People v. Bunnell

63 A.D.3d 1671, 879 N.Y.S.2d 801

Opinion

Motion for reargument and other relief granted to the extent that, upon reargument, the memorandum and order entered February 6, 2009 (59 AD3d 942 [2009]) is amended by adding the following sentences before the last sentence of the memorandum: “It cannot be said that the procedure utilized by the court is authorized by People v Fuller (57 NY2d 152 [1982]). Indeed, the court attorney did not act merely as a ‘preliminary fact finder’ (id. at 158) but, rather, he conducted an adversarial hearing and made credibility determinations, thereby assuming a role specifically limited to the authority of the court (see Penal Law § 60.27 [2]; Fuller, 57 NY2d at 158-159).” Present—Smith, J.P, Centra, Peradotto and Gorski, JJ.