Panel: Innocence Enough to Challenge Conviction

, New York Law Journal

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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."

Justices Mark Dillon (See Profile), John Leventhal (See Profile) and Leonard Austin (See Profile) joined Hinds-Radix after hearing arguments on April 30.

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.

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