        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

736
KA 13-00168
PRESENT: SMITH, J.P., PERADOTTO, DEJOSEPH, TROUTMAN, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

RAYLAND L. HICKS, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DREW R. DUBRIN OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (ROBERT J. SHOEMAKER OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (James J.
Piampiano, J.), rendered December 12, 2012. The judgment convicted
defendant, upon a nonjury verdict, of burglary in the first degree,
aggravated sexual abuse in the second degree and aggravated criminal
contempt.

     It is hereby ORDERED that the judgment so appealed from is
unanimously reversed on the law and a new trial is granted on counts
one, two and four of the indictment.

     Memorandum: Defendant appeals from a judgment, following a bench
trial conducted upon remittitur from this Court (People v Hicks, 94
AD3d 1483), convicting him of burglary in the first degree (Penal Law
§ 140.30 [2]), aggravated sexual abuse in the second degree (§ 130.67
[1] [a]), and aggravated criminal contempt (§ 215.52 [1]). The
conviction stems from defendant’s alleged physical and sexual assault
of his former girlfriend (victim). During the pendency of defendant’s
first appeal, the victim advised defendant’s trial counsel that she
had lied during her testimony when she testified that defendant
committed the above crimes, and that the crimes were committed instead
by a person whom she knew only by his “street name.” The conversation
between defense counsel and the victim was recorded in the presence of
defense counsel’s employee, and that employee transcribed the
conversation. The victim, however, failed to return to defense
counsel’s office to sign an affidavit regarding her recantation. The
People thereafter acknowledged that the victim told the prosecutor
that she had lied during the first trial, but that she did not want to
testify at the second trial. The victim appeared at the second trial
with her attorney and exercised her Fifth Amendment right to remain
silent. County Court determined that the victim was not available to
testify and permitted the People to admit in evidence a transcript of
the victim’s testimony from the first trial (see CPL 670.10 [2] [a]).
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                                                         KA 13-00168



     Contrary to defendant’s contention, the court did not err in
denying his request to use the victim’s hearsay recantation to impeach
her credibility inasmuch as no foundation could be laid for the
admission of that evidence (see People v Whitley, 61 AD3d 423, 423, lv
denied 12 NY3d 922; Jerome Prince, Richardson on Evidence § 8-111
[Farrell 11th ed 1995]). We agree with the holding by the First
Department in Whitley that the victim’s recantation is inadmissible
pursuant to Mattox v United States (156 US 237, 244-250), which
“remains part of this State’s evidentiary law” (Whitley, 61 AD3d at
423). The Supreme Court explained that, “before a witness can be
impeached by proof that he [or she] has made statements contradicting
or differing from the testimony given by him [or her] upon the stand,
a foundation must be laid by interrogating the witness himself [or
herself] as to whether he [or she] has ever made such statements”
(Mattox, 156 US at 245-246). The Court of Appeals concluded similarly
in People v Hines (284 NY 93, 115, overruled in part on other grounds
by People v Kohut, 30 NY2d 183, 184), that “[t]he law is well settled
that a[n unavailable] witness whose prior testimony is admitted may
not be impeached by showing alleged contradictory or inconsistent
statements or alleged declarations that the prior testimony was
false.” Thus we conclude that, because the victim was cross-examined
at the first trial, her credibility could not be impeached at the
second trial by the admission of hearsay evidence that she later
recanted the testimony implicating defendant unless a foundation was
first laid by questioning the victim about the alleged recantation
(see Mattox, 156 US at 245-246; see also Hines, 284 NY at 115).
Defendant failed to preserve for our review his contention that his
Fourteenth Amendment rights to due process were violated by his
inability to impeach the credibility of the victim and we decline to
exercise our power to review that contention as a matter of discretion
in the interest of justice (see CPL 470.15 [6] [a]). We reject
defendant’s further contention that his Sixth Amendment right to
confrontation was violated by the court’s determination (see Mattox,
156 US at 242-243; but see People v Powell, 27 NY3d 523, 529-531).

     We agree with defendant, however, that his Sixth Amendment right
to confrontation was violated when the victim exercised her Fifth
Amendment right to remain silent and refused to answer defense
counsel’s questions regarding the recantation of her testimony because
the court failed in its duty “[to] explore whether [she] ha[d]
essentially refused to testify on questions of matters so closely
related to the commission of the crime[s] that [some or all of her]
testimony . . . [from the first trial] should be stricken” (People v
Vargas, 88 NY2d 363, 380 [internal quotation marks omitted]; see
People v Chin, 67 NY2d 22, 28-29; cf. People v Montes, 16 NY3d 250,
253). We note, too, that the victim’s testimony is central to the
People’s case (see Vargas, 88 NY2d at 380) and, given that we have
previously determined that the evidence against defendant is “less
than overwhelming” (Hicks, 94 AD3d at 1484), we cannot conclude that
the court’s error is harmless (see id.; see generally People v
Crimmins, 36 NY2d 230, 237).
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                                                         KA 13-00168

     We therefore reverse the judgment and grant a new trial on counts
one, two and four of the indictment. In the interest of judicial
economy, we exercise our power to review as a matter of discretion in
the interest of justice defendant’s contention that the court failed
to rebut the presumption of vindictiveness when it imposed a greater
sentence than was imposed following the first trial (see CPL 470.15
[6] [b]; see also People v Bludson, 15 AD3d 912, 912, lv denied 4 NY3d
827, reconsideration denied 5 NY3d 785). The People correctly concede
that the court failed to identify “ ‘conduct on the part of the
defendant occurring after the time of the original sentencing
proceeding’ ” to justify an increased sentence (People v Rice, 224
AD2d 972, 972, quoting North Carolina v Pearce, 395 US 711, 726), and
thus we conclude that the court erred in increasing the sentence after
the retrial (see People v Rogers, 56 AD3d 1173, 1174, lv denied 12
NY3d 787).




Entered:   September 30, 2016                  Frances E. Cafarell
                                               Clerk of the Court
