| Wilson v State of New York |
| 2015 NY Slip Op 02758 [127 AD3d 743] |
| April 1, 2015 |
| Appellate Division, Second Department |
[*1]
| Abdullah Wilson, Also Known as George Wilson,Appellant, v State of New York, Respondent. |
Sivin & Miller, LLP, New York, N.Y. (Ameer Benno of counsel), forappellant.
Eric T. Schneiderman, Attorney General, New York, N.Y. (Cecelia C. Chang andWon S. Shin of counsel), for respondent.
In a claim to recover damages for unjust conviction and imprisonment pursuant toCourt of Claims Act § 8-b, the claimant appeals from an order of the Courtof Claims (Weinstein, J.), dated March 19, 2013, which granted the defendant's motion todismiss the claim for failure to state a cause of action and denied his cross motion forleave to amend the claim.
Ordered that the order is affirmed, with costs.
By judgment rendered November 15, 1995, in the Supreme Court, Queens County,the claimant was convicted of robbery in the second degree. The judgment was affirmedby this Court (see People v Wilson, 272 AD2d 633 [2000]). The claimantthereafter commenced a habeas corpus proceeding in the United States District Court forthe Eastern District of New York (hereinafter the District Court), asserting that he hadbeen deprived of the effective assistance of trial counsel. Following a hearing duringwhich trial counsel testified as to his decision-making during the course of the criminaltrial, the District Court denied the petition (see Wilson v Mazzuca, 2007 WL952037, 2007 US Dist LEXIS 22492 [ED NY, Mar. 28, 2007, No. CV-01-2246(DGT)]). On appeal, the United States Court of Appeals for the Second Circuit reversedthe judgment of the District Court, and remanded the case to the District Court, directingthat, "[o]n remand, the District Court shall issue a writ of habeas corpus to Wilson by thesixtieth calendar day after the issuance of our mandate unless the District Attorney ofQueens County has, by that point, taken concrete and substantial steps expeditiously toretry Wilson" (Wilson v Mazzuca, 570 F3d 490, 508 [2009]). The Peoplesubsequently moved in the Supreme Court, Queens County, to dismiss the indictment inthe interest of justice, explaining that the claimant had completely served his time andhad been discharged from parole, and that there was, therefore, nothing to be gained byretrying the case. That motion was granted. The claimant then commenced this claimagainst the State of New York to recover damages for unjust conviction andimprisonment. The Court of Claims granted the defendant's motion pursuant to CPLR3211 (a) (7) to dismiss the claim for failure to state a cause of action. We affirm.
Contrary to the claimant's contentions, the claim does not satisfy the pleadingrequirements of Court of Claims Act § 8-b (3) (b), as the dismissal of theindictment was not based on any of the grounds set forth in the statute or premised onany likelihood of innocence (see Ivey v State of New York, 80 NY2d 474 [1992];Leka v State of New York,16 AD3d 557 [2005]), but on the ground that [*2]theclaimant, even if convicted in a new trial, had already served his sentence (seeWoodley v State of New York, 306 AD2d 524 [2003]). The claimant's assertion thatthe hearing held in the District Court on his petition for a writ of habeas corpusconstituted "newly discovered evidence" is without merit, since all of the factsunderlying his ineffective assistance of counsel claim were in existence at the time of thecriminal trial.
In addition, the Court of Claims properly denied the claimant's cross motion for leaveto amend the claim, since the proposed amendment was palpably insufficient andpatently devoid of merit (seeTarantino v Queens Ballpark Co., LLC, 123 AD3d 1105 [2014]). Skelos, J.P.,Roman, Hinds-Radix and LaSalle, JJ., concur.