On October 7, 2019, Claimant Shariff Jones filed this Claim for unjust conviction and imprisonment pursuant to Court of Claims Act § 8-b (see Affirmation of Bonnie Gail Levy, Esq., Assistant Attorney General, Ex 1 [Claim]). Defendant now moves to dismiss the Claim pursuant to CPLR 3211 (a) (2), (a) (7), and (a) (8) upon the ground that Claimant has failed to satisfy the heightened pleadings requirements for a cause of action for unjust conviction and imprisonment under Court of Claims Act § 8-b (M-94860). In particular, Defendant contends that Claimant has failed to plead with sufficient detail that "he did not by his own conduct cause or bring about his conviction" as is required under Court of Claims Act § 8-b (4) (see Reply Affirmation of Bonnie Gail Levy, Esq., Assistant Attorney General ¶ 7 [internal quotation marks omitted]). Claimant opposes Defendant's motion and cross-moves pursuant to CPLR 3025 (b) for leave to amend the Claim (CM-94869).

On February 6, 2014, Claimant was accused of one count of criminal possession of a forged instrument in the second degree (see Penal Law § 170.25), one count of identity theft in the second degree (see id. § 190.79 [1]) and one count of attempted petit larceny (see id. §§ 110.00, 155.25) (see Claim, Ex A [Indictment]). The indictment accused Claimant of, among other things, knowingly possessing a $500 counterfeit travelers check and trying to cash same at a Chase Bank in the City of Syracuse. Claimant was subsequently convicted, upon a jury verdict, of one count of criminal possession of a forged instrument in the second degree (see Penal Law § 170.25) and one count of attempted petit larceny (see id. §§ 110.00, 155.25). The charge for [*2]identity theft was dismissed.

Defendant appealed the judgment of conviction and the Appellate Division, Fourth Department reversed Claimant's conviction, on the law, and granted a new trial on the counts of criminal possession of a forged instrument in the second degree and attempted petit larceny (see Claim, Ex O [People v Jones, 158 AD3d 1103 (4th Dept 2018)]). Although the Fourth Department determined that the jury's verdict with respect to the crime of criminal possession of a forged instrument was not against the weight of the evidence, it concluded that the Supreme Court's admission of hearsay evidence constituted reversible error (see 158 AD3d at 1104). After retrial, on July 24, 2019, Claimant was acquitted of all charges (see Claim, Ex Q).

Defendant now moves to dismiss the Claim pursuant to CPLR 3211 (a) (2), (a) (7), and (a) (8) upon the ground that Claimant has failed to satisfy the heightened pleadings requirements for a cause of action for unjust conviction and imprisonment under Court of Claims Act § 8-b (M-94860). Claimant opposes Defendant's motion and cross-moves pursuant to CPLR 3025 (b) for leave to amend the Claim (CM-94869).

"Court of Claims Act § 8-b, the Unjust Conviction and Imprisonment Act, provides a mechanism for 'innocent persons who can demonstrate by clear and convincing evidence that they were unjustly convicted and imprisoned . . . to recover damages against the state'" (Warney v State of New York, 16 NY3d 428, 434 [2011], quoting Court of Claims Act § 8-b [1]). To state a cause of action under the statute, a claimant must meet strict pleading and evidentiary requirements (see id.). As an initial matter, the claimant must show that the:

" 'judgment of conviction was reversed or vacated, and the accusatory instrument dismissed or, if a new trial was ordered, either he was found not guilty at the new trial or he was not retried and the accusatory instrument dismissed; provided that the judgment of conviction was reversed or vacated, and the accusatory instrument was dismissed, on any of the [enumerated grounds]' "

(Ivey v State of New York, 80 NY2d 474, 479 [1992], quoting Court of Claims Act § 8-b [3] [b] [ii] [emphasis omitted]). In Ivey, the Court of Appeals held that a claimant need not plead any of the enumerated grounds set forth in Court of Claims Act § 8-b (3) (b) (ii) where the claimant "won a reversal of a conviction and an acquittal after retrial" (id. at 481). Stated differently, where a conviction is reversed or vacated, and the claimant is subsequently retried and found not guilty, it makes no difference, for purposes of the statute, what the grounds were for reversal. The parties agree that because Claimant's conviction was reversed and he was acquitted of all criminal charges following retrial, he does not need to plead any of the enumerated grounds set forth in Court of Claims Act § 8-b (3) (b) (ii) to maintain this Claim (see Reply Affirmation of Bonnie Gail Levy, Esq., Assistant Attorney General ¶ 3).

In addition to satisfying this initial requirement, a claimant must plead facts in sufficient detail to enable the Court to conclude that he is likely to succeed at trial in proving, by clear and convincing evidence, that "(a) he did not commit any of the acts charged in the accusatory instrument or his acts or omissions charged in the accusatory instrument did not constitute a felony or misdemeanor against the state, and (b) he did not by his own conduct cause or bring about his conviction" (Court of Claims Act § 8-b [4]; see Warney, 16 NY3d at 434; Reed v State of New York, 78 NY2d 1, 7 [1991]). Thus, Court of Claims Act § 8-b "imposes a higher pleading standard than the CPLR" (Warney, 16 NY3d at 435). Specifically, this Court "must [*3]consider whether the allegations are sufficiently detailed to demonstrate a likelihood of success at trial" (id.). Further, "[t]he allegations in the claim must be of such character that, if believed, they would clearly and convincingly establish the elements of the claim, so as to set forth a cause of action" (id. [internal quotation marks and citation omitted]).

Conclusory statements that the claimant did not commit any of the acts alleged in the indictment will not satisfy this heightened pleading requirement (see Reed, 78 NY2d at 7; Stewart v State of New York, 133 AD2d 112, 113 [2d Dept 1987], lv denied 72 NY2d 807 [1988]; Fudger v State of New York, 131 AD2d 136, 140 [3d Dept 1987], lv denied 70 NY2d 616 [1988]). Moreover, "[a]n acquittal of criminal charges is not equivalent to a finding of innocence" and the claimant is not afforded a presumption of innocence in prosecuting a civil claim under Court of Claims Act § 8-b (Reed, 78 NY2d at 7-9; Romero v State of New York, 294 AD2d 730, 733 [3d Dept 2002] ["the reversal of his criminal convictions and dismissal of the indictment on technical grounds was not, as argued by claimant, tantamount to being found innocent"], lv dismissed 98 NY2d 503 [2002], lv denied 98 NY2d 727 [2002]). "If the court finds after reading the claim that claimant is not likely to succeed at trial, it shall dismiss the claim, either on its own motion or on the motion of the state" (Court of Claims Act § 8-b [4]).

On a motion to dismiss for failure to satisfy the heightened pleading requirements of Court of Claims Act § 8-b (4), this Court "should accept the facts as alleged in the claim as true" and "avoid making credibility and factual determinations" (Warney, 16 NY3d at 435 [internal quotation marks, citation, and alteration omitted]).

After careful consideration of the facts alleged in the Claim and the exhibits annexed thereto, the Court concludes that Claimant has satisfied the standards of Court of Claims Act § 8-b (4). Claimant's general allegation that he "did not commit any of the acts charged in the accusatory instrument" (Claim ¶ 8) is buttressed by the sentencing minutes attached to the Claim (see Claim, Ex K [Sentencing Minutes]). In particular, Claimant testified during his sentencing that he "never endorsed the [check]" and "had no intent of cashing the [check]" (Sentencing Minutes, at 7). Rather, Claimant explained that he presented the check to a teller to determine whether or not the check was fraudulent. For purposes of Defendant's motion, this Court must accept Claimant's self-serving statement as true (see Mott v State of New York, 138 Misc 2d 916, 918 [Ct Cl 1988]).

Although Defendant argues that Claimant's statements made at sentencing are purportedly refuted by statements and testimony by bank personnel, if true, such evidence presents a credibility determination that is improper for the Court to resolve on a motion to dismiss (see Warney, 16 NY3d at 436; Klemm v State of New York, 170 AD2d 438, 439 [2d Dept 1991] [affirming the denial of the motion to dismiss section 8-b claim because "resolution of the claim involves an assessment of the credibility of the evidence and should await a trial"]). Where a claim brought pursuant to section 8-b hinges on the credibility of the claimant and witnesses, New York courts have permitted the Claim to proceed to trial (see Lanza v State of New York, 130 AD2d 872, 873-874 [3d Dept 1987] ["while events may prove later that claimant is unable to carry his burden of establishing his innocence by clear and convincing evidence, we cannot say at this stage that the facts set forth in the claim do not indicate a likelihood of success at trial or that the facts are not sufficiently detailed"]; accord Solomon v State of New York, 146 AD2d 439, 445 [1st Dept 1989]; Dozier v State of New York, 134 AD2d 759, 761 [3d Dept 1987]).

Moreover, the Court rejects Defendant's contention that Claimant caused or brought about his conviction by his own misconduct. "In its report, the Law Revision Commission listed five examples of misconduct that would bar relief under this paragraph. These are giving an uncoerced confession of guilt, removing evidence, attempting to induce a witness to give false testimony, attempting to suppress testimony or concealing the guilt of another" (Coakley v State of New York, 150 Misc 2d 903, 910 [Ct Cl 1991], affd 225 AD2d 477 [1st Dept 1996], citing 1984 Rep of NY Law Rev Commn, 1984 McKinney's Session Laws of NY, at 2932). These examples are illustrative, not exhaustive (see id.), and "[leave] 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 [Ct Cl 1999], affd 280 AD2d 930 [4th Dept 2001]). In short, "[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 v State of New York, 26 AD3d 59, 65 [2d Dept 2005]). However, "a claimant's conduct bars recovery under the statute only if it was the 'proximate cause of conviction'" (Warney, 16 NY3d at 437, quoting Ivey, 80 NY2d at 482).

As an initial matter, Claimant did not engage in the specific misconduct recognized by the Law Revision Commission that will prohibit recovery under section 8-b. Nevertheless, Defendant argues that Claimant's conduct of "possessing a forged instrument and presenting it to a bank official" brought about his conviction (Reply Affidavit of Bonnie Gail Levy, Esq., Assistant Attorney General ¶ 9). Although the Court may evaluate pre-crime activities in assessing whether a claimant brought about his or her conviction, the Court concludes that Claimant has sufficiently alleged that his conviction was not brought about or proximately caused by his own misconduct (cf. Rivers v State of New York, 152 Misc 2d 332, 335-336 [Ct Cl 1991] [holding that Claimant's possession of a gun three hours before a murder, which was unrefuted at trial, contributed to his conviction of murder in the second degree and criminal possession of a dangerous weapon in the second degree], affd 202 AD2d 565 [2d Dept 1994], lv denied 84 NY2d 806 [1994]). Here, Claimant maintained his innocence throughout his criminal trial and proffered an innocent explanation both for possessing the check (payment for work allegedly performed) and for presenting it to the bank teller (to determine whether the check was a forgery) (see Sentencing Minutes, at 6-8). Whether Claimant's innocent explanation is credible is a determination that must await trial. In sum, Claimant has alleged sufficient facts to enable this Court to find that he is likely to succeed in carrying his burden at trial of establishing by clear and convincing evidence at trial that he did not commit the crimes and that his own conduct did not bring about his conviction. Consequently, Defendant's motion to dismiss is denied.

Turning to Claimant's cross motion for leave to amend the Claim, such application must be denied for Claimant's failure to attach a proposed amended claim as required by CPLR 3025 (b) (see Drice v Queens County Dist. Attorney, 136 AD3d 665, 666 [2d Dept 2016]; Andino v State of New York, UID No. 2016-040-001 [Ct Cl, McCarthy, J., Jan. 5, 2016]). Moreover, the Court notes that Claimant's time to amend the Claim as of right under CPLR 3025 (a) has not yet expired as Defendant has not served an answer to the Claim (see Empire Blue Cross & Blue Shield v Various Underwriters at Lloyds, London, England, 5 Misc 3d 1024 [A], 2004 NY Slip [*4]Op 51528 [U], *2 [Sup Ct., NY County 2004]; Hedgepeth v Wing, 5 Misc 3d 1009 [A], 2004 NY Slip Op 51300 [U], *5 [Sup Ct, Westchester County 2004]). Thus, Claimant's instant motion for leave to amend the Claim is premature and must be denied.

Accordingly, it is hereby

ORDERED, that Defendant's motion number M-94860 is DENIED in its entirety; and it is further

ORDERED, that to the extent Claimant's cross motion number CM-94805 seeks leave to amend the Claim, the motion is DENIED without prejudice; and it is further

ORDERED, that to the extent Claimant's cross motion number CM-94805 seeks permission for Claimant's Attorney to appear by telephone, such request is granted only insofar as the parties may appear for status conferences by telephone; and it is further

ORDERED, that all other relief sought in Claimant's cross motion number CM-94805 not specifically addressed herein is DENIED.