Fortunato v State of New York

[*1] Fortunato v State of New York 2013 NY Slip Op 52176(U) Decided on December 18, 2013 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 18, 2013
Ct Cl

Mario Fortunato, Claimant,

against

The State of New York, Defendant.



120892



For Claimant:

Irving Cohen, Esq.

For Defendant:

Eric T. Schneiderman, Attorney General

By: Rob

Alan C. Marin, J.

The State of New York moves to dismiss Mario Fortunato's claim for unjust conviction and imprisonment on the ground that claimant brought about his conviction by giving inconsistent versions of his actions following a shooting that left one man dead. Defendant argues that Mr. Fortunato's inconsistencies implicate provisions of the Unjust Conviction and Imprisonment Act of 1984 which require a claimant to prove that "he did not by his own conduct cause or bring about his conviction."[FN1]

In the early hours of November 30, 1994, four men were playing cards at the San Giuseppe Social Club in Williamsburg, Brooklyn - - claimant, along with Sabatino Lombardi, Michael D'Urso and Carmine Polito. At some point, two individuals - - John Carlo Imbrieco and Anthony Bruno - - entered the San Giuseppe club and shot D'Urso and Lombardi; the former survived, but Lombardi died.

In the aftermath of the shootings, claimant Fortunato told Lombardi family members and Detective Robert Moore of the New York City Police Department that he did not know what had happened inasmuch as he had left the club before the shooting started. But the next day when interviewed by another NYPD detective, Terrence Murnane, Fortunato admitted that he had been playing cards with Lombardi, D'Urso and Polito when he heard shots, grabbed his coat and ran out. [*2]

More than seven years after the incident, in January of 2002, when D'Urso had made a deal with federal prosecutors, claimant, Polito, Imbrieco, Bruno and another individual named Angelo Cerasulo were arrested and charged under the Violent Crimes in Aid of Racketeering Act and the Racketeer Influenced and Corrupt Organizations Act.[FN2] Imbrieco, Bruno and Cerasulo pled guilty under cooperation agreements, while claimant and Polito went to trial and were convicted. On September 14, 2004, the federal Court of Appeals reversed the two men's convictions, citing legally insufficient evidence (United States v Bruno, 383 F3d 65 [2d Cir 2004]).

Fortunato and Polito were then indicted on State charges of Murder in the Second Degree for Lombardi's death and were jointly tried. Claimant chose to have the case decided by the judge, Polito by a jury: Polito was acquitted and Fortunato was found guilty by Justice Joel Goldberg. The judge rendered his decision without any explanation, oral or written (see exhibit A to claimant's memorandum in opposition). On April 21, 2008, Fortunato was sentenced to 15 years to life.

The Second Department, on February 9, 2010, reversed claimant's conviction and dismissed the indictment, on the ground that "the verdict was against the weight of the credible evidence" (Fortunato, 70 AD3d at 852).

***

Defendant's sole argument here is that claimant's statements to Lombardi's family members and Detective Moore after the shootings that he was not present at the time caused or brought about his conviction, as such statements were introduced at his criminal trial in Supreme Court, Kings County, and would thus preclude recovery under subdivision (4) (b) of section 8-b (which is designed to come into play at a stage before trial, unlike subdivision 5 (d)).

The Law Revision Commission in its Report to the Legislature that accompanied its draft proposal, which served as the basis for what became the Unjust Conviction law, listed five examples of disqualifying conduct: removing evidence; falsely giving an uncoerced confession of guilt; inducing a witness to give false testimony; suppressing testimony; or concealing the guilt of another person. The Commission's report then stated that, "[t]his requirement is necessary to ensure that one is not rewarded for his own misconduct" (McKinney's 1984 Session Laws of New York at p. 2932). These five kinds of actions were examples and not intended as an exhaustive list (Moses v State of New York, 137 Misc 2d 1081 [Ct Cl 1987]).

Inconsistent statements by a claimant are not necessarily disqualifying conduct; such are more appropriately grist for evaluation by the trier of fact at the unjust conviction trial. In Warney v State of New York (16 NY3d 428, 437 [2011], the Court of Appeals stated that "as we have previously suggested, a claimant's conduct bars recovery under the statute

only if it was the proximate cause of conviction' . . ." The Court of Appeals found that the confession underlying Warney's criminal conviction was improperly obtained and reversed the dismissal, which had been granted under section 8-b (4) (b), of Mr. Warney's unjust conviction case, observing that the "Court of Claims' dismissal was based in large part on factual [*3]determinations that were inappropriate at this stage of the litigation" (16 NY3d at 435).[FN3]In sum, upon the papers submitted herein,[FN4] the Court finds that Mario Fortunato did not bring about by his conduct his own conviction. Accordingly, IT IS ORDERED that motion No. M-83285 is denied. New York, New York November 18, 2013 ALAN C. MARIN Judge of the Court of Claims Footnotes

Footnote 1: This language is found in subdivisions 4 (b) and 5 (d) of section 8-b of the Court of Claims Act; such section constitutes the Unjust Conviction and Imprisonment Act of 1984.

Footnote 2:These facts are from People v Fortunato (70 AD3d 851 [2d Dept 2010]).

Footnote 3:Warney was decided under CPLR 3211; the motion here is for summary judgment (CPLR 3212).

Footnote 4: The following were reviewed: defendant's notice of motion with affirmation in support and exhibits A through H; claimant's memorandum in opposition with exhibit A; and defendant's affirmation in reply.