| Warney v State of New York |
| 2010 NY Slip Op 01269 [70 AD3d 1475] |
| February 11, 2010 |
| Appellate Division, Fourth Department |
| Douglas Warney, Appellant, v State of New York, Respondent.(Claim No. 114826.) |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Frank K. Walsh of counsel), fordefendant-respondent.
Appeal from an order of the Court of Claims (Renee Forgensi Minarik, J.), entered October16, 2008. The order granted defendant's motion and dismissed the claim.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: The Court of Claims properly granted defendant's motion to dismiss thisclaim seeking damages for unjust conviction and imprisonment pursuant to Court of Claims Act§ 8-b. The claim was brought after claimant's conviction of two counts of murder in thesecond degree was vacated based on newly found evidence, i.e., the DNA analysis of the bloodevidence from the crime scene that implicated another person. Claimant had confessed to thecrimes, which in large part led to his conviction (People v Warney, 299 AD2d 956[2002], lv denied 99 NY2d 633 [2003]). The new evidence was discovered after claimanthad been incarcerated for a period of time, whereupon the person implicated by the newevidence confessed and pleaded guilty to the crimes. "To survive [defendant's] dismissal motion,. . . claimant [was required by Court of Claims Act § 8-b (3) to] state facts insufficient detail to permit the court to find that [he] was likely to succeed at trial in proving[,inter alia,] that [he] by [his] own conduct [did not] cause or bring about [the] conviction"(Reed v State of New York, 78 NY2d 1, 7 [1991]). "[F]or example, an innocent criminaldefendant may cause or bring about his or her own conviction by making an uncoerced falseconfession of guilt that is presented to the jury at trial" (O'Donnell v State of New York, 26 AD3d 59, 62-63 [2005];see generally Ausderau v State of New York, 130 Misc 2d 848, 851-852 [1985],affd 127 AD2d 980 [1987], lv denied 69 NY2d 613 [1987]). We thereforeconclude that claimant has failed to state facts in sufficient detail to permit the court to find thathe is likely to succeed at trial in proving that he did not by his own conduct cause or bring abouthis conviction (see Court of Claims Act § 8-b [4]). Indeed, he merely surmises thathis confession must have been coerced because it was later shown to be false when someone elseconfessed to the crime and, apart from claimant's actual confession, there was evidence thatclaimant approached the police in the first instance with information about the crimes and madeincriminating statements to police officers. Present—Scudder, P.J., Centra, Fahey, Carniand Pine, JJ.