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Unjust Conviction Claim Survives State Bid to Dismiss
 Joel Stashenko, New York Law Journal

July 9, 2014   

A judge has denied the state’s motion to dismiss Fernando Bermudez’s claim for unjust conviction for a murder of which he was found innocent after serving 18 years in prison.

Court of Claims Judge Alan Marin (See Profile) rejected the state’s contention that Bermudez’s action was filed in a fatally flawed manner because Bermudez did not verify it as required under §8-b(4) of the Court of Claims Act.

Marin said that Bermudez signed his claim before a notary, and he accepted Bermudez’s argument that “there is no functional difference between the two.”

The action, Bermudez v. State of New York, 118556, stakes Bermudez’s claim to compensation for his imprisonment for second-degree murder for the 1991 shooting death of Raymond Blount outside a Manhattan nightclub. Supreme Court Justice John Cataldo dismissed the indictment in 2009, finding that “clear and convincing evidence” pointed to Bermudez’s innocence after the five prosecution witnesses linking him to the shooting recanted their testimony.

Marin, who sits in Manhattan, said the verification in Bermudez’s case involved a declaration that the plaintiff had “read the submitted claim, knows its content and [states] that it is true.” The underlying matter to be verified was that Cataldo had dismissed Bermudez’s indictment and declared his innocence, Marin said.

“Mr. Bermudez was presumably in court every day of his trial and is sufficiently familiar with subsequent legal motions,” Marin wrote. “What can there possibly be by way of any discernible distinction between him verifying his claim and swearing to it before a notary?”

Bermudez’s attorney in the Court of Claims action, Michael Lamonsoff of Manhattan, was represented by Pollack Pollack Isaac & DeCicco partner Brian Isaac and James Catterson, special counsel at Kaye Scholer.

Assistant Attorney General Janet Polstein argued for the state.

 

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