Dickan v. State ( 2002 )

—Order, Court of Claims of the State of New York (S. Michael Nadel, J.), entered July 25, 2001, which, upon renewal, granted defendant’s motion to dismiss claimant’s claim for unjust conviction and imprisonment, unanimously affirmed, without costs.

Claimant’s motion to vacate his underlying conviction, together with the transcript of the hearing in which the Supreme Court granted the motion, clearly establish that the vacatur was based on CPL 440.10 (1) (d) and/or (h), in that the police unlawfully seized cocaine from defendant’s person. Since those paragraphs of CPL 440.10 (1) are not enumerated in Court of Claims Act § 8-b (3) (b) (ii), the Court of Claims properly dismissed the claim (see Forest v State of New York, 150 AD2d 214, lv denied 74 NY2d 610; Fudger v State of New York, 131 AD2d 136, 139-140, lv denied 70 NY2d 616).

In any event, dismissal of the claim would also have been proper under Court of Claims Act § 8-b (4) because it is “not likely” that claimant would succeed at trial (see Piccarreto v State of New York, 144 AD2d 920; Heiss v State of New York, 143 AD2d 67, 68-69). Concur — Saxe, J.P., Sullivan, Ellerin, Lerner and Gonzalez, JJ.