Nieves v. State , 186 A.D.2d 240 ( 1992 )

In a claim to recover damages under Court of Claims Act § 8-b for unjust conviction and imprisonment, the claimant appeals from an order of the Court of Claims (Weisberg, J.), dated August 21, 1990, which granted the motion of the defendant State of New York to dismiss the claim.

Ordered that the order is affirmed, with costs.

By judgment of the Supreme Court, Queens County (Calabretta, J.), rendered February 7, 1984, the claimant, Antonio Nieves, was convicted of murder in the second degree, criminal possession of a weapon in the second degree (two counts), and reckless endangerment in the second degree, upon a jury verdict. On December 7, 1987, this Court reversed the judgment of conviction, on the law, and dismissed the indictment (see, People v Nieves, 135 AD2d 579). The determination to reverse the judgment was based upon a finding that the evidence of the claimant’s participation in the crimes charged was legally insufficient to sustain the conviction (see, People v Nieves, supra, at 581). The claimant thereafter commenced this claim to recover damages against the State of New York based upon his allegedly unjust conviction and imprisonment.

The Court of Claims properly dismissed the claim. The claim does not satisfy the pleading requirements of Court of Claims Act § 8-b (4) (a), as the claimant has failed to factually demonstrate a likelihood of success at trial in proving his innocence (see, Court of Claims Act § 8-b [4]; Reed v State of New York, 78 NY2d 1; McFadden v State of New York, 151 AD2d 730, 731; Heiss v State of New York, 143 AD2d 67; Grimaldi v State of New York, 133 AD2d 97; Solomon v State of New York, 146 AD2d 439; Lanza v State of New York, 130 AD2d 872). Sullivan, J. P., Balletta, O’Brien and Copertino, JJ., concur.