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A CONVICTION BY GUILTY PLEA MAY BE SET ASIDE ON ACTUAL INNOCENCE GROUNDS, DEFENDANT ENTITLED TO A HEARING ON HER ACTUAL INNOCENCE CLAIM AND ON HER INEFFECTIVE ASSISTANCE CLAIM.

The Second Department, in a full-fledged opinion by Justice Leventhal, reversing County Court, determined a conviction by guilty plea can be challenged on actual innocence grounds. The defendant was entitled to a hearing on her motion to set aside her conviction both on her actual innocence claim and her ineffective assistance of counsel claim. Defendant was a nurse who bathed a profoundly disabled child. After the bath blisters appeared on the child’s skin. At the time she stated she didn’t think the water was hot. In her motion to set aside, she alleged that she was convinced during interrogation that the water must have been too hot and pled guilty for that reason. Expert evidence indicates the blisters may not have been burns, but rather were a reaction to antibiotics. A biopsy was consistent with an allergic reaction:

Having determined that a defendant’s plea of guilty does not absolutely bar that defendant from maintaining a freestanding actual innocence claim pursuant to CPL 440.10(1)(h), we address whether the County Court properly denied, without a hearing, that branch of the defendant’s motion which was to vacate the judgment based on actual innocence. Contrary to the People’s contention, the defendant is entitled to a hearing on her actual innocence claim. “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” … . Here, by submitting her affidavit, [defendant’s expert’s] affirmation, and other material, such as the skin biopsy pathology report, the defendant made the requisite prima facie showing … . We also note that subsequent to the entry of the defendant’s plea of guilty, the civil action against the defendant and her former employer resulted in a jury verdict in their favor. We are mindful that the burden of proof in a civil trial is different than that in a criminal trial and that the evidence presented at each may differ. However, in the civil trial, the jury found that the defendant’s care was not a proximate cause of the child’s injuries, despite the fact that the defendant and her former employer were collaterally estopped from contesting liability. People v Tiger, 2017 NY Slip Op 01575, 2nd Dept 3-1-17

CRIMINAL LAW (A CONVICTION BY GUILTY PLEA MAY BE SET ASIDE ON ACTUAL INNOCENCE GROUNDS, DEFENDANT ENTITLED TO A HEARING ON HER ACTUAL INNOCENCE CLAIM AND ON HER INEFFECTIVE ASSISTANCE CLAIM)/EVIDENCE (CRIMINAL LAW, MOTION TO SET ASIDE CONVICTION, A CONVICTION BY GUILTY PLEA MAY BE SET ASIDE ON ACTUAL INNOCENCE GROUNDS, DEFENDANT ENTITLED TO A HEARING ON HER ACTUAL INNOCENCE CLAIM AND ON HER INEFFECTIVE ASSISTANCE CLAIM)/SET ASIDE CONVICTION, MOTION TO (A CONVICTION BY GUILTY PLEA MAY BE SET ASIDE ON ACTUAL INNOCENCE GROUNDS, DEFENDANT ENTITLED TO A HEARING ON HER ACTUAL INNOCENCE CLAIM AND ON HER INEFFECTIVE ASSISTANCE CLAIM)/ATTORNEYS (CRIMINAL LAW, A CONVICTION BY GUILTY PLEA MAY BE SET ASIDE ON ACTUAL INNOCENCE GROUNDS, DEFENDANT ENTITLED TO A HEARING ON HER ACTUAL INNOCENCE CLAIM AND ON HER INEFFECTIVE ASSISTANCE CLAIM)/INEFFECTIVE ASSISTANCE (A CONVICTION BY GUILTY PLEA MAY BE SET ASIDE ON ACTUAL INNOCENCE GROUNDS, DEFENDANT ENTITLED TO A HEARING ON HER ACTUAL INNOCENCE CLAIM AND ON HER INEFFECTIVE ASSISTANCE CLAIM)/ACTUAL INNOCENCE (CRIMINAL LAW, A CONVICTION BY GUILTY PLEA MAY BE SET ASIDE ON ACTUAL INNOCENCE GROUNDS, DEFENDANT ENTITLED TO A HEARING ON HER ACTUAL INNOCENCE CLAIM AND ON HER INEFFECTIVE ASSISTANCE CLAIM)

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