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MOTION TO VACATE A CONVICTION CAN BE BASED UPON A SHOWING OF ACTUAL INNOCENCE, NOT SHOWN HERE (THIRD DEPT).

The Third Department determined defendant’s motion to vacate his conviction, in part on the ground of actual innocence, was properly denied. The court explained the standard of proof for actual innocence:

In People v Hamilton (115 AD3d 12 [2014]), the [2nd] Department determined that a claim of actual innocence must be established with clear and convincing evidence of “factual innocence, not mere legal insufficiency of evidence of guilt and must be based upon reliable evidence which was not presented at the trial” … . While we recognize that in People v Caldavado (26 NY3d 1034 [2015]) the Court of Appeals opted not to determine whether a freestanding claim of actual innocence is viable … , we concur with the analysis set forth in Hamilton and find that such a claim may be raised pursuant CPL 440.10 (1) (h) … . * * *

In our view, the evidence submitted at the hearing failed to establish by clear and convincing evidence that defendant did not murder the victims. Much of the evidence presented at the hearing was also presented to the jury, which considered and rejected defendant’s explanation, and the jury’s verdict was upheld on appeal … . At best, the additional evidence submitted in support of the motion to vacate arguably raised “[m]ere doubt as to the defendant’s guilt, or a preponderance of conflicting evidence as to the defendant’s guilt,” neither of which is sufficient to support a motion to vacate a judgment based on actual innocence … . People v Mosley, 2017 NY Slip Op 07648, Third Dept 11-2-17

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