The opinion
Lifson, J.,
dissents and votes to affirm the order appealed from, with the following memorandum: Court of Claims Act § 8-b enumerates the potential claims that can be brought against the State including, inter alia, when a criminal conviction is reversed or vacated (Court of Claims Act § 8-b [3] [b] [ii]). The present claim asserts that the underlying conviction, which admittedly stemmed from false reports of sexual abuse by the claimant’s former spouse, was reversed due to the ineffective assistance of counsel and the alleged purposeful misrepresentation and concealment of exculpatory evidence by the prosecutor.
In reversing the judgment of conviction in People v Baba-Ali ( 179 AD2d 725 [1992]), this Court concluded that the defendant received ineffective assistance of counsel. In reaching that determination we explicitly condemned what we perceived to be the misconduct of the prosecutor in withholding certain medical records (deemed sufficiently equivocal as to be of some utility to *379 the defendant) which were ordered to be forwarded to defense counsel. Although the prosecutor asserted that it only recently received the material in question and allegedly promptly turned it over to the defense, that issue cannot be revisited herein as it was previously determined adversely to the prosecutor. Nonetheless, the material in question was produced to the defense prior to trial and defense counsel never sought a continuance to digest such material. The failure to take the time to analyze the material may have impaired the defendant’s ability to properly contest the charges. Thus, the principal basis of the prior reversal was the inexplicable conduct of the defense attorney in failing to adequately protect the defendant when confronted with the prejudicial actions of the prosecutor. Viewed in this light, the particular conduct of the prosecutor, in and of itself, cannot, as matter of law, be deemed a willful misrepresentation or a purposeful concealment of exculpatory evidence as envisioned to place liability upon the State via Court of Claims Act § 8-b.
Ineffective assistance of counsel is not a basis for relief under Court of Claims Act § 8-b (see Britt v State of New York, 260 AD2d 6 [1999]; Coakley v State of New York, 225 AD2d 477 [1996]). Whether or not the actions of the prosecutor alleged herein, viewed in the context of the other serious allegations of prosecutorial misconduct alleged in the notice of claim constituted sufficient grounds to expose the State to liability is an issue of fact to be determined by the jury. Moreover, since the initial prosecution was reversed for the sole purpose of having the matter retried and the underlying indictment was not dismissed by this Court, an issue of fact exists as to whether the subsequent dismissal of the indictment was caused by the prosecutor’s discovery of new evidence that made a conviction unlikely.
Accordingly, in my view the order of the Court of Claims should be affirmed. I therefore respectfully dissent.