Turner v State of New York

[*1] Turner v State of New York 2012 NY Slip Op 52305(U) Decided on November 14, 2012 Ct Cl Marin, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 14, 2012
Ct Cl

Clinton Turner, Claimant,

against

The State of New York, Defendant.



111542



For Claimant:

Leon Friedman, Esq.

For Defendant:

Eric T. Schneiderman, Attorney General

By: Janet L. Polstein., AAG

Alan C. Marin, J.

Clinton Turner's underlying claim is for unjust conviction and imprisonment brought under §8-b of the Court of Claims Act. The trial of Mr. Turner's claim had already begun here, and the Court gave claimant leave to make this motion which seeks an order admitting into evidence the affidavit of William Scott Clarke.

The relevant background is as follows. In 1988, following a criminal trial in Supreme Court, Queens County, claimant Clinton Turner was convicted of robbery in the first degree, robbery in the third degree, and larceny in the fourth degree, and sentenced to a term of 10 to 20 years imprisonment. He was paroled in 1997.

At the criminal trial, the aforementioned William Clarke had testified that Turner, who was a stranger, had robbed him at knife point. Turner's defense was that he had not in fact robbed Clarke, and that the accusation was made in retaliation for Turner having sold Clarke bad drugs.

In the §8-b civil trial, claimant's wife, Lametrous Turner, testified that she ran into Clarke in 1993, and that after an exchange they had on the street, Clarke signed an April 14, 1993 affidavit stating, among other things that, having learned the "distressing news" that Turner had been sentenced to a minimum of ten years: [*2]

" . . . my [conscience] began to bother me. This is so because at the time I testified in Court, I did not give an accurate representation to the Court . . . During that period of time, I had a severe cocaine and crack addiction as well as a serious alcohol dependency. All of the aforementioned substances not only caused my behavior to be irrational and unpredictable, I was prone to behavior that I cannot intelligently account for. Very simply at that time, I did not understand what I was doing nor the consequences thereof . . . During direct examination by ADA Sligh, I indicated to him that I had been robbed by . . . Clinton Turner, who jumped out at me wearing a hood and carrying a butcher knife. Although Mr. Turner and I did have an altercation in the hallway wherein and whereby harsh words were spoken and some pushing around took place, there was never any hood worn by Mr. Turner or was there any knife that I ever saw in his possession. I never in any way felt an immediate threat . . . because I had known Mr. Turner for quite a long time . . ."

See exhibit A to claimant's moving papers.

After Clarke signed the affidavit, Turner then sought to have his convictions vacated under CPL §440.10, but his motions were denied. A number of years later, Turner brought a habeas corpus petition in federal court which was successful, and his convictions were vacated. Turner v Schriver, 327 F Supp 2d 174 (EDNY 2004). On January 4, 2005, the prosecution moved for dismissal, which was granted January 5, 2005. Turner subsequently filed his claim in this Court on October 24, 2005. Motion practice then ensued with Turner seeking summary judgment and defendant dismissal, both of which were denied by this Court. Turner v State of New York, 14 Misc 3d 699 (2006), affd50 AD3d 890 (2d Dept 2008).

A pre-trial conference on the instant case was held on April 27, 2010. At that time, the Court ruled that the Clarke affidavit would be excluded as a trial exhibit on the ground that it consisted of inadmissible hearsay, and that the declaration against penal interest exception did not apply. Such ruling was reiterated several times during the trial, which commenced on May 5, 2010 and continued on claimant's case the following day. In view of the exclusion of Clarke's affidavit, claimant was then given a lengthy adjournment to attempt to locate Clarke to obtain his testimony. Counsel for claimant made extensive efforts to find Clarke, but ultimately to no avail.On June 20, 2011, claimant submitted a letter brief again arguing that the Clarke affidavit should be admissible under the declaration against penal interest exception to the hearsay rule. Defendant responded, opposing, in a July 8, 2011 letter brief. A conference on the issue was thereafter held on July 20, 2011, at which time claimant was told that he could make formal motion seeking the admission of the affidavit.

***

In order to invoke the declaration against penal interest exception to the hearsay rule, four prerequisites must be met: "(1) the declarant must be unavailable to testify by reason of death, absence from the jurisdiction, or refusal to testify on constitutional grounds; (2) the declarant must be aware at the time of its making that the statement was contrary to his penal interest; (3) the declarant must have competent knowledge of the underlying facts; and (4) there must be sufficient competent evidence independent of the declaration to assure its trustworthiness and reliability . . ."

[*3]People v Bresnic, 70 NY2d 9, 15 (1987). See also People v Ennis, 11 NY3d 403 (2008).Even assuming the existence of the first and third prerequisites, the Court cannot find that the other two prerequisites have been met with respect to the Clarke affidavit.

As to an awareness that his statement was contrary to his penal interest, claimant argues that prior to Clarke's execution of the affidavit, Turner's criminal lawyer, Arthur G. Trakas, Esq., had informed Clarke that he could be prosecuted for perjury in connection with his testimony at the criminal trial.

At the § 8-b trial, Trakas testified that he had signed an affidavit in connection with a CPL §440.10 motion made on Turner's behalf, in which he stated that, "[p]rior to my receipt of [Clarke's] affidavit, I had informed Mr. Clarke that there existed a possibility that he could be charged with perjury for admitting to such false testimony . . ." Trakas testified that although he had no independent recollection of having said those particular words to Clarke, "I would make that statement to anybody in . . . the normal course of business that came in with this type of information."

Accepting the foregoing, I am nonetheless not persuaded that Clarke was aware he was making a statement against penal interest when he executed the affidavit. As set forth above, the affidavit states that because of his addiction to drugs and alcohol at the time of the criminal trial, "my behavior [was] irrational and unpredictable [and] I was prone to behavior that I cannot intelligently account for. Very simply at that time, I did not understand what I was doing nor the consequences thereof ." In addition, Clarke's affidavit does not unequivocally state that he had not been robbed by Turner.

Nor is the Court persuaded that the fourth prerequisite has been met: other than claimant's own testimony, there is no sufficient competent evidence independent of Clarke's declaration to assure its trustworthiness and reliability. Moreover, it should be noted that recanted testimony is generally regarded as unreliable. As this Court has previously observed, "Inherent, of course, in any recantation is that the witness has lied once about what happened. . ." Morales v State of New York, 183 Misc 2d 839, 848-49 (Ct Cl 2000), affd 282 AD2d 245 (1st Dept 2001).

Finally, the Court would note that subdivision 1 of §8-b the legislative intent provision provides in relevant part that "[i]n light of the substantial burden of proof that must be carried by such persons, it is the intent of the legislature that the court, in exercising its discretion as permitted by law regarding the weight and admissibility of evidence submitted pursuant to this section, shall, in the interest of justice, give due consideration to difficulties of proof caused by the passage of time, the death or unavailability of witnesses, the destruction of evidence or other factors not caused by such persons or those acting on their behalf." However, claimant makes no argument nor is the Court aware of any authority suggesting that this legislative intent trumps fundamental rules of evidence.

In view of the foregoing, having reviewed the submissions [FN1], IT IS ORDERED that motion no. M-81930 be denied. [*4]

New York, New York

November 14, 2012

ALAN C. MARIN

Judge of the Court of Claims Footnotes

Footnote 1:The following were reviewed: claimant's notice of motion with affirmation in support and exhibits A through K; defendant's affirmation in opposition; and claimant's August 15, 2012 letter.