This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 219
The People &c.,
            Respondent,
        v.
Clifford Jones,
            Appellant.




          Heather K. Suchorsky, for appellant.
          David M. Cohn, for respondent.
          The Innocence Project, amicus curiae.




PIGOTT, J.:
          Defendant sought an evidentiary hearing as part of his
postjudgment motion to vacate his conviction on the ground that
newly discovered evidence in the form of mitochondrial DNA

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                              - 2 -                          No. 219

(mtDNA) testing excluded him as the perpetrator of crimes of
which he was convicted in 1981 (see CPL 440.10 [1] [g]).   Supreme
Court and the Appellate Division, in the exercise of their
discretion, summarily denied defendant's motion.   The
jurisprudence of this Court, for nearly 40 years, has been that
"[t]he power to review a discretionary order denying a motion to
vacate judgment upon the ground of newly discovered evidence
[brought pursuant to CPL 440.10 (1) (g)] ceases at the Appellate
Division" (People v Crimmins, 38 NY2d 407, 409 [1975]), leaving
this Court without the power to consider whether such summary
denials constituted an abuse of discretion.   Because the rule
enunciated in Crimmins has needlessly restricted this Court's
power of review concerning CPL 440.10 (1) (g) motions, we now
overrule that part of the Crimmins decision, hold that the
Appellate Division abused its discretion in summarily denying
defendant's motion for an evidentiary hearing in this case, and
remand it to Supreme Court for further proceedings consistent
with this opinion.
                               I.
          Newly discovered evidence is one of the bases under CPL
440.10 (1) that defendants may allege when seeking postjudgment
relief (see CPL 440.10 [1] [a]-[i]).   When it became law in 1971,
CPL § 440.10 was designed to replace the common law contentions
previously raised through a motion for a writ of error coram
nobis and post-conviction applications for a new trial based on


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                                - 3 -                        No. 219

newly discovered evidence (see Richard G. Denzer, Practice
Commentary, McKinney's Cons Laws of NY, Book 11A, CPL 440.10 at
183 [1971 ed]; see also Peter Preiser, Practice Commentaries,
McKinney's Cons Laws of NY, Book 11A, CPL 440.10 at 248 [stating
that "resort to coram nobis is unavailable in situations covered
by the statute"]).   Prior to the statute's enactment, however,
this Court declined to review postjudgment arguments that the
Appellate Division abused its discretion in denying a defendant's
motion for a new trial based on newly discovered evidence,
holding that "[t]he right to review of such an order [in a
noncapital case] ceases at the Appellate Division" (People v
Fein, 18 NY2d 162, 169 [1966], cert denied 385 US 649 [1967], reh
denied 386 US 978 [1967] [citations omitted]; see People v
Mistretta, 7 NY2d 843, 844 [1959]; People v Girardi, 303 NY 887
[1952]; People v Luciano, 275 NY 547, 548 [1937], cert denied 305
US 620 [1938] [striking from the record all proceedings upon the
motion for a new trial based on newly discovered evidence on the
ground that this Court lacked the power to review the
discretionary order in noncapital cases]; People v Bonifacio, 190
NY 150, 151-152 [1907]).    Indeed, before the enactment of CPL
article 440, no statute provided for an appeal to this Court in
postjudgment proceedings.
          In Crimmins, we relied on those pre-1971 cases as the
foundation for our "hands-off" approach with respect to newly
discovered evidence claims, and imposed a limitation on our power


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of review, holding that we could not review the lower courts'
summary denial of a defendant's motion to vacate based on newly
discovered evidence (Crimmins, 38 NY2d at 415-416).   However, CPL
440.10 was not a piecemeal amendment to the Criminal Procedure
Law but, rather, was part of the newly-adopted Criminal Procedure
Law (L 1970, ch 996), which "overhauled and reformulated" the
"whole area of appeals" (Mem in Support and Explanation of
Proposed Criminal Procedure Law, L 1970, ch 996, at 12).1    At the
time this Court decided Crimmins, the new Criminal Procedure Law
provided defendants not only a mechanism for appealing a denial
of a CPL 440.10 motion to the Appellate Division (see CPL 450.15
[1]), but also an opportunity to seek leave to appeal to this
Court "from any adverse or partially adverse order of an
intermediate appellate court entered upon an appeal taken to such
intermediate appellate court pursuant to section . . . 450.15 . .
." (CPL 450.90 [1]).
          The Crimmins majority acknowledged that CPL 450.15 (1)
and CPL 450.90 (1) made the denial of a CPL 440.10 (1) (g) motion
appealable, but submitted that merely because the denial of a



     1
      The Criminal Procedure Law as originally adopted permitted
defendants to appeal the denial of their CPL 440.10 motions to
the appellate division as of right (L 1970, ch 996), but prior to
the statute's effective date of September 1, 1971, the
Legislature amended the Criminal Procedure Law so that a
defendant could only appeal denial of his postjudgment motion to
the Appellate Division by first obtaining permission (L 1971, ch
671, § 1; see Mem of State Executive Department, L 1971, ch 671,
at 2463-2464).

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                               - 5 -                         No. 219

motion was appealable it did not follow that it was also
reviewable, explaining that this Court's review power could not
be expanded by statute alone and that CPL 490.50 (1) "must be
read in context of constitutional limitations," i.e., NY
Constitution, article VI, § 3 (a) (Crimmins, 38 NY2d at 414-415).
That constitutional provision limits this Court's jurisdiction,
as relevant here, to "the review of questions of law except where
the judgment is of death."   As far as jurisdictional rules go,
the Crimmins majority was correct:     although an order may be
appealable to this Court, it may nonetheless not present a
reviewable question of law (see William C. Donnino, New York
Court of Appeals on Criminal Law § 3.1 at 41 [3d ed 2011]).
          We part company with the Crimmins majority not with
regard to its general analysis of this Court's jurisdiction, but
with respect to its postulation that because lower courts have
"unlimited" discretion in deciding whether a defendant is
entitled to vacatur of judgment and a new trial based on newly
discovered evidence, their determination is somehow beyond
reproach (Crimmins, 38 NY2d at 415).     In reaching that
conclusion, the Crimmins majority relied on pre-CPL 440.10 cases
such as Fein, Mistretta, Girardi, Luciano and Bonifacio, decided
at a time when defendants had no statutory mechanism by which to
appeal to this Court from a denial of an application for a new
trial based on newly discovered evidence (see e.g. People v
Baxter, 40 AD2d 551, 551 [2d Dept 1972] [dismissing the


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                               - 6 -                        No. 219

defendant's appeal challenging Supreme Court's denial of his
motion for a new trial based on newly discovered evidence brought
pursuant to section 465 (7) of the Code of Criminal Procedure]).
          Now that such mechanisms are in place, defendants whose
newly discovered evidence motions are summarily denied by the
lower courts should have the opportunity, within the strictures
of CPL 450.90 (1), to have those determinations reviewed under
our abuse of discretion standard, which involves a legal, rather
than factual, review.   As the Crimmins dissent acknowledged,
          "whether there has been an abuse of
          discretion is a question of law, not of fact.
          It matters not that the discretion which we
          review necessarily was exercised in a factual
          setting. And that is so even though we must
          look at the facts in order to determine
          whether the discretion was indeed abused"
          (Crimmins, 38 NY2d at 428[Fuchsberg, J.
          dissenting]; see also e.g. Barasch v Micucci,
          49 NY2d 594, 598 [1980] ["the possibility
          that the lower court's discretion was abused
          does give rise to a question of law that is
          cognizable in this court"]).
          Significant to our analysis is the structure of CPL
440.10 (1) itself and the standard of review we have employed
under distinct provisions of that subsection.   We have exercised
our power of review in the following instances: where the
defendant challenges the lower courts' denial of his CPL 440.10
motion seeking a hearing on his claim that the judgment was
procured by fraud, duress or misrepresentation (see CPL 440.10
[1] [b]; People v Friedgood, 58 NY2d 467, 470 [1983]); where the
defendant seeks a hearing claiming that material evidence adduced


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                                - 7 -                       No. 219
at trial resulting in the judgment was false (see CPL 440.10 [1]
[c]; People v Brown, 56 NY2d 242, 246 [1982], rearg denied 57
NY2d 673 [1982]); where the defendant claims that improper and
prejudicial conduct occurred off the record during the trial (see
CPL 440.10 [1] [f]; Crimmins, 38 NY2d at 418); and where the
defendant challenges a judgment on the ground that it was
obtained in violation of defendant's state or federal
constitutional rights (see CPL 440.10 [1] [h]; People v Baxley,
84 NY2d 208, 212-213 [1994], rearg dismissed 86 NY2d 886 [1995]).
          In each of those cases, this Court held that it could
review the lower courts' summary denial of a defendant's motion
pursuant to CPL 440.10 (1) (b), (c), (f) or (h) by applying the
abuse of discretion standard, presumably because such motions
were subject to postjudgment judicial review by way of a writ of
error coram nobis before CPL 440.10's enactment (see e.g. Baxley,
84 NY2d 212-213; Crimmins, 38 NY2d at 418-419).   Section 440.10
(1), however, contains no directive that motions brought under
subsections (a) through (i) should be subjected to a different
standard of review depending on whether the claim was one
traditionally brought through a coram nobis motion or one based
on newly discovered evidence.   That the Legislature saw fit to
place a CPL 440.10 (1) (g) motion in the same category as the
other motions that, historically, were brought by coram nobis,
clearly demonstrates that the same standard of review should be
applied to CPL 440.10 motions brought on the ground of newly


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                                 - 8 -                       No. 219
discovered evidence (see Crimmins, 38 NY2d at 429 [Fuchsberg, J.
dissenting] [noting that section 440.10 "makes no distinction
between posttrial, postjudgment motions, irrespective of whether
they are based on newly discovered evidence or not," and
observing that the statute did not make any "special distinction
for cases that, before 1971, fell within the scope of the common-
law writ of coram nobis" such that there was no reason to "carve
out an exception for motions on the basis of newly discovered
evidence"]).
          We therefore make clear that this Court is empowered to
conduct a review of the lower courts' summary denial of a
defendant's CPL 440.10 (1) (g) motion, and to determine whether
that denial constituted an abuse of discretion as a matter of law
without running afoul of the jurisdictional limitations set forth
in NY Constitution, article VI, § 3 (a).   Although we are
prohibited from weighing facts and evidence in noncapital cases,
we are not precluded from exercising our "power to determine
whether in a particular judgmental and factual setting there has
been an abuse of discretion as a matter of law" because, in so
doing, we are not "passing on facts as such, but rather
considering them to the extent that they are a foundation for the
application of law" (Crimmins, 38 NY2d at 425 [Fuchsberg, J.
dissenting]).   That is, in fact, what our abuse of discretion
analysis entails, and we now address the underlying procedural
posture of defendant's appeal.


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                                - 9 -                       No. 219
                                 II.
            In 1981, a jury convicted defendant of rape in the
first degree (Penal Law § 130.35 [1]), murder in the second
degree (Penal Law § 125.25 [3]) and attempted robbery in the
first degree (Penal Law §§ 110 and 160.15 [3]), arising from
incidents that occurred in an apartment building on June 2, 1980.
Defendant had pursued a mistaken identity defense.
            At trial, the only witness who was able to identify
defendant as the perpetrator of the crimes was the rape victim, a
woman who testified that she and the perpetrator, who had just
met, entered an apartment building seeking a place in which to
engage in sexual activity.    When the woman had second thoughts
and began walking away, the perpetrator put a knife to her throat
and raped her.    She followed the perpetrator down the stairs and
observed him, with knife in hand, tussling with another man he
encountered on the stairway.    The perpetrator stabbed the man,
searched his pockets and left the building.    When the police
arrived on the scene, the woman described the perpetrator as
wearing a black hat with netting, and having a chipped tooth and
a gap between his teeth.    Officers recovered the blood-covered
hat -- identified at trial as a blue baseball cap by one of the
officers.    Four months later, the woman, an admitted heroin user
with a $50 a day habit, went to the police station and picked
defendant out of a line-up.    She testified at trial that she had
taken heroin on the morning of the line-up.


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                               - 10 -                        No. 219
          Defendant was thereafter arrested and, after trial,
found guilty of the offenses set forth above.    He was sentenced
to an indeterminate term of 18 years to life on the murder count,
and concurrent indeterminate terms of 3 to 9 years and 1 1/2 to 4
1/2 years on the rape and attempted robbery counts, respectively.
The Appellate Division affirmed (91 AD2d 874 [1st Dept 1982]),
and a Judge of this Court denied defendant leave to appeal (58
NY2d 1119 [1983]).    Defendant served his sentence and is
currently on parole.
                                 III.
          In October 2008, defendant moved pursuant to CPL 440.30
(1-a) seeking an order for DNA testing of any physical evidence
that had been secured in connection with his 1981 trial,
including, among other things, the rape kit and baseball cap (and
hairs recovered from the cap).    The People located 18 hairs from
the cap, but the remainder of the vouchered evidence -- the cap
itself, the rape kit, the knife and the rape victim's clothes --
had been destroyed.    The hair samples were sent to the New York
City Police Department for microscopic analysis, but a
criminalist who examined them concluded that they were not
suitable for microscopic comparison or nuclear DNA testing, and
suggested that mtDNA2 testing might yield better results.    The

     2
      This type of testing involves the isolation of the DNA
contained in the mitochondria of cells, thereby allowing for the
sequencing of the DNA bases to be determined. It is commonly
performed on samples that are unsuitable for Restriction Fragment
Length Polymorphism and Polymerase Chain Reaction Testing of

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                              - 11 -                        No. 219
People and the defense agreed to send the hair samples to
Mitotyping Technologies, LLC, a laboratory specializing in mtDNA
analysis, at defendant's expense.
          The mtDNA profiles on 3 of the 18 hair samples were
compared to the profile of defendant to determine if he could be
excluded as a contributor to those hair samples.   According to
Mitotyping, that testing resulted in a "consensus profile" that
was "very different" from defendant's and excluded him as the
contributor of those hairs.   Mitotyping reported that "additional
testing could further develop the full profile from additional
hairs should an alternative donor/suspect be identified."
          With the Mitotyping results in hand, defendant moved to
vacate his conviction and for a new trial pursuant to CPL 440.10
(1) (g) on the ground that the mtDNA results constituted newly
discovered evidence, or, in the alternative, for an evidentiary
hearing pursuant to CPL 440.30 (5).3   As part of the motion,
defendant submitted the trial transcript and an affidavit from
Mitotyping's president and laboratory director, Terry Melton,



nuclear DNA, namely, dried bones, teeth, hair shafts and any
other sample that contains "very little or highly degraded
nuclear DNA" (U.S. Department of Justice, Report from National
Commission on the Future of DNA Evidence, Post-Conviction DNA
Testing: Recommendations for Handling Requests at 26-28 [Sept
1999]).
     3
      Defendant also moved for vacatur of his conviction and
dismissal of the underlying indictment. The only issue presented
on this appeal, however, is whether defendant is entitled to an
evidentiary hearing on his newly discovered evidence claim.

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                              - 12 -                         No. 219
Ph.D., who averred that Mitotyping conducted the testing under
her supervision and prepared a report based on those findings,
which was attached to the affidavit along with her curriculum
vitae.
           The People responded with an attorneys' affirmation and
asked that the court summarily deny defendant's motion without a
hearing.   Although the People challenged Mitotyping's methodology
based on opinions of a doctor from the Office of the Chief
Medical Examiner and the Director of the Office of Forensic
Science for the New Jersey State Police, those opinions were
summarized in hearsay fashion in the body of the People's
affirmation and were thus not in admissible form.   The People
conceded that the mtDNA testing constituted newly discovered
evidence, but argued that the results did not require a hearing.
           Shortly after defendant filed his CPL 440.10 motion,
the Office of the Chief Medical Examiner conducted an analysis of
seven fingernail scrapings that had been recovered from the
murder victim.   DNA had been found on five of the seven
scrapings. Only one of the scrapings proved capable of DNA
analysis, and that scraping excluded defendant as a contributor.
           Supreme Court considered the mtDNA testing of the hairs
and the DNA testing of the fingernail scrapings but summarily
denied defendant's motion on the papers, stating that the absence
of defendant's DNA relative to the few samples that were tested
did not exclude defendant as the perpetrator.   The court also


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                                - 13 -                       No. 219
relied, in part, on the hearsay allegations of the experts that
were contained in the People's attorney's affirmation.    A Justice
of the Appellate Division granted defendant permission to appeal
pursuant to CPL 460.15.
            The Appellate Division affirmed in a 3-2 decision (109
AD3d 402 [1st Dept 2013]).     The majority held that "even if the
reliability of the evidence is assumed, defendant still did not
establish a legal basis for ordering a new trial" and, therefore,
"the factual disputes in this case were not material, and
defendant was not prejudiced by the absence of a hearing" (id. at
403).    Indeed, the test results, even if presumed accurate,
established, at most, that 3 out of the 18 hairs recovered from
the hat came from someone other than defendant and, in light of
the strength of the eyewitness testimony at trial -- the rape
victim interacted with the perpetrator for at least 15 minutes --
there was no indication that the hair evidence, if introduced at
trial, would have resulted in a verdict more favorable to
defendant (id. at 404-405).4    Thus, according to the majority,
Supreme Court did not abuse its discretion in summarily denying
defendant's motion.
            The dissenters argued that "defendant met his burden by
offering sworn evidence of mtDNA analysis showing that the hairs

     4
      The majority acknowledged that the People's expert analysis
-- presented in the People's affirmation and not by way of expert
affidavit -- could not provide a basis for denial of the motion
as those opinions were not in admissible form (109 AD3d at 404 n
3).

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                              - 14 -                          No. 219
from the perpetrator's hat were not his.   The rebuttal offered by
the People, in the form of an attorney's affirmation containing
hearsay statements questioning the reliability of the mtDNA test
results, is insufficient to discredit defendant's evidence" (id.
at 409).   In the dissent's view, the People's assertions that the
laboratory procedures were flawed, and the results inconclusive,
constituted factual issues that should not have been determined
on the papers (id.).   A Justice of the Appellate Division granted
defendant leave to appeal to this Court pursuant to CPL 460.20.
                                IV.
           A defendant may make a post-judgment application to
vacate his judgment of conviction on the ground that
           "[n]ew evidence has been discovered since the
           entry of a judgment based upon a verdict of
           guilty after trial, which could not have been
           produced by the defendant at the trial even
           with due diligence on his part and which is
           of such character as to create a probability
           that had such evidence been received at the
           trial the verdict would have been more
           favorable to the defendant" (CPL 440.10 [1]
           [g]).
           Once the parties have filed papers and all documentary
evidence or information has been submitted, the court is
obligated to consider the submitted material "for the purpose of
ascertaining whether the motion is determinable without a hearing
to resolve questions of fact" (CPL 440.30 [1] [a]).    Upon
consideration of the merits of the motion, the motion court "may
deny it without conducting a hearing if: (a) the moving papers do
not allege any ground constituting legal basis for the motion"

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                               - 15 -                          No. 219
(CPL 440.30 [4] [a]).    Undoubtedly, then, whether a defendant is
entitled to a hearing on a CPL 440.10 motion is a discretionary
determination, but, as we now hold today, it is nonetheless one
that is subject to our review for an abuse of discretion.
            Applying the standard that we now adopt in our
departure from Crimmins, we conclude that the Appellate Division
abused its discretion when it affirmed Supreme Court's summary
denial of defendant's CPL 440.10 (1) (g) motion.
            The People do not dispute that the mtDNA testing of the
hairs and the DNA testing of the fingernail scrapings constitute
newly discovered evidence, nor do they argue that defendant
failed to exercise "due diligence" in bringing the motion.
Rather, they claim that defendant failed to meet his burden of
establishing that the new evidence was "of such character as to
create a probability that had such evidence been received at the
trial the verdict would have been more favorable to [him]" (CPL
440.10 [1] [g]).
            The Appellate Division concluded that even if the
reliability of defendant's evidence was assumed, defendant failed
to establish a legal basis for a new trial (CPL 440.30 [4] [a]),
the factual issues were not material, and that the absence of a
hearing did not prejudice defendant (109 AD3d at 403).    We
disagree.
            The only person who testified at trial as to the
identity of defendant as the perpetrator was suffering from a


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                             - 16 -                          No. 219
heroin addiction and had taken heroin the morning of the line-up
and was still an addict at the time of the trial.   She
nonetheless testified that she interacted with the perpetrator
for at least 15 minutes before he attacked her, so any physical
evidence, particularly DNA evidence, would have been particularly
useful to defendant at the time of trial in order to counter her
identification testimony.
          We have acknowledged that "forensic DNA testing has
become an accurate and reliable means of analyzing physical
evidence collected at crime scenes and has played an increasingly
important role in conclusively connecting individuals to crimes
and exonerating prisoners who were wrongfully convicted" (People
v Pitts, 4 NY3d 303, 310 [2005]).   Unlike many newly discovered
evidence motions, which, for example, involve affidavits
submitted by recanting witnesses (see e.g. People v Avery, 80
AD3d 982, 985-986 [3d Dept 2011], lv denied 17 NY3d 791 [2011])
or witnesses who have come forward after the guilty verdict (see
e.g. Crimmins, 38 NY2d at 409), or evidence that another person
confessed to the crime (see e.g. People v Feliciano, 240 AD2d 256
[1st Dept 1997]), section 440.10 (1) (g) motions involving DNA
testing, analysis and results may not be easily disposed of on
the papers, particularly where, as here, the defendant has
submitted evidence in admissible form that goes to a central
issue in the case, and the People submit only hearsay statements
in opposition.


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                              - 17 -                          No. 219
          In support of his motion, defendant proffered evidence
establishing that 3 of the 18 hairs tested excluded him as a
contributor, and that one of the fingernail scrapings containing
DNA of someone other than the murder victim excluded him as well.
The People responded with a bare attorney's affirmation
containing hearsay opinions questioning Mitotyping's methods and
attacking the results.   They also challenged Dr. Melton's report
without proffering an affidavit from an expert of their own to
rebut that submission.
          On this record, there is a dispute between defendant
and the People concerning the reliability of the mtDNA testing,
what the results of such testing actually mean and the weight to
be given those results in light of the eyewitness identification.
As such, defendant should have been afforded a hearing so he
could have at the very least an opportunity of "proving by a
preponderance of the evidence every fact essential to support
[his] motion" (CPL 440.30 [6]), including his assertion that had
such DNA evidence been presented at trial, he would have received
a more favorable verdict.   We reach this conclusion not by
weighing the facts or the inferences drawn therefrom, but by
examining the parties' submissions and concluding that the People
failed to counter defendant's prima facie showing that he was
entitled to a hearing.   Not every CPL 440.10 motion brought by a
defendant will warrant a hearing, nor will every summary denial
of such a motion constitute an abuse of discretion, but where, as


                              - 17 -
                             - 18 -                          No. 219
here, there is significant DNA evidence favorable to the
defendant and the People proffer no admissible evidence in
opposition to that evidence, defendant is, at the very least,
entitled to a hearing on his motion.
          Accordingly, the order of the Appellate Division should
be reversed and the case remitted to Supreme Court for further
proceedings in accordance with this opinion.




                             - 18 -
The People of the State of New York v Clifford Jones
No. 219




ABDUS-SALAAM, J.: (concurring)
          I agree with the majority that the courts below erred
as a matter of law in summarily denying defendant's CPL 440.10
(1) (g) motion.   I write separately because I believe that on
this record, the motion court had no discretion to deny the
motion without a hearing, but instead was required to conduct a
hearing pursuant to CPL 440.30 (5).      Thus, I would not apply an


                                 - 1 -
                                - 2 -                       No. 219
abuse of discretion analysis in this case because a hearing was
required under the statute.
           In deciding whether to hold a hearing on a CPL 440.10
motion, a court must look to CPL 440.30 for guidance.   That
statute instructs on the precise circumstances when the court
must "summarily deny" a motion (CPL 440.30 [2]); must grant the
motion without conducting a hearing (CPL 440.30 [3]); may deny
the motion without conducting a hearing (CPL 440.30 [4]); and
must conduct a hearing (CPL 440.30 [5]).   CPL 440.30 (5)
unequivocally provides that "[i]f the court does not determine
the motion pursuant to subdivisions two, three or four, it must
conduct a hearing and make findings of fact essential to the
determination thereof."
            CPL 440.30 (4) gives the court discretion to deny the
motion without a hearing in only four enumerated circumstances.
The only such circumstance claimed to be applicable here is that
the facts alleged do not constitute a legal basis for the motion
(see CPL 440.30 [4] [a]).   Thus, if defendant's allegations
supplied a legal basis for the motion, he was entitled to a
hearing as a matter of law (see CPL 440.30 [5]; People v Baxley,
84 NY2d 208, 214 [1994]).   Contrary to the People's argument, it
is clear that defendant's motion did allege a ground constituting
a legal basis for the motion.   He alleged that newly discovered
DNA evidence, if established, could entitle him to the relief
sought.   Specifically, he submitted proof of DNA evidence that
would have excluded him as a contributor to some DNA recovered

                                - 2 -
                               - 3 -                         No. 219
at the crime scene and may have caused a jury to doubt the
eyewitness identification that led to his conviction (see People
v Ferraras, 70 NY2d 630, 631 [1987][court erred in denying a
motion without a hearing where facts "if established could
entitle defendant to the relief sought"]).
          CPL 440.30 (4) (a) does not require a movant to
establish that he or she would ultimately prevail on the merits
of the motion in order to be entitled to a hearing (see People v
Hughes, 181 AD2d 912, 913 [2d Dept 1992]["That the defendant's
chances of ultimate success in meeting his burden of proof with
respect to issues raised in his motion (see CPL 440.30 [6]) may
be slight, or even remote, does not, by itself, furnish a basis
to deny the motion without a hearing"]).   Rather, the appropriate
threshold question for the court is whether the movant alleged
any ground constituting a legal basis for the motion.   CPL 440.30
(5) clearly contemplates that defendants who make the required
prima facie showing have the right to present that evidence at an
evidentiary hearing.   As was correctly noted by the Appellate
Division dissent, "[i]f the defendant produces post-conviction
evidence favorable to him or her, CPL 440.30 (5) requires the
court to 'conduct a hearing and make findings of fact essential
to the determination [of the motion]'"(109 AD3d at 408-409)
          In sum, because defendant's motion alleged that he had
favorable evidence that could entitle him to the relief sought,
and the motion had none of the deficiencies set forth in CPL
440.30 (4) (a) (b), (c) or (d), the court did not have discretion

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                                                - 4 -                   No. 219
to decide the motion without conducting a hearing, and such
hearing was required pursuant to CPL 440.30 (5).
*       *       *       *       *   *   *   *    *      *   *   *   *
    *       *       *       *
Order reversed and case remitted to Supreme Court, New York
County, for further proceedings in accordance with the opinion
herein. Opinion by Judge Pigott. Chief Judge Lippman and Judges
Read, Smith and Rivera concur. Judge Abdus-Salaam concurs in a
separate concurring opinion.

Decided December 16, 2014




                                                - 4 -
