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

186
KA 13-02053
PRESENT: PERADOTTO, J.P., CARNI, SCONIERS, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

KENNETH MARTINEZ, JR., DEFENDANT-APPELLANT.


EASTON THOMPSON KASPEREK SHIFFRIN LLP, ROCHESTER (BRIAN SHIFFRIN OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (GEOFFREY KAEUPER OF
COUNSEL), FOR RESPONDENT.


     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 a judgment of conviction pursuant to CPL
440.10.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law, and the matter is remitted to Supreme
Court, Monroe County, for a hearing pursuant to CPL 440.30 (5) in
accordance with the following memorandum: Defendant appeals from an
order that denied, without a hearing, his motion pursuant to CPL
440.10 to vacate a judgment convicting him upon a jury verdict of,
inter alia, rape in the first degree (Penal Law § 130.35 [1]).
Defendant’s motion was based on an affidavit 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
Court erred in denying without a hearing that part of defendant’s
motion based on the victim’s recantation, and we therefore reverse the
order and remit the matter to Supreme Court to hold a hearing thereon.

     In her affidavit, the victim, who was the sole witness to give
testimony at trial with respect to the crimes, averred that she wanted
to live with her maternal grandmother. In order to effectuate that
move, her maternal grandmother advised her to accuse defendant of
having sexually assaulted her. The victim averred that she did not
care about defendant at the time and, therefore, she agreed to accuse
defendant of sexually assaulting her. She further averred that, since
the trial, she had reconnected with her paternal grandmother and had
seen how the latter was suffering because defendant was in prison.
Witnessing that suffering resolved her to tell the truth. Although
the court found the victim’s recantation to be inherently unbelievable
or unreliable, we conclude that, based on the totality of the
circumstances, such a finding was unwarranted in the absence of a
                                 -2-                           186
                                                         KA 13-02053

hearing (see People v Jenkins, 84 AD3d 1403, 1407, lv denied 19 NY3d
1026; see generally People v Lane, 100 AD3d 1540, 1541, lv denied 20
NY3d 1063).

     The victim’s trial testimony that defendant had sexually
assaulted her was crucial to the prosecution’s case. Her subsequent
averments that she was encouraged by her maternal grandmother to
accuse defendant of crimes so that she could live with her maternal
grandmother indicate that she had a motive to lie at trial. We
therefore conclude that the victim’s trial testimony, if false, was
extremely prejudicial to defendant inasmuch as, without that
testimony, there would have been no basis for the jury to convict
defendant (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 the victim’s recantation was an
improvident exercise of discretion (see Jenkins, 84 AD3d at 1408).

     We reject defendant’s contention that he is entitled to a hearing
on his claim of ineffective assistance of trial counsel. Rather, we
conclude that the court properly determined defendant’s claim based on
the trial record and defendant’s submissions on the motion (see People
v Satterfield, 66 NY2d 796, 799). We agree with the court that the
evidence, the law and the circumstances of the case, viewed together
and as of the time of the representation, establish that defendant
received meaningful representation (see generally People v Baldi, 54
NY2d 137, 147).




Entered:   March 20, 2015                       Frances E. Cafarell
                                                Clerk of the Court
