PEOPLE v. NICHOLS (2003)

Defendant appeals from a judgment convicting him upon his plea of guilty of rape in the third degree (Penal Law former § 130.25[2] ).   Contrary to the contention of defendant, County Court did not abuse its discretion in denying his motion to withdraw his Alford plea based on a written statement procured by defendant's girlfriend in which the victim recanted her earlier accusations (cf.  People v. De Jesus, 199 A.D.2d 529, 530-531, 606 N.Y.S.2d 255;  see generally People v. Pane, 292 A.D.2d 850, 738 N.Y.S.2d 799, lv. denied 98 N.Y.2d 653, 745 N.Y.S.2d 512, 772 N.E.2d 615).  “[A] guilty plea may not be withdrawn absent some evidence or claim of innocence, fraud or mistake in its inducement” (People v. Davis, 250 A.D.2d 939, 940, 672 N.Y.S.2d 945;  see also Pane, 292 A.D.2d at 850, 738 N.Y.S.2d 799;  People v. Robertson, 255 A.D.2d 968, 681 N.Y.S.2d 919, lv. denied 92 N.Y.2d 1053, 685 N.Y.S.2d 431, 708 N.E.2d 188).   A “ ‘defendant is not entitled to withdraw his plea merely because he discovers * * * that his calculus misapprehended the quality of the State's case’ ” (People v. Jones, 44 N.Y.2d 76, 81, 404 N.Y.S.2d 85, 375 N.E.2d 41, cert. denied 439 U.S. 846, 99 S.Ct. 145, 58 L.Ed.2d 148;  see also De Jesus, 199 A.D.2d at 531, 606 N.Y.S.2d 255).   Recantation evidence is “inherently unreliable and is insufficient alone to require setting aside a conviction” (People v. Pompey, 272 A.D.2d 779, 780, 708 N.Y.S.2d 918, lv. denied 95 N.Y.2d 892, 715 N.Y.S.2d 384, 738 N.E.2d 788 [internal quotation marks omitted] ).   Indeed, the court conducted a hearing to determine the manner in which the victim's written statement was procured, and the victim testified, under oath and with immunity, that defendant had sexual intercourse with her and that she had provided the recantation statement under pressure from defendant's niece and girlfriend.   Thus, the victim in effect recanted her recantation, and thus the court properly denied defendant's motion.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.

MEMORANDUM: