Rosario v. State of New York

Rosario v State of New York (2021 NY Slip Op 01151)

Rosario v State of New York

2021 NY Slip Op 01151

Decided on February 23, 2021

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: February 23, 2021
Before: Kapnick, J.P., Webber, Mazzarelli, Oing, JJ.

Appeal No. 13188 Case No. 2020-03105 Claim No. 130387

[*1]Richard Rosario, Claimant-Appellant,

v

The State of New York, Defendant-Respondent.

Neufeld Scheck & Brustin, LLP, New York (Amelia Green of counsel), for appellant.

Letitia James, Attorney General, New York (Caroline A. Olsen of counsel), for respondent.

Order, Court of Claims of the State of New York (Jeanette Rodriguez-Morick, J.), entered January 13, 2020, which granted respondent's motion to dismiss the unjust conviction and imprisonment claim (Court of Claims Act § 8-b), unanimously affirmed, without costs.

Claimant's conviction was vacated on the sole ground of ineffective assistance of counsel (CPL 440.10[1][h]), which is not a statutorily enumerated ground for vacatur (Court of Claims Act § 8-b[3][b][ii]; see Baba-Ali v State of New York, 19 NY3d 627, 633 n 5 [2012]). There is no basis for considering whether the conviction should be vacated on any enumerated ground (Greene v State of New York, 187 AD3d 539, 540

[1st Dept 2020]; see Dickan v State of New York, 300 AD2d 257 [1st Dept 2002]).THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: February 23, 2021