Opinion
March 21, 1994
Appeal from the Court of Claims (Weisberg, J.).
Ordered that the judgment is affirmed, with costs.
In 1978, the claimant was indicted on charges of murder in the second degree and criminal possession of a weapon in the second degree in connection with the September 16, 1978, shooting of Douglas Reid, Jr. The claimant was tried a total of five times for the crimes charged in the indictment. The claimant's first and third trials ended in mistrials. His second and fourth trials ended in convictions which were subsequently reversed on appeal on the grounds of prejudicial trial errors. At the conclusion of a fifth trial in July 1986, the claimant was acquitted. He thereafter brought this claim for damages pursuant to Court of Claims Act § 8-b alleging that he had been wrongly convicted of and imprisoned for the crimes of murder in the second degree and criminal possession of a weapon in the second degree. Following a trial, the Court of Claims dismissed the claim concluding, inter alia, that the claimant had presented insufficient evidence to establish that he was innocent of criminal possession of a weapon in the second degree as charged in the indictment. We now affirm.
In order to obtain a judgment in his favor pursuant to Court of Claims Act § 8-b, it was the claimant's burden to prove, by clear and convincing evidence, that "he did not commit any of the acts charged in the accusatory instrument" (Court of Claims Act § 8-b [c]; Alexandre v. State of New York, 168 A.D.2d 472). The trial court's conclusion that the claimant failed to present sufficient evidence to establish that he had not criminally possessed a weapon on the date of the shooting is neither against the weight of the evidence nor contrary to law. Accordingly, we decline to disturb it (see, Taran v. State of New York, 186 A.D.2d 794; Vizzari v. State of New York, 184 A.D.2d 564).
In light of our determination, we need not address the parties' remaining contentions. Balletta, J.P., Pizzuto and Krausman, JJ., concur.
I dissent on the ground that there is no admissible evidence linking the claimant to possession of a weapon of any description — let alone the murder weapon — on the evening of the crime. Since it was impossible for the claimant to disprove an allegation of which there was no proof in the first instance, I would reverse the judgment, reinstate the claim, and remit the matter to the Court of Claims for a trial on the issue of damages.