Defendant Raynard Caraway has submitted a March 7, 2012 pro se motion ^[FN1] pursuant to CPL 440.10 to vacate his 1993 trial judgment of conviction in the above-captioned case. Defendant also seeks the assignment of counsel. The People have submitted a May 31, 2012 Affirmation in Opposition to defendant's 440 motion, as well as a Memorandum of Law. The defendant has subsequently submitted "Reply" papers dated June 25, 2012.

Defendant was convicted on February 2, 1993 after a jury trial conducted by the now retired Honorable Cesar Quinones of intentional murder in the second degree (Penal Law § 125.25-1) and criminal possession of a weapon in the third degree (former Penal Law § 265.03). Defendant moved to set aside the verdict pursuant to CPL 330.30 and that motion was denied by Justice Quinones on March 3, 1993. Defendant's conviction was affirmed by the Appellate Division - Second Department. See People v Caraway, 215 AD2d 493 (2d Dept 1995), lv denied 86 NY2d 791 (1995) (Bellacosa, J). Subsequent to that affirmance defendant filed three pro se 440 motions in 1996, 2001 and 2007 respectively. These earlier 440s were denied in written decisions by the Honorable Edward Pincus (1996), the Honorable Lewis Douglass (2001) and the Honorable Jill Konviser (2008). Defendant's two motions for a writ of coram nobis based upon the alleged ineffective assistance of appellate counsel were denied by the Appellate Division, as was defendant's motion to re-argue the first coram nobis motion. See People v Caraway, 271 AD3d 617 (2d Dept 2000) and People v [*2]Caraway, 65 AD3d 1163 (2d Dept 2009), lv denied 13 NY3d 937 (2010) (Graffeo, J). In addition, defendant's application for a writ of habeas corpus was dismissed as time-barred. See Caraway v Walsh, 2009 WL 2169054 (EDNY 2009) (Garaufis, J) and 2010 WL 438392 (EDNY 2010) (Garaufis, J).

Defendant claims his judgment of conviction should be vacated on 4 grounds: 1) actual innocence; 2) an alleged Brady violation relating to the victim's clothing; 3) the admission of improper hearsay at trial and 4) Justice Quinones' lack of jurisdiction to try the case based on an alleged defect in the underlying felony complaint. The Court finds that all of defendant's contentions are all procedurally barred and without merit.

Although it is still unsettled at the appellate level whether New York recognizes a free standing claim of actual innocence which may be addressed within the parameters of a 440 motion (see People v Deacon, 96 AD3d 965 [2d Dept 2012], People v Jenkins, 84 AD3d 1403 [2d Dept 2011], People v Tankleff, 49 AD3d 160 [2d Dept 2007]) this Court has previously held that a 440 claim of actual innocence may be the basis for vacating a judgment of conviction pursuant to CPL 440.10(1)(h) in the rare appropriate case. See People v Wheeler-Whichard, 25 Misc 3d 690 (Sup Ct, Kings County 2009); see also People v Days, 26 Misc 3d 1205(A) (County Ct, Westchester County 2009); People v Bermudez, 25 Misc 3d 1226(A) (Sup Ct, NY County 2009); People v Bozella, 25 Misc 3d 1215(A) (County Ct, Dutchess County 2009); People v Cole, 1 Misc 3d 531 (Sup Ct, Kings County 2003).^[FN2]

In any event, this case is by no means an appropriate one. Although labeling his claim as one of actual innocence, defendant is in effect only challenging the credibility of the People's witnesses at trial and arguing that his trial alibi family witnesses were more believable.^[FN3] Defendant has previously raised these issues on direct appeal and they were specifically rejected by the Appellate Division, which held that the guilty verdict was not against the weight of the evidence and that the evidence "was legally sufficient to establish the defendant's guilt beyond a reasonable doubt." Caraway, 215 AD2d 493. Since the claim being now raised by defendant was previously raised upon direct appeal and decided on the merits this Court is mandatorily procedurally barred from addressing the claim. See CPL 440.10(2)(a), see also People v Cooks, 67 NY2d 100 (1986); People v Hernandez, 191 AD2d 511 (2d Dept 1993), lv denied 81 NY2d 1014 (1993). Moreover, defendant's claim is undermined and is also permissibly barred by his failure to raise it in his three [*3]prior 440 motions. See CPL 440.10(3)(c); People v Cochrane, 27 AD3d 659 (2d Dept 2006), lv denied 92 NY2d 895 (1998), habeas corpus denied sub nom, Cochrane v McGinnis, 160 F Supp 2d 447 [EDNY 2001], affd 50 Fed Appx 478 (2d Cir 2002), cert denied 538 US 1060 (2003); People v Dover, 294 AD2d 594 (2d Dept 2002), lv denied 98 NY2d 767 (2002). See also People v Macon, 33 Misc 3d 1216(A) (Sup Ct, Bronx County 2011). Even if this Court were to treat defendant's contention as one of actual innocence, the Court would find that he has woefully failed to allege sufficient sworn allegations of fact to support his claim. See CPL 440.30-1; 440.30-4(d)

Defendant argues that the prosecution failed to preserve the victim's jacket and sweatshirt, which he claims was a source of exculpatory evidence. This tenuous claim is also procedurally barred because it was fully litigated at trial and was raised and rejected in defendant's prior 440 motions of 1996 and 2001. Indeed, this same point was raised and rejected by the Appellate Division in two coram nobis applications in 2000 and 2009.

This argument is frivolous. It is a matter of record which is also procedurally barred and entirely devoid of merit for the reasons stated in the People's Memorandum of Law in opposition to this motion at 21-22. Moreover, it was specifically raised in defendant's 2007 440 motion and rejected by Justice Konviser.

All of defendant's claims in this CPL 440 motion are summarily DENIED.

The defendant is hereby advised of his right to apply to the Appellate Division, Second Department, 45 Monroe Place, Brooklyn, New York 11201 for a certificate granting leave to appeal the denial of defendant's CPL 440.10 motion. This application must be made within 30 days of service of this Decision and Order. Upon proof of financial inability to retain counsel and to pay the costs and expenses of the appeal, the defendant may apply to the Appellate Division for the assignment of counsel and for leave to prosecute the appeal as a poor person and to dispense with printing. Application for poor person relief will be entertained only if and when permission to appeal or a certificate granting leave to appeal is granted (22 NYCRR 671.5).

The Clerk is directed to mail a copy of this Decision and Order to defendant Raynard Caraway, DIN No. 93-A-3055, Sullivan Correctional Facility, P.O. Box 116, Fallsburg, New York 12733 and to Assistant District Attorney Camille O'Hara Gillespie, Kings County District Attorney's Office, 350 Jay Street, Brooklyn, New York 11201.

IT IS SO ORDERED.

ENTER,

_____________________________ [*4]

J.S.C.