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 defendant; provided that a motion based upon such ground must be made with due diligence after the discovery of such alleged new evidence.”
Under the statute, a post-conviction claim of newly discovered evidence may only be raised in the context of a conviction after trial. 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 (“TRC”) dated June 20, 1978, seeking favorable consideration for temporary release, Defendant stated that he had a letter from the complainant in which she “tries to explain why she did this to me and also how she tried to drop the criminal charges.” Since 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, Defendant would not have known about it.
Finally, it is well-settled 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 May 1, 1978, when she advised the Correctional Facility that she was willing to correspond and visit with Defendant that he was imprisoned. It is not credible that she did not know he had been convicted on the charges stemming from the incident. Moreover, if by June 20, 1978, she had written to 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 charges had not been dropped.
In view of the conclusory and incredible nature of the complainant’s claims that she recanted her statement to the prosecutors and to the judge, there is no basis upon which to find a Brady violation. Moreover, since it is not credible that Defendant would not have known about such recantation, the recantation, had it occurred, would not constitute Brady material. Evidence of which a defendant has knowledge, or should reasonably have known of, is not Brady material.
Defendant claims 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. This claim is completely unsupported by any documentation. There is no foundation for Defendant’s claims that his counsel was in any way unprofessional or incompetent. The plea arrangement was quite favorable for Defendant. Defendant, having been indicted for Rape in the First Degree, faced a potential sentence of up to 25 years. He entered a knowing and intelligent plea, voluntarily giving up his right to trial and to an appeal in exchange for his plea to a less serious charge for which he received the lenient sentence of 2 ½ to 5 years. no domestic violence was charged.
To Be Cont…