| People v Martinez |
| 2015 NY Slip Op 02286 [126 AD3d 1350] |
| March 20, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Kenneth Martinez, Jr., Appellant. |
Easton Thompson Kasperek Shiffrin LLP, Rochester (Brian Shiffrin of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Geoffrey Kaeuper of counsel), forrespondent.
Appeal from an order of the Supreme Court, Monroe County (Francis A. Affronti,J.), dated November 1, 2013. The order denied the motion of defendant to vacate ajudgment of conviction pursuant to CPL 440.10.
It is hereby ordered that the order so appealed from is unanimously reversed on thelaw, and the matter is remitted to Supreme Court, Monroe County, for a hearing pursuantto CPL 440.30 (5) in accordance with the following memorandum: Defendant appealsfrom an order that denied, without a hearing, his motion pursuant to CPL 440.10 tovacate a judgment convicting him upon a jury verdict of, inter alia, rape in the firstdegree (Penal Law § 130.35 [1]). Defendant's motion was based on anaffidavit of his daughter, the victim, in which she recanted her accusations against him,and a claim of ineffective assistance of trial counsel. We conclude that Supreme Courterred in denying without a hearing that part of defendant's motion based on the victim'srecantation, and we therefore reverse the order and remit the matter to Supreme Court tohold a hearing thereon.
In her affidavit, the victim, who was the sole witness to give testimony at trial withrespect to the crimes, averred that she wanted to live with her maternal grandmother. Inorder to effectuate that move, her maternal grandmother advised her to accuse defendantof having sexually assaulted her. The victim averred that she did not care aboutdefendant at the time and, therefore, she agreed to accuse defendant of sexuallyassaulting her. She further averred that, since the trial, she had reconnected with herpaternal grandmother and had seen how the latter was suffering because defendant wasin prison. Witnessing that suffering resolved her to tell the truth. Although the courtfound the victim's recantation to be inherently unbelievable or unreliable, we concludethat, based on the totality of the circumstances, such a finding was unwarranted in theabsence of a hearing (see Peoplev Jenkins, 84 AD3d 1403, 1407 [2011], lv denied 19 NY3d 1026[2012]; see generally People vLane, 100 AD3d 1540, 1541 [2012], lv denied 20 NY3d 1063[2013]).
The victim's trial testimony that defendant had sexually assaulted her was crucial tothe prosecution's case. Her subsequent averments that she was encouraged by hermaternal grandmother to accuse defendant of crimes so that she could live with hermaternal grandmother indicate that she had a motive to lie at trial. We therefore concludethat the victim's trial testimony, if false, was extremely prejudicial to defendant inasmuchas, without that testimony, there would have been no basis for the jury to convictdefendant (see generally Lane, 100 AD3d at 1541). Under those circumstances,the court's denial without a hearing of that branch of defendant's motion based on thevictim's recantation was an improvident exercise of discretion (see Jenkins, 84AD3d at 1408).
We reject defendant's contention that he is entitled to a hearing on his claim ofineffective assistance of trial counsel. Rather, we conclude that the court properlydetermined defendant's claim based on the trial record and defendant's submissions onthe motion (see [*2]People v Satterfield, 66NY2d 796, 799 [1985]). We agree with the court that the evidence, the law and thecircumstances of the case, viewed together and as of the time of the representation,establish that defendant received meaningful representation (see generally People vBaldi, 54 NY2d 137, 147 [1981]). Present—Peradotto, J.P., Carni, Sconiersand Whalen, JJ.