Roanoke Times
                 Copyright (c) 1995, Landmark Communications, Inc.

DATE: MONDAY, January 3, 1994                   TAG: 9401030095
SECTION: NATIONAL/INTERNATIONAL                    PAGE: A-2   EDITION: METRO 
SOURCE: Newsday
DATELINE: NEW YORK                                LENGTH: Medium

ABUSE CHARGE RECANTED, APPEALS COURT CLEARS MAN

Her recantation had come to light a few hours too late, after DeJesus, faced with a seven-year prison term and a felony conviction, followed his attorney's advice and pleaded "no contest" to a misdemeanor in return for a promise of probation without jail.

But last week, a four-judge panel of the Appellate Division of the New York State Supreme Court unanimously overturned DeJesus' conviction "in the interest of justice."

"Under the peculiar circumstances of this case, the court improvidently exercised discretion in denying the defendant's motion to withdraw his plea," the appellate panel concluded in an unusual rebuke to State Supreme Court Justice Thomas Demakos, who retired Friday.

New York's Queens County district attorney's office must now decide whether to continue prosecuting the case, despite the lack of a complaining witness. "We have the matter under review, but no decision has been made yet," Richard Piperno, spokesman for Queens District Attorney Richard Brown, said Friday.

Meanwhile, DeJesus, 28, is elated. "I am very happy with the opinion," he said last week. "My opinion is, you can never suppress the truth."

DeJesus was a third-year law student and a caseworker for the city Human Resources Administration on Sept. 19, 1989, when he visited a foster home to investigate allegations of mistreatment.

As the job required, he privately interviewed the 5-year-old foster child. Later that day, the child said DeJesus had molested her during the interview.

DeJesus, who had never been in trouble with the law, vehemently maintained his innocence. But after he was charged by the district attorney and fired from his job, his lawyer, Gary Maitland, convinced him that innocence was not enough.

On the same day DeJesus entered a so-called Alford plea, which did not require him to admit to the allegations in the complaint, the child's biological mother called the prosecutor: The child had told her the allegations were a lie.

In a videotaped deposition at Maitland's office, and again in a hearing before Demakos, the child testified that DeJesus never touched her and that she had fabricated the allegation of sexual abuse at the insistence of her foster mother, who allegedly told the child she would be reunited with her biological mother if she made the false charge.

"This testimony was corroborated to varying degrees by the natural mother, the child's new caseworker and the office director of the foster care agency responsible for the child," the appellate decision noted. "Although we recognize that recantation evidence is generally considered inherently unreliable, we disagree with the hearing court's determination that the testimony of the child and her natural mother regarding the recantation was so unworthy of belief as to warrant denial of the defendant's motion."