By this motion, the defendant seeks to dismiss the claim of Elmo Miner brought
Unjust Conviction and Imprisonment Act of 1984, which is codified as §8-b
of the Court of
Claimant had been indicted on four counts under the Vehicle and Traffic
- Driving while intoxicated. §1192.3.
- Driving while ability is impaired. §1192.1 .
- Aggravated unlicensed operation of a motor vehicle in the first degree.
- Aggravated unlicensed operation of a motor vehicle in the second degree.
In a judgment of Supreme Court, Kings County, rendered July 24, 1997 upon a
jury verdict, Miner was found not guilty of the first two charges relating to
drinking and driving, but was convicted of the two counts covering the
unlicensed operation of a motor vehicle.
The Second Department reversed the conviction for unlicensed operation in the
first degree because an element of such crime is operating the vehicle under the
influence of alcohol or a controlled substance, and Miner had been acquitted of
the two alcohol-related counts. However, the judgment was otherwise affirmed
– the conviction for unlicensed operation in the second degree stood.
People v Miner
, 261 AD2d 420, 689 NYS2d 233 (2d Dept 1999).
The Unjust Conviction Act clearly requires -- both in going forward and in
ultimately obtaining judgment at trial - - a claimant to prove that he did not
commit any of the acts in the accusatory instrument (subds 4 and 5(c),
respectively, of §8-b). According to the Second Department, unaltered by
any indication of subsequent action, Mr. Miner remains convicted of one of the
counts of the indictment, namely aggravated operation of a motor vehicle in the
Under an analogous circumstance in which a conviction for criminally negligent
homicide was reversed, but the conviction for operating a motor vehicle with a
suspended license was left standing, the Second Department stated in affirming
the dismissal of the unjust conviction suit in the Court of Claims that in view
of the aforementioned subdivisions 4 and 5(c), "the likelihood of proving his
innocence by clear and convincing evidence is nonexistent." Paris v State of
New York, 202 Ad2d 482, 483, 609 NYS2d 71, 72 (2d Dept 1994).
Accordingly, IT IS ORDERED that defendant's motion (M-62381) be granted
and the claim of Elmo Miner (no.101709) dismissed.