| People v Griffin |
| 2014 NY Slip Op 06103 [120 AD3d 1257] |
| September 10, 2014 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Gerald Griffin, Appellant. |
Edelstein & Grossman, New York, N.Y. (Jonathan Edelstein and Robert M.Grossman of counsel), for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, ThomasM. Ross, and Solomon Neubort of counsel), for respondent.
Appeal by the defendant, by permission, from an order of the Supreme Court, KingsCounty (Gary, J.), dated January 3, 2013, which denied, without a hearing, his motionpursuant to CPL 440.10 to vacate a judgment of the same court rendered December 4,1998, convicting him of murder in the second degree, upon a jury verdict, and imposingsentence.
Ordered that the order is affirmed.
The Supreme Court properly denied, without a hearing, that branch of thedefendant's motion which was to vacate his conviction based on newly discoveredevidence, since the evidence the defendant offered was not newly discovered within themeaning of CPL 440.10 (1) (g). In this regard, the defendant failed to meet his burden ofdemonstrating that the testimony of one particular witness could not have been producedat the trial with due diligence, or that the testimony of another witness, on its own, wouldprobably change the result if a new trial were granted (see People v Salemi, 309NY 208, 216 [1955]; People vCruz, 23 AD3d 577 [2005]; People v Bravo, 243 AD2d 640 [1997];People v Jackson, 238 AD2d 877 [1997]).
The Supreme Court also providently exercised its discretion in summarily denyingthat branch of the defendant's motion which was pursuant to CPL 440.10 (1) (h) tovacate his conviction based on actual innocence. " '[A]ctual innocence' meansfactual innocence, not mere legal insufficiency of evidence of guilt, and must be basedupon reliable evidence which was not presented at the trial" (People v Hamilton, 115 AD3d12, 23 [2014] [citation omitted]; see Bousley v United States, 523 US 614,623-624 [1998]). "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"(People v Hamilton, 115 AD3d at 27, quoting Goldblum v Klem, 510 F3d204, 219 [2007]; see People vCaldavado, 116 AD3d 877 [2014]; People v Jones, 115 AD3d 984 [2014]). If the defendantmeets this prima facie burden, a hearing on the claim is conducted (see People vHamilton, 115 AD3d at 27). Here, the defendant failed to make the requisite primafacie showing, and, thus, no hearing was warranted (see People v Hamilton, 115AD3d at 28; People v Caldavado, 116 AD3d at 877; People v Jones, 115AD3d at 984). Rivera, J.P., Roman, Sgroi and LaSalle, JJ., concur. [Prior CaseHistory: 2013 NY Slip Op 30077(U).]