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PEOPLE v. VIERA

2019-01365. Ind. No. 524/09.

200 A.D.3d 726 (2021)

154 N.Y.S.3d 871

2021 NY Slip Op 06713

The People of the State of New York, Respondent, v. Brandon Viera, Appellant.

Appellate Division of the Supreme Court of New York, Second Department.

Decided December 1, 2021.

Attorney(s) appearing for the Case

Janet E. Sabel , New York, NY ( Harold V. Ferguson of counsel), for appellant.

Eric Gonzalez , District Attorney, Brooklyn, NY ( Leonard Joblove and Gamaliel Marrero of counsel), for respondent.

Dillon, J.P., Miller, Barros and Connolly, JJ., concur.

Ordered that the order is affirmed.

The Supreme Court providently exercised its discretion in summarily denying that branch of the defendant's renewed motion which was pursuant to CPL 440.10 to vacate his judgment of conviction based on actual innocence. "`[A]ctual innocence' means factual innocence, not mere legal insufficiency of evidence of guilt, and must be based upon reliable evidence which was not presented at the trial" (People v Hamilton,

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