You are here: / / MOTION TO VACATE CONVICTION PROPERLY DENIED WITHOUT A HEARING DESPITE WITNESS...

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)

You might also like
Spoliation, Discovery Abuse Sanctions, Equitable Estoppel.
THE CONTRACT WAS BETWEEN CORPORATIONS IN DIFFERENT STATES, THEREFORE INTERSTATE COMMERCE WAS IMPLICATED AND THE FEDERAL ARBITRATION ACT (FAA) APPLIED; THE CONTRACT PROPERLY PROVIDED THAT THE ARBIRTRATOR, NOT A COURT, WILL DECIDE GATEWAY ISSUES OF ARBITRABILITY (FIRST DEPT).
IN THIS LABOR LAW 240(1) ACTION, PLAINTIFF STEPPED ON A SMALL WOODEN “PATCH” COVERING A HOLE IN THE FLOOR AND HIS LEG WENT THROUGH THE HOLE; DEFENDANT’S ARGUMENT THE ACCIDENT WAS NOT FORESEEABLE WAS REJECTED; THE PRECISE NATURE OF THE ACCIDENT NEED NOT BE FORESEEN; IT IS ENOUGH PLAINTIFF WAS SUBJECTED TO AN ELEVATION-RELATION RISK AND NO SAFETY EQUIPMENT WAS PROVIDED (FIRST DEPT).
Trial Court Abused Its Discretion When It Disqualified Defense Counsel Over Defendant’s Objection on Conflict of Interest Grounds—The Fact that a Co-Defendant Had Been Represented by Another Attorney from the New York County Defender Services (NYCDS) Did Not Create a Conflict for Defendant’s NYCDS Attorney—Defendant’s Attorney Did Not Have Access to Any Information Provided by the Co-Defendant (Who Had Already Pled Out)—Client Confidences Are Not Generally Shared by Attorneys Within a Large Institution Like the NYCDS, As They Might Be Within a Private Law Firm
NYU SUFFICIENTLY ALLEGED AN INJURY-IN-FACT ENTITLING IT TO LITIGATE THE CONSTITUTIONALITY OF A NYC ZONING RESOLUTION PROHIBITING THE CONSTRUCTION OF CLASSROOMS AND DORMITORIES IN THE SPECIAL DISTRICT; THERE WAS A COMPREHENSIVE DISSENT (FIRST DEPT). ​
UNSECURED, DAMAGED LADDER WOBBLED AND PLAINTIFF FELL, PLAINTIFF’S SUMMARY JUDGMENT MOTION ON HIS LABOR LAW 240 (1) CAUSE OF ACTION PROPERLY GRANTED (FIRST DEPT).
HERE DEFENDANT ASHKENAZY’S COUNSEL TOOK POSITIONS WHICH WERE BASED UPON AN INTERPRETATION OF THE EVIDENCE; THE FACT THAT THE JUDGE DISAGREED WITH THE INTERPRETATION DID NOT WARRANT A FINDING COUNSEL ENGAGED IN FRIVOLOUS CONDUCT OR ACTED IN BAD FAITH; THE IMPOSITION OF SANCTIONS WAS REVERSED (FIRST DEPT).
QUESTION OF FACT WHETHER THE DEFENDANT’S DOUBLE-PARKED CAR WAS A PROXIMATE CAUSE OF THE ACCIDENT; PLAINTIFF’S DECEDENT, A BICYCLIST, WAS STRUCK BY A TRUCK WHEN HE ATTEMPTED TO GO AROUND DEFENDANT’S DOUBLE-PARKED CAR (FIRST DEPT). ​

Categories

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 © 2026 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...