…[O]n remittal, the Supreme Court should hold a hearing to address the defendant’s claim that the judgment of conviction should be vacated because the defendant is “actually innocent” of the crimes of which he was convicted (see CPL 440.10[1][h]; People v Hamilton, _____ AD3d _____, 2014 NY Slip Op 00238 [2d Dept 2014]). As we recognized in Hamilton, 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, the defendant made the requisite prima facie showing. Specifically, in support of his claim of actual innocence, he submitted affidavits from alibi witnesses who, although they had been identified before trial in a notice of alibi (see CPL 250.20[1]), had not testified at trial. People v Jones, 2014 NY Slip Op 02079, 2nd Dept 3-26-14

The Due Process Clause in the New York State Constitution provides “greater protection than its federal counterpart as construed by the Supreme Court” … . Since a person who has not committed any crime has a liberty interest in remaining free from punishment, the conviction or incarceration of a guiltless person, which deprives that person of freedom of movement and freedom from punishment and violates elementary fairness, runs afoul of the Due Process Clause of the New York Constitution (see NY Const, art I, § 6… ). Moreover, because punishing an actually innocent person is inherently disproportionate to the acts committed by that person, such punishment also violates the provision of the New York Constitution which prohibits cruel and unusual punishments (see NY Const, art I, § 5…). Thus, we conclude that a freestanding claim of actual innocence may be addressed pursuant to CPL 440.10(1)(h), which provides for vacating a judgment which was obtained in violation of an accused’s constitutional rights… . * * *

At the hearing, all reliable evidence, including evidence not admissible at trial based upon a procedural bar—such as the failure to name certain alibi witnesses in the alibi notice—should be admitted … . If the defendant establishes his actual innocence by clear and convincing evidence, the indictment should be dismissed pursuant to CPL 440.10(4), which authorizes that disposition where appropriate. There is no need to empanel another jury to consider the defendant’s guilt where the trial court has determined, after a hearing, that no juror, acting reasonably, would find the defendant guilty beyond a reasonable doubt.  People v Hamilton, 2014 NY Slip Op 00238, 2nd Dept 1-15-14