The opinion of the court was delivered by: Melvin L. Schweitzer, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the printed Official Reports.
Claimant Amine Baba-Ali was wrongfully convicted on charges that he sexually abused his 4-year old daughter, including rape and sodomy. He was imprisoned for over two years 783 days on multiple concurrent sentences, the longest of which was for 8-1/3-25 years, primarily in maximum security prisons, before his conviction was reversed on grounds of ineffective assistance of counsel and prosecutorial misconduct (People v Baba-Ali, 179 AD2d 725 [2d Dept 1992]). As prosecutors prepared to re-try him, it was confirmed that the only witness who had presented evidence of such abuse had lied and, in fact, that there was no credible evidence his daughter ever had been molested. The indictment against claimant then was dismissed. He subsequently commenced this action for unjust conviction (Court of Claims Act §8-b).
Defendant moved pursuant to CPLR 3211 (a) (7) to dismiss for failure to state a cause of action and claimant cross-moved for summary judgment. The Appellate Division, Second Department, granted claimant's motion for summary judgment, reversing the trial court and finding the State liable. 20 AD3d 376 (2d Dept 2005). This was the first time in the history of the unjust conviction statute since it was enacted in 1984 that the Appellate Division, on a motion record, found that claimant had satisfied all requirements of § 8-b including, of course, his innocence by clear and convincing evidence without defendant having raised an issue of fact warranting a liability trial. That this appellate court finding was made in a case that did not involve DNA evidence is all the more remarkable. The Appellate Division's observations pertaining to liability bear repetition as this court turns to the issue of damages here:
During "an extremely unpleasant and highly bitter divorce and custody battle" (People v Baba-Ali, 179 AD2d 725, 578 NYS2d 633 ), the claimant was accused by his estranged wife of raping and sexually abusing his then four-year old daughter. By judgment of the Supreme Court, Queens County (Cooperman, J.), rendered December 5, 1989, the claimant was convicted of two counts of rape in the first degree, two counts of sodomy in the first degree, four counts of sexual abuse in the first degree, two counts of incest, and three counts of endangering the welfare of a child for acts involving his daughter.
The claimant demonstrated that this court's reversal of his conviction was based, in part, on the ground that the judgment was procured by prosecutorial misconduct that was tantamount to fraud (see CPL 440.10  [b]). The prosecutor's deliberate withholding of evidence which tended to exonerate the claimant constituted a "fraudulent act," which is "[c]onduct involving bad faith, [or] dishonesty," (Black's Law Dictionary 687 [8th ed 2004]), as well as a "fraud on the court," which is "a lawyer's . . . misconduct [in a judicial proceeding] so serious that it undermines . . . the integrity of the proceeding." (Id. at 686). The claimant also demonstrated that the dismissal of the indictment, at the request of the People, was based, in part, on newly-discovered medical evidence (see CPL 440.10  [g]).
At the claimant's criminal trial, his daughter did not specifically implicate him, and her pediatrician could not conclude with any degree of medical certainty that she had been sexually abused [citation omitted]. The only evidence of his guilt was the testimony of a Dr. Nadine Sabbagh, who found, inter alia, that the claimant's daughter was missing her hymen. However, this court noted that her estimation of when the sexual abuse occurred was as consistent with the claimant's innocence as it was with his guilt [citation omitted]. The claimant introduced medical records of two examinations, conducted at the request of the child's mother about a week after the claimant's last contact with his daughter and before Dr. Sabbagh's examination of the child, indicating that no signs of sexual abuse were found and that the child's hymen was intact. These medical records, when considered in conjunction with a post-conviction medical examination of the child, conducted on behalf of the People, finding no evidence of the sexual abuse reported by Dr. Sabbagh and contradicting her conclusion that the child had no hymen, completely discredited her findings, the only evidence of the claimant's guilt. In opposition to the claimant's prima facie showing of entitlement to summary judgment, the defendant failed to raise a triable issue of fact [citation omitted].
At trial here, claimant presented testimony and other evidence to document his lost wages; the conditions of his incarceration; the social, emotional and mental impact that conviction and incarceration had on his life; and the loss of his relationship with his daughter.*fn1
The court's findings of fact and conclusions of law follow.
A finding of defendant's liability having previously been made by summary judgment, claimant is entitled to an award of damages "in such sum of money as the court determines will fairly and reasonably compensate him." Court of Claims Act § 8-b (6). An individual who has been wrongfully convicted and incarcerated and who meets the requirements of the statute is entitled to an award of damages, the amount of which is determined in accordance with "traditional tort and other common-law principles" (Carter v State of New York, 139 Misc 2d 423 [Ct Cl 1988], affd 154 AD2d 642 [2d Dept 1989]). The award is to provide compensation for lost wages, physical or mental problems caused by the incarceration, and pain and suffering, which can encompass the conditions of incarceration (discomfort, fear, lack of privacy), loss of freedom while imprisoned, separation from children, humiliation, interference with personal relationships and damage to reputation (Johnson v State of New York, 155 Misc 2d 537 [Ct Cl 1992]; McLaughlin v State of New York, NYLJ, col. 4, [Ct Cl 10/27/89]). The relevant period for determining damages is from the date of conviction to the end of imprisonment, and damages also may be awarded for "any subsequent or continuing damages shown to have proximately resulted from those incurred during said period" (Carter, supra ). Time spent incarcerated prior to conviction cannot serve as a basis for an award (see Fudger v State of New York, 131 AD2d 136, 140-141 [3d Dept 1987], lv denied, 70 NY2d 616 ).
The amount of damages, even for claimants that have been incarcerated for similar periods of time, may vary depending on each claimant's individual circumstances and the course of his imprisonment (Carter v State of New York, 139 Misc 2d 423, supra ). [See discussion infra rejecting defendant's argument that the court should adhere to a per annum "formula" in making its damage award.] Among the circumstances the court may consider are the stigma attached to the type of conviction, whether the individual previously was incarcerated, the presence or absence of a significant criminal history prior to the unjust conviction and the basis for the prior conviction (a claimant who may not have been guilty of the crime charged but knew he was guilty of something else will suffer less than one who knows he is truly innocent of any wrongdoing, Johnson v State of New York, 155 Misc 2d 537, supra ; Carter v State of New York, 139 Misc 2d 423, supra ). It is also relevant in this case that "[a] parent who has been wrongfully deprived of the company of his child, by interference with such custody, association and companionship, may recover damages from the wrongdoer for the mental anguish and wounded feelings and for the expenses incurred in vindicating the parent's rights to have his child" (McGrady v Rosenbaum, 62 Misc 2d 182 [NY Sup Ct 1970], affd 37 AD2d 917 [1st Dept 1971], citing to Pickle v Page, 252 NY 474 ; McEntee v New York Foundling Hosp., 21 Misc 2d 903 [Sup Ct Kings Co. 1959]; Tobin v Grossman, 24 NY2d 609, 619 ; Lisker v City of New York, 72 Misc 2d 85 [Sup Ct Queens Co.1972]).
Pecuniary Damages. Claimant relies on the testimony of his economist, Dr. Miner, to support and then compute his claim to lost wages, past and future, as well as for the computation of his claim for the costs of future psychotherapy. Dr. Miner relied on claimant's actual earnings from 1986 to 2005, as evidenced by his W-2 forms from 1986 to 2005 and his tax returns prior to 1989. (Ex 22)
In awarding past lost earnings, the court accounts for the actual period of claimant's confinement from the date of conviction on November 15, 1989 until his release from prison on January 27, 1992, and also adds a subsequent period through 1999 due to claimant's psychological impairment, that is, for a period when he suffered from the disabling effects of a severe depression which the court finds properly attributable to his unjust conviction/ incarceration. The court credits the psychiatric testimony of Dr. Dudley and claimant's own testimony in this regard.
The court thus finds this period of earnings impairment to be compensable in that it is directly attributable to a depression caused by his conviction, and awards damages for claimant's past lost earnings capacity amounting to $343,428.*fn2
The claim for future lost earnings is another matter, however. A claimant, of course, bears the burden of establishing lost earnings with "reasonable certainty." (Bielich v Winters, 95 AD2d 750 [1st Dept 1983]; Davis v City of New York, 264 AD2d 379 [2nd Dept 1999]). As this applies to future lost earnings, claimant must establish that his future inability to earn at his pre-conviction/incarceration earning capacity has been proximately caused by those events. (See Bacigalupo v Healthshield, Inc., 231 AD2d 538 [2d Dept 1996] [plaintiff must "establish any diminution in earning capacity result[ed] from his injury"]). Claimant has not met his burden with regard to his alleged diminished future earnings capacity.
Claimant's pecuniary damage claim also seeks the costs of future psychotherapy for the balance of claimant's life, predicated on Dr. Dudley's opinion that claimant would benefit from such treatment. While the court has accepted Dr. Dudley's view that claimant suffered real psychological issues resulting from his incarceration, the court finds claimant has not proven that the lingering psychological problems claimant now grapples with and which Dr. Dudley opines could be allayed with psychotherapy are primarily attributable to his conviction/incarceration as to warrant an award of future psychotherapy costs.
Non-Pecuniary Damages. The court turns to claimant's claim for non-pecuniary damages. These are comprised of the damages claimant suffered during his period of incarceration following conviction; and then those he suffered following his release which resulted from his unjust conviction and incarceration. In the first category, the "principal elements" of damages include "loss of reputation, mental anguish and, above all, the loss of liberty." (Harris v State of New York, 38 AD3d 144, 153-54 [2d Dept 2007]). The mental anguish suffered by an inmate while he is in prison encompasses his discomfort, fear, lack of privacy and degradation. It is distinct from the continuing type of emotional damage he may suffer after his release from prison. (Carter v State of New York, 139 Misc 2d 423 [Ct Cl 1988], affd 154 AD2d 642 [2d Dept 1989]). In this case, there is also a significant damage component for claimant's loss of the relationship with his daughter (see cases cited, supra ).
Mental Anguish/Degradation. Claimant and his wife Lillian both testified as to claimant's shock and utter disbelief at the moment he was convicted. He never believed it would happen. Disheveled and in tears, "it just destroyed him," recounted his wife. Having been found guilty, he was carted off to prison. In Campbell v State of New York, 186 Misc 586, 588 (Ct Cl 1946), Presiding Judge Barrett described the angst and humiliation suffered by another innocent man thus unjustly incarcerated:*fn3
[C]laimant suffered grievously during his long term in prison . . . for the commission of crimes of which he was innocent. He was branded as a convict, given a prison number and assigned to a felon's cell. He was deprived of his liberty and civil rights. He was degraded in the eyes of his fellow men. His mental anguish was great by reason of his separation from society and his wife and family. . . ...