        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

426
KA 12-00289
PRESENT: SCUDDER, P.J., CENTRA, CARNI, SCONIERS, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

FERNANDO RIVERA, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ROBERT L. KEMP OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (DAVID A. HERATY OF
COUNSEL), FOR RESPONDENT.


     Appeal, by permission of a Justice of the Appellate Division of
the Supreme Court in the Fourth Judicial Department, from an order of
the Supreme Court, Erie County (John L. Michalski, A.J.), entered
December 23, 2011. The order denied the motion of defendant to vacate
the judgment of conviction pursuant to CPL 440.10.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed.

     Memorandum: We granted defendant permission to appeal from an
order denying his motion seeking to vacate the judgment convicting him
upon his plea of guilty of attempted assault in the first degree
(Penal Law §§ 110.00, 120.10 [2]), in connection with the attack of a
fellow inmate in 1999. We reject defendant’s contention that Supreme
Court erred in denying his motion without conducting a hearing.
Defendant asserted in support of his motion that he is actually
innocent of the offense, and he submitted the affidavits of other
inmates who witnessed the attack and an inmate who took responsibility
for the attack. To the extent that defendant relies on those
affidavits as newly discovered evidence that was not available at the
time defendant pleaded guilty, we note that defendant pleaded guilty
herein, and relief pursuant to CPL 440.10 (1) (g) based on newly
discovered evidence is available only upon a verdict following a
trial.

     To the extent that defendant contends that he has a cognizable
claim pursuant to CPL 440.10 (1) (h), i.e., he is entitled to a
hearing to determine whether his constitutional rights have been
violated, we note that, as a matter of first impression at the
appellate level, the Second Department has recognized a “freestanding
claim of actual innocence . . . rooted in . . . the constitutional
rights to substantive and procedural due process, and the
                                 -2-                           426
                                                         KA 12-00289

constitutional right not to be subjected to cruel and unusual
punishment” (People v Hamilton, 115 AD3d 12, 21). That Court
explained that “ ‘actual innocence’ means factual innocence, not mere
legal insufficiency of evidence of guilt (see Bousley v United States,
523 US 614, 623-624), and must be based upon reliable evidence which
was not presented at trial (see Schlup v Delo, 513 US [298,] 324)”
(id. at 23 [emphasis added]). Without deciding whether a claim of
actual innocence is cognizable under CPL 440.10 (1) (h), we conclude
that, in any event, the claim is not available where, as here,
defendant does not challenge the voluntariness of his plea. We note
that defendant abandoned on appeal his contention that his plea was
not voluntary because he was taking psychiatric medication. In any
event, the record supports the conclusion that defendant’s plea of
guilty was knowing and voluntary. “The ‘solemn act’ of entering a
plea . . . should not be permitted to be used as a device for a
defendant to avoid a trial while maintaining a claim of factual
innocence” (People v Plunkett, 19 NY3d 400, 406).

     We reject defendant’s contention that the court erred in refusing
to conduct a hearing with respect to his contention that he was denied
effective assistance of counsel based upon defense counsel’s failure
to interview civilian and inmate witnesses to the attack (see CPL
440.10 [1] [f], [h]). That contention is belied by the record, which
establishes that defense counsel moved for an order of the court to
transport three inmate witnesses from the prisons where they were
incarcerated for the purpose of testifying at defendant’s trial and
that one of those witnesses was at the courthouse when defendant
pleaded guilty.




Entered:   May 2, 2014                          Frances E. Cafarell
                                                Clerk of the Court
