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ACTUAL INNOCENCE IS A GROUND FOR VACATION OF A CONVICTION PURSUANT TO CPL 440.10; PROOF HERE INSUFFICIENT TO WARRANT A HEARING; HEARING REQUIRED ON WHETHER PROSECUTOR WITHHELD BRADY MATERIAL.

The First Department, in an extensive opinion by Justice Mazzarelli, determined defendant was entitled to a hearing on his motion to vacate his conviction. Defendant had sufficiently alleged the prosecutor may have withheld information which could have been used to impeach the testimony of an important witness in this murder case (Brady material). In addition, the First Department held that “actual innocence” can be raised as a ground for vacation of a conviction pursuant to Criminal Procedure Law 440.10. Although the First Department found the defendant did not present sufficient evidence of actual innocence to warrant a hearing, the “actual innocence” discussion is most significant part of the opinion:

We agree with the [2nd] Department [People v Hamilton, 115 AD3d 12} that CPL 440.10(1)(h) embraces a claim of actual innocence. If depriving a defendant of an opportunity to prove that he or she has not committed a crime for which he or she has been convicted is not a “violation of a right . . . under the constitution of this state or of the United States,” then that section of the statute is virtually hollow. Both constitutions guarantee liberty through their due process clauses, and a wrongful conviction represents the ultimate deprivation of liberty. Notably, the People do not contest the applicability, in theory, of Hamilton to this case.

Nevertheless, defendant did not clear the threshold set by the Hamilton court as necessary to gain a hearing on an actual innocence claim, because he did not present “a sufficient showing of possible merit to warrant a fuller exploration by the court” … . This is the sole articulation in Hamilton of a standard governing when a hearing is warranted on such a claim. However, this 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 Jimenez, 2016 NY Slip Op 05620, 1st Dept 7-21-16

CRIMINAL LAW (ACTUAL INNOCENCE IS A GROUND FOR VACATION OF A CONVICTION PURSUANT TO CPL 440.10; PROOF HERE INSUFFICIENT TO WARRANT A HEARING; HEARING REQUIRED ON WHETHER PROSECUTOR WITHHELD BRADY MATERIAL)/EVIDENCE (CRIMINAL LAW, MOTION TO VACATE CONVICTION, ACTUAL INNOCENCE IS A GROUND FOR VACATION OF A CONVICTION PURSUANT TO CPL 440.10; PROOF HERE INSUFFICIENT TO WARRANT A HEARING; HEARING REQUIRED ON WHETHER PROSECUTOR WITHHELD BRADY MATERIAL)/MOTION TO VACATE CONVICTION (ACTUAL INNOCENCE IS A GROUND FOR VACATION OF A CONVICTION PURSUANT TO CPL 440.10; PROOF HERE INSUFFICIENT TO WARRANT A HEARING; HEARING REQUIRED ON WHETHER PROSECUTOR WITHHELD BRADY MATERIAL)/BRADY MATERIAL (HEARING REQUIRED ON WHETHER PROSECUTOR WITHHELD BRADY MATERIAL)/ACTUAL INNOCENCE (CRIMINAL LAW, MOTION TO VACATE CONVICTION, ACTUAL INNOCENCE IS A GROUND FOR VACATION OF A CONVICTION PURSUANT TO CPL 440.10)

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DEFENDANTS’ MOTION TO FILE A LATE ANSWER PURSUANT TO CPLR 3012 AFTER A DEFAULT IN THIS FORECLOSURE PROCEEDING WAS PROPERLY DENIED, FIVE FACTORS TO BE CONSIDERED EXPLAINED, ALLEGATION DEFENDANTS WERE CHEATED WAS NOT A DEFENSE (FIRST DEPT).
THE PROBATION CONDITION REQUIRING DEFENDANT TO AGREE TO SEARCHES OF HIS PERSON, VEHICLE AND RESIDENCE WAS NOT WARRANTED BY THE CONVICTION (LEAVING THE SCENE OF AN ACCIDENT); THE ISSUE NEED NOT BE PRESERVED FOR APPEAL (FIRST DEPT).
THE JUDGE, PROSECUTOR AND DEFENSE COUNSEL AGREED DEFENDANT SHOULD STEP OUT OF THE COURTROOM WHEN HIS JUSTIFICATION DEFENSE WAS DISCUSSED IN A SIDEBAR CONFERENCE; DEFENSE COUNSEL’S AGREEMENT TO HAVE DEFENDANT STEP OUT OF THE COURTROOM WAS NOT A WAIVER OF DEFENDANT’S RIGHT TO BE PRESENT; CONVICTION REVERSED (FIRST DEPT).
DEFENDANT’S WAIVER OF HIS RIGHT TO COUNSEL WAS NOT KNOWING, INTELLIGENT AND VOLUNTARY; NEW HEARINGS AND TRIAL ORDERED; CRITERIA EXPLAINED IN SOME DETAIL (FIRST DEPT).
THE DISTRICT ATTORNEY’S DATASHEET IS AN ATTORNEY-WORK-PRODUCT WHICH IS NOT SUBJECT TO FOIL DISCLOSURE; BECAUSE PETITIONER DID NOT SUBSTANTIALLY PREVAIL IN THE FOIL PROCEEDINGS, PETITIONER WAS NOT ENTITLED TO AN AWARD OF ATTORNEY’S FEES (FIRST DEPT).
ONE DEFENDANT PROVED HE DID NOT RESIDE AT THE ADDRESS WHERE SERVICE OF PROCESS WAS MADE; AND PLAINTIFF FAILED TO PROVE THE PROCESS SERVER EXERCISED “DUE DILIGENCE” IN ATTEMPTING TO SERVE THE OTHER DEFENDANT BEFORE RESORTING TO NAIL AND MAIL; DEFAULT JUDGMENT VACATED (FIRST DEPT).
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