People v Myers

[*1] People v Myers 2008 NY Slip Op 52531(U) [21 Misc 3d 1147(A)] Decided on December 9, 2008 Supreme Court, Kings County Holdman, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 9, 2008
Supreme Court, Kings County

The People of the State of New York,

against

Edward Myers, Defendant.



1542/76

Robert Kenneth Holdman, J.

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.

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.

Defendant was charged in April 1976 under Indictment Number 1542/76 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 [*2]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.

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.

NEWLY DISCOVERED EVIDENCE

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.

Annexed to the instant motion is a letter dated April 24, 2008, from the complainant, addressed To Whom it May Concern, containing her contact information and indicating her availability to attend any proceedings concerning this matter.

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 "[n]ew evidence has been discovered [*3]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. People v. Latella, 112 AD2d 321 (2d Dep't, 1985). Such a claim is precluded following a plea of guilty, as is the case here. See People v. Philips, 30 AD3d 621 (2d Dep't, 2006).

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 "trys to explain why she did this to me and also how she tried to drop the 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 (Complainant affidavit 4/3/07) or asked the Judge at arraignment to drop the charges (Complainant affidavit 4/23/08), Defendant would not have known about it.

Finally, it is well-settled that recantation evidence is unreliable. See People v. Lawrence, 247 AD2d 635 (2d Dep't, 1998). 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.

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 [*4]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. People v. Singh, 5 AD3d 403 (2d Dep't, 2004).

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. 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. See, People v. Wilson, 190 AD2d 835(2nd Dep't.1993); People v.Suitte, 90 AD2d 80(2nd Dep't.1982); People v. Mares, 682 NYS2d 693(3rd Dep't.1998); People v. Guillermo, 254 AD2d 527(3rd Dep't.1998). Nothing has been raised before this court which casts doubt on the effectiveness of counsel. See, People v. Ford, 86 NY2d 397(1995); People v. Villanueva, 255 AD2d 206 (2d Dep't, 1998). 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.

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. People v. Benevento, 91 NY2d 708, 712 (1998); People v. Flores, 84 NY2d 184 (1994); People v. Satterfield, 66 NY2d 796, 798-99 (1985); People v. Baldi, 54 NY2d 137, 147 (1981). 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." Strickland v. Washington, 466 US 668, 687 (1984). 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. See Strickland v. Washington, supra at 687, 69l-93 ; People v. Sullivan, 153 AD2d 223, 227 (2d Dept 1990).

SEX OFFENDER REGISTRATION [*5]

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"). 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 (see Correction Law §§ 168-f, 168-g). 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 . . ."

It seems that 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. In response to Defendant's SORA claims the People have taken the position that Defendant may be entitled to a judicial hearing with respect to the assessment of his risk level and, further, that case law may support a finding that Defendant should not be subject to SORA. However, the People point out that such claims cannot be determined on this motion to vacate judgment, and assert that if Defendant is seeking a reduction of his risk level or to be relieved from the duty to register, he needs to bring a proper motion, to which the People can assert a full response.

In preparing their response to Defendant's motion, the People undertook an exhaustive search to determine whether, in light of Defendant's status and criminal history, he might be entitled to assert a claim for re-assessment of his risk level or to be relieved from the duty to register. The People provided the following information:

On June 20, 2008, the Kings County District Attorney's office requested Defendant's Risk Instrument, Case Summary and Final Determination from the Board of Examiners of Sex Offenders. The Board of Examiners faxed a one-sentence reply on June 24, 2008, stating that the offender was assessed by Parole and given a Level 2. No further documentation was provided to the District Attorney's office.

The Kings County District Attorney's Office was informed by Natasha Harvin of New York's Office of Sex Offender Management, that Defendant was one of the plaintiffs in Doe v. Pataki, 940 F. Supp. 603 (SDNY, 1996) reversed 120 F.3d 1263 (2d Cir., 1997). On remand, the federal district court found that the registration and notification provisions of SORA implicated liberty interests and enumerated procedures to be followed to protect those interests. Doe v. Pataki, 3 F. Supp. 456 (SDNY, 1998). The court held that sex offenders must be given a hearing [*6]before a court, rather than having the risk level determined administratively.

According to Ms. Harvin, sometime in 2005 Defendant was sent a notice of a hearing to be held regarding the determination of his risk level. Defendant apparently did not respond to the notice and was deemed to have waived his rights to a hearing. Defendant was assigned a level two offender classification. Ms. Harvin did not know whether there had been a judicial determination or an administrative determination. However, as the People point out, based on the June 24, 2008 fax from the Board of Examiners to the Kings County District Attorney stating that Defendant was assessed a Level Two by Parole, it appears that the determination was set administratively.

By statue, 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 (see Correction Law §§ 168-f, 168-g). Defendant was sentenced for the sex crime on October 12, 1976, to a term of imprisonment of 2 ½ to 5 years to run concurrently with a sentence of 2 to 4 years he had received following a plea of guilty to robbery in the second degree in 1975. Defendant was released on parole on March 2, 1979. The maximum expiration date for his sex crime conviction was September 4, 1981. Defendant was arrested in March, 1980, in Kings County following a plea of guilty to criminal mischief in the fourth degree on May 9, 1980, and was sentenced to a fine of $100 and fifteen days in jail. Defendant was arrested again in New York County on September 18, 1980, on charges of robbery in the first degree. Defendant was found guilty of robbery in the second degree following trial, and was sentenced on March 27, 1981, to a term of 10 years to life. Defendant was released on parole on September 14, 1990. He was placed on lifetime parole on that date.

According to the People, on at least six occasions following Defendant's release on parole from his robbery conviction, Defendant has been paroled and then had his parole revoked for violations.

Defendant's rap sheet reveals that he had a misdemeanor arrest in Florida in 1999, for driving without a license. He also had a felony conviction in Florida that same year, for possession of marihuana, for which he received a four-year suspended sentence.

On February 21, 2006, Defendant was arrested in New York County and charged with criminal possession of stolen property in the fifth degree and petit larceny, both Class A misdemeanors. Defendant gave a Florida address at the time of the arrest. On the following day, he pled guilty to petit larceny and was sentenced to time served.

In 2007, Defendant was once again incarcerated in New York. According to Investigator Darrell Floyd of the Department of Correctional Services, Defendant was apparently paroled from New York to Florida and was reporting to a Florida Parole officer.

On March 13, 2008, Defendant was arrested in Fort Lauderdale, Florida, and charged under the federal Sex Offender Registration and Notification Act, for his failure to register as a sex offender in Florida. The case is being prosecuted by the United States Attorney's Office for the Southern District of Florida.

The People learned from Assistant United States Attorney ("AUSA") Jennifer A. Keene, that on August 21, 1997, Defendant signed a form in New York State stating that he would [*7]register as a sex offender. Because he was required to register in New York, he was required to register in Florida.

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 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 offense.

There is conflicting case law addressing this question. In People v. Roberson, 172 Misc 2d 486 (Sup. Ct, Erie Co., 1997), Defendant was sentenced in 1976 for a sex crime conviction to an indeterminate term, with a maximum of 15 years. He was convicted of assault in 1982 and sentenced to 5 to 10 years to run consecutively to the 1976 conviction. He was convicted of promoting prison contraband in 1987, with the sentence to run consecutive to the 1982 conviction. The court was notified in July 1996 that the defendant was to be released in August 1996, and that the court must make a final determination of the defendant's risk level. The court found that the sentences imposed on the defendant for the crimes for which he was convicted and sentenced in 1976 could not be extended beyond the fifteen year maximum term, which occurred in approximately April of 1991, and that the subsequent convictions in 1982 and 1987 had no bearing on the 1976 sex crime conviction. The court held that there was no conceivable manner in which the defendant could be determined to be imprisoned, paroled or on probation for the 1976 conviction and SORA therefore did not apply.

In contrast, in People v. Curley, 285 AD2d 274 (4th Dep't, 2001), the defendant had been sentenced on a sex crime conviction in 1977, the maximum term imposed being 15 years. In 1987, Defendant was convicted of manslaughter in the second degree and sentenced to 7 ½ to 15 to run consecutively to the sentence imposed on the sex crime conviction. The Appellate Division calculated the aggregate terms pursuant to Penal Law § 70.30 (1) (b), and determined that the time remaining on the 1977 conviction, added to the maximum term imposed on the 1987 conviction, created an aggregate maximum term which extended beyond the 1999 effective date of SORA, making the defendant subject to SORA's requirements.

Here, there is no information before the court as to whether this 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 (Correction Law § 168-o) there apparently exists no record to permit adequate judicial review. See People v. David W., 95 NY2d [*8]130 (2000).

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.

E N T E R:

________________________

ROBERT K. HOLDMANJ.S.C.

Dated: December 9, 2008