New York State Court of Claims

New York State Court of Claims

WYRICK v. THE STATE OF NEW YORK, #2001-016-046, Claim No. 103790, Motion No. M-63225


Synopsis



Case Information

UID:
2001-016-046
Claimant(s):
WYRICK, ERIC
Claimant short name:
WYRICK
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
103790
Motion number(s):
M-63225
Cross-motion number(s):

Judge:
ALAN C. MARIN
Claimant's attorney:
Law Office of Regina L. DarbyBy: Regina L. Darby, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Susan J. Pogoda, AAG
Third-party defendant's attorney:

Signature date:
June 18, 2001
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The defendant, by this motion which is unopposed, seeks to dismiss the claim of Eric Wyrick brought under the Unjust Conviction and Imprisonment Act of 1984 (§8-b of the Court of Claims Act). In a judgment of Supreme Court, Kings County, rendered April 7, 1997 after a bench trial, Mr. Wyrick was convicted of: 1) attempted assault in the second degree; and 2) criminal possession of a controlled substance in the seventh degree.

Sentence was imposed and claimant was incarcerated for two years from April 7 of 1997. On March 22, 1999, the Appellate Division, Second Department, vacated the conviction, but only on the assault charge, Penal Law 120.05(3). People v Wyrich a/k/a Wyrick, 259 AD2d 718, 686 NYS2d 853, lv denied 93 NY2d 931, 693 NYS2d 514 (1999). The Second Department relied upon People v Campbell, 72 NY2d 602, 535 NYS2d 580 (1988) which also dealt with subdivision three of the crime of Assault II. Such subdivision covers physical injury – whether intended or not – to police officers, peace officers and firefighters. As the Court of Appeals stated in Campbell, "there can be no attempt to commit assault, second degree...since one cannot have a specific intent to cause an unintended injury..." 72 NY2d at 605, 535 NYS2d at 582.

The Unjust Conviction Act explicitly requires - - both as a condition of going forward and in obtaining a judgment at trial – a claimant to prove that "he did not commit any of the acts charged in the accusatory instrument" (subds 4 and 5(c) of §8-b). Wyrick's conviction for criminal possession of a controlled substance in the seventh degree was undisturbed by the Second Department. That such crime is a misdemeanor, not a felony (Penal Law §220.03), does not alter the outcome. See subds 2, 3(a), 4 and 5(a & c) of §8-b. Claimant would be unable to recover under the Unjust Conviction Act. See, for example, Paris v State of New York, 202 AD2d 482, 609 NYS2d 71 (2d Dept 1994).

Accordingly having reviewed the papers submitted[1], IT IS ORDERED that defendant's motion (M-63225) be granted and the claim of Eric Wyrick (no.103790) dismissed.

June 18, 2001
New York, New York

HON. ALAN C. MARIN
Judge of the Court of Claims



[1] This comprehends the defendant's Notice of Motion with Affirmation in Support, containing exhibits A through G; exhibit A is Wyrick's claim. As noted, claimant submitted no papers in opposition to this motion.