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Supreme Court of New York, Appellate Division, Second Department
January 15, 2014, Decided
[**99] [*15] Hinds-Radix, J.
The primary issue on this appeal, and an issue of first impression for an appellate [**100] court in this state, is whether a defendant's claim of actual innocence may be recognized as a ground to vacate a judgment of conviction pursuant to CPL 440.10 (1) (h), which authorizes a court to vacate a judgment which was obtained in violation of an accused's constitutional rights. For the reasons which follow, we hold [***2] that a "freestanding" claim of actual innocence is cognizable in New York, and that a defendant who establishes his or her actual innocence by clear and convincing evidence is entitled to relief under the statute.
By judgment rendered July 12, 1993, the defendant was convicted of murder in the second degree, upon a jury verdict (see People v Hamilton, 272 AD2d 553, 708 NYS2d 136 ), stemming from the shooting of Nathaniel Cash in Brooklyn on January 4, 1991, at around 11:00 a.m. (see Hamilton v Herbert, 2004 WL 86413, 2004 US Dist LEXIS 590 [ED NY, Jan. 16, 2004, No. 01 CV 1703(JG)]). The defendant's conviction was based upon the trial testimony of the victim's girlfriend, Jewel Smith (see id.). At trial, the defendant had intended to present an alibi defense that he was in New Haven, Connecticut, at the time of the crime, and submitted a notice of alibi (see CPL 250.20), naming Kim Freeman and Alphonso Dixon as alibi witnesses. He was unable to present such a defense, however, because Dixon claimed to be too ill to appear at trial,1 and Kim Freeman claimed to be too frightened to appear (see People v Hamilton, 272 AD2d at 554).
Prior to sentencing, the defendant moved to set aside the verdict [***3] against him pursuant to CPL 330.30 based, inter alia, [*16] upon Smith's recantation of her trial testimony, the discovery of [****2] exculpatory evidence that Smith told police shortly after the crime that she did not witness the crime, and the discovery of a new defense witness who claimed that she was with Smith inside a supermarket at the time of the crime. At a hearing, Smith claimed that she testified falsely against the defendant because the police threatened her with criminal prosecution and the removal of her children from her custody. Her testimony was refuted by the testimony of the prosecutor and the detectives handling the case, including Detective Louis Scarcella, who claimed that Smith was not threatened, and that her recantation was based upon her fear of the defendant. The trial court found that Smith's recantation was unreliable, and denied the defendant's motion (see Hamilton v Herbert, 2004 WL 86413, 2004 US Dist LEXIS 590).
Full case includes Shepard's, Headnotes, Legal Analytics from Lex Machina, and more.
115 A.D.3d 12 *; 979 N.Y.S.2d 97 **; 2014 N.Y. App. Div. LEXIS 232 ***; 2014 NY Slip Op 238 ****; 2014 WL 128496
[****1] The People of the State of New York, Respondent, v Derrick Hamilton, Appellant. (Index No. 142/91)
Prior History: Appeal, by permission of the Appellate Division of the Supreme Court in the Second Judicial Department, from an order of the Supreme Court, Kings County (Raymond Guzman, J.), dated July 11, 2011. The order denied, without a hearing, defendant's motion, pursuant to CPL 440.10, to vacate a judgment of the same court (Edward Rappaport, J.), rendered July 12, 1993, convicting him, upon a jury verdict, of murder in the second degree.
People v Hamilton, 272 A.D.2d 553, 708 NYS2d 136, 2000 N.Y. App. Div. LEXIS 5765 (N.Y. App. Div. 2d Dep't, 2000)
actual innocence, judgment of conviction, newly discovered evidence, vacate a judgment, freestanding, innocent, notice, constitutional right, corpus, clear and convincing evidence, procedural bar, alibi witness, ineffective, motion to vacate, direct appeal, due diligence, ineffective assistance of counsel, standard of proof, defense motion, motions, courts, inter alia, incarceration, preponderance, limitations, pretrial
Criminal Law & Procedure, Postconviction Proceedings, Motions to Vacate Judgment, Evidence, Burdens of Proof, Preponderance of Evidence, Constitutional Law, Bill of Rights, Fundamental Rights, Cruel & Unusual Punishment, Procedural Due Process, General Overview, Substantive Due Process, Exceptions to Default, Actual Innocence & Miscarriage of Justice, Miscarriage of Justice, Proof of Innocence, Scope of Protection, Parole, Standards of Review, Clearly Erroneous Review, Motions for Postconviction Relief, Criminal Process