Defendant, who was then 24 years old, had known the complaining witness, then 20 years old, for several years. Allegedly, on 24 April 1976, at the complaining witness’s home, following a visit with the complainant’s family and defendant’s mother, defendant told the complainant that he wanted to have sex, and upon her refusal, he forced her to engage in intercourse. A New York Criminal Lawyer said the complainant was later taken to a Hospital for examination, which 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, and defendant was arrested. In statements following the 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.
In April of 1976, defendant was charged with rape in the first degree and sexual abuse in the first degree; criminal law violations.
On 24 September 1976, defendant entered a plea of guilty 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 another indictment. Defendant has no other sex crime arrests or convictions.
Defendant now moves to vacate his judgment of conviction on the grounds that, unknown 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 such information constituted a Brady violation; that such recantation constitutes newly discovered evidence warranting a vacatur of the conviction; that defendant’s plea of guilty was made involuntary because he was not aware that he would be required to register as a sex offender; and that his counsel was ineffective for he prevented the judge at arraignment from dismissing the charges.
The People opposes the motion and assert that, in preparing their response to the motion, they learned that the files of the District Attorney’s office pertaining to the 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. A Long Island Criminal Lawyer said 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.
On the issue of Newly Discovered Evidence:
Defendant annexes two affidavits by the complainant. The first is dated 3 April 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. A New York Sex Crimes Lawyer said the second is dated 23 April 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.
Moreover, 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.
Furthermore, annexed to the defendant’s 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 the matter.
The court finds the defendant’s claim, that the complainant’s recantations constitute newly discovered evidence, bereft of merit.
The law 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.
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. And 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 20 June 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 filed the charges and how she tried to drop them. Since defendant was clearly aware of the recantation at least thirty years prior to making the 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.
Clearly, the 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 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 20 June 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.
On the issue of the Brady Violation:
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, and 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.
On the issue of Ineffective Assistance of Counsel:
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. Such 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. Nothing has been raised before the court which casts doubt on the effectiveness of counsel. 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.
Under the rules, 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.
On the issue of sex Offender Registration:
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”). Such 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 1 January 1996. The statute provides that all individuals who are convicted of a sex offense on parole, on probation, or incarcerated and serving a sentence for such offense as of 21 January 1996, are subject to SORA.
Here, 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.
Seemingly, 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.
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 who are convicted of a sex offense 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.
Here, there is no information before the court as to whether the 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, there apparently exists no record to permit adequate judicial review.
Henceforth, the defendant’s motion to vacate the 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.
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