Fourth Department grants third trial in sexual abuse case

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A Rochester man twice convicted of sexual assault will get a third trial because of how the judge handled the victim’s refusal to testify.

Rayland L. Hicks, 32, was first convicted in Monroe County Court in February 2008 of first-degree burglary, second-degree aggravated sexual abuse and criminal contempt for crimes that happened about 11:45 p.m. on Sept. 4, 2007.

The victim was Hicks’ former girlfriend, and they had a child together.

Hicks testified at the first trial that the woman called him demanding money for child support and he went to her home with another person about 10:30 p.m. to deliver money and saw another man there and left after a few minutes.

At the first trial, the woman testified that she did not call Hicks and she didn’t mention anybody else being at her home that night.

Hicks’ attorney wanted to call the person who he claimed accompanied him to the house to contradict the victim’s version of events.

Monroe County Court Judge Richard A. Keenan did not allow the witness to testify for Hicks because it was considered alibi testimony and Hicks was not using an alibi defense and did not file an alibi notice.

Not alibi testimony

But the Fourth Department panel found that the testimony would not have accounted for Hicks’s whereabouts at the time of the crime and was not alibi testimony.

Even though it could be considered circumstantial alibi evidence in addition to its intended purpose, the testimony did not require an alibi notice, the Fourth Department ruled in the appeal of the first conviction and granted Hicks a second trial.

After the first trial, the victim told Hick’s attorney and the prosecution that she had lied and that the crimes were actually committed by another person who she knew only by a street name.

She refused to testify at the second trial and exercised her Fifth Amendment right to stay silent.

Monroe County Court Judge James J. Piampiano allowed the prosecution to admit a transcript of the victim’s testimony at the first trial, but he refused to let the defense use a transcript of the victim’s recantation to impeach her credibility, a decision with which the Fourth Department agreed.

But the Appellate Division ruled that Piampiano should have looked more closely at the victim’s decision not to testify.

“When a witness takes the Fifth and refuses to testify, the court needs to do an inquiry,” said Assistant Monroe County District Attorney Robert J. Shoemaker.

“What they wanted was for the court to do an inquiry as to whether the fact that she’s taking the Fifth means that the court should make some remedy, whether it be striking the previous testimony that was admitted,” he said.

The Fourth Department panel also ruled that Piampiano should not have imposed a stiffer sentence after the second conviction. Hicks was initially sentenced to 12 ½ years by Keenan, but Piampiano raised that to 15 years after the second trial.

“You can do it, you just need to put all the reasons on the record and the judge here didn’t do that,” Shoemaker said.

Attorney Drew R. Durbin, who handled the appeal for Hicks, was not available for comment.