CPL 440.10 Actual Innocence Requires Live, Reliable Proof; Assigned Counsel Must Provide Meaningful Representation Once a Postconviction Hearing Is Ordered

Introduction

In People v. Nelson, 2025 NY Slip Op 06098 (3d Dept Nov. 6, 2025), the Appellate Division, Third Department, affirmed the denial of postconviction relief under CPL article 440 to a defendant seeking to vacate his 2014 drug possession convictions. The decision addresses three interrelated issues that frequently arise in postjudgment litigation:

What evidentiary quality is needed to establish a freestanding claim of actual innocence under CPL 440.10;
Whether, and to what extent, a court can or must provide compulsory process to secure a recalcitrant witness at a CPL 440 hearing; and
The scope of a defendant’s right to counsel in CPL 440 proceedings, and the standard for assessing counsel’s performance once counsel is assigned for a hearing.

The case arose after the defendant, Robert Nelson (also known as Reginald Robinson and “Black”), submitted an affidavit from a fellow vehicle passenger, Anthony Ervin, who had pleaded guilty to related charges and who purportedly claimed ownership of the heroin that formed the basis of Nelson’s conviction. When Ervin declined to testify at the scheduled CPL 440.10 evidentiary hearing, County Court denied relief, reasoning that without live testimony the defendant could not carry his burden of proving actual innocence by clear and convincing evidence. The Third Department affirmed.

Summary of the Opinion

The Third Department affirmed County Court’s order that:

Denied, without an evidentiary hearing, the defendant’s CPL 440.10 motion premised on actual innocence and a companion ineffective-assistance theory when the key affiant (Ervin) refused to testify;
Rejected, as unpreserved, the defendant’s new Sixth Amendment argument that New York law must provide a mechanism (e.g., a CPL 620.20 material witness order) to compel a witness’s attendance at a postconviction hearing; and
Clarified that while defendants have no automatic right to counsel for CPL 440.10 motions, once a court assigns counsel in connection with an ordered hearing (County Law § 722[4]), that counsel must provide meaningful representation—and did so here.

Central to the ruling is the court’s reiteration that actual innocence under CPL 440.10 must be proven by “newly discovered proof constituting clear and convincing evidence of factual innocence,” which demands reliable, non-hearsay evidence. An affidavit from a putative exculpatory witness who refuses to testify does not suffice, and counsel is not ineffective for declining to present hearsay testimony from intermediaries who obtained that affidavit.

Detailed Analysis

1) Precedents and Authorities Cited

Preservation of constitutional claims: The court relied on People v. Johnson, 27 NY3d 199, 208 (2016), People v. Friola, 11 NY2d 157, 159 (1962), and People v. Vanderhorst, 199 AD3d 119, 122 (3d Dept 2021), lv denied 37 NY3d 1099 (2021), to hold that the novel Sixth Amendment compulsory process challenge was not preserved because it was not raised in County Court. This aligns with long-standing New York doctrine requiring that constitutional objections be preserved to be reviewable on appeal.
When a 440 hearing is required and trial court discretion: Citing People v. Podeswa, 205 AD3d 1139, 1140–41 (3d Dept 2022), lv denied 38 NY3d 1135 (2022), the court reaffirmed that a hearing is warranted only if the submissions make a nonrecord factual showing that is material and, if established, would entitle the defendant to relief. The court emphasized the breadth of trial court discretion (People v. Phelps, 236 AD3d 1194, 1195 [3d Dept 2025]) to determine whether to grant or deny CPL 440 relief with or without a hearing.
Actual innocence standard: People v. Henley, 232 AD3d 1117, 1122 (3d Dept 2024), lv denied 43 NY3d 930 (2025), provides the operative standard: a defendant must present newly discovered proof that is clear and convincing evidence of factual innocence, not merely arguments about legal insufficiency. This standard tracks People v. Hamilton, 115 AD3d 12 (2d Dept 2014), which has significantly shaped New York’s recognition and framing of freestanding actual innocence claims and the kind of “reliable” evidence they require.
Right to counsel in postjudgment proceedings: The court cited People v. Grimes, 32 NY3d 302, 311 (2018), and People v. Scott, ___ NY3d ___, 2025 NY Slip Op 01562, *5 (2025), for the principle that there is no automatic right to counsel for CPL 440.10 motions. Yet it underscored that County Law § 722(4) authorizes assignment of counsel when a CPL 440.10 hearing is ordered, echoing People v. Monahan, 17 NY2d 310, 313 (1966). Once assigned, counsel must furnish meaningful representation.
Hearsay and reliability in actual innocence claims: Drawing on People v. Bailey, 232 AD3d 1031, 1037 (3d Dept 2024), lv denied 43 NY3d 929 (2025), and Hamilton, the court confirmed that hearsay submissions by intermediaries are not the kind of reliable, probative evidence necessary to carry the exacting burden of a freestanding actual innocence claim.

2) The Court’s Legal Reasoning

The Third Department’s reasoning proceeds in three steps:

Unpreserved compulsory process challenge. The defendant’s argument that the Sixth Amendment compels New York to provide a means to secure a material witness at a CPL 440 hearing—whether through CPL 620.20 or otherwise—was not presented to County Court. The appellate court therefore declined to review it and did not exercise interest-of-justice jurisdiction to reach it. Notably, County Court had mused that it knew of no mechanism to enforce a subpoena with a material witness order in the CPL 440 context, but the Third Department intentionally left the constitutional and statutory questions unresolved due to the lack of preservation.
Actual innocence requires live, reliable proof; affidavit insufficient when the affiant refuses to testify. The defendant’s actual innocence claim rested on Ervin’s affidavit claiming ownership of the heroin and asserting that defendant had no knowledge of it. County Court initially set a hearing but, after Ervin’s nonappearance and express unwillingness to testify, concluded that the absence of live testimony undercut the affidavit’s credibility and left the defendant unable to prove actual innocence by clear and convincing evidence. The Third Department agreed. Critically, the court endorsed County Court’s view that, in this posture, an affidavit from a non-testifying, adverse witness does not constitute the requisite “reliable” proof to carry an actual innocence claim.
Assigned counsel’s performance was meaningful; no deficiency in declining to call hearsay witnesses. Although there is no automatic right to counsel on 440 motions, once the hearing was ordered, counsel was appointed under County Law § 722(4). The court applied New York’s meaningful-representation standard and rejected the claim that counsel was ineffective for failing to subpoena the investigator and “legal assistant” who helped obtain Ervin’s affidavit. Their proposed testimony would be hearsay and, by itself, not the sort of reliable proof that could establish actual innocence. Counsel’s strategic choice not to pursue such testimony did not render representation ineffective.

3) Impact and Prospective Significance

The opinion meaningfully clarifies the evidentiary threshold for freestanding actual innocence claims in New York and provides practical guidance for litigants and courts:

Actual innocence claims hinge on live, reliable evidence. When a CPL 440.10 claim rests on the confession or exculpatory statement of another participant, courts will expect the witness to testify and be subject to cross-examination. If the witness refuses to testify, an affidavit alone will rarely satisfy the “clear and convincing” standard. This sets a pragmatic bar: affidavits from reluctant witnesses are not enough.
Hearsay is disfavored as proof of innocence. Submissions from intermediaries (e.g., investigators) that merely recount what the key witness purportedly said are not “reliable, probative” evidence sufficient to establish actual innocence. Defendants should anticipate the need to present direct, non-hearsay proof.
Preservation matters for constitutional challenges. Litigants seeking to test whether CPL 620.20 (material witness orders) applies in postconviction settings—or to assert a constitutional right to a compulsory-process mechanism in CPL 440 hearings—must raise those arguments squarely in County Court to preserve them for appellate review. This decision signals that unpreserved systemic challenges will not be reached on appeal in the ordinary course.
Assigned counsel in postconviction hearings must deliver meaningful representation, not miracles. Once a court appoints counsel for a CPL 440 hearing, counsel’s obligation is to provide meaningful assistance, measured by the quality and reasonableness of strategic choices. Declining to present hearsay or marginally probative evidence, particularly where the key witness refuses to cooperate, will not ordinarily constitute ineffective assistance.
Legislative and rulemaking implications. Although the court did not resolve whether material witness orders can be used in CPL 440 hearings, the County Court’s observation and the practical impasse here spotlights a potential gap in statutory tools to secure essential witnesses postconviction. This may prompt legislative consideration of whether and how to extend or tailor compulsory-process mechanisms to postjudgment innocence hearings, with appropriate due process safeguards.

Complex Concepts Simplified

Actual innocence under CPL 440.10: A “freestanding” actual innocence claim asserts that, regardless of any trial error, the defendant did not commit the offense. In New York, courts recognize such claims and require “newly discovered” evidence that is clear and convincing proof of factual innocence. This is a high bar; it looks for reliable, persuasive evidence (e.g., credible live testimony, DNA, authoritative recantations tested by cross-examination), not just doubts or legal arguments.
“Newly discovered” vs. “newly presented” evidence: Evidence is “newly discovered” if it could not have been found with due diligence at the time of trial and would likely change the outcome. Affidavits from known participants that were reasonably discoverable at trial may face skepticism, especially if the affiant refuses to testify later.
Clear and convincing evidence: This standard requires a degree of proof greater than “preponderance of the evidence” (more likely than not) but less than “beyond a reasonable doubt.” It demands that the evidence strongly persuades the court that the defendant is factually innocent.
Preservation of issues: To be reviewed on appeal, an argument—especially a constitutional one—must generally be raised in the trial court. If a defendant believes a statute is unconstitutional or inadequate (e.g., that a material witness order must be available for a 440 hearing), that claim must be presented to the motion court first.
Material witness orders (CPL 620.20): These orders allow courts to compel the appearance of a person who has material information for a criminal action or proceeding. Whether CPL 620.20 extends to postconviction CPL 440 hearings remains unsettled here; this decision does not decide the question because the argument was unpreserved.
Assigned counsel in CPL 440 proceedings: There is no automatic right to counsel for CPL 440.10 motions. However, when a court orders a hearing, it can assign counsel under County Law § 722(4). Once assigned, counsel must provide “meaningful representation”—i.e., reasonably competent advocacy under the circumstances.
Inclusory concurrent counts: This doctrine prevents conviction on a lesser count included within a greater count based on the same conduct. County Court correctly vacated the fourth-degree possession count as inclusory concurrent to a third-degree count; that aspect was not at issue on this appeal.

Practical Takeaways

For defense counsel: In planning a CPL 440 actual innocence hearing, secure the live testimony of the key exculpatory witness early, with documented efforts to ensure appearance. If the witness becomes uncooperative, promptly move in County Court for any available compulsory-process tools and expressly preserve constitutional arguments.
For prosecutors: Expect courts to demand live, testable evidence for actual innocence claims and to view hearsay with caution. When a witness refuses to testify, the People can argue that affidavits alone are insufficient to meet the clear-and-convincing standard.
For trial courts: This decision supports exercising discretion to deny further hearings or relief when the sole exculpatory proof is a non-testifying witness’s affidavit, and the record shows the court cannot meaningfully assess credibility or reliability.
For policymakers: Consider clarifying whether and how material witness mechanisms should operate in postconviction settings, including standards, procedures, and protections commensurate with the liberty interests at stake.

Conclusion

People v. Nelson reinforces that a freestanding actual innocence claim under CPL 440.10 is an exacting remedy requiring newly discovered, reliable, and preferably live testimony that clearly and convincingly proves factual innocence. An affidavit from a co-actor who refuses to testify is insufficient, and hearsay from intermediaries cannot fill the gap. The decision also clarifies that, although there is no automatic right to counsel for CPL 440 motions, once a hearing is ordered and counsel is assigned, the standard is meaningful representation—not the pursuit of inadmissible or unhelpful evidence. Finally, the case emphasizes the importance of preservation for systemic constitutional arguments, leaving for another day the unresolved question whether New York’s material witness statutes should, or do, extend to postconviction proceedings. As such, Nelson is a significant guidepost for the evidentiary rigor expected in actual innocence litigation and the practical limits of postconviction process in New York absent legislative clarification.

Citations

People v. Nelson, 2025 NY Slip Op 06098 (3d Dept Nov. 6, 2025).
People v. Nelson, 156 AD3d 1112 (3d Dept 2017), lv denied 31 NY3d 1151 (2018).
Nelson v. Bell, 2021 WL 3861047, 2021 US Dist LEXIS 163396 (ND NY Aug. 30, 2021).
People v. Podeswa, 205 AD3d 1139 (3d Dept 2022), lv denied 38 NY3d 1135 (2022).
People v. Phelps, 236 AD3d 1194 (3d Dept 2025).
People v. Henley, 232 AD3d 1117 (3d Dept 2024), lv denied 43 NY3d 930 (2025).
People v. Bailey, 232 AD3d 1031 (3d Dept 2024), lv denied 43 NY3d 929 (2025).
People v. Hamilton, 115 AD3d 12 (2d Dept 2014).
People v. Grimes, 32 NY3d 302 (2018).
People v. Scott, ___ NY3d ___, 2025 NY Slip Op 01562 (2025).
People v. Monahan, 17 NY2d 310 (1966).
People v. Johnson, 27 NY3d 199 (2016); People v. Friola, 11 NY2d 157 (1962); People v. Vanderhorst, 199 AD3d 119 (3d Dept 2021), lv denied 37 NY3d 1099 (2021).
CPL 440.10; CPL 440.30(5); CPL 620.20; County Law § 722(4), (5); 22 NYCRR 1250.9(i).