DICKAN v. STATE OF N.Y

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 subsections of CPL 440.10 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 A.D.2d 214, lv denied 74 N.Y.2d 610; Fudger v. State of New York, 131 A.D.2d 136, 139-40, lv denied 70 N.Y.2d 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 A.D.2d 920; Heiss v. State of New York, 143 A.D.2d 67, 68-69).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.