THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v DERRICK HAMILTON, Appellant.
Second Department
January 15, 2014
979 NYS2d 97
Jonathan I. Edelstein, New York City (Robert Grossman of counsel), for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn (Leonard Joblove and Joyce Slevin of counsel), for respondent.
OPINION OF THE COURT
HINDS-RADIX, J.
The primary issue on this appeal, and an issue of first impression for an appellate court in this state, is whether a defendant‘s claim of actual innocence may be recognized as a ground to vacate a judgment of conviction pursuant to
By judgment rendered July 12, 1993, the defendant was convicted of murder in the second degree, upon a jury verdict (see People v Hamilton, 272 AD2d 553 [2000]), stemming from the shooting of Nathaniel Cash in Brooklyn on January 4, 1991, at around 11:00 a.m. (see Hamilton v Herbert, 2004 WL 86413, 2004 US Dist LEXIS 590 [ED NY, Jan. 16, 2004, No. 01 CV 1703(JG)]). The defendant‘s conviction was based upon the trial testimony of the victim‘s girlfriend, Jewel Smith (see id.). At trial, the defendant had intended to present an alibi defense that he was in New Haven, Connecticut, at the time of the crime, and submitted a notice of alibi (see
Prior to sentencing, the defendant moved to set aside the verdict against him pursuant to
In 1994, after the defendant was sentenced, he made his first of several motions pursuant to
By order dated April 2, 1996, the Supreme Court denied the defendant‘s motion to vacate his judgment of conviction, concluding that the testimony of the purported eyewitness that someone other than the defendant committed the crime was not credible. The court also explained that its ruling denying the
The appeal from that order was consolidated with the defendant‘s direct appeal from the judgment of conviction. On appeal, this Court ruled that defense counsel was not ineffective for failing to call the alibi witnesses Alphonso Dixon and Kim Freeman (see People v Hamilton, 272 AD2d 553 [2000]). The denial of the application to expand the scope of the hearing to include the testimony of the alibi witnesses Turner and Mahan was not raised on the appeals to this Court.
The defendant made additional motions pursuant to
In April 2005, the defendant again moved pursuant to
By notice of motion dated July 7, 2009, the defendant moved yet again to vacate the judgment of conviction pursuant to
The defendant also submitted the affidavit of Mattie Dixon, widow of Alphonso Dixon, and Tashameaka Watson, daughter of Alphonso Dixon. According to Mattie Dixon, her husband gave a party at the Quality Inn in New Haven on January 3, 1991, for Lee Marvin, who was turning himself in the next day on drug charges. The defendant attended the party with Kim Freeman.
Jonathan Edelstein, who became the defendant‘s attorney, filed an affirmation on the defendant‘s behalf, noting that both Turner and Mahan had sworn that the defendant was in New Haven at the time of the murder, but the trial court summarily rejected their testimony because neither Turner nor Mahan were listed on the pretrial alibi notice. Edelstein claimed that, by summarily dismissing such compelling evidence of actual innocence, the court violated the defendant‘s right to due process of law, citing In Re Davis (557 US 952 [2009]). Edelstein argued that there was good cause to overcome any procedural bars advocated by the People and that all of the evidence, old and new, should be examined in deciding the defendant‘s actual innocence claim. He argued that the court should consider, sua sponte, whether trial counsel was ineffective for not including Turner and Mahan in the pretrial alibi notice.
In a supplemental affirmation in opposition, the People argued that the defendant‘s claims were, for the most part, procedurally barred and, in any event, meritless. The People noted that the court previously determined that the Turner and Mahan affidavits were not newly discovered evidence within the meaning of
In a reply affirmation, Edelstein argued that “[a] freestanding actual innocence claim exists separate and apart from
In a surreply, the People argued that the “actual innocence claim falls within the rubric” of
In the order appealed from, dated July 11, 2011, the Supreme Court denied the defendant‘s motion, citing, inter alia, the numerous prior proceedings. With respect to the alibi evidence, the court noted that the Turner and Mahan affidavits had been offered before on a prior motion to vacate the judgment pursuant to
On December 7, 2011, the defendant was released from custody to parole supervision. On appeal, the defendant‘s primary contention is that a freestanding claim of actual innocence is cognizable in New York, and that he is entitled to at least a hearing to determine whether the proposed alibi evidence demonstrates that he is actually innocent. The defendant also continues to maintain that his trial counsel was ineffective for failing to include Kelly Turner and Davette Mahan in his pretrial alibi notice. In addition, he contends, for the first time on
The defendant‘s contention that the Dixon and Watson affidavits constitute newly discovered evidence requires only brief discussion. A defendant moving to vacate a judgment of conviction under
Although the Dixon and Watson affidavits were received by the Supreme Court while the defendant‘s motion to vacate his judgment of conviction was pending, he never raised the issue of whether those affidavits constituted newly discovered evidence. Therefore, that contention is not properly before this Court (see People v Jenkins, 84 AD3d 1403, 1409 [2011]). In any event, it appears that these witnesses, who were the wife and daughter of Alphonso Dixon, who was named in the alibi notice, could have been discovered with due diligence. Thus, the affidavits of Dixon and Watson do not satisfy the Salemi criteria.
Turning now to the defendant‘s contention that his judgment of conviction should be vacated pursuant to
In contrast, a court “may deny” a motion to vacate a judgment of conviction where the ground or issue raised “was previously determined on the merits upon a prior motion or proceeding in a court of this state, other than an appeal from the judgment” (
The defendant raised a claim of actual innocence in his April 2005 motion to vacate the judgment of conviction. However, since the procedural bars set forth in
A claim of actual innocence may be asserted, either as a “gateway” to review of another claim which is otherwise procedurally barred, or as a “freestanding” claim justifying relief in and of itself (House v Bell, 547 US 518, 554 [2006]; see Friedman v Rehal, 618 F3d 142, 152, 158 [2d Cir 2010]). A freestanding claim of actual innocence is rooted in several different concepts, including the constitutional rights to substantive and procedural due process, and the constitutional right not to be subjected to cruel and unusual punishment (see generally Jonathan M. Kirshbaum, Actual Innocence after Friedman v. Rehal: The Second Circuit Pursues a New Mechanism for Seeking Justice in Actual Innocence Cases, 31 Pace L Rev 627, 660-661 [Spring 2011]; People v Cole, 1 Misc 3d 531, 541-542 [2003]).
The Federal courts have not resolved whether a prisoner may be entitled to habeas corpus relief based upon a freestanding claim of actual innocence (see McQuiggin v Perkins, 569 US —,
The United States Supreme Court has recognized that “a credible showing of actual innocence may allow a prisoner to pursue . . . constitutional claims . . . on the merits notwithstanding the existence of a procedural bar to relief“—that is, actual innocence is a gateway to review of another claim which is otherwise procedurally barred (McQuiggin v Perkins, 569 US at —, 133 S Ct at 1931; see Schlup v Delo, 513 US 298, 314 [1995]; John M. Leventhal, A Survey of Federal and State Courts’ Approaches to a Constitutional Right of Actual Innocence: Is There a Need for a State Constitutional Right in New York in the Aftermath of CPL § 440.10 [1] [G-1]?, 76 Alb L Rev 1453, 1465-1466 [2012/2013]). This rule, which is also referred to as the “‘fundamental miscarriage of justice exception, is grounded in the “equitable discretion” of habeas courts to see that federal constitutional errors do not result in the incarceration of innocent persons‘” (McQuiggin v Perkins, 569 US at —, 133 S Ct at 1931, quoting Herrera v Collins, 506 US at 404). With respect to second or successive habeas corpus petitions, or habeas corpus petitions challenging state convictions based upon issues which were not factually developed in state court, the federal statute limits the miscarriage of justice exception to cases where the petition is based upon a retroactive change of constitutional law, or “the factual predicate for the claim could not have been discovered previously through the exercise of due diligence” and “the facts underlying the claim, if
In order to establish actual innocence as a gateway for review of a constitutional claim, federal law concerning habeas corpus petitions requires that the habeas corpus petitioner establish “that, in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt” (McQuiggin v Perkins, 569 US at —, 133 S Ct at 1928, quoting Schlup v Delo, 513 US at 329). That standard sounds somewhat similar to the definition of legally insufficient evidence (see Jackson v Virginia, 443 US 307, 319 [1979]; People v Santi, 3 NY3d 234, 246 [2004]; People v Contes, 60 NY2d 620, 621-622 [1983]). However, the law is well settled that “actual innocence” 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 based upon reliable evidence which was not presented at the trial (see Schlup v Delo, 513 US at 324). The standard of proof generally applied is proof of actual innocence by clear and convincing evidence (see
A number of states have recognized a freestanding claim of actual innocence, some by statute with specific limitations,2 and some by case law with less specific limitations.3 Illinois has recognized a freestanding claim of actual innocence based upon
Connecticut, which has based its recognition of a freestanding claim of actual innocence upon the reasoning that the writ of habeas corpus is designed to remedy fundamental miscarriages of justice (see Summerville v Warden, State Prison, 229 Conn 397, 422, 641 A2d 1356, 1369 [1994]), applies the more stringent standard of proof by clear and convincing evidence (see Miller v Commissioner of Corr., 242 Conn at 794, 700 A2d at 1132). However, in that state, it is not clear that the claim of actual innocence must be supported by newly discovered evidence (see Gould v Commissioner of Corr., 301 Conn 544, 551 n 8, 22 A3d 1196, 1200 n 8 [2011]).
New Mexico has based its recognition of a freestanding claim of actual innocence on provisions of the New Mexico Constitution, which prohibit deprivation of life or liberty without due process of law (see
New York is one of a minority of states which have no time limit for a motion to set aside a judgment of conviction based
The question of whether New York recognizes a freestanding claim of actual innocence has not been conclusively determined (see People v Deacon, 96 AD3d 965 [2012]; People v Jenkins, 84 AD3d 1403 [2011]; People v Tankleff, 49 AD3d at 182). However, this Court has ruled that “[i]t is abhorrent to our sense of justice and fair play to countenance the possibility that someone innocent of a crime may be incarcerated or otherwise punished for a crime which he or she did not commit” (People v Tankleff, 49 AD3d at 177). Further, a freestanding claim of actual innocence has been recognized by New York courts on the trial level (see e.g. People v Caraway, 36 Misc 3d 1224[A], 2012 NY Slip Op 51466[U] [Sup Ct, Kings County 2012]; People Bermudez, 25 Misc 3d 1226[A], 2009 NY Slip Op 52302[U] [Sup Ct, NY County 2007]; People v Bryant, 25 Misc 3d 1206[A], 2009 NY Slip Op 51986[U] [Sup Ct, Bronx County 2009]; People v Wheeler-Whichard, 25 Misc 3d 690 [2009]; People v Cole, 1 Misc 3d 531 [2003]; Friedman v Rehal, 618 F3d at 159).4
The Due Process Clause in the New York State Constitution provides “greater protection than its federal counterpart as construed by the Supreme Court” (People v LaValle, 3 NY3d 88, 127 [2004]; see People v Harris, 77 NY2d 434, 439-440 [1991]). 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 (see
Further, the fact that the defendant has been released on parole does not preclude him from asserting that his conviction was obtained in violation of his constitutional rights because he is actually innocent. In view of the defendant‘s release on parole, he is no longer entitled to the extraordinary writ of habeas corpus (see e.g. People ex rel. Richardson v Boucaud, 15 NY3d 916 [2010]; People ex rel. Wilder v Markley, 26 NY2d 648 [1970]). However, the restrictions imposed upon a parolee—in this case, a lifetime parolee—may constitute a sentence “so disproportionate as would constitute cruel and unusual punishment in violation of constitutional limitations” (People v Broadie, 37 NY2d 100, 110 [1975], cert denied 423 US 950 [1975]). In the case where a defendant is actually innocent, that standard is met (see generally Weems v United States, 217 US 349, 366 [1910]).
We next consider the appropriate burden of proof to impose upon a defendant asserting a claim of actual innocence.
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 (Goldblum v Klem, 510 F3d 204, 219 [2007], cert denied 555 US 850 [2008], quoting Bennett v United States, 119 F3d 468, 469 [7th Cir 1997]). Here, the defendant has made a prima facie showing based upon evidence of a credible alibi and manipulation of the witnesses, and the fact that the witness against him has recanted (see Goldblum v Klem, 510 F3d at 220). Accordingly, there should be a hearing on his claim of actual innocence.
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 (see People v Cole, 1 Misc 3d at 543; Schlup v Delo, 513 US at 328). If the defendant establishes his actual innocence by clear and convincing evidence, the indictment should be dismissed pursuant to
The defendant‘s further contention that trial counsel was ineffective for failing to include Turner and Mahan in his pre-
Accordingly, the order is modified, on the law and in the exercise of discretion, by deleting the provisions thereof denying, without a hearing, those branches of the defendant‘s motion pursuant to
DILLON, J.P., LEVENTHAL and AUSTIN, JJ., concur.
Motion by the respondent on an appeal from an order of the Supreme Court, Kings County, dated July 11, 2011, to strike certain material in the appellant‘s appendix and references to that material in the appellant‘s brief on the ground that it contains or refers to matter dehors the record. By decision and order on motion of this Court dated December 4, 2012, the motion was held in abeyance and referred to the panel of justices hearing the appeal for determination upon the argument or submission thereof.
Upon the papers filed in support of the motion and the papers filed in opposition thereto, and upon the argument of the appeal, it is
Ordered that the motion is denied.
DILLON, J.P., LEVENTHAL, AUSTIN AND HINDS-RADIX, JJ., concur.