Smith v State of New York

[*1] Smith v State of New York 2009 NY Slip Op 51744(U) [24 Misc 3d 1234(A)] Decided on July 14, 2009 Ct Cl Soto, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 14, 2009
Ct Cl

Shamel Smith, Claimant,

against

State of New York, Defendant.



108916



For Claimant:

Shamel Smith, Pro Se

For Defendant:

Hon. Andrew M. Cuomo, Attorney General

By: Ross N. Herman, AAG

Faviola Soto, J.

This unjust conviction claim was tried before me on the issue of liability only on April 30 and May 4, 5, 6, 13 and 28, 2009, following the claim's transfer to me on November 24, 2006, and the completion of the extensive discovery and motion practice that followed. Familiarity with the prior proceedings and the Court's decisions and orders is assumed.

To prevail on a claim for unjust conviction and imprisonment, claimant must prove all of the following by clear and convincing evidence: a) he was convicted of a felony and sentenced to a term of imprisonment and served all or part of the sentence; and b) his conviction was reversed and the accusatory instrument was dismissed; and c) he did not commit the acts charged in the accusatory instrument or the acts charged did not constitute a crime; and d) he did not by his own conduct cause or bring about his conviction. Court of Claims Act § 8-b (5). As to elements (a) and (b), the Court finds, and it does not now appear to be disputed,

that claimant met his burden.

The issues materially in dispute in this trial are whether claimant met his burden as to proving, by clear and convincing evidence, that he is innocent of the underlying charges and did [*2]not by his own conduct cause or bring about his convictions. The Court finds that claimant failed to meet his burden as to § 8-b(5)(c) and § 8-b(5)(d).

The Underlying Conviction, Incarceration, Vacatur of Conviction andDismissal of Indictment

Mr. Smith was indicted on May 21, 2001 on three counts. The first count was that of criminal possession of a forged instrument in the second degree, in violation of Penal Law § 170.25. The indictment read:

"The defendant, in the County of New York, during the period fromon or about August 9, 2000, to on or about August 15, 2000, knowingthe same to be forged and with the intent to defraud, deceive, and injure another, uttered and possessed a forged instrument, the same being and purporting to be and calculated to become and to represent if completed, an instrument which does and may evidence, create, transfer, terminate, and otherwise affect a legal right, interest, obligation, and status, to wit,a movie script."

The second count was that of an attempt to commit the crime of grand larceny in the second degree, in violation of Penal Law §§ 110/155.40(1), committed as follows:

" The defendant, in the County of New York, during the period from on or about August 9, 2000, to on or about August 15, 2000, attempted to steal property having a value in excess of $50,000 from the New Line Cinema."

The third count was that of an attempt to commit the crime of grand larceny in the fourth degree, in violation of Penal Law §§ 110/155.30(6). The indictment states that it was committed as follows: "The defendant, in the County of New York, during the period from on or about August 9, 2000, to on or about August 15, 2000, attempted to steal property by extortion from New Line Cinema. "

On April 29, 2002, after a jury trial before the Honorable William Wetzel, J.S.C., claimant was found guilty of the forgery charge and not guilty on the second and third counts.

On June 3, 2002, Mr. Smith was sentenced to two and a third to seven years in jail, the maximum he could be sentenced as a non-predicate D felony offender.

On June 26, 2003, the Appellate Division, First Department, unanimously reversed on the law, vacated the conviction and dismissed the indictment. The Court stated:

"As the People commendably concede, when defendant, who

was not impersonating anyone, signed his own actual name to

a screenplay written by someone else, the screenplay at issue

was not a forgery under the Penal Law (see People v Levitan,

49 NY2d 87, 90 [1980]. Since the only crime of which defendant

stands convicted is criminal possession of a forged instrument in

the second degree, he is entitled to vacatur of his conviction and

dismissal of the indictment."

People v Smith, 306 AD2d 225, 226.

The Court will recite the evidence and state its findings after a thorough consideration of all the evidence which includes the testimony of all the witnesses, after assessing their credibility [*3]and review of the numerous exhibits in evidence.

Findings

Shamel Smith claims he wrote a screenplay, called "Inner Mind's Eye", and that New Line Cinema infringed his work and made it into the movie called "The Cell". On Father's Day, in June 2000, he and his son went to the movies, he saw a trailer for the movie "The Cell", and he realized that it was his screenplay.

Mr. Smith contacted several lawyers and finally retained an experienced entertainment lawyer, Steven Beer, Esq., on a contingency fee basis. Mr. Beer had been recommended to the claimant by a lawyer named Kendall Minter, Esq. Mr. Smith provided Mr. Beer with the final version of his screenplay bearing a date of September 19, 1997, information on the movie and two sealed envelopes which Mr. Smith claimed contained prior drafts of "Inner Mind's Eye", which he had mailed to himself as a poor man's copyright.

On August 8, 2000, Mr. Beer contacted a General Counsel to New Line Cinema, Benjamin Zinkin, Esq., who referred him to their outside counsel.

On August 9, 2000, claimant with his attorney met with New Line Cinema's outside counsel, Tom J. Feber, Esq. At that time, Mr. Beer was convinced that the claimant, and not Mark Protosevich, was in fact the true screenwriter of "The Cell".

At this meeting, which lasted over five and a half hours, a demand of $250,000 was made to and rejected by New Line Cinema. New Line Cinema was convinced that it was Mr. Smith who in fact had stolen Mr. Protosevich's screenplay and was the infringer. Mr. Beer then subsequently withdrew from the case, as he became convinced of the same. Mr. Beer returned to Mr. Smith his entire file.

Mr. Smith claims he started writing "Inner Mind's Eye" in 1990 and that the original concept for the screenplay was based on an eighth grade writing assignment. This screenplay initially developed into a story about a serial killer who preyed on children. He began shopping the screenplay in 1990 and 1991 and, in 1992, he sent it to Hudlin Bros., a company that produced films by Black screenwriters. Several of these drafts were put into evidence. Mr. Smith purports to have written several other screenplays, which also were introduced into evidence. He also worked producing music videos and was a grip in the film the Shawshank Redemption. Mr. Smith maintains that his work, "Inner Mind's Eye", was stolen by Mr. Protosevich for "The Cell" screenplay.

Mr. Smith attempted to explain that he placed specific people, places and personal information into the screenplay; he referred to these as signatures, explaining that a writer uses this device to identify his work. He identified the following as examples of his signatures within the screenplay. The main character, named Catherine Villanueva, was based on a real person, Catherine Mortiere; the poem "Annabel Lee", which was written by Edgar Allan Poe and appears in part in the screenplay, was written the same month and day as his daughter's birth month and day; another main character was based on an uncle who suffered from severe mental retardation and whose doctors had ruled out the Creutzfeldt-Jakob disease, a disease featured in the screenplay. In addition, he claimed there were other signatures, such as the name Novak, which is his dog; Peter, which is claimant's given name; the name Abuelita, a reference to his wife's [*4]grandmother, as well as the names of his wife's friends.

Mayra Smith, claimant's wife (who has been separated from him for several years), testified that in fact she did not recognize the names in Mr. Smith's screenplay as those of her friends.

At this trial, Mr. Smith also called as witnesses Gregory M. Singer, Isaac Rashad, and Rodney Shaw. Mr. Singer is an old friend from college who testified that he had never read the screenplay. Mr. Rashad testified that he had read "Inner's Minds Eye" in the mid 1990's, and remembers that the victims were children. Mr. Rashad further testified that there were some similarities between what he read and "The Cell", but there were also many differences. Mr. Shaw, an old friend and claimant's managing agent, testified that he read many of claimant's screenplays over the years and remembers several different versions of "Inner Mind's Eye". Mr. Shaw also remembers claimant's use of signatures and stated that claimant always uses Peter as a signature.

After Mr. Smith was released from prison, he commenced a pro se action in the Southern District of New York relating to his claim of infringement of a screenplay entitled "Inner Mind's Eye". He alleged copyright infringement, unfair competition, conspiracy, and breach of implied contract, and sought monetary damages and declaratory and injunctive relief. He named the defendants as follows: New Line Cinema, Tom Ferber, Ben Zinkin, Mark Protosevich, Steven Beer and Kendall Minter. The federal action action was withdrawn with prejudice.

This action for wrongful conviction was filed by claimant's prior counsel, Peluso & Touger, LLP, whose legal services were terminated by claimant two weeks before this trial.

Claimant has a criminal record consisting of two felonies, both involving forgery. Although they were more than ten years old at the time of sentencing, it is of note that one involved claimant stealing five million dollars while he was working at a bank and using the proceeds to purchase five luxury cars, including an Audi, Mercedes and Jaguar. Mr. Smith also has two assault misdemeanors, one in 1993 where he broke someone's nose, and one in 1999, which he committed by slamming a car door. Claimant also did not file a tax return for the years 1990-2000, although he admits working and earning approximately $40,000.00 (a year).

The State called several witnesses. Benjamin Zinkin, Esq., who was a General Counsel of New Line Cinema before his retirement; Tom J. Feber, Esq., an attorney with Pryor, Cashman, Sherman & Flynn, New Line Cinema's outside counsel; Steven Craig Beer, Esq., of Greenberg Taurig, LLP, the attorney retained by claimant in 2000 in connection with Mr. Smith's claim that his screenplay had been taken; and Rodney Stringfellow, a freelance writer, who previously was employed as a Development Assistant at Hudlin Bros.

Mr. Zinkin was called by Mr. Beer on August 9, 2000, a Wednesday. Mr. Beer told Mr. Zinkin that he believed that Mr. Smith's screenplay was infringed by "The Cell". Mr. Beer advised him that if a resolution was not reached by the following Monday, he would seek an injunction to stop the release of the film. Mr. Zinkin requested a copy of the screenplay to send to Mr. Ferber for evaluation and, if the claim was found to be valid, for resolution.

"The Cell" was set to be released on August 18th. New Line Cinema had spent forty-four million dollars in production and an additional sixteen million on advertising and marketing.

Mr. Zinkin sent the script with a copy of the film to Mr. Feber. Mr. Feber was shocked and became alarmed when he noticed that they were identical in minute details. He contacted [*5]Mark Protosevich and faxed him a copy of claimant's screenplay. After the first thirty minutes of the film, they started noticing a few differences.

Mark Protosevich began writing "The Cell" in 1993 and wrote numerous drafts. He was the executive in charge of development at MGM Studios and originally submitted his script to MGM under a pseudonym. In 1995 he sold the script to MGM; MGM eventually sold it to New Line Cinema in 1998; New Line Cinema involved him as co-producer; eventually Tarsem Dun Wang Sing became its director. Mr. Protosevich and the director worked together for six months and the movie script, dated June 7,1999, was sent to potential cast members and agents. Many of the differences between the script and the movie were changes proposed by the lead actress, Jennifer Lopez, who wanted to eliminate ethnic references, or changes proposed by the director, such as location.

Mr. Ferber met with the claimant and Mr. Beer that Friday, August 11th. Claimant and Mr. Beer brought the two sealed envelopes, one postmarked April 1995 and the other November 1996, allegedly documenting the poor man's copyright of "Inner Mind's Eye" and a Writers Guild registration, the date unclear.

Mr. Ferber reviewed the two envelopes, which were taped with U.S. Priority Mail tape, stapled, sealed with a gold label and sent by third class mail. He noticed and pointed out the discrepancies and lack of authenticity of these envelopes. The envelopes were never opened.

Mr. Ferber also confronted Mr. Smith with references in "Inner Mind's Eye" to Banning Lake and Bakerfield, which are in California, although claimant's work actually was set on Long Island. Mr. Ferber classified these as "the thumbprint of the infringer", a term of art used in copyright infringement cases: if the work that one thinks has been copied shows an error that logically would not otherwise be there, frequently that is an error that was taken from the original work that was copied from and not changed or corrected. Here, "The Cell" script originally was located in the Midwest and, in 1998-99, the location was changed to California. Yet, Mr. Smith neglected to change the location references, and "Inner Mind's Eye", which took place in Suffolk and Nassau Counties, had a reference to the Midwest and references to places in California. Mr. Ferber also confronted Mr. Smith with the misspellings and mistakes which appeared in both works; Mr. Smith could not explain these duplicate identical errors.

Over the course of this discussion Mr. Beer became convinced that his client's claim lacked foundation, as Mr. Ferber had refuted each point made by Mr. Smith. Mr. Beer advised Mr. Smith that he would not be representing him any further. The next attorney who contacted Mr. Beer on Mr. Smith's behalf was his criminal counsel.

Mr. Ferber determined that Mr. Smith's claim was fraudulent. He informed Mr. Zinkin, who directed Mr. Ferber to contact the District Attorney's Office as he concluded New Line Cinema was being defrauded and this was an attempted extortion.

Approximately eight months after the meeting with New Line Cinema, Mr. Smith was arrested based on Mr. Ferber's complaint. Mr. Smith was assigned an attorney, Joanne Dwyer, Esq., pursuant to County Law 18B.

At the criminal trial, Mr. Zinkin, Mr. Protosevich, Mr. Ferber and Mr. Beer testified for the prosecution. Only Mr. Smith testified on his own behalf. Mr. Smith attempted to call Catherine Mortiere, whom he claimed served as the basis for his lead character, but her direct testimony was stricken as she refused to be cross-examined without the presence of her attorney. [*6]

The defense also attempted to call Rodney Stringfellow, who in 1992 worked as a Development Assistant for Hudlin Bros., a film production company. Mr. Smith wanted Mr. Stringfellow to lay the foundation for a letter, dated April 15, 1992 (letter), purportedly sent to Mr. Smith by Mr. Stringfellow regarding "Inner Mind's Eye". The letter bears Mr. Stringfellow's signature.

Mr. Smith stated that he told Joanne Dwyer of many witnesses who could establish his authorship but that he failed to contact or pursue any of them.

Judge Wetzel, after an evidentiary hearing outside the presence of the jury, concluded "that the witness's own testimony is such as to deny the authenticity to debrief (sic) the defense of a foundation for the admissibility of the letter".

Mr. Stringfellow did testify before this Court that regarding the aforementioned letter which bore his signature, the letter had a line inserted between three open spaces that said "Re:

Inner Mind's Eye (165 page script)" and that it was not his practice to insert such information in his form letter.

Mr. Stringfellow also testified that the script of "Inner Mind's Eye" dated February 12, 1992, which is stamped received, was not so stamped by him as it was not the practice of his office to stamp scripts or internally stamp scripts as this version of the script was stamped.

This Court concludes that the letter and the script were altered to appear as if Mr. Stringfellow had in fact returned the dated script to Mr. Smith. There is no evidence that this script or any script for that matter was returned.

Judge Wetzel also concluded that other proposed witnesses, such as Mr. Smith's wife and mother, were not relevant as they could not testify as to Mr. Smith's state of mind in regard to signatures he placed in the screen play.

The criminal defense did not call any other witness or present any other evidence that in fact Mr. Smith had written the screen play for "The Cell".

At Mr. Smith's sentencing, he made a statement to the Court professing to be the true author of the script for "The Cell". Judge Wetzel stated:

"your statement is the final fictitious chapter in your script, the life of Shamel Smith, a complete and utter fraud ... You abused every ruling of this court. You brought in fictitious documents ... This was an attempt to perpetuate a major ... commercial fraud in a city that is a center for commerce for both entertainment and finance ..."

Discussion and Conclusion

In enacting the Unjust Conviction Act, the legislature intended "that those innocent persons who can demonstrate by clear and convincing evidence that they were unjustly convicted and imprisoned be able to recover damages against the state." Court of Claims Act § 8-b(1). The legislature "struck a balance between the competing goals of compensating those unjustly convicted and imprisoned and preventing the filing of frivolous claims by those who are not actually innocent." Moses v State of New York, 137 Misc 2d 1081, 1084. The statutory language of clear and convincing "indicates that the Legislature did not intend to provide monetary compensation for every mistake made in the course of a prosecution of an individual for a crime he did not commit and for which he was imprisoned." Rogers v State of New York, 181 Misc 2d 683, 686, affd 280 AD2d 930, citing Ausderau v State of New York, 130 Misc 2d 848, 851, affd [*7]127 AD2d 980, lv denied 69 NY2d 613.

"[T] he purpose of the statute is not to provide a windfall to a criminal defendant who is sufficiently experienced with the judicial process to exploit it to his own advantage". Britt v State of New York, 260 AD2d 6, 19. "Section 8-b is not intended to provide relief for individuals who were so fortunate as to have the wrong charge brought against them or for individuals who tried to commit a criminal act but failed, through inadvertence or lack of opportunity, to accomplish that goal". Jackson v State of New York, Claim No. 80377, filed July 19, 1996, Orlando, JHO. A claimant should not be rewarded for his own misconduct and equitable considerations will not authorize such a reward. Moses v State of New York, 137 Misc 2d 1081, 1085-1086.

A claimant seeking to prove an unjust conviction claim carries a "heavy burden". Reed v State of New York, 78 NY2d 1, 11. The clear and convincing standard "means evidence that is neither equivocal nor open to opposing presumptions". Solomon v State of New York, 146 AD2d 439, 440. The standard is significant and a higher and more demanding standard than preponderance of the evidence, and it serves to impress the fact finder with the importance of the decision. Id.

"The requirements imposed by Court of Claims Act § 8-b are to be strictly construed". Vasquez v State of New York, 263 AD2d 539; Fudger v State of New York, 131 AD2d 136, lv denied 70 NY2d 616.

In determining this claim, the Court closely observed the witnesses, determined their credibility, and carefully considered and weighed the testimony and exhibits. As with many trials, and, in particular, in unjust conviction claims, credibility plays a pivotal role. To this fact finder, claimant's initial air of credibility dissipated and then disappeared as his testimony and proof were put to the test. As his testimony and the trial continued, the Court credited his testimony less and less, and found, in the end, that his testimony was not credible and, indeed, was incredible. The Court additionally considered claimant's criminal record and his failure to pay taxes as to their impact on credibility and demonstrating that he puts his own interests above those of society, and finds that, in this claim, they added to the determination that Mr. Smith's testimony was not credible.

As to claimant's witnesses, the Court finds their testimony only minimally persuasive.

In contrast, the Court finds defendant's witnesses credible and persuasive. And, as to the conflicting testimony between claimant and defendant's witnesses, the Court specifically credits the testimony of defendant's witnesses.

Here, claimant's overwhelming lack of credibility is fatal to his claim, and, standing alone or combined with the paucity of other persuasive evidence, results in a failure of proof. Claimant failed to demonstrate, by clear and convincing evidence, that he did not commit the acts charged in the indictment, and that he did not contribute to his own conviction.

Innocence

"As noted by the Law Revision Commission, the linchpin' of the statute is innocence". Ivey v State of New York, 80 NY2d 474, 479. Contrary to claimant's argument, a reversal of a conviction and dismissal of an indictment do not constitute a finding of innocence in a civil unjust conviction claim. Vasquez, 263 AD2d 539, at 539-540; Swain v State of New York, Claim Number 100137, UID No. 2001-015-535, July 13, 2001, Collins, J., affd 294 AD2d 956, lv [*8]denied 99 NY2d 501.

Nor can claimant rely on the jury's acquittal of his two other charges, as "[a]n acquittal of criminal charges is not equivalent to a finding of innocence." Reed v State of New York, 78 NY2d 1,7. The " presumption of innocence does not apply to this civil proceeding in which claimant bears the burden of proof". Id. at 9.

Claimant failed to demonstrate, by clear and convincing evidence, that he is innocent of the underlying crime. The proof adduced at this trial does not support claimant's assertions that he is the true author of the movie script, that he was merely asserting his rights to his work when he asserted to New Line Cinema that his script was stolen and demanded that in the event New Line Cinema did not pay him $250,000.00, he would enjoin the imminent release of the movie "The Cell', and that his criminal trial was merely a ploy and a conspiracy, with the District Attorney's Office, to deprive him of his rights.

Rather, the evidence demonstrates, to this trier of fact, that claimant took "The Cell" script, inserted the name "Inner Mind's Eye" to the script, and attempted to extort money from New Line Cinema. Claimant has not shown, and the Court does not find, that there is an innocent interpretation to these acts. The evidence also demonstrates that Mr. Smith altered and created documents to support his wrongful acts. As termed by the State, Mr. Smith's proclivity to manufacture evidence is well-established.

The Court finds that "Inner Mind's Eye" bore the badges of fraud and the thumbprints of the infringer; Mr. Smith's alleged embedded signatures do not withstand scrutiny or are otherwise of no significance; his poor man's copyright was bogus; he altered the Hudlin Bros. letter and inserted the reference; his alleged early draft contains portions of a book written years after the alleged date of Mr. Smith's draft.

The Court additionally notes Mr. Smith's failure to produce documents and witnesses that would have supported his claim. For example, he failed, at this as well as at the criminal trial, to produce the alleged envelopes and drafts sealed therein which he asserts demonstrate his poor man's copyright. He also failed to produce a number of individuals, including friends, who he claimed, at his deposition, to have purportedly read versions of "Inner Mind's Eye" in the early 1990's and who still have copies of his screenplay. Significantly, he also failed to call as a witness Ms. Dwyer, his criminal defense attorney.

The State moved for an adverse inference from these and other missing documents and witnesses. The Court finds that these documents and witnesses were expected to give material, non-cumulative testimony or evidence favorable to claimant; that claimant did not offer a reasonable or any explanation for their non-production; and, they appear, particularly but not only as to Ms. Dwyer and the poor man's copyright envelopes and enclosures, to be within Mr. Smith's custody or control, or available by subpoenas.

The Court grants the State's motion and takes the strongest inference against claimant, and finds, as to both the requisite elements of innocence and not contributing to one's own conviction, that these missing documents and witnesses would not have supported (and, indeed, would have contradicted) Mr. Smith's assertions.

The Court finds that claimant failed to prove that he was innocent of committing acts that constitute the felony of attempted grand larceny. The Court finds his proof equivocal and open to opposing inferences and, therefore, insufficient. See Acosta v State of New York, 22 AD3d 367; [*9]Alexandre v State of New York, 168 AD2d 472. Indeed, the Court finds his proof not even plausible.

The Court additionally notes, but does not decide, the following. The Appellate Division's reversal was based not on innocence, but on the determination that claimant's act of signing his own name to the screenplay of another did not constitute the crime for which he was convicted. Implicit in the opinion is that claimant committed a wrong act - - he signed his name to the screenplay of someone else - - but that the conviction could not stand because the act did not meet the elements for criminal possession of a forged instrument in the second degree.

At this trial, claimant failed to demonstrate that he did not take the screenplay of another and sign his own name, and, indeed, the credible and persuasive evidence is that he did precisely that. Yet, this wrongful act did not constitute the crime of which he was charged and convicted, and, arguably, did not constitute a crime. Accordingly, claimant argues that he met his burden.

Posed before the Court, therefore, is a difficult issue. A surface analysis and pro forma application of the statutory language would appear to support, on this limited question, the following argument. As claimant's act of signing his own name to someone else's screenplay did not constitute a forgery, and, contrary to the State's assertion, this conduct also does not constitute criminal simulation [Penal Law 170.45(1)] or technically fall within the forgery crimes, claimant's act was not a crime and, therefore, he met his burden as to this act on the innocence issue.

Such a result, however, would reward claimant for his wrongful act and run afoul of the equitable considerations inherent in the unjust conviction statute. Certainly, legislative intent and case law would not favor and support this conclusion. And, claimant's reversal could be characterized, in certain respects, as based on a technicality; claimant had the good fortune to have this crime not fall squarely within the four corners of the Penal Law. Accordingly, a strong argument is made that claimant has not demonstrated that his conviction claim is worthy of consideration as an unjust conviction. See Romero v State of New York, Claim No. 98939, filed February 2, 2001, Read, P.J., affd 294 AD2d 730.

In any event, the Court is loathe to find, even on this one limited issue, that claimant demonstrated his innocence and met this prong, for claimant is not truly innocent. As claimant has not otherwise met his burden and the Court does not wish to clutter the record or provide dicta, the Court declines to engage in any further discussion or to make a final determination on this aspect of the innocence issue.

Own Conduct as Contributing Factor

The element of a claimant establishing that he did not by his own conduct cause or bring about his conviction is described as requiring a claimant:

"[t]o establish that he did not cause or bring about his prosecutionby reason of his own misconduct. Examples of such misconductwould include falsely giving an uncoerced confession of guilt,removing evidence, attempting to induce a witness to give falsetestimony, attempting to suppress testimony or concealing theguilt of another."

Report of the Law Revision Commission, 1984 McKinney's Session Laws, ch. 1009, at 2932.

These five examples of misconduct are illustrative and not exhaustive. Coakley v State of [*10]New York, 150 Misc 2d 903, affd 225 AD2d 477. The purpose of this provision is "to carry out simply the equitable maxim that no one shall profit by his own wrong or come into court with unclean hands' (citation omitted). " Rivers v State of New York, 152 Misc 2d 332, 336-337, affd 202 AD2d 565 . The Legislature "left open to the judiciary the task of determining on a case-by-case basis what conduct would make a claimant ineligible to recover damages for unjust conviction and imprisonment." Rogers v State of New York, 181 Misc 2d 683, 686, affd for reasons stated below, 280 AD2d 930.

Not included as misconduct are "decisions that fall within the realm of reasonable and legitimate trial strategy". O'Donnell v State of New York, 26 AD3d 59, 65. For example, where "the claimant merely elected to present an alibi defense that may have been less than iron-clad but was never disproved by the prosecution through any independent evidence of fabrication, he cannot be said thereby to have caused or brought about his own conviction." Id.; see also Scott v State of New York, 11 Misc 3d 1059(A).

Similarly, a claimant's decision not to testify at his criminal trial, thereby exercising his constitutional right not to testify, does not constitute disqualifying misconduct. Lanza v State of New York, 130 AD2d 872, 930. "We do not believe that the Legislature intended such second-guessing of trial strategy in determining whether a person contributed to his conviction". Id.

In contrast, and particularly applicable herein, "[w]hat will undo a claim to recover damages for unjust conviction and imprisonment is a claimant's knowing withholding of available, admissible, and material exculpatory evidence, or his or her knowing presentation of evidence that is provably false through evidence independent of proof of guilt." O'Donnell, 26 AD3d 59, 65.

Thus, for example, a claimant's decision not to call his wife does not constitute "mere trial strategy" but places it more "in the area of withholding potentially exculpatory information", where the record demonstrated that the decision not to call her was made by claimant and not counseland made for other reasons. Taylor v State of New York, 194 AD2d 113, 116, affd sub nom. Williams v State of New York, 87 NY2d 857. So, too, a failure to call individuals who could vouch for a claimant's movements constitutes conduct contributing to a conviction and, moreover, "emphasizes the gap between the evidentiary standards obtaining in a criminal trial and under the Unjust Conviction Act." Groce v State of New York, Claim No. 91765, filed January 20, 1999, Marin, J., affd 272 AD2d 519. Hiding from the police for three days and making a statement that bordered on an admission ( Murnane v State of New York, UID 2000-010-013, Claim No. 89102 [Ct Cl May 26, 2000], Ruderman, J., affd 288 AD2d 277), offering a false alibi to the police (Moses v State of New York, 137 Misc 2d 1081), and intentionally concealing the guilt of an identical twin (Stevenson v State of New York, 137 Misc 2d 313), have been held to constitute conduct that disqualifies a claimant.

Here, claimant failed to meet his burden. First, as more fully discussed previously, claimant's acts which led to his being charged and brought to trial do not have an innocent interpretation. Second, claimant withheld what he asserts is exculpatory evidence. He did not call witnesses that he alleges would support his assertion that he is the author of the screenplay and was within his rights to demand money from New Line Cinema or threaten to enjoin the imminent release of the movie. The Court specifically does not credit Mr. Smith's assertion that he told his criminal trial attorney of these witnesses and she failed to call them. Third, the record [*11]is replete with claimant's altering and creating documents. Lastly, claimant presented evidence, including his own testimony, that was provably false.

In light of the foregoing, this claim is dismissed. Any motions not ruled on are hereby denied.

Let Judgment be entered accordingly.

New York, New York

July 14, 2009

FAVIOLA A. SOTO

Judge of the Court of Claims