Vigliotti v. State, 805 N.Y.S.2d 919

Vigliotti v. State

805 N.Y.S.2d 919

N.Y. App. Div.

2005

Check Treatment

JACK VIGLIOTTI, Appellant, v STATE OF NEW YORK, Respondent.

(Claim No. 106892-A.)

Appellate Division of the Supreme Court of New York, Fourth Department

July 7, 2004

[805 NYS2d 919]

Appeal from an order of the Court of Claims (Nicholas V. Midey, Jr., J.), entered July 7, 2004. The order granted defendant‘s motion to dismiss the claim pursuant to CPLR 3211.

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

Memorandum: In May 1999 claimant was convicted after a jury trial of bail jumping in the first degree (Penal Law § 215.57) and was sentenced to an indeterminate term of incarceration to be served consecutively to an indeterminate sentence previously imposed on another conviction. In November 2000, while claimant was still serving the sentence imposed on the prior conviction, we reversed the judgment convicting him of bail jumping and dismissed the indictment on the ground that the verdict was against the weight of the evidence (People v Vigliotti, 277 AD2d 890 [2000]). Claimant thereafter commenced this action pursuant to Court of Claims Act § 8-b seeking damages allegedly resulting from the unjust conviction of bail jumping and resultant imprisonment.

The Court of Claims properly granted defendant‘s motion seeking dismissal of the claim pursuant to CPLR 3211. “In order to present [a] claim for unjust conviction and imprisonment, claimant must establish by documentary evidence that he [or she] has been convicted of one or more felonies ... and subsequently sentenced to a term of imprisonment, and has served all or any part of the sentence” (Court of Claims Act § 8-b [3]). Here, claimant “failed to annex the documentary evidence required by section 8-b (3)” (Piccarreto v State of New York, 144 AD2d 920, 920 [1988]), and thus failed to establish that he served all or any part of the sentence imposed on the “unjust conviction” (Court of Claims Act § 8-b [3] [a]).

Claimant‘s contention that the court was biased is raised for the first time on appeal and thus is not preserved for our review (see Ginther v Ginther, 13 AD3d 1128, 1129 [2004]; see also William Kaufman Org. v Graham & James, 269 AD2d 171, 174 [2000]). Claimant‘s remaining contentions concern a final order in a related action from which claimant failed to take an appeal and thus are not properly before us (see generally CPLR 5501, 5513, 5515; Hecht v City of New York, 60 NY2d 57, 61 [1983]).

Present—Pigott, Jr., P.J., Martoche, Smith, Pine and Hayes, JJ.