Burkwit Law Firm, PLLC, Rochester (Michael Steinberg of counsel), for claimant-appellant.

Letitia James, Attorney General, Albany (Patrick A. Woods of counsel), for defendant-respondent.

Appeal from an order of the Court of Claims (Renee Forgensi Minarik, J.), entered December 7, 2018. The order granted the motion of defendant to dismiss the amended claim and for a sealing order.

It is hereby ordered that the order so appealed from is unanimously affirmed without costs.

Memorandum: In this action for wrongful conviction and imprisonment pursuant to Court of Claims Act § 8-b, claimant appeals from an order granting the motion of defendant, State of New York (State), seeking to dismiss the amended claim and for a sealing order. We affirm.

Claimant was convicted of, inter alia, burglary in the first degree (Penal Law § 140.30 [2]) arising out of the alleged assault of his former girlfriend in her home. He was sentenced to 121/2 years in prison. On appeal from the judgment of conviction, this Court held that County Court erred in precluding testimony from a defense witness, reversed the judgment of conviction, and granted a new trial (People v Hicks, 94 AD3d 1483, 1484 [4th Dept 2012]). A second trial was held, and claimant was convicted again of the same counts. On appeal, this Court reversed that judgment of conviction on the ground that claimant's Sixth Amendment right to confrontation was violated and granted a new trial (People v Hicks, 142 AD3d 1333, 1335 [4th Dept 2016]). Prior to the start of the third trial, the court granted claimant's motion to dismiss the indictment with prejudice because the People failed to present proof due to the former girlfriend's failure to appear in court.

A defendant unjustly convicted may recover damages under section 8-b of the Court of Claims Act where the "judgment of conviction was reversed or vacated, and the accusatory instrument dismissed or, if a new trial was ordered, either he was found not guilty at the new trial or he was not retried and the accusatory instrument dismissed; provided that the [judgment] of conviction was reversed or vacated, and the accusatory instrument was dismissed, on any of [certain enumerated grounds, including, as relevant here,] paragraph . . . (g) of subdivision one of section 440.10 of the criminal procedure law" (§ 8-b [3] [b] [ii]). CPL 440.10 (1) (g) permits vacatur of a judgment of conviction on the ground that "new evidence has been discovered since the entry of a judgment, which could not have been produced at trial with due diligence 'and which is of such character as to create a probability that had such evidence been received at the trial the verdict would have been more favorable to the defendant' " (People v McFarland, 108 AD3d 1121, 1121 [4th Dept 2013], lv denied 24 NY3d 1220 [2015]).

In order " '[t]o defeat a motion to dismiss, the statute places the burden on the claimant to provide the requisite documentary evidence' establishing that the judgment of conviction was reversed and the indictment was dismissed pursuant to one of the grounds listed in section 8-b (3) (b) of the Court of Claims Act" (Scheidelman v State of New York, 151 AD3d 1691, 1693 [4th Dept 2017]). Contrary to claimant's contention that his judgment of conviction was reversed on CPL 440.10 (1) (g) newly discovered evidence grounds, the judgment of conviction was reversed by this Court on the ground that claimant's Sixth Amendment right to confrontation was violated (see CPL 440.10 [1] [h]). Thus, because paragraph (h) of CPL 440.10 (1) is " 'not enumerated in Court of Claims Act § 8-b (3) (b) (ii), the [court] properly dismissed the claim' " (Jeanty v State of New York, 175 AD3d 1073, 1075 [4th Dept 2019]). Present—Carni, J.P., Lindley, Curran, Winslow and Bannister, JJ.

</NYOOpinion>

Matter of Holli H. v Joseph R.

179 AD3d ?

Holli H., Matter of, v Joseph R.

179 AD3d ?

Joseph R., Matter of Holli H. v

179 AD3d ?

2020 NY Slip Op 00770

Matter of Holli H. v Joseph R.179 AD3d ?

Holli H., Matter of, v Joseph R.

[—– NYS3d —–]

[*2]

In the Matter of Holli H., Respondent, v Joseph R., Appellant. (Appeal No. 1.) Cara A. Waldman, Fairport, for respondent-appellant. Dan Skinner, Batavia, for petitioner-respondent. HEADNOTES Parent, Child and Family Family Offense Proceeding Assault Mother Sustained Broken Bones in Altercation with Father Parent, Child and Family Abused or Neglected Child Child Witnessed Domestic Violence Parent, Child and Family Custody Grandparent Appeal from an amended order of the Family Court, Wyoming County (Michael F. Griffith, J.), entered April 4, 2018, in a proceeding pursuant to Family Court Act article 8. The amended order directed respondent to stay away from petitioner. It is hereby ordered that the amended order so appealed from is unanimously affirmed without costs. Memorandum: In appeal No. 1, respondent father appeals from an amended order of protection issued upon a finding that he committed the family offense of assault in the third degree under Penal Law § 120.00 (1) against petitioner mother. In appeal No. 2, the father appeals from an order entered after a fact-finding hearing determining that he neglected the subject child. In appeal No. 3, the father appeals from an order of disposition continuing the placement of the child in the custody of the maternal grandmother and placing the father under the supervision of petitioner, Wyoming County Department of Social Services. Contrary to the father's contention in appeal No. 1, a fair preponderance of the evidence supports Family Court's determination that the father committed acts constituting the family offense of assault in the third degree (see Matter of Riggins v Downing, 177 AD3d 1337, 1337 [4th Dept 2019]; Matter of Chilbert v Soler, 77 AD3d 1405, 1406-1407 [4th Dept 2010], lv denied 16 NY3d 701 [2011]). The mother's testimony that, during an argument, the father attacked her and caused her to sustain a broken tooth and a broken wrist, which required the mother to undergo physical therapy and may require future surgery, is sufficient to establish that the father committed the family offense of assault in the third degree, including the element of physical injury (see generally Penal Law § 10.00 [9]; People v Kraatz, 147 AD3d 1556, 1556-1557 [4th Dept 2017]; Matter of Shawn L., 233 AD2d 953, 953 [4th Dept 1996]). Contrary to the father's further contention in appeal No. 1, " 'the court was entitled to credit the testimony of the [mother] over that of the [father]' " (Matter of Helles v Helles, 87 AD3d 1273, 1274 [4th Dept 2011]). The father's appeal from the order in appeal No. 2 must be dismissed inasmuch as the appeal from the dispositional order in appeal No. 3 brings up for review the propriety of the fact-finding order (see Matter of Lisa E. [appeal No. 1], 207 AD2d 983, 983 [4th Dept 1994]). Contrary to the father's contention in appeal No. 3, the court's finding of neglect is supported by a preponderance of the evidence (see Family Ct Act §§ 1012 [f] [i] [B]; 1046 [b] [i]). The evidence at the fact-finding hearing that the child witnessed and intervened in an incident of domestic violence in October 2017, together with evidence of a pattern of ongoing domestic violence between the father and the mother fueled by their drug and alcohol abuse, established that the child had been " 'placed . . . in imminent risk of emotional harm' " (Matter of Amodea D. [Jason D.], 112 AD3d 1367, 1368 [4th Dept 2013]; see Matter of Jayden B. [Erica R.], 91 AD3d 1344, 1344-1345 [4th Dept 2012]). The father's contention in appeal No. 3 that the court erred in continuing placement of the child with the maternal grandmother is moot inasmuch as a superseding custody order has been entered upon the consent of the father and the mother (see Matter of Nyjeem D. [John D.], 174 AD3d 1424, 1425 [4th Dept 2019]). We have examined the father's remaining contentions in appeal No. 3 and conclude that none requires modification or reversal of the order in that appeal. Present—Whalen, P.J., Smith, Curran, Winslow and Bannister, JJ.