In People v. Wheeler-Whichard, 25 Misc.3d 690, 884 N.Y.S.2d 304 [Sup. Ct. Kings County 2009], in which the court granted a CPL 440.10 motion on the grounds of actual innocence, the court stated: This court acknowledges that as of yet no New York appellate court has expressly recognized "actual innocence" as a ground under CPL 440.10 (1)(h). However, I am now prepared to rule that, at least under the circumstances of this case, such a claim of actual innocence may be brought and the standard of proof for determining it is "by clear and convincing evidence" (Wheeler-Whichard at 702, citing People v. Cole at 543).