People v. Werkheiser

208 A.D.3d 1474

174 N.Y.S.3d 161

The PEOPLE of the State of New York, Respondent,

v.Julie WERKHEISER, Appellant.

112780

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: August 18, 2022

Decided and Entered: September 15, 2022

Hale & Monico LLC, New York City (Arthur G. Larkin of counsel), for appellant.

Kirk O. Martin, District Attorney, Owego (Cheryl Mancini of counsel), for respondent.

Before: Garry, P.J., Lynch, Aarons, Ceresia and Fisher, JJ.

MEMORANDUM AND ORDER

Ceresia, J. Appeal, by permission, from an order of the County Court of Tioga County (Gerald A. Keene, J.), entered March 31, 2021, which denied defendant's motion pursuant to CPL 440.10, to vacate the judgment convicting her of the crime of predatory sexual assault of a child (two counts), without a hearing.

Defendant is the wife of the victims’ mother. The victims, two sisters (born in 1998 and 1999), both suffer from phenylketonuria (hereinafter PKU), a genetic metabolic disorder that impacts memory as well as executive and cognitive functioning, and requires adherence to a strict low-protein diet. For the first few years of their lives, the victims lived with their mother and father, who were married at the time. After the mother and father divorced in 2002, the mother maintained custody of the victims for approximately five years, during which time they resided with defendant. Throughout this period, the victims attended a dance school operated by the mother and defendant. In 2007, the mother lost custody of the victims due to medical neglect stemming from her failure to ensure that the victims followed their strictly-regimented diet, and the victims went to live with the father and his wife (hereinafter the stepmother).

In 2011, the older victim (hereinafter victim A) came forward with allegations that the mother had sexually abused her numerous times at their home. The younger victim (hereinafter victim B) made similar allegations. As a result of the victims’ claims, charges were brought against the mother, eventually leading to a jury trial. The mother was convicted of one of the two charges against her, but that conviction was overturned on appeal (see People v. Stone, 133 A.D.3d 982, 20 N.Y.S.3d 447 [3d Dept. 2015] ). Following a second jury trial, the mother was again convicted, but that conviction was also overturned on appeal, and the indictment was dismissed as jurisdictionally defective (see People v. Stone, 169 A.D.3d 1165, 92 N.Y.S.3d 762 [3d Dept. 2019] ).

Shortly after the mother's first trial, the victims made similar allegations against defendant, asserting that she had repeatedly sexually assaulted them at the dance studio. These allegations led to the filing of charges and defendant was ultimately convicted following a jury trial of two counts of predatory sexual assault of a child. Defendant was thereafter sentenced to concurrent prison terms of 11 years to life. Defendant subsequently moved pursuant to CPL 440.10 to vacate the judgment of conviction, and County Court denied the motion without a hearing. After both the judgment of conviction and the denial of the motion were affirmed on appeal ( 171 A.D.3d 1297, 98 N.Y.S.3d 345 [3d Dept. 2019], lv denied 33 N.Y.3d 1109, 106 N.Y.S.3d 661, 130 N.E.3d 1271 [2019] ), defendant filed a second CPL 440.10 motion. County Court denied that motion without a hearing and defendant, by permission, appeals.

Defendant first contends that she is entitled to vacatur of the judgment of conviction, or in the alternative a hearing, based upon newly discovered evidence – specifically, evidence that victim B recanted her testimony following the trial. To prevail on such a 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" ( People v. Hartle, 192 A.D.3d 1199, 1202, 142 N.Y.S.3d 660 [3d Dept. 2021] [internal quotation marks, brackets and citations omitted], lv granted 37 N.Y.3d 1027, 153 N.Y.S.3d 422, 175 N.E.3d 448 [2021] ; see CPL 440.10[1][g] ); People v. Stetin, 192 A.D.3d 1331, 1333, 143 N.Y.S.3d 460 [3d Dept. 2021] ).

In support of her motion, defendant submitted affidavits from six witnesses, each of whom stated that victim B recanted her trial testimony. The mother, who was one of the six affiants, indicated that victim B sent her a friend request on Facebook after nearly eight years of estrangement. The mother accepted the friend request and the two began communicating via text messages, copies of which were attached to her affidavit. Victim B had been living in a homeless shelter at the time, but eventually moved in with the mother for approximately one month. During this period, according to the mother and the other affiants – family friends who knew victim B during her childhood – victim B told them that neither the mother nor defendant had ever sexually assaulted either victim A or victim B, and that their testimony was fabricated. According to some of the affiants, victim B explained that victim A coached her on what to say in court against both the mother and defendant and, after the mother was convicted, victim A sat her down and said, in effect, that they had gotten their mother in trouble and now it was time to get defendant in trouble. Some of the affiants also stated that victim B told them that her father and the stepmother forced her to testify against her mother and defendant and, after the trials, the stepmother told the victims that if they ever changed their stories, they would go to jail.

During the one-month period when victim B had reconciled and was living with the mother, according to multiple affiants, victim B was repeatedly contacted by victim A, the father and the stepmother, all of whom told her that if she continued to associate with the mother, she would be cut off from the family. For this reason and because she feared being accused of lying, victim B balked at the idea of coming forward with her recantation. After victim A threatened victim B with never seeing victim A's daughter again, victim B left the mother's home and cut off all contact with her and the other affiants.

The People, in response, argue that the affidavits merely constitute impeachment evidence and therefore fail to satisfy the test for newly discovered evidence. We disagree, noting that " ‘evidence of recantation upon the part of a witness is not merely evidence which tends to impeach or discredit a witness. Its character is much more fundamental. If the recantation be true it may in certain cases destroy the basis upon which the judgment of conviction rests’ " ( People v. Stetin, 192 A.D.3d at 1334, 143 N.Y.S.3d 460 [brackets omitted], quoting People v. Shilitano, 218 N.Y. 161, 170, 112 N.E. 733 [1916] ). As for the People's further claim that the recantation evidence is unreliable, while we acknowledge that the reliability of a recantation by a victim or witness is often viewed with skepticism (see e.g. People v. Nelson, 171 A.D.3d 1251, 1255, 97 N.Y.S.3d 779 [3d Dept. 2019], lv denied 36 N.Y.3d 1058, 141 N.Y.S.3d 774, 165 N.E.3d 700 [2021] ), such evidence may nevertheless form the basis for overturning a conviction when the defendant "rebut[s] the presumption of regularity that attached to the prior judicial proceeding by producing substantial evidence that the recanting witness's prior testimony was false" ( id. at 1253, 97 N.Y.S.3d 779 ). Accordingly, we conclude that the six affidavits, together with the copies of text messages between victim B and some of the affiants,¹ 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. The People's arguments with respect to the credibility of victim B's recantation, and whether it was coerced, are properly the subject of a hearing.

Similarly, defendant 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" ( People v. Hamilton, 115 A.D.3d 12, 27, 979 N.Y.S.2d 97 [2d Dept. 2014] [internal quotation marks and citations omitted]). In support of this claim, defendant has submitted the aforementioned six affidavits as well as a sworn affidavit and attached report from Mark Schachter, a child psychologist and neuropsychologist, who provides analysis of victim B's recantation and opines that it is consistent with other evidence suggesting that she was coerced into fabricating her original allegations against defendant, particularly in view of her low IQ and cognitive deficits associated with her PKU. The foregoing evidence, in our view, justifies a hearing on defendant's actual innocence claim (see People v. Stetin, 192 A.D.3d at 1335, 143 N.Y.S.3d 460 ; People v. Hamilton, 115 A.D.3d at 27, 979 N.Y.S.2d 97 ).

We further find that a hearing should be held with respect to certain aspects of defendant's claim of ineffective assistance of counsel. "In determining whether a defendant has been deprived of effective assistance, a court must examine whether the evidence, the law, and the circumstances of a particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful...