New York Appellate Digest
  • Home
  • About
  • Just Released
  • Update Service
  • Streamlined Research
  • CLE Courses
  • Contact
  • Menu Menu
You are here: Home1 / Criminal Law2 / MOTION TO VACATE CONVICTION PROPERLY DENIED WITHOUT A HEARING DESPITE WITNESS...
Criminal Law

MOTION TO VACATE CONVICTION PROPERLY DENIED WITHOUT A HEARING DESPITE WITNESS RECANTATIONS AND CONFESSION BY ANOTHER PARTY, CRITERIA FOR SHOWING OF ACTUAL INNOCENCE EXPLAINED.

The First Department, in a full-fledged opinion by Justice Andrias, determined defendant’s motion to vacate his conviction, based primarily upon newly discovered evidence, was properly denied without a hearing. Although two identification witnesses recanted, the recantations were suspect and there were other eyewitnesses. A confession to the crime by another was refuted by documentary evidence. With respect to the criteria for a showing of “actual innocence,” the court explained:

To vacate a judgment based on actual innocence pursuant to CPL 440.10(h), defendant must demonstrate with clear and convincing evidence, which was not presented at trial, his factual innocence, i.e. that he was actually innocent of the crimes for which he was convicted … . To be sufficient, clear and convincing evidence must establish that the claim asserted is “highly probable.” “Mere doubt as to the defendant’s guilt, or a preponderance of conflicting evidence as to the defendant’s guilt, is insufficient, since a convicted defendant no longer enjoys the presumption of innocence, and in fact is presumed to be guilty”… .

“A prima facie showing of actual innocence is made out when there is a sufficient showing of possible merit to warrant a fuller exploration by the court” … . As recently explained by this Court … , which agreed with the [2nd] Department that CPL 440.10(h) embraces a claim of actual innocence, “[T]his specific standard for actual innocence claims should be considered in light of, and alongside, the more general standard applicable on any motion to vacate a conviction brought under CPL 440.10. Thus, statements of fact supporting the motion must be sworn … . Further, hearsay statements in support of such motions are not probative evidence … .” People v Velazquez, 2016 NY Slip Op 05961, 1st Dept 9-8-16

CRIMINAL LAW (MOTION TO VACATE CONVICTION PROPERLY DENIED WITHOUT A HEARING DESPITE WITNESS RECANTATIONS AND CONFESSION BY ANOTHER PARTY, CRITERIA FOR SHOWING OF ACTUAL INNOCENCE EXPLAINED)/VACATE CONVICTION,  MOTION TO (MOTION TO VACATE CONVICTION PROPERLY DENIED WITHOUT A HEARING DESPITE WITNESS RECANTATIONS AND CONFESSION BY ANOTHER PARTY, CRITERIA FOR SHOWING OF ACTUAL INNOCENCE EXPLAINED)/ACTUAL INNOCENCE (MOTION TO VACATE CONVICTION PROPERLY DENIED WITHOUT A HEARING DESPITE WITNESS RECANTATIONS AND CONFESSION BY ANOTHER PARTY, CRITERIA FOR SHOWING OF ACTUAL INNOCENCE EXPLAINED)

September 8, 2016
Tags: First Department
Share this entry
  • Share on WhatsApp
https://www.newyorkappellatedigest.com/wp-content/uploads/2018/03/NYAppelateLogo-White-1.png 0 0 CurlyHost https://www.newyorkappellatedigest.com/wp-content/uploads/2018/03/NYAppelateLogo-White-1.png CurlyHost2016-09-08 15:07:322020-01-28 11:37:03MOTION TO VACATE CONVICTION PROPERLY DENIED WITHOUT A HEARING DESPITE WITNESS RECANTATIONS AND CONFESSION BY ANOTHER PARTY, CRITERIA FOR SHOWING OF ACTUAL INNOCENCE EXPLAINED.
You might also like
LESSOR OF THE VEHICLE INVOLVED IN THE REAR-END COLLISION WAS ENTITLED TO SUMMARY JUDGMENT PURSUANT TO THE GRAVES AMENDMENT; SUPREME COURT HAD THE AUTHORITY TO SEARCH THE RECORD AND GRANT SUMMARY JUDGMENT EVEN THOUGH NO MOTION HAD BEEN MADE (FIRST DEPT).
PLAINTIFF’S SILENCE COUPLED WITH GOING FORWARD TO ENTER THE LEASE CONSTITUTED ACCEPTANCE OF THE REAL ESTATE BROKER’S COUNTEROFFER FOR THE BROKERAGE FEE (SECOND DEPT).
PLAINTIFFS DEMONSTRATED A DEMAND ON THE BOARD OF DIRECTORS TO PURSUE A DERIVATIVE ACTION WAS FUTILE; THE COMPLAINT ADEQUATELY ALLEGED BREACH OF FIDUCIARY DUTY, A CLAIM FOR WHICH NO DAMAGES NEED BE ALLEGED (FIRST DEPT).
PLENARY ACTION UNDER JUDICIARY LAW 487 ALLEGING ATTORNEYS ENGAGED IN DECEITFUL AND COLLUSIVE CONDUCT DURING A PRIOR CONTRACT ACTION PROPERLY SURVIVED MOTION TO DISMISS.
PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CAUSE OF ACTION, FALL FROM A-FRAME LADDER.
No Constructive Notice of Icy Condition/Allegation Defendant Created the Condition Based on Speculation
VERDICT AWARDING ZERO DAMAGES FOR PAST PAIN AND SUFFERING IN THIS POLICE EXCESSIVE-FORCE CASE SET ASIDE; NEW TRIAL ORDERED UNLESS THE PARTIES STIPULATE TO A $200,000 DAMAGES AWARD (FIRST DEPT).
State and City Human Rights Law Retaliation Claims Were Not Precluded by Dismissal of Federal Retaliation Claims Pursuant to the Family and Medical Leave Act—Different Protected Activities Involved

Categories

  • Abuse of Process
  • Account Stated
  • Accountant Malpractice
  • Administrative Law
  • Agency
  • Animal Law
  • Appeals
  • Arbitration
  • Architectural Malpractice
  • Associations
  • Attorneys
  • Banking Law
  • Bankruptcy
  • Battery
  • Chiropractor Malpractice
  • Civil Commitment
  • Civil Conspiracy
  • Civil Forfeiture
  • Civil Procedure
  • Civil Rights Law
  • Condominium Corporations
  • Condominiums
  • Constitutional Law
  • Consumer Law
  • Contempt
  • Contract Law
  • Conversion
  • Cooperatives
  • Copyright
  • Corporation Law
  • Correction Law
  • County Law
  • Court of Claims
  • Criminal Law
  • Debtor-Creditor
  • Defamation
  • Dental Malpractice
  • Disciplinary Hearings (Inmates)
  • Education-School Law
  • Election Law
  • Eminent Domain
  • Employment Law
  • Engineering Malpractice
  • Environmental Law
  • Equitable Recoupment
  • Evidence
  • Fair Credit Reporting Act
  • Fair Housing Act
  • Fair Housing Amendments Act
  • False Arrest
  • False Claims Act
  • False Imprisonment
  • Family Law
  • Federal Employers' Liability Act (FELA)
  • Fiduciary Duty
  • Foreclosure
  • Fraud
  • Freedom of Information Law (FOIL)
  • Human Rights Law
  • Immigration Law
  • Immunity
  • Indian Law
  • Insurance Law
  • Intellectual Property
  • Intentional Infliction of Emotional Distress
  • Involuntary Medical Treatment and Feeding (Inmates)
  • Judges
  • Labor Law
  • Labor Law-Construction Law
  • Land Use
  • Landlord-Tenant
  • Legal Malpractice
  • Lien Law
  • Limited Liability Company Law
  • Longshoreman's and Harbor Worker's Compensation Act
  • Malicious Prosecution
  • Maritime Law
  • Medicaid
  • Medical Malpractice
  • Mental Hygiene Law
  • Military Law
  • Money Had and Received
  • Municipal Law
  • Navigation Law
  • Negligence
  • Negligent Infliction of Emotional Distress
  • Negligent Misrepresentation
  • Notarial Misconduct
  • Nuisance
  • Partnership Law
  • Personal Property
  • Pharmacist Malpractice
  • Physician Patient Confidentiality
  • Pistol Permits
  • Prima Facie Tort
  • Private Nuisance
  • Privilege
  • Products Liability
  • Professional Malpractice
  • Public Authorities Law
  • Public Corporations
  • Public Health Law
  • Public Nuisance
  • Real Estate
  • Real Property Actions and Proceedings Law (RPAPL)
  • Real Property Law
  • Real Property Tax Law
  • Religion
  • Replevin
  • Retirement and Social Security Law
  • Securities
  • Sepulcher
  • Sex Offender Registration Act (SORA)
  • Social Services Law
  • Statutes
  • Tax Law
  • Tenant Harassment
  • Tortious Interference with Contract
  • Tortious Interference with Employment
  • Tortious Interference with Prospective Business Relations
  • Tortious Interference With Prospective Economic Advantage
  • Town Law
  • Toxic Torts
  • Trade Secrets
  • Trademarks
  • Trespass
  • Trusts and Estates
  • Unemployment Insurance
  • Unfair Competition
  • Uniform Commercial Code
  • Usury
  • Utilities
  • Vehicle and Traffic Law
  • Victims of Gender-Motivated Violence Protection Law (VGM)
  • Village Law
  • Water Law
  • Workers' Compensation
  • Zoning

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2025 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

QUESTION OF FACT WHETHER QUITCLAIM DEED WAS UNCONSCIONABLE; DOCTRINES OF PROCEDURAL... COURT SHOULD NOT MAKE CREDIBILITY DETERMINATIONS OR WEIGH THE EVIDENCE AT THE...
Scroll to top