Wilson v State of New York

[*1] Wilson v State of New York 2013 NY Slip Op 50738(U) Decided on March 19, 2013 Ct Cl Weinstein, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 19, 2013
Ct Cl

Abdullah Wilson A/K/A GEORGE WILSON, Claimant,

against

The State of New York, Defendant.



120470



For Claimant:

Benno & Associates, P.C.

By: Ameer Benno, Esq.

For Defendant:

Eric T. Schneiderman, NYS Attorney General

By: Janet Polstein, Assistant Attorney General

David Weinstein, J.

Claimant Abdullah Wilson alleges a cause of action against the State of New York pursuant to the Unjust Conviction and Imprisonment Act of 1984, codified as section 8-b of the Court of Claims Act. The claim arises out of Wilson's 1995 conviction for robbery in the second degree, overturned in 2009 by the United States Court of Appeals for the Second Circuit on a petition for a writ of habeas corpus (see Wilson v Mazzuca, 570 F3d 490 [2d Cir 2009]). [*2]Specifically, the Second Circuit directed that the writ be issued unless Wilson was promptly retried. The State Supreme Court then granted the People's motion to dismiss the indictment in the interest of justice, and this action followed.

Defendant State of New York now moves to dismiss the claim on the grounds that it fails to state a cause of action, and fails to comply with the requirements of Court of Claims Act § 8-b (3) and (4).[FN1] Claimant opposes defendant's motion and cross-moves for leave to amend his claim pursuant to CPLR 3025 (b).[FN2] Defendant opposes the cross motion.

Background and Procedural History

On December 22, 1992, Roger Erra was robbed at gunpoint by two men at his place of business.[FN3] On October 27, 1994, Wilson was arrested for an unrelated offense. Erra picked Wilson out of a line-up the following day, and Wilson was then charged with robbery in the first and second degree.

Wilson was tried before a jury in New York State Supreme Court, Queens County, in September 1995. In the midst of the trial, the judge placed on the record his concern that Wilson might not be receiving effective representation, based on certain decisions made by defense counsel Frank GaNun. Specifically, the judge recounted what he believed to be counsel's mistakes, and then stated the following: "I have very serious problems with this case right now. The alarm bells are ringing in my head and I'm going right on the record. And the question concerns the representation of the defendant" (Wilson, 570 F3d at 495). In response, GaNun assured the court that he had a trial strategy underpinning his various decisions, and the case proceeded to verdict (id.). On October 4, 1995, Wilson was found guilty of robbery in the second degree (Penal Law § 160.10), but was acquitted of the first-degree charge.

On November 15, 1995, Wilson was sentenced to a prison term of seven-and-one-half to fifteen years. He appealed the conviction, but the appeal was not perfected until November 1999. While the appeal was pending, in October 1998 Wilson filed a motion with the trial court to set aside the judgment pursuant to Criminal Procedure Law § 440.10, on the ground that his trial counsel had been ineffective. The motion was denied.

The Second Department affirmed Wilson's conviction, and stated that "defendant's contention that he was denied the effective assistance of counsel is without merit" (People v Wilson, 272 AD2d 633, 633 [2d Dept 2000]). Leave to appeal was denied (People v Wilson, 95 [*3]NY2d 940 [2000]).[FN4]

On April 9, 2001, Wilson filed a petition for a writ of habeas corpus pursuant to 28 USC § 2254 in the United States District Court for the Eastern District of New York. The petition asserted, inter alia, that Wilson had been convicted in violation of his Sixth Amendment right to effective assistance of trial counsel. The District Court referred the matter to a magistrate judge, who recommended denying the petition (Wilson v Mazzuca, 2003 US Dist LEXIS 27420 [ED NY, Jan. 16, 2003]). The recommendation was adopted by the District Court (Wilson v Mazzuca, 2003 US Dist LEXIS 27421 [ED NY, May 30, 2003]), but the Court of Appeals for the Second Circuit vacated the denial and remanded the matter to "afford Wilson's trial counsel the opportunity to explain his actions" (Wilson v Mazzuca, 119 Fed Appx 336, 337 [2d Cir 2005]).

The District Court again referred the petition to a magistrate judge, who conducted an evidentiary hearing at which GaNun testified about his conduct at the criminal trial. On June 30, 2006, the magistrate found that Wilson had established a valid claim of ineffective assistance of counsel, and recommended granting the petition (Wilson v Mazzuca, 2006 WL 4401020 [ED NY, June 30, 2006]). The magistrate applied the two-pronged test for ineffective assistance set forth in Strickland v Washington (466 US 668 [1984]). Under the Strickland test, a party asserting that he or she was convicted in violation of the Sixth Amendment right to effective assistance of counsel must show that: (1) counsel's performance was constitutionally deficient (the "performance" prong), and (2) but for counsel's unprofessional errors, there is a "reasonable probability" that the outcome of the proceeding would have been different (the "prejudice" prong).

The magistrate judge found that, as to the performance prong, "the cumulative weight of GaNun's errors deprived Wilson of his Sixth Amendment right to counsel" (Wilson, 2006 WL 4401020, at *15). Specifically, the magistrate held that counsel: 1) opened the door to the introduction of his client's criminal history by presenting character testimony; 2) introduced into evidence a 1994 police complaint report against Wilson; 3) opened the door to Erra's photo array identification of Wilson; 4) failed to object to the use of the term "mugshots" and "mug books" or to seek redaction of the "mugshot" photo to remove the booking plate; and 5) elicited testimony from the complainant regarding his fear of retaliation. As to the prejudice prong, the magistrate concluded: "there is a reasonable probability that, but for GaNun's errors, the jury would not have reached a unanimous verdict of guilt" (id. at *17).

The District Court declined to follow the magistrate's recommendation. Though the court agreed that aspects of the performance by Wilson's trial counsel were constitutionally deficient, it determined that Wilson had failed to show sufficient "prejudice," stating: "it cannot be said, to a reasonable degree of probability, that even a mistake-free presentation of the defense offered at trial, would have resulted in an outcome other than a verdict of guilty" (Wilson v Mazzuca, 2007 WL 952037, *20 [ED NY, June 29, 2007]).

The matter was appealed to the United States Court of Appeals for the Second Circuit, which reversed. The Second Circuit found that but for the substantial errors committed by trial [*4]counsel, there was a "reasonable probability" that Wilson would not have been convicted, and that it was an "unreasonable application of Strickland for the Appellate Division to deny Wilson's claim of ineffective assistance of counsel"[FN5] (Wilson v Mazzuca, 570 F3d 490, 508 [2d Cir 2009]). The Court of Appeals directed the District Court to issue a writ of habeas corpus to Wilson, unless the District Attorney took substantial steps to expeditiously retry Wilson (id. at 508).

On October 19, 2009, the Queens County District Attorney opted not to retry the case and moved to dismiss the indictment in the interest of justice. The prosecutor noted that Wilson had already served his entire prison sentence, and had been released from parole approximately one year earlier.[FN6] Thus, he opined that "nothing is to be gained from retrying the case" (Proposed Amended Claim, Ex. R). The Supreme Court, Queens County, granted the People's motion and dismissed the case (id.).

Wilson filed the present claim pro se on October 14, 2011. In the claim, Wilson contends inter aliathat the case against him was based on a single eyewitness (Erra), whom he asserts had lied in his testimony; that Erra's testimony should have been discredited by the findings of a private investigator; that John Lucas — an employee of Erra's who was present during the robbery — was available to testify at the time, although Erra claimed he was not; and that Lucas would have given testimony favorable to Wilson.

Defendant now moves to dismiss the claim on three grounds: (1) claimant has failed to meet the pleading requirements of Court of Claims Act § 8-b (3), since neither of the bases on which his conviction was overturned — ineffective assistance of counsel and dismissal in the interest if justice — constitutes a predicate ground for vacatur as required by the Act; (2) claimant has failed to provide the documentary evidence required by section 8-b (3); and (3) claimant has failed to meet the pleading requirements of Court of Claims Act § 8-b (4), since he has not shown that he is likely to succeed at trial. Claimant, now represented by counsel, has filed papers in opposition to the motion, and cross-moves to file an amended claim.

[*5]Discussion

To state a claim for wrongful conviction under Court of Claims Act § 8-b, the claimant must demonstrate as "step one" that his conviction was overturned under one of the grounds specifically set forth in section 8-b (3) (David W. v State of New York, 27 AD3d 111, 114 [2d Dept 2006]). For reasons set forth below, I find that claimant has not made that showing. Because this finding compels dismissal, I need not address the other grounds raised in defendant's motion.

As relevant here, section 8—b (3) (b) (ii) provides that to present a claim for unjust conviction, claimant must establish by documentary evidence that the vacatur of his conviction was based upon any of the grounds set forth in CPL 440.10 (1) (a), (b), (c), (e), or (g)[FN7]

The CPL 440.10 (1) predicate grounds are as follows:

"(a) The court did not have jurisdiction of the action or of theperson of the defendant; or (b) The judgment was procured by duress, misrepresentation or fraud on the part of the court or a prosecutor or a person acting for or in behalf of a court or a prosecutor; or(c) Material evidence adduced at a trial resulting in the judgment was false and was, prior to the entry of the judgment, known by the prosecutor or by the court to be false; or . . .(e) During the proceedings resulting in the judgment, the defendant, by reason of [*6]mental disease or defect, was incapable of understanding or participating in such proceedings; or . . .(g) New evidence has been discovered since the entry of a judgment based upon a verdict of guilty after trial, which could not have been produced by the defendant at the trial even with due diligence on his part and which is of such character as to create a probability that had such evidence been received at the trial the verdict would have been more favorable to the defendant; provided that a motion based upon such ground must be made with due diligence after the discovery of such alleged new evidence."

Section 8-b specifically excludes the following CPL 440.10 paragraphs, which therefore cannot serve as the basis for presenting a claim for unjust conviction: "(d) Material evidence adduced by the people at a trial resulting in the judgment was procured in violation of the defendant's rights under the constitution of this state or of the United States; or . . .(f) Improper and prejudicial conduct not appearing in the record occurred during a trial resulting in the judgment which conduct, if it had appeared in the record, would have required a reversal of the judgment upon an appeal therefrom; or . . .(h) The judgment was obtained in violation of a right of the defendant under the constitution of this state or of the United States."

As an initial matter, section 8-b does not explicitly reference federal habeas corpus relief. Whether a federal court's grant of habeas corpus could satisfy the 8-b (3) (b) (ii) predicate grounds was addressed by the Second Department in Turner v State of New York (50 AD3d 890 [2d Dept 2008]). In Turner, the Appellate Division rejected defendant's argument that claimant, whose judgment of conviction had been vacated in a federal habeas proceeding, failed to establish that the vacatur of his judgment of conviction was based upon the grounds enumerated in Court of Claims Act § 8-b (3) (b) (ii). The Second Department held that the findings of the District Court in its habeas ruling were sufficient to satisfy the CPL 440.10 (1) (c) predicate ground for vacatur, in that "[m]aterial evidence adduced at a trial resulting in a judgment was false and was, prior to the entry of the judgment, known by the prosecutor or by the court to be false" (id. at 892). The court reasoned that it was "[i]mplicit in [the District Court's] determination . . . that the prosecutor was responsible for the perjured testimony at trial . . ." (id.).

Thus, a federal court grant of a writ of habeas corpus may serve as a predicate for a section 8-b claim, but only if it meets one of the grounds for relief enumerated in section 8-b (3) (b) (ii), whether implicitly or explicitly. For example, in Leka v State of New York (16 AD3d 557 [2d Dept 2005], lv denied 5 NY3d 704 [2005]), claimant argued that a federal court's grant of the writ of habeas corpus based on a Brady violation was the result of "newly discovered evidence" within the ambit of CPL 440.10 (1) (g), and as such met the requirements of section 8-b (3) (b) (ii) (see Leka v State of New York, UID No. 2004-027-512 [Ct Cl, Waldon, J., May 12, 2004] [unreported]). The Second Department affirmed the dismissal of the claim, finding that the [*7]reversal of the conviction"was not based on any of the grounds set forth in the statute or premised on any likelihood of innocence, but rather on the ground that the claimant was deprived of his due process rights as guaranteed by the United States Constitution" (id. at 558).

In the present case, the Second Circuit's determination that the performance of Wilson's trial counsel did not meet constitutional standards is not sufficient to support any of the grounds for relief set forth in section 8-b (3). Of particular relevance, the statute explicitly excludes convictions overturned on constitutional grounds from its ambit, and thus the success of such a constitutional challenge cannot — unless claimant otherwise meets one of the delineated predicate criteria — serve as the basis for a wrongful conviction claim under the Court of Claims Act (see Baba-Ali v State of New York, 19 NY3d 627, 633 n 5 [2012] ["[c]onspicuously omitted as a ground for Court of Claims Act § 8-b recovery is that set forth in CPL 440.10 (1) (h), namely, that [t]he judgment was obtained in violation of a right of the defendant under the constitution of this state or of the United States' "]; Fudger v State of New York, 131 AD2d 136, 139 [3d Dept 1987] ["in defining the statutory coverage, the Legislature notably excluded a dismissal premised on CPL 440.10 (1) (h)"]). And, as the Court of Appeals noted in Baba-Ali, "[i]neffective assistance . . . claims fit within the description of [the excluded] paragraph (h)" (19 NY2d at 633-5; see also Britt v State of New York, 260 AD2d 6, 7 [1st Dept 1999], lv denied 95 NY2d 753 [2000] ["ineffective assistance of counsel is not a predicate for a claim under the Unjust Conviction and Imprisonment Act"]).

Claimant seeks to avoid this bar by arguing nonetheless that his "judgment of conviction was reversed based on newly discovered evidence within the meaning of CPL 440.10 (1) (g)," a cognizable section 8-b (3) (b) (ii) predicate (Cl. Mem. of Law p. 19). It is claimant's position that the record of the federal evidentiary hearing conducted before the magistrate judge regarding the performance of Wilson's trial counsel, and in particular statements by GaNun thereat that he "had no trial strategy," constitutes "evidence which was not available at the time of the entry of Claimant's judgment of conviction" (id. at 20). Moreover, claimant contends that if such evidence had been presented to the trial court, it would have led to a "more favorable" result, in that the trial court "would have declared a mistrial" (id.).

This argument lacks merit, for a number of reasons. First, the "evidence" at issue does not concern the underlying offense, but the strategic decisions of counsel. To obtain relief under section 440.10 (1) (g), however, the new evidence must itself impact defendant's innocence or guilt, not the fairness of the trial (see People v Reyes, 255 AD2d 261, 263 [1st Dept 1998][citations omitted] [motion to vacate criminal conviction rendered after trial on the grounds of newly discovered evidence requires showing, inter alia, that such evidence is "material to an issue at defendant's trial"]; People v Jackson, 78 NY2d 638, 646 [1991] [newly discovered evidence prong of section 440.10 (1) "is concerned primarily with the exculpatory value of the newly discovered material"]). Indeed, on its face this section requires that, if the new evidence had been received at trial, "the verdict would have been more favorable to the defendant" (CPL 440.10 [g] [emphasis added]). For that reason, in every instance where a section 8-b cause of action has been found to meet this standard, the evidence at issue concerned the underlying offense, not a collateral matter (see e.g. Fowler v State of New York, 81 AD3d 495 [1st Dept 2011] [upholding denial of defendant's summary judgment motion on section 8-b claim; conviction had been vacated under CPL 440.10 (1) (g) where newly discovered evidence [*8]exonerated claimant of underlying offense]; Khatibi v State of New York, UID No. 2012-010-002 [Ct Cl, Ruderman, J., Feb. 28, 2012] [section 8-b claim established; conviction had been vacated under CPL 440.10 (1) (g) because claimant's brother confessed to the crime]; Gristwood v State of New York, UID No. 2011-009-109 [Ct Cl, Midey, J., Apr. 1, 2011] [section 8-b claim established; conviction had been vacated under CPL 440.10 (1) (g) when another individual confessed to the crimes]; Brown v State of New York, UID No. 2008-009-029 [Ct Cl, Midey, J., Oct. 20, 2008] [claimant granted summary judgment on section 8-b claim; conviction had been vacated under CPL 440.10 (1) (g) when DNA testing proved claimant's actual innocence]; Martinez v State of New York, UID No. 2005-030-911 [Ct Cl, Scuccimarra, J., Mar. 22, 2005] [defendant's motion to dismiss section 8-b claim denied; conviction had been vacated under CPL 440.10 (1) (g) where another person had confessed]).

While the Second Circuit in Wilson used the term "new evidence" to describe the information gleaned from the magistrate's hearing, the court made clear that the "new evidence" at issue was evidence of counsel's conduct that was not before the state court when it denied Wilson's claim for ineffective assistance of counsel (Wilson v Mazzuca, 570 F3d at 499). Thus, the Circuit Court stated that "[a]ny new evidence uncovered in the federal proceeding is relevant only insofar as it assists the habeas court in determining whether the state court reached an unreasonable application of [Federal] law" (id. at 500). Claimant cites no authority that evidence of this nature, which is not introduced to a jury and concerns the trial proceedings and not the underlying criminal offense, is what is contemplated by CPL 440.10 (1) (g).

Second, the thought process of claimant's own counsel at his criminal trial cannot be considered evidence "discovered since the entry of a judgment " (CPL 440.10 [1] [g]). As a general rule, evidence is not newly discovered when it "was known by defense counsel to exist before the trial" (People v Moyer, 75 AD3d 1004, 1008 [3d Dept 2010]; see also People v Wagner, 51 AD2d 186, 189 [3d Dept 1976] [evidence not "newly discovered" when "[d]efense counsel knew at the time of the trial" information leading to other party's possible guilt, which was the basis for the 440.10 motion]). To hold, instead, that defense counsel's particular thoughts regarding trial strategy, or lack thereof, is "newly discovered" because counsel did not reveal them openly at trial — or because he was ineffective — would essentially place all ineffective assistance claims in the "newly discovered evidence" category. This, in turn, would create an end run around the specific exclusion of constitutional claims established in section 8-b. In any case, claimant has offered no explanation as to why — although the trial judge explicitly raised the steps taken by GaNun that ultimately gave rise to the ineffective assistance claim during the proceedings, and Wilson filed a section 440.10 motion arguing ineffective assistance of counsel in 1998 — he could not have sought an explanation from his trial counsel regarding his actions long before the evidentiary hearing.

The conclusion that evidence relevant only to counsel's ineffectiveness at trial is not "newly discovered" for purposes of CPL 440.10 finds support in the federal construction of the same term (see People v Huggins, 144 Misc 2d 49, 53 [Sup Ct, NY County 1989] [federal cases interpreting term "newly discovered evidence" are "very persuasive because the Federal test for newly discovered evidence is extremely similar to the New York test"]; see also Reed v State of New York, 78 NY2d 1, 11 n 2 [1991] [citing caselaw interpreting federal unjust conviction compensation statute in construing meaning of section 8-b]). Rule 33 of the Federal Rules of [*9]Criminal Procedure allows for a motion for a new trial based on "newly discovered evidence" to be brought within three years of a verdict or a finding of guilty (Rule 33 [b] [1]), while a motion based on any other grounds must be filed within 14 days (Rule 33 [b] [2]). The Second Circuit in United States v Cammacho (462 Fed Appx 81 [2d Cir 2012]), rejected an argument that ineffective assistance of counsel claims fall into the former category, holding that they "do not present new evidence within the meaning of Rule 33," since a motion raising ineffective assistance addresses "collateral issues" (id. at 83, citing United States v Castillo, 14 F3d 802 [2d Cir 1994]; see also United States v Mayo, 14 F3d 128 [2d Cir1994] [internal quotations omitted] [motion claiming "newly discovered evidence of ineffective assistance of counsel" did not "address the issues raised by the prosecution" and was not subject to the longer filing period applicable to claims of newly discovered evidence]; United States v Walker, 1998 WL 760260, *3 [ND NY 1998] [trial strategy is not deemed to be newly discovered evidence for purposes of federal motion for new trial]).

Although claimant advances various arguments in support of his position, I can find no caselaw supporting his theory. While Wilson contends that Baba-Ali v State (20 AD3d 376 [2d Dept 2005]) and Coakley v State of New York, (225 AD2d 477 [1st Dept 1996]) bolster the notion that convictions overturned on ineffective assistance grounds may give rise to an action under section 8-b, that is simply not the case. It is true that, in both cases, claimant's conviction was overturned in part on ineffective assistance grounds. But in each instance, the reversal was also premised on some other basis, and it was on such alternative basis - and not the ineffective assistance ground - that the section 8-b claim was allowed to proceed. Thus, in Baba-Ali, the Second Department found that claimant had alleged an adequate 8-b claim because the reversal of the judgment of conviction was premised, in part, upon prosecutorial misconduct that amounted to a claim of fraud (Baba-Ali, 20 AD3d at 377 [citing CPL 440.10 (1) (b), a section 8-b predicate]), and that the dismissal of the indictment was also, in part, based on "newly discovered medical evidence" pursuant to CPL 440.10 (1) (g) (id.). Indeed, in modifying the Appellate Division's Baba-Ali decision, the Court of Appeals specifically noted that an ineffective assistance ground "fit[s] within the description of subsection h" of CPL 4401.10 (1), which is not a ground upon which a section 8-b claim may be premised (Baba-Ali, 19 NY3d at 633 n 5). In Coakley, the First Department stated that the claimant's conviction had been vacated on the ground of newly discovered evidence, which allowed him to proceed on a section 8-b cause of action "notwithstanding the fact that the conviction was also vacated on grounds of ineffective assistance of counsel, a ground not specified in the subdivision" (Coakley, 225 AD2d at 478). Thus, both cases stand for an entirely different proposition from that advanced by claimant: that while the presence of an ineffective assistance ground for overturning a conviction does not preclude an 8-b claimant from bringing an otherwise viable wrongful conviction claim, ineffective assistance of counsel does not by itself meet the criteria of section 8-b.

Claimant's effort to premise a section 8-b claim on a determination by the habeas court that falls squarely within CPL 440.10 (1) (h), and where the habeas relief was not predicated on any other ground that would satisfy the pleading burden of section 8-b (3), must therefore fail. In so holding, I am mindful that an individual may be innocent of the crimes of which he was [*10]convicted, but nevertheless not meet any of the predicate section 8-b (3) (b) (ii) grounds.[FN8] However, not every wrong gives rise to a private civil remedy (see Tobin v Grossman, 24 NY2d 609, 619 [1969]). In enacting section 8-b, the legislature carefully sought to "balance the State's obligation to be fair and just with its responsibility to ensure that it is not overwhelmed with enormous monetary liability and that the Court of Claims and the district attorneys' offices are not inundated with baseless claims of unjust conviction and imprisonment" (Reed, 78 NY2d at 11-12, quoting Governor's Approval Message, 1984 McKinney's Session Laws of NY, at 3669). It effectuated that balance by drawing a firm legal boundary, excluding claims where the conviction was overturned on constitutional grounds alone, while allowing relief for convictions reversed on a showing of new evidence of innocence. Under this clear balance struck by the Legislature, claimant does not fall within the class of individuals that may seek section 8-b relief.

In light of the foregoing, claimant cannot satisfy the requirements of section 8-b (3). Finally, since the defect in Wilson's claim arises out of the basis on which his conviction was overturned, he cannot correct it via an amendment. As a result, his motion to amend must be denied (see Doyle Detective Bur. v Bommattei, 134 AD2d 914, 915 [4th Dept 1987] [stating "[a] court is not required to permit futile amendments"]).

Accordingly, it is ORDERED that defendant's motion no. M-81346 be granted and that claim no. 120470 be dismissed, and that claimant's cross motion no. CM-82176 be denied.

Albany, New York

March 19, 2013

DAVID A. WEINSTEIN

Judge of the Court of Claims

Papers Considered

1. Defendant's Notice of Motion, Affirmation in Support of Defendant's Motion to Dismiss, and annexed exhibits.

2. Claimant's Attorney Affirmation and Memorandum of Law in Opposition to Defendant's Motion to Dismiss and in Support of Claimant's Cross motion to [*11]Amend, and annexed exhibits.

3. Defendant's Reply and Affirmation in Opposition to Claimant's Cross motion to Amend the Claim, and annexed exhibits.

4. Claimant's Affirmation in Reply. Footnotes

Footnote 1:Defendant's notice of motion also refers to dismissal under CPLR 3212, which provision relates to motions for summary judgment. No other mention of such relief is made in the defendant's papers.

Footnote 2:Claimant filed this claim pro se. Present counsel filed a notice of appearance on August 1, 2012.

Footnote 3:Unless otherwise stated, the account that follows is based on that given in the Second Circuit opinion.

Footnote 4:Wilson apparently also filed two pro se petitions for state writs of habeas corpus one in the Appellate Division, Second Department in 1995, and one in Supreme Court in 2000. Both were denied (see Wilson v Mazzuca, 2003 US Dist LEXIS 27420, *3, *5 [ED NY, Jan. 16, 2003]).

Footnote 5:The federal habeas corpus statute, in 28 USC § 2254 (d), provides:

"An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim-



(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or



(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."

Footnote 6:Wilson served a prison sentence of nine-and-one-half years, and was released on parole March 8, 2005. He was discharged from parole on March 28, 2008 (Proposed Amended Claim, Exs. T, U, V).

Footnote 7:Claimant also suggests that the section 8-b (3) (b) (ii) (B) applies to this matter (see Cl. Mem. of Law at 18-19). That section provides:

"(B) subdivision one (where based upon grounds set forth in item (A) hereof), two, three (where the count dismissed was the sole basis for the imprisonment complained of) or five of section 470.20 of the criminal procedure law."

CPL 470.20 (1), relied upon by claimant, concerns the determination of a criminal appeal by an intermediate court. As noted supra, Wilson took his direct appeal to the Second Department, which affirmed his conviction and determined that his ineffective assistance of counsel claim was without merit. But even if CPL 470.20 (1) encompasses the appeal in claimant's federal habeas proceeding, he would still have to satisfy the predicate grounds enumerated in section 8-b (3) (b) (ii) (A)(see Claimant's Mem. of Law at 19, citing Court of Claims Act § 8-b [3] ["To be sure, where a judgment of conviction is reversed by an intermediate appellate court as a result of prejudicial error at the criminal trial, a Claim for unjust conviction under Section 8-b can exist only if the judgment of conviction was reversed on any of the grounds provided in parapgraph[s] (a), (b), (c), (e) or (g) of CPL § 440.10 (1)"]). Thus, Wilson faces the barriers outlined below even if this provision applies.

Footnote 8:Defendant's suggestion that a dismissal of the indictment in the interest of justice cannot serve as a predicate ground to maintain suit (Polstein Aff. ¶ 10) is not accurate. Under Court of Claims Act § 8-b (3), the vacatur of the conviction on an enumerated ground satisfies the prerequisite for recovery under the Act, "regardless of the basis for the dismissal of the accusatory instrument" (see Long v State of New York, 7 NY3d 269, 275 [2006]). That being said, it does not do Wilson any good, as his habeas relief was granted on a ground that does not satisfy section 8-b (3).