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Motion to Vacate a Conviction Can Be Based Upon a Freestanding Claim of Actual Innocence—All Reliable Evidence, Even If Previously Barred at Trial or After Prior Motions to Vacate, May Be Presented at the Hearing

In a comprehensive opinion by Justice Hinds-Radix, the Second Department determined that a CPL 440 motion to vacate a conviction can be based upon a “freestanding claim of actual innocence.”  The defendant, who had brought several unsuccessful 440 motions, was deemed to have presented sufficient evidence of actual innocence to justify a hearing, in which all reliable evidence previously barred could be presented and considered:

The Due Process Clause in the New York State Constitution provides “greater protection than its federal counterpart as construed by the Supreme Court” … . Since a person who has not committed any crime has a liberty interest in remaining free from punishment, the conviction or incarceration of a guiltless person, which deprives that person of freedom of movement and freedom from punishment and violates elementary fairness, runs afoul of the Due Process Clause of the New York Constitution (see NY Const, art I, § 6… ). Moreover, because punishing an actually innocent person is inherently disproportionate to the acts committed by that person, such punishment also violates the provision of the New York Constitution which prohibits cruel and unusual punishments (see NY Const, art I, § 5…). Thus, we conclude that a freestanding claim of actual innocence may be addressed pursuant to CPL 440.10(1)(h), which provides for vacating a judgment which was obtained in violation of an accused’s constitutional rights… . * * *

At the hearing, all reliable evidence, including evidence not admissible at trial based upon a procedural bar—such as the failure to name certain alibi witnesses in the alibi notice—should be admitted … . If the defendant establishes his actual innocence by clear and convincing evidence, the indictment should be dismissed pursuant to CPL 440.10(4), which authorizes that disposition where appropriate. There is no need to empanel another jury to consider the defendant’s guilt where the trial court has determined, after a hearing, that no juror, acting reasonably, would find the defendant guilty beyond a reasonable doubt.  People v Hamilton, 2014 NY Slip Op 00238, 2nd Dept 1-15-14

 

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