VICTIM’S STATEMENTS – New York Appellate Digest

Motion to Vacate Conviction Based Upon Victim’s Recantation Should Not Have Been Denied Without a Hearing

The Fourth Department determined Supreme Court erred when it denied defendant’s motion to vacate his conviction without a hearing. The motion was primarily based upon the victim’s, defendant’s daughter’s, recantation of her rape allegations:

In her affidavit, the victim, who was the sole witness to give testimony at trial with respect to the crimes, averred that she wanted to live with her maternal grandmother. In order to effectuate that move, her maternal grandmother advised her to accuse defendant of having sexually assaulted her. The victim averred that she did not care about defendant at the time and, therefore, she agreed to accuse defendant of sexually assaulting her. She further averred that, since the trial, she had reconnected with her paternal grandmother and had seen how the latter was suffering because defendant was in prison. Witnessing that suffering resolved her to tell the truth. Although the court found the victim’s recantation to be inherently unbelievable or unreliable, we conclude that, based on the totality of the circumstances, such a finding was unwarranted in the absence of a hearing … .

The victim’s trial testimony that defendant had sexually assaulted her was crucial to the prosecution’s case. Her subsequent averments that she was encouraged by her maternal grandmother to accuse defendant of crimes so that she could live with her maternal grandmother indicate that she had a motive to lie at trial. We therefore conclude that the victim’s trial testimony, if false, was extremely prejudicial to defendant inasmuch as, without that testimony, there would have been no basis for the jury to convict defendant … . Under those circumstances, the court’s denial without a hearing of that branch of defendant’s motion based on the victim’s recantation was an improvident exercise of discretion … . People v Martinez, 2015 NY Slip Op 02286, 4th Dept 3-20-15

March 20, 2015

Appeals, Criminal Law

Case Remitted for Determination Whether Defendant Should Be Adjudicated a Youthful Offender/Record Insufficient to Determine Whether Court Erred In Not Disclosing to the Defendant the Written Submissions of the Victims Which Were Reviewed by the Court–Case Remitted to Make an Adequate Record for Review

The Fourth Department determined County Court erred in failing to determine whether defendant should be adjudicated a youthful offender. The Fourth Department further determined the record was not sufficient for consideration of defendant’s argument County Court erred when it refused to allow defendant to see the written submissions to the judge made by the victims. The case was remitted for consideration of whether the defendant should be adjudicated a youthful offender and to create a record of the written submissions and the reasons defendant was refused access to them. People v Minemier, 2015 NY Slip Op 00171, 4th Dept 1-2-15

January 2, 2015

Criminal Law

Victim’s Mother Should Not Have Been Allowed to Speak at Sentencing Because Defendant Convicted Only of Possession of Weapon, Not the Killing of the Victim/Failure to Inform Defendant of Pending Criminal Charges Against Prosecution Witnesses Not Error

The Third Department vacated defendant’s sentence because the victim’s mother was allowed to speak at sentencing. Defendant was convicted only of possession of a weapon and not the killing of the victim. The Third Department also noted that the failure to inform the defendant of pending charges against three prosecution witnesses was not a Rosario violation and was not otherwise required under the facts:

…[W]e find that County Court abused its discretion in allowing [the victim’s] mother to speak at the sentencing hearing. There is no victim of the crime upon which defendant was convicted, as criminal possession of a weapon in the third degree requires only the possession of a firearm by a person previously convicted of a crime … . Here, defendant’s conviction upon this charge was supported by evidence wholly separate from the circumstances surrounding [the victim’s] death, as [a witness] testified that he had provided the handgun to defendant the day prior.It was thus error to allow the mother to give a statement in which she described defendant as a “killer” who “got away with murder.” Moreover, we find merit in defendant’s contention, though not preserved …, that despite promising it would not consider the mother’s statement in imposing sentence, County Court may have considered the homicide charges when it sentenced him to the statutory maximum prison sentence of 3½ to 7 years. As defendant contends, from a review of the sentencing transcript, it appears that the court improperly attributed guilt for [the victim’s] death to him. * * *

The People’s failure to inform defendant of criminal charges pending against three prosecution witnesses does not constitute a Rosario violation … . We further note that two of these individuals did not testify at trial…, and disclosure regarding the disorderly conduct charge against the third …was not statutorily required, as the People were unaware of that recent charge at the time of trial (see CPL 240.45 [1] [c];…). Contrary to defendant’s contention, it is not reasonable under the circumstances here presented to impute knowledge of that pending charge to the entire District Attorney’s office. People v Sheppard, 103880/104958, 3rd Dept, 6-20-13

June 20, 2013

Tag Archive for: VICTIM’S STATEMENTS

Motion to Vacate Conviction Based Upon Victim’s Recantation Should Not Have Been Denied Without a Hearing

Victim’s Mother Should Not Have Been Allowed to Speak at Sentencing Because Defendant Convicted Only of Possession of Weapon, Not the Killing of the Victim/Failure to Inform Defendant of Pending Criminal Charges Against Prosecution Witnesses Not Error

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