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