, although he was a heavy smoker, he had no

cigarettes in the prior four or five hours. He remained under the

severe emotional trauma of having seen his wife in a horrible bloodied

and battered condition. Claimant was advised that, if he took a

polygraph exam and passed, he would be permitted to go home.

Notably, the polygraph operator expressed significant concern to

fellow officers about the reliability of the polygraph exam because

claimant was “somewhat physiologically unresponsive to the polygraph.” 

The operator acknowledged that claimant was trying not to fall asleep

during the exam. Claimant experienced severe chest pains during the

exam. Nevertheless, after the polygraph exam, the interrogation took

on an increasingly aggressive and hostile tone, and claimant was told

by the police that he was “lying.” Claimant’s inculpatory statement

was made after he was threatened that he would never see his family

again if he did not cooperate. Thus, in view of the totality of

circumstances surrounding claimant’s statement, and giving due

deference to the findings of the court (see Goncalves, 1 AD3d at 914),

we conclude that the court properly determined that claimant’s

statement was not voluntarily made and that claimant therefore did

“not by his own conduct cause or bring about his conviction” (Court of

Claims Act § 8-b [5] [d]).

The State also contends that the nonpecuniary damages awarded

claimant are excessive because they deviate materially from what would

be reasonable compensation (see CPLR 5501 [c]). Pursuant to Court of

Claims Act § 8-b (6), upon finding that the claimant is entitled to a

judgment, the court “shall award damages in such sum of money as the

court determines will fairly and reasonably compensate him.” A

claimant must prove his entitlement to an award for future damages “by

a reasonable certainty” (Baba-Ali v State of New York, 19 NY3d 627,

641). Although the statute provides little in the way of specifics,

we note that the amount of any such award should be determined in

accordance with “traditional tort and other common-law principles”

(Carter v State of New York, 139 Misc 2d 423, affd 154 AD2d 642). We

decline to adopt any formulaic standard for the assessment of

nonpecuniary damages (see id. at 430). “Guiding this Court in its

determination of the elements of and amount for non-pecuniary damages

is the body of case law that eloquently addresses the grievous

suffering, mental anguish, loss of liberty, degradation, loss of

reputation, humiliation and other injuries of those unjustly convicted

and imprison[ed]” (Gonzalez v State, 26 Misc 3d 1212[A], 2009 Slip Op

52714[U], *12; see Campbell v State of New York, 186 Misc 586, 590-

591). The relevant period for awarding damages is the date of

conviction to the end of imprisonment, and damages also may be awarded

for “any subsequent or continuing damages shown to have proximately

resulted” from the conviction and imprisonment (Carter, 139 Misc 2d at

429). 

At the time of the crime, claimant lived with his wife and five

young children. Claimant established that his conviction and

incarceration had a catastrophic impact on his personal and family
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CA 13-01679 

life during the period of incarceration and continuing thereafter. 

Claimant also established that he suffers from chronic posttraumatic

stress disorder, chronic depressive disorder, and chronic anxiety

disorder and prominent avoidant and paranoid traits, all as the result

of his unjust conviction and incarceration. At the time of trial,

claimant had a life expectancy of an additional 32.7 years (see PJI

2:281). The court awarded claimant $2,700,000 for loss of liberty,

mental anguish and loss of family relationships while incarcerated and

$1,920,000 for continuing pain and suffering, including postincarceration psychological injuries. Under the circumstances

established by claimant and presented by this record, we conclude that

the nonpecuniary damages awarded do not deviate materially from what

would be reasonable compensation (see generally CPLR 5501 [c]). 

Entered: July 11, 2014 Frances E. Cafarell

Clerk of the Court