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BANK’S PROOF OF STANDING DID NOT MEET THE REQUIREMENTS OF THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE.

The Second Department determined the bank’s motion for summary judgment was properly denied because the bank did not submit sufficient proof of possession of the note and mortgage at the time the foreclosure action was commenced. The proof did not meet the requirements of the business records exception to the hearsay rule. That affiant did not attest she was personally familiar with the plaintiff-bank’s record-keeping practices and procedures:

Here, the plaintiff attempted to establish its standing by submitting the affidavit of Angela Frye, Vice President of Loan Documentation for Wells Fargo Bank, N.A. (hereinafter Wells Fargo), the servicer of the defendant’s loan on behalf of the plaintiff. Frye averred, in relevant part, that she “reviewed the books and records regularly maintained by Wells Fargo in the ordinary course of its business as servicer of Defendant’s loan for and on behalf of the Trust,” and that “Wells Fargo’s regularly maintained records reflect that both the original Note … and the Mortgage were physically delivered to the Trust prior to the commencement of this action.” The plaintiff failed to demonstrate that the records relied upon by Frye were admissible under the business records exception to the hearsay rule (see CPLR 4518[a]) because Frye, an employee of Wells Fargo, did not attest that she was personally familiar with the plaintiff’s record-keeping practices and procedures … . Deutsche Bank Natl. Trust Co. v Brewton, 2016 NY Slip Op 05906, 2nd Dept 8-31-16

FORECLOSURE (BANK’S PROOF OF STANDING DID NOT MEET THE REQUIREMENTS OF THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE)/EVIDENCE (FORECLOSURE, BANK’S PROOF OF STANDING DID NOT MEET THE REQUIREMENTS OF THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE)/BUSINESS RECORDS (FORECLOSURE, BANK’S PROOF OF STANDING DID NOT MEET THE REQUIREMENTS OF THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE)

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UNDER STATE CONSTITUTIONAL STANDARDS, THE WARRANTLESS SEARCH OF A MESSENGER BAG AT THE TIME OF DEFENDANT’S ARREST WAS NOT JUSTIFIED BY EXIGENT CIRCUMSTANCES, CONVICTIONS REVERSED.

The Second Department, reversing defendant’s conviction, determined, under state constitutional standards, the warrantless search of a messenger bag on defendant’s person at the time of his arrest was not justified by exigent circumstances. The court also noted that the prosecutor’s characterizing the defense as “beyond absurd” and comments upon defendant’s pre-arrest silence were improper:

Here, the Supreme Court concluded that the defendant’s messenger bag was lawfully searched incident to his arrest for burglary. However, the proof adduced at the suppression hearing failed to establish the presence of exigent circumstances justifying the warrantless search. Initially, there was insufficient evidence to support a finding of exigent circumstances relating to the safety of the public and the arresting officer … . Although the police officer who testified at the suppression hearing stated that he had responded to the scene after receiving a report of an individual climbing into a building through a rear window, there was no indication that the individual was armed … . Nor did the officer testify as to any circumstances indicating the presence of a weapon … . Furthermore, the police officer did not express any concerns about his own safety, or the safety of the public, and the circumstances of the defendant’s arrest did not serve to establish an objectively reasonable inference of police apprehension. People v Anderson, 2016 NY Slip Op 05927, 2nd Dept 8-31-16

CRIMINAL LAW (UNDER STATE CONSTITUTIONAL STANDARDS, THE WARRANTLESS SEARCH OF A MESSENGER BAG AT THE TIME OF DEFENDANT’S ARREST WAS NOT JUSTIFIED BY EXIGENT CIRCUMSTANCES, CONVICTIONS REVERSED)/EVIDENCE (CRIMINAL LAW, UNDER STATE CONSTITUTIONAL STANDARDS, THE WARRANTLESS SEARCH OF A MESSENGER BAG AT THE TIME OF DEFENDANT’S ARREST WAS NOT JUSTIFIED BY EXIGENT CIRCUMSTANCES, CONVICTIONS REVERSED)/SEARCHES AND SEIZURES (UNDER STATE CONSTITUTIONAL STANDARDS, THE WARRANTLESS SEARCH OF A MESSENGER BAG AT THE TIME OF DEFENDANT’S ARREST WAS NOT JUSTIFIED BY EXIGENT CIRCUMSTANCES, CONVICTIONS REVERSED)/EXIGENT CIRCUMSTANCES (CRIMINAL LAW, UNDER STATE CONSTITUTIONAL STANDARDS, THE WARRANTLESS SEARCH OF A MESSENGER BAG AT THE TIME OF DEFENDANT’S ARREST WAS NOT JUSTIFIED BY EXIGENT CIRCUMSTANCES, CONVICTIONS REVERSED)/ATTORNEYS (CRIMINAL LAW, PROSECUTOR’S INFLAMMATORY REMARKS AND REFERENCE TO DEFENDANT’S PRE-ARREST SILENCE IMPROPER)

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PLAINTIFF’S FAILURE TO TURN OVER A VIDEOTAPE OF THE EVENT AT WHICH PLAINTIFF WAS INJURED DID NOT WARRANT THE DISMISSAL OF THE COMPLAINT DURING THE JURY TRIAL.

The First Department, reversing Supreme Court’s dismissal of the complaint during trial, determined the plaintiff’s failure to turn over a videotape of the event during which plaintiff allegedly tripped on a cord and fell did not justify dismissing the complaint. On the third day of the trial plaintiff testified she had found a videotape of the event which had been misplaced. The videotape did not show the trip and fall, but allegedly did show the cord which caused the fall:

Under the particular circumstances of this case, the court abused its discretion in dismissing the complaint due to plaintiff’s belated disclosure of a video. Although CPLR 3101(i) requires disclosure of “any films, photographs, video tapes or audio tapes” of a party upon demand … , there was insufficient evidence of willful or contumacious conduct on plaintiff’s part, or prejudice to [defendant], to warrant the dismissal of her complaint in the midst of the jury trial ,,,, even if the dismissal was without prejudice.

There was no court order directing plaintiff to produce the video, and [defendant’s] discovery demands only requested that she produce photographs. Furthermore, plaintiff, who claimed to have misplaced the video, did not seek to introduce the edited video, which did not show her fall, into evidence at trial, and was willing to consent to its preclusion, the striking of her testimony concerning its existence, and a curative instruction, even though she believed the video to be favorable to her because it showed a cord across the floor and one of [defendant’s] principals standing in the vicinity. Fox v Grand Slam Banquet Hall, 2016 NY Slip Op 05897, 1st Dept 8-25-16

NEGLIGENCE (PLAINTIFF’S FAILURE TO TURN OVER A VIDEOTAPE OF THE EVENT AT WHICH PLAINTIFF WAS INJURED DID NOT WARRANT THE DISMISSAL OF THE COMPLAINT DURING THE JURY TRIAL)/EVIDENCE (CIVIL, PLAINTIFF’S FAILURE TO TURN OVER A VIDEOTAPE OF THE EVENT AT WHICH PLAINTIFF WAS INJURED DID NOT WARRANT THE DISMISSAL OF THE COMPLAINT DURING THE JURY TRIAL)

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COURT MUST DETERMINE VALUE OF MARITAL PROPERTY, DESPITE PAUCITY OF SUBMITTED EVIDENCE, BEFORE DISTRIBUTING IT.

The Second Department determined the trial judge should have determined the value of the marital residence before awarding sole title to plaintiff:

We remit the matter for a new trial on the issue of equitable distribution of marital property. Although the parties came forward with a paucity of evidence regarding the value of the marital residence, the Supreme Court was nevertheless required to determine the value of the property before awarding sole title to the plaintiff. “A determination must be made as to the net value of each asset before determining the distribution thereof” … . In circumstances where proof of value is insufficient to make a determination, the court has discretion to, among other things, appoint a neutral appraiser and to direct that such appraiser be paid by one or both parties … . Further, the court erred in failing to value and equitably distribute the defendant’s investment in a rental property located in North Carolina and the parties’ remaining interest in property located in Costa Rica. Van Dood v Van Dood, 2016 NY Slip Op 05858, 2nd Dept 8-24-16

FAMILY LAW (COURT MUST DETERMINE VALUE OF MARITAL PROPERTY, DESPITE PAUCITY OF SUBMITTED EVIDENCE, BEFORE DISTRIBUTING IT)/EVIDENCE (FAMILY LAW, COURT MUST DETERMINE VALUE OF MARITAL PROPERTY, DESPITE PAUCITY OF SUBMITTED EVIDENCE, BEFORE DISTRIBUTING IT)/MARITAL PROPERTY (COURT MUST DETERMINE VALUE OF MARITAL PROPERTY, DESPITE PAUCITY OF SUBMITTED EVIDENCE, BEFORE DISTRIBUTING IT)/EQUITABLE DISTRIBUTION (COURT MUST DETERMINE VALUE OF MARITAL PROPERTY, DESPITE PAUCITY OF SUBMITTED EVIDENCE, BEFORE DISTRIBUTING IT)

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CRIMINAL PROCEDURE LAW 440.30 (1-a) DOES NOT ALLOW A POST-TRIAL CHALLENGE TO DNA EVIDENCE ADMITTED AT TRIAL.

The Second Department determined Criminal Procedure Law 440.30 (1-a) did not authorize defendant to challenge, in a post-trial motion, DNA evidence which was introduced at trial. The statute deals only with post-trial DNA testing:

CPL 440.30 (1-a) (a) (1) provides that a defendant may bring a postconviction motion requesting forensic DNA testing of “specified evidence.” The statute further provides that “the court shall grant the application for forensic DNA testing of such evidence upon its determination that if a DNA test had been conducted on such evidence, and if the results had been admitted in the trial resulting in the judgment, there exists a reasonable probability that the verdict would have been more favorable to the defendant” (CPL 440.30 [1-a] [a] [1]). As the Court of Appeals has recognized, CPL 440.30 (1-a) was enacted to establish a new procedure for defendants to secure DNA testing of specified evidence … ..

Defendant here has not requested DNA testing of any evidence, and instead seeks to have expert testimony adduced for the purpose of challenging the accuracy of scientific evidence that was actually presented at trial. Inasmuch as CPL 440.30 (1-a) does not address requests for expert testimony, the provision is inapplicable to defendant’s request. People v Ramos, 2016 NY Slip Op 05885, 3rd Dept 8-25-16

CRIMINAL LAW (CRIMINAL PROCEDURE LAW 440.30 (1-a) DOES NOT ALLOW A POST-TRIAL CHALLENGE TO DNA EVIDENCE ADMITTED AT TRIAL)/EVIDENCE (CRIMINAL PROCEDURE LAW 440.30 (1-a) DOES NOT ALLOW A POST-TRIAL CHALLENGE TO DNA EVIDENCE ADMITTED AT TRIAL)/DNA (CRIMINAL PROCEDURE LAW 440.30 (1-a) DOES NOT ALLOW A POST-TRIAL CHALLENGE TO DNA EVIDENCE ADMITTED AT TRIAL)

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FINDING THAT LIQUOR LICENSEE WAS AWARE OF THE PRESENCE OF DRUGS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE; RARE DISCUSSION OF THAT ADMINISTRATIVE PROCEEDING STANDARD OF PROOF.

The First Department, over an extensive two-justice dissent, determined the evidence did not support the finding, by the New York State Liquor Authority, the licensee was aware of the presence of illegal drugs on the licensed premises. The decision is instructive about the “substantial evidence” standard of proof in administrative proceedings. The majority held the “substantial evidence” standard was not met:

The dissent points to the testimony of petitioner’s head of security that when security guards were on patrol they would sometimes have a staff member, who was not trained to pat people down, watch the door, as allowing an inference to be drawn that lax security measures led to the presence of drugs at the scene. This however, is purely speculative and not based on the record. The quantity of drugs recovered was very small. The uncontroverted police testimony was that the drugs could easily been have secreted on an individual. There was no evidence that the patrons entering the premises were not subjected to a patdown or that given the packaging, a patdown would have detected drugs. Substantial evidence, which has been characterized as a “minimal standard” or as comprising a “low threshold,” must consist of such relevant proof, within the whole record, “as a reasonable mind may accept as adequate to support a conclusion or ultimate fact” … , it does not, however, “rise from bare surmise, conjecture, speculation or rumor” … . Matter of Home Run KTV Inc. v New York State Liq. Auth., 2016 NY Slip Op 05834, 1st Dept 8-18-16

ADMINISTRATIVE LAW (FINDING THAT LIQUOR LICENSEE WAS AWARE OF THE PRESENCE OF DRUGS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE; RARE DISCUSSION OF THAT ADMINISTRATIVE PROCEEDING STANDARD OF PROOF)/EVIDENCE (ADMINISTRATIVE LAW, FINDING THAT LIQUOR LICENSEE WAS AWARE OF THE PRESENCE OF DRUGS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE; RARE DISCUSSION OF THAT ADMINISTRATIVE PROCEEDING STANDARD OF PROOF)/NYS LIQUOR AUTHORITY (ADMINISTRATIVE LAW, FINDING THAT LIQUOR LICENSEE WAS AWARE OF THE PRESENCE OF DRUGS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE; RARE DISCUSSION OF THAT ADMINISTRATIVE PROCEEDING STANDARD OF PROOF)/LIQUOR LICENSE (ADMINISTRATIVE LAW, FINDING THAT LIQUOR LICENSEE WAS AWARE OF THE PRESENCE OF DRUGS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE; RARE DISCUSSION OF THAT ADMINISTRATIVE PROCEEDING STANDARD OF PROOF)

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JOINDER OF DEFENDANT AND CO-DEFENDANT FOR TRIAL WAS LAWFUL BUT, BECAUSE OF IRRECONCILABLE DEFENSES, JOINDER RESULTED IN DENIAL OF DEFENDANT’S RIGHT TO A FAIR TRIAL.

The Second Department, reversing defendant’s conviction, determined defendant should not have been jointly tried with a co-defendant because of an irreconcilable conflict between his defense, and that of the co-defendant:

Where, as here, joinder is lawful, because the defendant and the codefendant were “jointly charged with every offense alleged” in their separate indictments, and “all the offenses charged [were] based upon the same criminal transaction” … , a defendant’s motion for a separate trial is “addressed to the discretion of the trial court, which may for good cause shown’ order severance. Good cause under the statute includes, but is not limited to, a finding that a defendant will be unduly prejudiced by a joint trial'” … . “[A] strong public policy favors joinder, because it expedites the judicial process, reduces court congestion, and avoids the necessity of recalling witnesses” … . However, “compromise of a defendant’s fundamental right to a fair trial free of undue prejudice as the quid pro quo for the mere expeditious disposition of criminal cases will not be tolerated” … . ” [S]everance is compelled where the core of each defense is in irreconcilable conflict with the other and where there is a significant danger, as both defenses are portrayed to the trial court, that the conflict alone would lead the jury to infer defendant’s guilt'” … . People v Lessane, 2016 NY Slip Op 05765, 2nd Dept 8-10-16

CRIMINAL LAW (JOINDER OF DEFENDANT AND CO-DEFENDANT FOR TRIAL WAS LAWFUL BUT, BECAUSE OF IRRECONCILABLE DEFENSES, JOINDER RESULTED IN DENIAL OF DEFENDANT’S RIGHT TO A FAIR TRIAL)/EVIDENCE (CRIMINAL LAW, JOINDER OF DEFENDANT AND CO-DEFENDANT FOR TRIAL WAS LAWFUL BUT, BECAUSE OF IRRECONCILABLE DEFENSES, JOINDER RESULTED IN DENIAL OF DEFENDANT’S RIGHT TO A FAIR TRIAL)/JOINDER (CRIMINAL LAW, JOINDER OF DEFENDANT AND CO-DEFENDANT FOR TRIAL WAS LAWFUL BUT, BECAUSE OF IRRECONCILABLE DEFENSES, JOINDER RESULTED IN DENIAL OF DEFENDANT’S RIGHT TO A FAIR TRIAL)

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CRITERIA FOR ATTORNEY WORK-PRODUCT PRIVILEGE, WILLFUL AND CONTUMACIOUS CONDUCT DURING DISCOVERY, AND SPOLIATION OF EVIDENCE CLEARLY EXPLAINED.

The Second Department determined: (1) information procured by an attorney’s freedom of information law requests was not protected by work-product privilege; (2) defendants’ conduct during discovery was not willful and contumacious; and (3) an adverse inference instruction was an appropriate sanction for spoliation of evidence. The Second Department offered detailed summaries of the criteria for work-product privilege, sanctions for conduct during discovery, and spoliation of evidence which are worth reading. With respect to attorney work-product privilege, the court wrote:

The CPLR exempts attorney work product from disclosure … . However, “the party asserting the privilege that material sought through discovery was prepared exclusively in anticipation of litigation or constitutes attorney work product bears the burden of demonstrating that the material it seeks to withhold is immune from discovery by identifying the particular material with respect to which the privilege is asserted and establishing with specificity that the material was prepared exclusively in anticipation of litigation” … . Furthermore, “[n]ot every manifestation of a lawyer’s labors enjoys the absolute immunity of work product. The exemption should be limited to those materials which are uniquely the product of a lawyer’s learning and professional skills, such as materials which reflect his [or her] legal research, analysis, conclusions, legal theory or strategy” … .

Here, the plaintiffs contend that materials obtained by their attorney via requests pursuant to state and federal freedom of information laws are privileged attorney work product. However, this material cannot be characterized as being “uniquely the product of [the plaintiffs’ counsel’s] learning and professional skills” or as reflecting his “legal research, analysis, conclusions, legal theory or strategy” … . Cioffi v S.M. Foods, Inc., 2016 NY Slip Op 05741, 2nd Dept 8-10-16

 

ATTORNEYS (CRITERIA FOR ATTORNEY WORK-PRODUCT PRIVILEGE, WILLFUL AND CONTUMACIOUS CONDUCT DURING DISCOVERY, AND SPOLIATION OF EVIDENCE CLEARLY EXPLAINED)/PRIVILEGE (ATTORNEY WORK PRODUCT PRIVILEGE CRITERIA EXPLAINED)/WORK PRODUCT (ATTORNEY WORK PRODUCT PRIVILEGE CRITERIA EXPLAINED)/CIVIL PROCEDURE (WILLFUL AND CONTUMACIOUS CONDUCT DURING DISCOVERY, AND SPOLIATION OF EVIDENCE CLEARLY EXPLAINED)/DISCOVERY (CIVIL, CRITERIA FOR FINDING WILLFUL AND CONTUMACIOUS CONDUCT DURING DISCOVERY CLEARLY EXPLAINED)/EVIDENCE (CIVIL, CRITERIA FOR SPOLIATION OF EVIDENCE CLEARLY EXPLAINED)/SPOLIATION (CRITERIA FOR SPOLIATION OF EVIDENCE CLEARLY EXPLAINED)

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TESTIMONY OF DNA EXPERT, WHICH WAS BASED ON DATA COLLECTED BY NON-TESTIFYING WITNESSES, DID NOT VIOLATE DEFENDANT’S RIGHT OF CONFRONTATION; ILLEGAL STOP DID NOT REQUIRE SUPPRESSION OF STATEMENT, SUFFICIENT ATTENUATION.

The Third Department, in affirming defendant’s conviction, determined the testimony of the DNA expert (Pasqualino) did not violate defendant’s right of confrontation. Although the expert relied on data collected by non-testifying witnesses, the conclusions drawn from the data were entirely her own. In addition, the Third Department determined the concededly illegal stop of the defendant did not require suppression of his statement because the statement was sufficiently attentuated from the stop. An officer illegally stopped the defendant to tell him the police wanted to speak to him. The defendant  then drove to the station where he was read his Miranda rights. With respect to the DNA evidence, the court wrote:

Pasqualino testified that she analyzed raw data compiled by the nontestifying lab technicians and that she did not rely on the opinions or interpretation of anyone else in forming her scientific conclusions linking defendant’s DNA profile to the victim’s rape kit, which conclusions were contained in the reports that she authored… . * * *

There is no evidence in the record that any lab technician or analyst who participated in the preliminary processing and testing of this DNA evidence engaged in any data editing, analysis, comparisons or interpretations of the evidence or rendered any opinions regarding whether the data collected from the rape kit matched defendant’s DNA profile; likewise, there is no proof that Pasqualino relied upon any such opinions or conclusions drawn by others … . Further, the technicians’ compilation of objective data was not accusatory and did not, without Pasqualino’s expert analysis and testimony, link defendant to these crimes … . Under these circumstances, defendant’s right of confrontation was not violated when Pasqualino relied upon and made reference to data collected by nontestifying lab technicians … . People v Stahl, 2016 NY Slip Op 05597, 3rd Dept 7-21-16

 

CRIMINAL LAW (TESTIMONY OF DNA EXPERT, WHICH WAS BASED ON DATA COLLECTED BY NON-TESTIFYING WITNESSES, DID NOT VIOLATE DEFENDANT’S RIGHT OF CONFRONTATION)/EVIDENCE (CRIMINAL LAW, TESTIMONY OF DNA EXPERT, WHICH WAS BASED ON DATA COLLECTED BY NON-TESTIFYING WITNESSES, DID NOT VIOLATE DEFENDANT’S RIGHT OF CONFRONTATION)/CONFRONTATION, RIGHT TO (CRIMINAL LAW, TESTIMONY OF DNA EXPERT, WHICH WAS BASED ON DATA COLLECTED BY NON-TESTIFYING WITNESSES, DID NOT VIOLATE DEFENDANT’S RIGHT OF CONFRONTATION)/DNA (TESTIMONY OF DNA EXPERT, WHICH WAS BASED ON DATA COLLECTED BY NON-TESTIFYING WITNESSES, DID NOT VIOLATE DEFENDANT’S RIGHT OF CONFRONTATION)/STREET STOPS (ILLEGAL STOP DID NOT REQUIRE SUPPRESSION, STATEMENT SUFFICIENTLY ATTENUATED FROM THE STOP)/SUPPRESSION (ILLEGAL STOP DID NOT REQUIRE SUPPRESSION, STATEMENT SUFFICIENTLY ATTENUATED FROM THE STOP)/ATTENUATION (CRIMINAL LAW, (ILLEGAL STOP DID NOT REQUIRE SUPPRESSION, STATEMENT SUFFICIENTLY ATTENUATED FROM THE STOP)

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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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