People v. David W.

This is a proceeding wherein the defendant moves pursuant to CPL 440.10 to vacate his judgment of conviction on the grounds that, unbeknownst to criminal defendant, the complainant had recanted her accusation both to the court and the district attorney’s office prior to the entry of defendant’s plea of guilty, and the prosecutor’s failure to disclose this information constituted a Brady violation, that such recantation constitutes newly discovered evidence warranting vacatur of the conviction, that criminal defendant’s plea of guilty was involuntary because he was not aware that he would be required to register as a sex offender and that his counsel was ineffective in that he prevented the judge at arraignment from dismissing the charges.

The People assert that, in preparing their response to the motion, they learned that the files of the District Attorney’s office pertaining to this case have been destroyed, and the court file has been lost and is therefore unavailable. The People were, however, able to obtain the pre-sentence report. The People’s affirmation is based on information from records and files of the New York State Division of Parole, the New York City Police Department, the Florida Sex Offender Registry, the United States Attorney’s Office for the Southern District of Florida, and upon conversations with individuals from the U.S. Attorney’s office, the NYS Office of Sex Offender Management and the NYS Department of Correctional Services.

In April 1976, the defendant was charged with rape in the first degree and sexual abuse in the first degree. The defendant, who was then 24 years old, had known the complaining witness, then 20 years old, for several years. On 24 April 1976, at the complaining witness’s home, following a visit with the complainant’s family and defendant’s mother, the defendant had told the complainant that he wanted to have sex. Upon her refusal, he forced her to engage in intercourse. Thereafter, the complainant was later taken to Brookdale Hospital for examination. She was negative for the presence of semen. On 28 April 1976, the complaining witness identified defendant to the police in front of the complaining witness’s home. The defendant was arrested. In statements following his arrest, defendant admitted having had intercourse with the complainant but denied having used force. He claimed that the complainant had been angry over the fact that defendant had been seeing another woman.

On 24 September 1976, the defendant entered a plea of guilty to sexual abuse in the first degree, a D felony, in full satisfaction of the indictment. Pursuant to his plea agreement, he was sentenced to a term of imprisonment of 2 ½ years to 5 years to run concurrently with a sentence of 2 to 4 years. The defendant received, as a result of his guilty plea, to robbery in the second degree. The defendant has no other sex crime arrests or convictions.

The defendant annexes two affidavits by the complainant. Dated 3 April 2007, the first affidavit asserts that she was not raped, that she recanted her statement to prosecutors at the time and believed that the charges had been dropped and that she and Defendant had been involved in a sexual relationship at the time of the incident and that they have maintained a relationship throughout the years. Dated 23 April 2008, the second affidavit makes similar assertions but adds that she asked the judge at arraignment to drop the charges but Defendant’s attorney would not allow the judge to do so because he feared not receiving the one hundred dollar bail that the defendant had promised him.

In 1978 and in 1983, the complainant submitted forms to the New York State Department of Correctional Services indicating that she was willing to receive letters from the defendant and that she wished to write to him and visit him. She also documented her willingness to receive collect telephone calls from him. In 2007, the criminal defendant was once again incarcerated in New York and the complainant was on the correctional facility’s list for approved visitors and telephone calls.

Annexed to the instant motion is a letter dated 24 April 2008, from the complainant, addressed “To Whom it May Concern”, containing her contact information and indicating her availability to attend any proceedings concerning this matter.

The court finds that the defendant’s claim that that the complainant’s recantations constitute newly discovered evidence is without merit. CPL 440.10 (1) (g) provides that a court may vacate judgment upon the ground that new evidence has been discovered since the entry of a judgment based upon a verdict of guilty after trial, which could not have been produced by the defendant at the trial even with due diligence on his part and which is of such character as to create a probability that had such evidence been received at the trial the verdict would have been more favorable to the criminal defendant, provided, that a motion based upon such ground must be made with due diligence after the discovery of such alleged new evidence.

It was held in People v Latella that under the statute, a post-conviction claim of newly discovered evidence may only be raised in the context of a conviction after trial. People v Phillips ruled that such a claim is precluded following a plea of guilty, as is the case here.

Even if the claim were available, the motion was not made with the required due diligence. In a hand-written letter from Defendant to the Temporary Release Committee dated 20 June 1978, seeking favorable consideration for temporary release, the defendant stated that he had a letter from the complainant in which she tries to explain why she did what she did and also how she tried to drop the charges. Since the defendant was clearly aware of the recantation at least thirty years prior to making this motion, it cannot be said that the motion was made with due diligence after the discovery of the alleged new evidence.

In view of the extent of the relationship claimed by both defendant and the complainant to have existed between them, beginning several years prior to the incident and continuing over the ensuing years, it is not credible that had the complainant recanted her statement to prosecutors at the time or asked the Judge at arraignment to drop the charges, the defendant would not have known about it.

Finally, it was settled in People v Lawrence that recantation evidence is unreliable. The complainant’s statements that she recanted to prosecutors and to the arraignments judge, and believed the charges had been dropped, are not credible. She was certainly aware by 1 May 1978, when she advised the Correctional Facility that she was willing to correspond and visit with the defendant that he was imprisoned for rape. It is not credible that she did not know he had been convicted on the charges stemming from the incident. Moreover, if by 20 June 1978, she had written to the defendant to try to explain that she had tried to drop the charges, as he claimed in his letter to the TRC, she was aware thirty years ago that the sex crimes charges had not been dropped.

The court finds that there is no basis upon which to find a Brady violation. The court finds the nature of the complainant’s claims incredible that she recanted her statement to the prosecutors and to the judge and that Defendant would not have known about such recantation. The recantation, had it occurred, would not constitute Brady material. People v Singh ruled that evidence of which a defendant has knowledge, or should reasonably have known of, is not Brady material.

With regard to the defendant claims of ineffective assistance of counsel on the ground that his attorney prevented the Judge from dismissing the charges at arraignment until he received one hundred dollars bail money, the court notes that the claim is completely unsupported by any documentation. There is no foundation for the defendant’s claims that his counsel was in any way unprofessional or incompetent.

Defendant claims that his plea was involuntary because he was not informed that he would be subject to the registration requirements of the Sex Offenders Registration Act (“SORA”). This claim is without merit because the statute had not been enacted at the time of Defendant’s plea.

Defendant asserts in his motion that had he “known that twenty-one years after plea and sixteen years after the case had expired he would be required to register as a level three sexual predator for a period of ten years and then ten years later be told that criminal defendant would be required to register for life, surely defendant would not have pled.”

It seems that the implicit ground for Defendant’s motion is his dissatisfaction with his SORA status and it appears that the ultimate relief Defendant may be seeking is for re-classification under SORA. However, he has not moved for such relief nor has he articulated such a request in his motion to vacate judgment.

Defendant’s rap sheet reveals that he had a misdemeanor arrest in Florida in 1999, for driving without a license. He also had a felony criminal conviction in Florida that same year, for possession of marihuana, for which he received a four-year suspended sentence. On 21 February 2006, Defendant was arrested in New York County and charged with criminal possession of stolen property in the fifth degree and petit larceny, both Class A misdemeanors. On the following day, he pled guilty to petit larceny and was sentenced to time served. In 2007, Defendant was once again incarcerated in New York. According to Investigator DF of the Department of Correctional Services, Defendant was apparently paroled from New York to Florida and was reporting to a Florida Parole officer. On 13 March 2008, Defendant was arrested in Fort Lauderdale, Florida, and charged under the federal Sex Offender Registration and Notification Act, for his failure to register as a sex offender in Florida. The case is being prosecuted by the United States Attorney’s Office for the Southern District of Florida. On 21 August 1997, Defendant signed a form in New York State stating that he would register as a sex offender. Because he was required to register in New York, he was required to register in Florida.

Assuming Defendant wishes to bring a motion to challenge his SORA classification, the question to be determined will be whether Defendant’s situation puts him in the category of individuals subject to SORA, i.e., individuals convicted of a sex offense who are on parole, on probation or incarcerated and serving a sentence for such offense as of 21 January 1996. The maximum expiration date for Defendant’s sex offense conviction was 4 September 1981. Defendant was sentenced on his 1981 robbery conviction on 27 March 1981, approximately six months prior to the sex conviction expiration date. Defendant was placed on lifetime parole on 14 September 1990, upon his release from the sentence imposed for the robbery conviction. As of 21 January 1996, Defendant was on parole; however, the parole was arguably not for the sex offense.

The court found that the sentences imposed on the defendant for the crimes for which he was convicted and sentenced in 1976 could not be extended beyond the fifteen year maximum term, which occurred in approximately April of 1991, and that the subsequent convictions in 1982 and 1987 had no bearing on the 1976 sex crime conviction. The court held that there was no conceivable manner in which the defendant could be determined to be imprisoned, paroled or on probation for the 1976 conviction and SORA therefore did not apply.

The court finds that here is no information before the court as to whether this Defendant’s 1981 sentence was to run consecutively to the six months remaining on the sentence imposed for the sex crime. Further, no arguments have been presented as to whether Penal Law § 70.30 (1) (b) would have been applicable in this case.

If Defendant’s risk level was assessed administratively, and he has never had a judicial hearing, as appears to be the case, he might now be entitled to a judicial hearing, as well as appointment of counsel for such hearing. In the event Defendant should wish to seek reclassification or to be relieved of any further duty to register under Correction Law § 168-o there apparently exists no record to permit adequate judicial review as held in People v. David W.

The court denies the defendant’s motion to vacate his judgment.

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