Opinion
No. 2019-01365 Ind. No. 524/09
12-01-2021
The People, etc., respondent, v. Brandon Viera, appellant.
Janet E. Sabel, New York, NY (Harold V. Ferguson of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Gamaliel Marrero of counsel), for respondent.
Argued - April 20, 2021
D67934 Y/htr
Janet E. Sabel, New York, NY (Harold V. Ferguson of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Gamaliel Marrero of counsel), for respondent.
MARK C. DILLON, J.P. ROBERT J. MILLER BETSY BARROS FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER
Appeal by the defendant, by permission and pursuant to CPL 450.10(5), from an order of the Supreme Court, Kings County (John T. Hecht, J.), dated December 5, 2018, which, denied, without a hearing, his renewed motion pursuant to CPL 440.10 to vacate a judgment of the same court (Raymond Guzman, J.) rendered November 30, 2009, convicting him of attempted murder in the second degree, assault in the first degree, attempted assault in the first degree, and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence, and pursuant to CPL 440.30(1-a) for forensic DNA testing of certain evidence.
ORDERED that the order is affirmed.
The Supreme Court providently exercised its discretion in summarily denying that branch of the defendant's renewed motion which was pursuant to CPL 440.10 to vacate his judgment of conviction based on actual innocence. "'[A]ctual innocence' means factual innocence, not mere legal insufficiency of evidence of guilt, and must be based upon reliable evidence which was not presented at the trial" (People v Hamilton, 115 A.D.3d 12, 23 [citation omitted]; see Bousley v United States, 523 U.S. 614, 623-624). "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 A.D.3d at 27, quoting Goldblum v Klem, 510 F.3d 204, 219 [3d Cir]; see People v Jones, 115 A.D.3d 984). If the defendant meets this prima facie burden, a hearing on the claim is conducted (see People v Hamilton, 115 A.D.3d at 27). Here, the defendant failed to make the requisite prima facie showing, and thus, no hearing was warranted (see People v Jones, 115 A.D.3d at 984; People v Hamilton, 115 A.D.3d at 28).
The Supreme Court also providently exercised its discretion in summarily denying that branch of the defendant's renewed motion which was pursuant to CPL 440.10 to vacate his judgment of conviction based on ineffective assistance of counsel. Contrary to the defendant's contention, the court could determine from the parties' submissions that the defendant was not deprived of the effective assistance of counsel (see People v Satterfield, 66 N.Y.2d 796, 799-800). The defendant failed to show that counsel acted without strategic or other legitimate explanation for the challenged conduct (see People v Rivera, 71 N.Y.2d 705, 709).
Furthermore, the defendant failed to show that there was a reasonable probability that the verdict would have been more favorable to him had DNA testing been performed and the results admitted at trial (see CPL 440.30[1-a]; People v Griffin, 121 A.D.3d 1127; People v Bellezza, 119 A.D.3d 598, 598-599). Accordingly, the Supreme Court providently exercised its discretion in summarily denying that branch of the defendant's renewed motion which was pursuant to CPL 440.30(1-a) for forensic DNA testing of certain evidence.
DILLON, J.P., MILLER, BARROS and CONNOLLY, JJ., concur.