Ordered that the order is modified, on the law and as a matter of discretion in the interest of justice, by deleting the provision thereof denying that branch of the defendant's motion which was pursuant to CPL 440.10(1)(h) to vacate the judgment of conviction on the ground of actual innocence; as so modified, the order is affirmed, and the matter is remitted to the Supreme Court, Kings County, for a hearing and new determination, on the merits, of that branch of the defendant...
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