| People v Woods |
| 2014 NY Slip Op 05812 [120 AD3d 595] |
| August 13, 2014 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Roger Woods, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (Kendra L. Hutchinson of counsel), forappellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, SholomJ. Twersky, and Marie John-Drigo of counsel), for respondent.
Appeal by the defendant, by permission, from an order of the Supreme Court, KingsCounty (McKay, J.), dated June 30, 2011, which denied, without a hearing, his motionpursuant to CPL 440.10 to vacate a judgment of conviction of the same court renderedOctober 18, 2005, convicting him of murder in the second degree, assault in the firstdegree, and assault in the second degree, upon a jury verdict, and imposing sentence.
Ordered that the order is affirmed.
The defendant contends that the Supreme Court should have held a hearing on hisclaim, raised in his motion pursuant to CPL 440.10 to vacate his judgment of conviction,that he is "actually innocent" of murder in the second degree. "A prima facie showing ofactual innocence [requiring a hearing] is made out when there is 'a sufficient showing ofpossible merit to warrant a fuller exploration' by the court" (People v Hamilton, 115 AD3d12, 27 [2014], quoting Goldblum v Klem, 510 F3d 204, 219 [3d Cir 2007]).Here, the defendant failed to make a prima facie showing of actual innocence sufficientto warrant a hearing (see Peoplev Caldavado, 116 AD3d 877 [2014]; cf. People v Hamilton, 115 AD3dat 27).
Contrary to the defendant's contention, also raised on his motion pursuant to CPL440.10, he was not deprived of the effective assistance of counsel under either the NewYork Constitution or the United States Constitution (see Strickland vWashington, 466 US 668 [1984]; People v Benevento, 91 NY2d 708[1998]).
Accordingly, the Supreme Court properly denied, without a hearing, the defendant'smotion pursuant to CPL 440.10 to vacate his judgment of conviction. Rivera, J.P.,Balkin, Leventhal and Roman, JJ., concur. [Prior Case History: 2011 NY Slip Op32049(U).]