“Actual Innocence” is a huge burden to overcome.  It is necessary to demonstrate that standard in order to plead a legal malpractice claim arising from representation in a criminal defense case.  Even if you can show actual innocence, as in Broomes v Legal Aid Socy. of N.Y. City, Inc., 2022 NY Slip Op 06101  Decided on November 2, 2022  Appellate Division, Second Department NY courts have held that only “pecuniary damages” are permitted.  Mere incarceration, even when wrong, does not give rise to legal malpractice damages,

“In March 2020, the plaintiff commenced this legal malpractice action against the defendants, the Legal Aid Society of New York City, Inc., and Paul Liu, seeking both pecuniary and nonpecuniary damages. The complaint alleged that the defendants were negligent in their representation of the plaintiff in a prior criminal action in which he was convicted of a crime upon his plea of guilty and sentenced to a term of imprisonment. The plaintiff’s conviction in that action was vacated in 2019 on the ground of ineffective assistance of counsel, and the indictment was dismissed.”

“The Supreme Court properly granted that branch of the defendant’s motion which was for summary judgment dismissing so much of the complaint as sought to recover nonpecuniary damages. Generally, recovery for legal malpractice is limited to pecuniary damages (see [*2]Dombrowski v Bulson, 19 NY3d 347; Dawson v Schoenberg, 129 AD3d 656, 658; Young v Quatela, 105 AD3d 735, 736; Brownell v LeClaire, 96 AD3d 1336; Wolkstein v Morgenstern, 275 AD2d 635, 637).”