Opinion
12097N Claim No. 115571 Case No. 2019–05251
10-15-2020
Cy GREENE, Claimant–Appellant, v. The STATE of New York, Defendant–Respondent.
Law Office of John F. Schutty, P.C., New York (John F. Schutty of counsel), for appellant. Letitia James, Attorney General, New York (Linda Fang of counsel), for respondent.
Law Office of John F. Schutty, P.C., New York (John F. Schutty of counsel), for appellant.
Letitia James, Attorney General, New York (Linda Fang of counsel), for respondent.
Friedman, J.P., Manzanet–Daniels, Kern, Moulton, JJ.
Order, Court of Claims of the State of New York (Faviola A. Soto, J.), entered November 22, 2019, which granted respondent State of New York's cross motion to dismiss the claim alleging unjust conviction ( Court of Claims Act § 8–B ), and denied claimant's motions to amend and for discovery, unanimously affirmed, without costs.
Claimant's conviction of murder in the second degree and robbery in the first degree was vacated based on ineffective assistance of counsel (see 37 A.D.3d 615, 828 N.Y.S.2d 816 [2d Dept. 2007], lv denied 8 N.Y.3d 985, 838 N.Y.S.2d 488, 869 N.E.2d 664 [2007] ). Because paragraph (h) of CPL 440.10(1) is not enumerated in Court of Claims Act § 8–B (3)(b)(ii), the Court of Claims properly dismissed the claim (see Baba–Ali v. State of New York, 19 N.Y.3d 627, 633 n. 5, 951 N.Y.S.2d 94, 975 N.E.2d 475 [2012] ; Dickan v. State of New York, 300 A.D.2d 257, 751 N.Y.S.2d 370 [1st Dept. 2002] ; Manes v. State of New York, 182 A.D.3d 1012, 120 N.Y.S.3d 911 [4th Dept. 2020] ). The statute looks solely to the actual basis for vacatur of the underlying criminal judgment, not to alternative potential grounds for vacatur ( Jeanty v. State of New York, 175 A.D.3d 1073, 1075, 107 N.Y.S.3d 799 [4th Dept. 2019], lv denied 34 N.Y.3d 912, 2020 WL 1466194 [2020] ). Accordingly, where, as here, the judgment is vacated only on a nonenumerated ground, CPL 440.10(1)(h), there is no basis to consider whether vacatur might have been warranted on an enumerated ground.