Livingston v. State

—In a claim for damages for wrongful conviction and imprisonment pursuant to Court of Claims Act § 8-b, the claimant appeals from a judgment of the Court of Claims (Weisberg, J.), dated April 4, 1995, which, after a non-jury trial, dismissed the claim.

Ordered that the judgment is affirmed, with costs.

The claimant’s decedent was convicted of murder in the second degree and criminal possession of a weapon in the second degree. This Court reversed the judgment of conviction (see, People v Livingston, 157 AD2d 859), and, after a retrial, the decedent was acquitted. Thereafter, the decedent brought this claim for unjust conviction and imprisonment pursuant to Court of Claims Act § 8-b. The claimant was substituted for the decedent upon the latter’s death in 1992.

*478The claimant failed to prove by clear and convincing evidence that the decedent did not commit any of the acts charged in the indictment and that the decedent did not bring about his conviction by his own conduct (see, Court of Claims Act § 8-b [5] [c], [d]; Alexandre v State of New York, 168 AD2d 472; Moses v State of New York, 137 Misc 2d 1081; Ausderau v State of New York, 130 Misc 2d 848). Therefore, the Court of Claims properly dismissed the claim. Sullivan, J. P., Santucci, Joy and Hart, JJ., concur.