People v. De Jesus

• Decision Date: 27 December 1993
• Citation: 199 A.D.2d 529,606 N.Y.S.2d 255
• Parties: The PEOPLE, etc., Respondent, v. David DE JESUS, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 255

606 N.Y.S.2d 255

199 A.D.2d 529

The PEOPLE, etc., Respondent, v. David DE JESUS, Appellant.

Supreme Court, Appellate Division Second Department.

Dec. 27, 1993.

Kreisberg & Maitland, P.C., New York City (Gary Maitland and Tina L. Mazza, of counsel), for appellant.

Richard A. Brown, Dist. Atty., Kew Gardens (Steven J. Chananie, Linda Cantoni and Claire Martin, of counsel), for respondent.

Before MANGANO, P.J., and SULLIVAN, O'BRIEN and RITTER, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Demakos, J.), rendered January 29, 1992, convicting him of endangering the welfare of a child, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is reversed, as a matter of discretion in the interest of justice, the defendant's motion to withdraw his plea is granted, the guilty plea is vacated, and the matter is remitted to the Supreme Court, Queens County, for further proceedings.

On September 19, 1989, the defendant, a law student and a case worker for the New York City Human Resources Administration, visited a foster home to investigate allegations that the foster mother had mistreated one of her foster children. While at the premises, the defendant privately interviewed one of the other foster children, the complainant herein, who was then five years old. During that interview, another case worker and the foster mother were outside the room. Later that same day, the child claimed that the defendant had penetrated her vagina with his finger during the interview. Following an investigation, the defendant was indicted for sexual abuse in the first degree and endangering the welfare of a child.

On September 3, 1991, the defendant entered a guilty plea pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 to the misdemeanor of endangering the welfare of a child in exchange for a promised sentence of three years probation. Pursuant to that plea, he remained mute with respect to the factual allegations of the crime and merely acknowledged that he was pleading guilty to the offense so that he would not be subjected to a jury trial and risk a felony conviction with a potential maximum sentence of seven years. Shortly after the plea, the prosecutor received a telephone call from the child's natural mother, who stated that the child had told her that the allegations were a lie. The defendant and his counsel also were apprised of the child's recantation, and a videotaped recantation was eventually obtained. Prior to sentencing, the defendant moved to withdraw his plea, inter alia, based on the recantation and upon his claim that he was innocent. Following a lengthy hearing which explored the issues of the validity of the defendant's plea and of the recantation itself, the court denied the motion. We now reverse and conclude that under the peculiar circumstances of this case, the court improvidently exercised its discretion in denying the defendant's motion to withdraw his plea.

It is well settled that a motion to withdraw a guilty plea prior to sentencing is addressed to the sound discretion of the court (see, CPL 220.60[3]; People v. Cance, 155 A.D.2d 764, 547 N.Y.S.2d 702; People v. Howard, 138 A.D.2d 525, 526 N.Y.S.2d 132), and such a motion must be premised upon some evidence of possible innocence or of fraud, mistake, coercion or involuntariness in the taking of the plea (see, People v. Cance, supra). While a generalized and unsubstantiated claim of innocence is not sufficient to warrant the vacatur of a guilty plea (see, People v. Carter, 191 A.D.2d 640, 595 N.Y.S.2d 219; People v. Stephens, 175 A.D.2d 272, 572 N.Y.S.2d 725; People v. Williams, 156 A.D.2d 497, 548 N.Y.S.2d 772), the hearing record in this case establishes that the recantation evidence, while far from conclusive, presented some tenable support for the defendant's claim. Indeed, the child complainant testified that the defendant never in fact touched her and that she fabricated the allegation of sexual abuse at the insistence of her foster mother, who allegedly told her that she would be reunited with her natural mother if she made the false charge. This testimony was corroborated to varying degrees by the natural mother, the child's new case worker, and the office director of the...