| People v Fraser |
| 2018 NY Slip Op 06558 [165 AD3d 697] |
| October 3, 2018 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Reginald Fraser, Appellant. |
Laurette D. Mulry, Riverhead, NY (Kirk R. Brandt of counsel), for appellant.
Timothy D. Sini, District Attorney, Riverhead, NY (Alfred Croce of counsel), forrespondent.
Appeal by the defendant, by permission, from an order of the Supreme Court, SuffolkCounty (Mark D. Cohen, J.), dated January 20, 2017, which, after a hearing, denied his motionpursuant to CPL 440.10 to vacate a judgment of the County Court, Suffolk County (Iliou, J.)rendered October 2, 2013, convicting him of criminal possession of a controlled substance in thethird degree (three counts) and criminal sale of a controlled substance in the first degree (twocounts), upon a jury verdict, and imposing sentence.
Ordered that the order is affirmed.
The defendant was convicted of criminal possession of a controlled substance in the thirddegree (three counts) and criminal sale of a controlled substance in the first degree (two counts)arising from his involvement in cocaine transactions with an undercover officer in June and Julyof 2010, which were arranged by a confidential informant. On appeal, the judgment of convictionwas affirmed (see People v Fraser,134 AD3d 734 [2015]).
In 2016, the defendant moved pursuant to CPL 440.10 to vacate the judgment of conviction.In his moving papers, the defendant submitted an affidavit from the confidential informant whohad arranged the drug transactions. The confidential informant averred that he had exertedpressure on the defendant to sell the cocaine on the confidential informant's behalf by threateningthe defendant. After a hearing at which the confidential informant testified, the Supreme Courtdenied the motion.
CPL 440.10 (1) (g) provides, in pertinent part, that a court may vacate a defendant's judgmentof conviction upon the ground that "[n]ew evidence has been discovered since the entry of ajudgment based upon a verdict of guilty after trial, which could not have been produced by thedefendant at the trial even with due diligence on his part and which is of such character as tocreate a probability that had such evidence been received at the trial the verdict would have beenmore favorable to the defendant." The defendant has the burden of proving by a preponderance ofthe evidence every fact essential to support the motion (see CPL 440.30 [6]; People v Cain, 96 AD3d 1072,1073 [2012]; People v Tankleff, 49AD3d 160, 179-180 [2007]), and the court must make its final decision based upon thelikely cumulative effect of the new evidence had it been presented at trial (see People vCain, 96 AD3d at 1073; People v Tankleff, 49 AD3d at 178-181).
We agree with the Supreme Court's determination that the defendant failed to meet [*2]his burden. The defendant failed to show that the profferedevidence was discovered after the entry of judgment on his conviction (see CPL 440.10[1] [g]; People v Cain, 96 AD3d at 1073). Rather, the alleged facts to which theconfidential informant testified were known to the defendant at the time of his trial (seePeople v Cain, 96 AD3d at 1073). In any event, considering the cumulative effect of thetestimony of the confidential informant, there is no probability that if such evidence had beenreceived at the trial the verdict would have been more favorable to the defendant (seeCPL 440.10 [1] [g]; People v Foster,157 AD3d 901 [2018]; People v Cain, 96 AD3d at 1073-1074). The record supportsthe court's determination that the testimony of the confidential informant at the hearing on thedefendant's CPL 440.10 motion that he had pressured the defendant to sell cocaine on theconfidential informant's behalf was unreliable. Moreover, due to the vagueness of the testimonyas to the actual threats made to the defendant, that testimony failed to establish that the defendantcommitted the drug sales because "he was coerced to do so by the use or threatened imminent useof unlawful physical force upon him . . . , which force or threatened force a personof reasonable firmness in his situation would have been unable to resist" (Penal Law§ 40.00 [1]).
Moreover, contrary to the defendant's contention, vacatur of the judgment of conviction wasnot warranted on the basis of actual innocence. A freestanding claim of actual innocence,asserted by a defendant who has been convicted upon a jury verdict, is cognizable in New York,and such a defendant, who establishes his or her actual innocence by clear and convincingevidence, is entitled to relief under CPL 440.10 (1) (h) (see People v Maxwell, 152 AD3d 622, 622-623 [2017]; People v Hamilton, 115 AD3d 12,15 [2014]; cf. People v Tiger, 32 NY3d 91 [2018]). Actual innocence "means factual innocence, not mere legal insufficiency ofevidence of guilt, and must be based upon reliable evidence which was not presented at the trial"(People v Hamilton, 115 AD3d at 23 [citations omitted]). "Mere doubt as to thedefendant's guilt, or a preponderance of conflicting evidence as to the defendant's guilt, isinsufficient, since a convicted defendant no longer enjoys the presumption of innocence, and infact is presumed to be guilty" (id. at 27). Here, at the hearing, the defendant failed todemonstrate factual innocence by clear and convincing evidence (see People v Maxwell,152 AD3d at 623).
The defendant's remaining contentions are without merit. Chambers, J.P., Sgroi, Maltese andConnolly, JJ., concur.