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CPL 440.10 (1) (g)

A Kings Criminal Lawyer said that, defendant moves pursuant to CPL 440.10 to vacate his judgment of conviction on the grounds that, unbeknownst to 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 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.

A Kings Sex Crimes Lawyer said that, in their affirmation in opposition to Defendant’s motion to vacate judgment, 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 that 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.

A Kings Criminal Lawyer said that, defendant was charged in April 1976 with rape in the first degree and sexual abuse in the first degree. Defendant, who was then 24 years old, had known the complaining witness, then 20 years old, for several years. According to the PSR, on April 24, 1976, at the complaining witness’s home, following a visit with the complainant’s family and Defendant’s mother, Defendant had told the complainant that he wanted to have sex, and upon her refusal, he forced her to engage in intercourse. The complainant was later taken to Brookdale Hospital for examination, which was negative for the presence of semen. The complaining witness identified Defendant to the police on April 28, 1976, in front of the complaining witness’s home, and 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.

A Kings Sex Crime Lawyer said that, defendant entered a plea of guilty on September 24, 1976, to sexual abuse in the first degree, a D felony, in full satisfaction of the indictment. He was sentenced, pursuant to his plea agreement, to a term of imprisonment of 2 ½ years to 5 years to run concurrently with a sentence of 2 to 4 years he had received as a result of his guilty plea to robbery in the second degree under Indictment Number 4750/75. Defendant has no other sex crime arrests or convictions.

The issue in this case is whether defendant’s motion to vacate his judgment of conviction on the grounds that, unbeknownst to 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 should be granted.

In support of his motion, Defendant annexes two affidavits by the complainant. The first is dated April 3, 2007, and 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. The second affidavit is dated April 23, 2008, and 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 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 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, Defendant was once again incarcerated in New York and the complainant was on the correctional facility’s list for approved visitors and telephone calls.

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.

A person claiming to have been deprived of effective assistance of counsel has the burden of demonstrating that counsel failed to provide “meaningful representation,” under the totality of the circumstances existing at the time of representation. Under the federal constitution, a defendant is entitled to “reasonably effective assistance, which, in light of all the circumstances, does not fall “outside the wide range of professionally competent assistance.” Consistent with those principles, counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.

Defendant claims that his plea was involuntary because he was not informed that he would be subject to the registration requirements of the Sex Crimes Offenders Registration Act (“SORA”). This claim is without merit because the statute had not been enacted at the time of Defendant’s plea. SORA was enacted in July 1995, and became effective on January 1, 1996. The statute provided that all individuals convicted of a sex offense who are on parole, on probation or incarcerated and serving a sentence for such offense as of January 21, 1996, are subject to SORA. The maximum expiration date of the sentence imposed for Defendant’s conviction of the instant sex offense was in 1981. Thus Defendant had long completed the sentence for his sex crime conviction before the enactment of SORA.

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 defendant would be required to register for life, surely defendant would not have pled.

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 crime offense who are on parole, on probation or incarcerated and serving a sentence for such offense as of January 21, 1996. The maximum expiration date for Defendant’s sex offense conviction was September 4, 1981. Defendant was sentenced on his 1981 robbery conviction on March 27, 1981, approximately six months prior to the sex conviction expiration date. Defendant was placed on lifetime parole on September 14, 1990, upon his release from the sentence imposed for the robbery conviction. As of January 21, 1996, Defendant was on parole, however, the parole was arguably not for the sex crime offense. A drug was not found.

Accordingly, the court held that, 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 there apparently exists no record to permit adequate judicial review. Defendant’s motion to vacate his judgment is denied. However, should Defendant wish to assert any claims with respect to his classification and duties under SORA, he is granted leave to submit a proper motion seeking such relief, including, if warranted, an application for assignment of counsel.

If you are charge in way similar to above-mentioned case, seek the help of a Kings Sex Crime Attorney and Kings Criminal Attorney at Stephen Bilkis and Associates.

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