For the first time in New York State, an appellate court has recognized that a freestanding claim of “actual innocence” is a ground for defendants to challenge their convictions.
In a case viewed as a significant development in the state’s criminal law, the Appellate Division, Second Department unanimously concluded the claim was cognizable as it ordered a hearing for Derrick Hamilton, who asserted his actual innocence in a Criminal Procedure Law 440.10 motion after being convicted for a 1991 murder in Brooklyn.
The freestanding claim of actual innocence has been recognized in various trial-level courts throughout the state, but Wednesday’s ruling marked an issue of first impression at the appellate level.
Holding there is a New York State constitutional right not to be convicted when there is a sufficient showing of actual innocence, Justice Sylvia Hinds-Radix (See Profile) wrote in People v. Hamilton, 2011-07335, “Since a person who has not committed any crime has a liberty interest in remaining free from punishment, the conviction or incarceration of a guiltless person, which deprives that person of freedom of movement and freedom from punishment and violates elementary fairness, runs afoul of the Due Process Clause of the New York Constitution. Moreover, because punishing an actually innocent person is inherently disproportionate to the acts committed by that person, such punishment also violates the provision of the New York Constitution which prohibits cruel and unusual punishments.”
Here, she said, an actual innocence claim had to be established by “clear and convincing evidence.”
Joel Rudin of Manhattan—who is not involved in the case but has handled a number of high-profile conviction challenges—called the ruling “extremely important.”
He said it “provides a way to overcome procedural bar, which often is applied cruelly to prevent a deserving criminal defendant from correcting an injustice. The adoption of a ‘clear and convincing evidence’ standard is troubling, because it allows objectively innocent defendants who lack such overwhelming proof to remain imprisoned, but it is still a major and compassionate step in the right direction.”
In 1993, Hamilton was convicted for second-degree murder in connection to the fatal shooting of Nathaniel Cash. Hamilton intended to present an alibi defense that he was in New Haven, Conn. at the time of the shooting. But he said he could not advance the defense because one alibi witness said he was too ill to appear and another said she was too scared.
After conviction, but before sentencing, Hamilton tried to have the verdict set aside after a key witness, Jewel Smith, recanted, and a new defense witness said she was with Smith in a supermarket at the time of the crime.
At the hearing, Smith said she testified falsely because of police threats to have her prosecuted and her children removed. Law enforcement officials—including then-Detective Louis Scarcella—refuted the testimony and the motion was denied.
Testimony in a large number of cases by Scarcella, who has retired, has come into question recently. He has consistently denied any wrongdoing.
After receiving a 25-years to life sentence, Hamilton filed the first of several motions in 1994 pursuant to Criminal Procedure Law 440.10 to set aside his conviction.
He asserted newly discovered evidence of an alleged eyewitness who said Hamilton did not commit the crime, and then, during a hearing on the motion, tried to include testimony from two purportedly newly discovered eyewitnesses who did not testify at trial and were not on the pretrial notice of alibi.
For new evidence to be considered in a 440.10 motion, it has to satisfy six criteria, including a showing it would “probably change the result if a new trial is granted” and “could not have been discovered before trial by the exercise of due diligence,”
The motion was denied, with then-Brooklyn Supreme Court Justice Edward Rappaport saying the eyewitness was not credible. The judge added that the alleged alibi witnesses did not constitute newly discovered evidence because Hamilton did not show “the exercise of due diligence.” They could not be located to testify at trial.
Undeterred, Hamilton filed another unsuccessful 440 motion in 2005—dismissed because the sought-after relief was already denied—and then the instant 440 motion in 2009.
In the latest bid, Hamilton insisted he was entitled to a hearing based on the previous-rejected testimony of the new alibi witnesses. He also offered testimony from other alibi witnesses.
Hamilton’s new counsel, Jonathan Edelstein of Edelstein & Grossman, said there was good cause to overcome the procedural bars advocated by prosecutors. All the evidence—both new and old—had to be reviewed in deciding Hamilton’s actual innocence.
Prosecutors countered Hamilton’s claims were, for the most part, procedurally barred, but also lacked merit.
The prosecution, in connection with the 2009 filing, acknowledged it was “yet to be decided” in federal or state law if an actual innocence claim was cognizable. If Hamilton could prove actual innocence by clear and convincing evidence, his imprisonment would be “fundamentally unfair” and violate the state Constitution.
In July 2011, Brooklyn Supreme Court Justice Raymond Guzman denied the latest 440 without a hearing, pointing, among other things, to Hamilton’s previous challenges. Hamilton appealed. He was paroled in December 2011.
In her decision, Hinds-Radix observed that 440.10 tells judges they “must deny” vacatur motions when, for example, the grounds or issues were “previously determined on the merits upon an appeal from the judgment.”
By contrast, the statute in 440.10(3) said judges “may deny” motions in circumstances such as when grounds or issues were “previously determined on the merits” in a prior motion or proceeding apart from the direct appeal.
Though judges can deny motions for circumstances specified in 440.10(3), the provision says that “in the interest of justice and for good cause” judges have the discretion to grant motions that are “otherwise meritorious.”
Hinds-Radix said “since the procedural bars set forth in CPL 440.10(3) are discretionary, there is no reason why the courts may not consider a credible claim of actual innocence in the exercise of discretion.”
She observed that the federal courts “have not resolved” if prisoners have habeas corpus relief based on freestanding claims of actual innocence. Meanwhile, some states have statutorily-recognized actual innocence claims while others have case law with “less specific limitations.”
Though the decision puts New York in the latter category, Hinds-Radix observed in a footnote there is pending legislation that would allow judges to set aside conviction on actual innocence grounds.
Turning to Hamilton’s case, Hinds-Radix said he made out a prima facie showing of actual innocence and was entitled to a hearing.
She instructed that at the hearing, “all reliable evidence, including evidence not admissible at trial based upon a procedural bar—such as the failure to name certain alibi witnesses in the alibi notice—should be admitted.”
She said if Hamilton demonstrated actual innocence, the indictment had to be dismissed.
In an interview, Edelstein said the “larger significance of this case is when people can show they are innocent, they will not have to worry about procedural obstacles having to do with their innocence.” But Edelstein did not think the ruling would “empty the prisons.”
There were not that many defendants who could meet that burden, though Edelstein said he thought Hamilton could.
“It’s a high bar. It’s not something every defendant will be able to clear,” he said.
A Brooklyn District Attorney spokesperson said the decision is under review.
Assistant District Attorneys Leonard Joblove and Joyce Slevin appeared for the prosecution.
@|Andrew Keshner can be contacted at email@example.com.