| People v Rivera |
| 2014 NY Slip Op 03105 [117 AD3d 1475] |
| May 2, 2014 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vFernando Rivera, Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Robert L. Kemp of counsel), fordefendant-appellant.
Frank A. Sedita, III, District Attorney, Buffalo (David A. Heraty of counsel), forrespondent.
Appeal, by permission of a Justice of the Appellate Division of the Supreme Court inthe Fourth Judicial Department, from an order of the Supreme Court, Erie County (JohnL. Michalski, A.J.), entered December 23, 2011. The order denied the motion ofdefendant to vacate the judgment of conviction pursuant to CPL 440.10.
It is hereby ordered that the order so appealed from is unanimously affirmed.
Memorandum: We granted defendant permission to appeal from an order denying hismotion seeking to vacate the judgment convicting him upon his plea of guilty ofattempted assault in the first degree (Penal Law §§ 110.00, 120.10[2]), in connection with the attack of a fellow inmate in 1999. We reject defendant'scontention that Supreme Court erred in denying his motion without conducting a hearing.Defendant asserted in support of his motion that he is actually innocent of the offense,and he submitted the affidavits of other inmates who witnessed the attack and an inmatewho took responsibility for the attack. To the extent that defendant relies on thoseaffidavits as newly discovered evidence that was not available at the time defendantpleaded guilty, we note that defendant pleaded guilty herein, and relief pursuant to CPL440.10 (1) (g) based on newly discovered evidence is available only upon a verdictfollowing a trial.
To the extent that defendant contends that he has a cognizable claim pursuant to CPL440.10 (1) (h), i.e., he is entitled to a hearing to determine whether his constitutionalrights have been violated, we note that, as a matter of first impression at the appellatelevel, the Second Department has recognized a "freestanding claim of actual innocence. . . rooted in . . . the constitutional rights to substantive andprocedural due process, and the constitutional right not to be subjected to cruel andunusual punishment" (People vHamilton, 115 AD3d 12, 21 [2014]). That Court explained that " 'actualinnocence' means factual innocence, not mere legal insufficiency of evidence of guilt(see Bousley v United States, 523 US 614, 623-624 [1998]), and must be basedupon reliable evidence which was not presented at trial (see Schlup vDelo, 513 US [298,] 324)" (id. at 23 [emphasis added]). Without decidingwhether a claim of actual innocence is cognizable under CPL 440.10 (1) (h), weconclude that, in any event, the claim is not available where, as here, defendant does notchallenge the voluntariness of his plea. We note that defendant abandoned on [*2]appeal his contention that his plea was not voluntarybecause he was taking psychiatric medication. In any event, the record supports theconclusion that defendant's plea of guilty was knowing and voluntary. "The 'solemn act'of entering a plea . . . should not be permitted to be used as a device for adefendant to avoid a trial while maintaining a claim of factual innocence" (People v Plunkett, 19 NY3d400, 406 [2012]).
We reject defendant's contention that the court erred in refusing to conduct a hearingwith respect to his contention that he was denied effective assistance of counsel basedupon defense counsel's failure to interview civilian and inmate witnesses to the attack(see CPL 440.10 [1] [f], [h]). That contention is belied by the record, whichestablishes that defense counsel moved for an order of the court to transport three inmatewitnesses from the prisons where they were incarcerated for the purpose of testifying atdefendant's trial and that one of those witnesses was at the courthouse when defendantpleaded guilty. Present—Scudder, P.J., Centra, Carni, Sconiers and Whalen,JJ.