| People v Lackey |
| 2008 NY Slip Op 01660 [48 AD3d 982] |
| February 28, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Appellant, v Daniel C.Lackey, Respondent. |
—[*1] Neal P. Rose, Sherrill, for respondent.
Kane, J. Appeal from an order of the County Court of Madison County (DiStefano, J.),entered July 11, 2007, which granted defendant's motion pursuant to CPL 440.10 to vacate thejudgment convicting him of the crimes of aggravated sexual abuse in the first degree and sexualabuse in the first degree, after a hearing.
In August 2004, defendant was convicted of aggravated sexual abuse in the first degree andsexual abuse in the first degree in connection with a January 2003 incident. This Court affirmeddefendant's convictions (36 AD3d 953 [2007], lv denied 8 NY3d 947 [2007]). Thereafter,defendant learned that the victim falsely alleged a November 2004 sexual assault, resulting in herconviction of filing a false statement. Based upon this new information, defendant moved tovacate his judgment of conviction (see CPL 440.10 [1] [g]). After holding a hearing,County Court granted the motion, vacating the judgment of conviction and ordering a new trial.On the People's appeal, we affirm.
County Court did not abuse its discretion in granting defendant a hearing on his motion.Through affidavits of defendant and counsel, as well as numerous pieces of documentaryevidence, defendant alleged newly discovered evidence which would have affected the outcomeof his trial. The People challenged several of defendant's factual assertions. Accordingly, thecourt acted within its discretion in ordering a hearing to resolve the matter (see CPL440.30 [2], [3], [4], [5]; see also People v Session, 34 NY2d 254, 256 [1974]; Peoplev Hughes, 181 AD2d [*2]912, 913 [1992]; People vShaver, 26 AD2d 735, 735 [1966]).
Defendant bore the burden of proving by a preponderance of the evidence every essential factrequired to support his motion (see CPL 440.30 [6]; People v Tucker, 40 AD3d 1213, 1214 [2007], lv denied 9NY3d 882 [2007]). To justify vacatur under CPL 440.10 (1) (g), the newly discovered evidence"must fulfill all the following requirements: 1. It must be such as will probably change the resultif a new trial is granted; 2. It must have been discovered since the trial; 3. It must be such ascould have not been discovered before the trial by the exercise of due diligence; 4. It must bematerial to the issue; 5. It must not be cumulative to the former issue; and, 6. It must not bemerely impeaching or contradicting the former evidence" (People v Priori, 164 NY 459,472 [1900]; see People v Tucker, 40 AD3d at 1214-1215; People v Richards, 266AD2d 714, 715 [1999], lv denied 94 NY2d 924 [2000]). The People concede that thevictim's false report of a sexual assault several months after defendant's conviction was not, andcould not have been, discovered before trial.
Prior complaints of sexual abuse may be admissible if the defense proves that the complaintswere false and of sufficient similarity to the charged crime to suggest a pattern of falsecomplaints (see People v Hunter, 41AD3d 885, 888 [2007], lv granted 9 NY3d 845 [2007]; People v Gibson, 2 AD3d 969,972 [2003], lv denied 1 NY3d 627 [2004]). The victim's November 2004 complaint wasadmittedly false, as evidenced by the victim's conviction of filing a false statement. Thatcomplaint contained a physical description of her attacker similar to the description given afterthe January 2003 assault, including his height, race, build and the odor of alcohol on his breath.She alleged the use of a knife on both occasions. In neither instance could she identify herattacker, nor were there witnesses or scientific evidence to connect anyone to the assault. Finally,the injuries suffered in both instances were such as could be self-inflicted. After the false report,the victim admitted to police that "Lately, I don't know what is real and not real anymore. Thishas been going on a couple times in the past. When this happens, I black out, and I am not reallyaware of what goes on around me. . . I heard voices." At the hearing on defendant'smotion, the victim testified that she "could have had a dream . . . I have had dreamswhere I have woken up from and I couldn't tell you if they were real or if they weren't real. I haveeven acted out in my dreams." She admitted that in the November 2004 incident she apparentlycut herself repeatedly, then thought someone else had attacked her because she did not rememberthe incident and could not believe that she would harm herself in that manner. The victim had ahistory of depression, anxiety disorder and substance abuse problems. Under the circumstances,her admittedly false complaint would have been admissible.
Use of this false complaint would not merely impeach the victim, but might well have alteredthe focus of the entire case and changed the defense theory to a claim that the victim harmedherself (see People v Santos, 306 AD2d 197, 198 [2003], affd 1 NY3d 548[2003]). Unlike a recantation or a deliberate false complaint, a subsequent false complaint madewhile subject to delusions or hallucinations does not question the victim's veracity, but ratherwhether her complaint was based in reality. Such a defense, though normally unthinkable, wouldbe reasonable with this new evidence, considering the lack of witnesses and scientific evidencetying defendant or any other person to the crime. Although defendant's statement to police wasstrong evidence against him, he presented expert testimony at trial that he was borderlinementally retarded and prone to suggestiveness; such evidence may well have been morepersuasive, and his statement less so, if this new evidence was presented (compare People vReyes, 255 AD2d 261, 263 [1998], lv denied 92 NY2d 1053 [1999]).[*3]
This new evidence was not cumulative, as it provides asubstantial basis to attack the victim's testimony as possibly based upon hallucinations anddelusions (compare People v Gantt,13 AD3d 204, 205 [2004], lv denied 4 NY3d 798 [2005]). For the same reasons, itwas material to the issues at trial. Although the results at a new trial are not certain, especiallyconsidering defendant's written statement confessing to the crime, we find that CountyCourt—who presided at the original trial—did not abuse its discretion in findingthat this newly discovered evidence would probably change the result. Accordingly, the motionwas properly granted.
Peters, J.P., Carpinello, Rose and Malone Jr., JJ., concur. Ordered that the order is affirmed.