You are here: / / DEFENDANT WAS ENTITLED TO HEARINGS ON HER SECOND MOTION TO VACATE HER CONVICTION...
, ,

DEFENDANT WAS ENTITLED TO HEARINGS ON HER SECOND MOTION TO VACATE HER CONVICTION ON THE GROUNDS OF NEWLY-DISCOVERED EVIDENCE, ACTUAL INNOCENCE AND INEFFECTIVE ASSISTANCE (THIRD DEPT).

The Third Department, reversing County Court, determined defendant was entitled to a hearing on her motion to vacate her convictions of predatory sexual assault of a child. Defendant presented affidavits from six witnesses stating the victim had recanted her trial testimony. Defendant’s motion warranted hearings on: (1) the newly discovered evidence (the recantation); (2) actual innocence; and (3) ineffective assistance (failure to present expert evidence to refute the People’s reliance of the Child Sexual Abuse Accommodation Syndrome [CSAAS]):

To prevail [the newly-discovered evidence] claim, a defendant bears the burden of establishing that the evidence meets “the following requirements: (1) it must be such as will probably change the result if a new trial is granted; (2) it must have been discovered since the trial; (3) it must be such as could have not been discovered before the trial by the exercise of due diligence; (4) it must be material to the issue; (5) it must not be cumulative to the former issue; and[] (6) it must not be merely impeaching or contradicting the former evidence” … . * * *

… [W]e conclude that the six affidavits, together with the copies of text messages between victim B and some of the affiants,[FN1] were sufficient to warrant the holding of a hearing, such that County Court’s denial of defendant’s motion on the ground of newly discovered evidence in the absence of such a hearing was error … . * * *

… [D]efendant has established her entitlement to a hearing on her claim of actual innocence. “A prima facie showing of actual innocence is made out when there is a sufficient showing of possible merit to warrant a fuller exploration by the court” … .* * *

… [A] defendant may establish that he or she was denied meaningful representation in connection with the failure to call an expert witness by “demonstrat[ing] that such testimony was available, that it would have assisted the jury in its determination or that he [or she] was prejudiced by its absence” … . People v Werkheiser, 2022 NY Slip Op 05188, Third Dept 9-15-22

Practice Point: Here the defendant was entitled to hearings on her second motion to vacate her convictions for predatory assault of the child. She presented newly-discovered evidence (the victim’s recantation) requiring a hearing. Her claims of actual innocence and ineffective assistant (failure to refute the People’s reliance on CSAAS) also warranted hearings.

 

You might also like
ARGUMENT THAT THE SPECIAL PROSECUTOR FOR THE JUSTICE CENTER FOR THE PROTECTION OF PEOPLE WITH SPECIAL NEEDS DID NOT HAVE THE AUTHORITY TO PROSECUTE DEFENDANT WAS NOT RAISED BELOW AND COULD NOT BE DECIDED WITHOUT ADDITIONAL FACTS DEVELOPED ON REMITTAL, THE RECORD ON APPEAL THEREFORE WILL NOT ALLOW REVERSAL IN THE INTEREST OF JUSTICE (THIRD DEPT).
THE CLAIM OF SEXUAL ABUSE UNDER THE CHILD VICTIMS ACT MET THE PLEADING CRITERIA OF THE COURT OF CLAIMS ACT; THE FOUR-YEAR TIME FRAME WAS SUFFICIENTLY PRECISE; THE FACTS ALLEGED SUFFICIENTLY STATED THE NATURE OF THE DEFENDANT’S NEGLIGENCE (THIRD DEPT).
SUBSTITUTE TEACHER NOT ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS FOR THE PERIOD BETWEEN TWO SUCCESSIVE ACADEMIC YEARS DURING THE PANDEMIC BECAUSE HE RECEIVED ASSURANCE OF CONTINUED EMPLOYMENT; TWO-JUSTICE DISSENT (THIRD DEPT).
Questions of Fact Whether Handrail Which Did Not Extend to the Top of the Stairs Constituted a Dangerous Condition Which Proximately Caused Plaintiff’s Fall
Application for a Full Board Review Must Be Considered by a Panel of At Least Three Members of the Workers’ Compensation Board
DEFENDANT PROPERTY OWNER DID NOT DEMONSTRATE WHEN THE AREA WHERE PLAINTIFF SLIPPED AND FELL WAS LAST INSPECTED PRIOR TO FALL; THEREFORE DEFENDANT DID NOT DEMONSTRATE IT DID NOT HAVE CONSTRUCTIVE NOTICE OF THE DEFECTIVE CONDITION (THIRD DEPT). ​
Carrier’s Video Surveillance of Employee Disallowed Because It Was Not Disclosed
Bed and Breakfast Not Entitled to Homeowner’s Exemption

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

LANDLORD DID NOT DEMONSTRATE TENANT ABANDONED THE LEASED PREMISES AND WAS NOT... THE TWO-JUSTICE DISSENT DID NOT PRESENT A QUESTION OF LAW REVIEWABLE BY THE...