Opinion
June 26, 1989
Appeal from the Court of Claims (Orlando, J.).
Ordered that the order is affirmed, with costs.
By judgment of the Supreme Court, Queens County (Balbach, J.), rendered September 21, 1979, the claimant Keith McFadden was convicted of robbery in the second degree and assault in the second degree, upon a jury verdict. On March 5, 1984, this court ordered that the judgment be reversed, on the law and as a matter of discretion in the interest of justice, and directed that a new trial be held (People v. McFadden, 100 A.D.2d 520). Our determination to reverse the judgment was based upon our finding that the trial court erred in submitting the offense of robbery in the second degree to the jury as a lesser included offense of robbery in the first degree, and erred in its alibi charge (People v. McFadden, supra, at 520-521). Upon remittitur, at the close of the People's case, the Trial Judge dismissed the indictment in the interest of justice, and the claimant thereafter commenced this claim to recover damages against the State of New York based upon his allegedly unjust conviction and imprisonment.
Upon our review of the record, we find that the Court of Claims properly dismissed McFadden's claim. Contrary to the claimant's contentions, the claim does not satisfy the pleading requirements of Court of Claims Act § 8-b, as the claimant has neither shown that our reversal was based upon any of the grounds specified in Court of Claims Act § 8-b (3) (b) (ii) nor factually demonstrated a likelihood of success at trial in proving his innocence (see, Court of Claims Act § 8-b; Forest v. State of New York, 150 A.D.2d 214; Heiss v. State of New York, 143 A.D.2d 67; Stewart v. State of New York, 133 A.D.2d 112; Fudger v. State of New York, 131 A.D.2d 136). Bracken, J.P., Rubin, Harwood and Balletta, JJ., concur.