People v. Cameron

Appellate Division of the Supreme Court of New York

People v. Cameron

194 A.D.2d 438, 599 N.Y.S.2d 256, 1993 N.Y. App. Div. LEXIS 6279

Appellate Division of the Supreme Court of the State of New York·Decided June 17, 1993·Published·Cited by 17 cases

Opinion

—Appeal from judgment, Supreme Court, New York County (Shirley Levittan, J., at hearing; Peter McQuillan, J., on decision; Charles Tejada, J., at trial and sentence), rendered June 13, 1991, convicting defendant, after a jury trial, of criminal possession of a weapon in the third degree, and sentencing him to a term of 3 Vi to 7 years, unanimously held in abeyance and the matter remanded for a new hearing on defendant’s motion to suppress physical evidence.

The Judge before whom the original hearing was held took ill, and could not decide the motion. A new Judge was assigned to the matter and, without notice to defendant, rendered a decision on the motion. This was in contravention of Judiciary Law § 21, which dictates that a Judge (other than on an Appellate Division or the Court of Appeals) "shall not decide or take part in the decision of a question, which was argued orally in the court, when he was not present and sitting therein as a judge.” It has been made clear that this applies not only to oral argument of motions, but to the taking of testimony, and violation is a defect so fundamental that it cannot be waived (Michel v Michel, 31 AD2d 313).

A contrary result is not required by the decisions of this Court in People v Cannon (168 AD2d 356, lv denied 77 NY2d 904) and People v Lewis (71 AD2d 7). In each of those cases, [439]*439the newly substituted Justice was not assigned to decide an issue of law that was argued before the first Justice before the illness, but only to preside over a jury deliberation and verdict.

We do not find that the defendant has ever unequivocally conceded that the original hearing Judge resolved credibility issues before reserving decision. Further, we find that the court made only precatory expressions of admiration for the testifying police witness, and not findings of fact that bound the deciding Justice.

Accordingly, a new hearing is required. Concur—Sullivan, J. P., Ellerin, Kupferman, Ross and Asch, JJ.

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—Appeal from judgment, Supreme Court, New York County (Shirley Levittan, J., at hearing; Peter McQuillan, J., on decision; Charles Tejada, J., at trial and sentence), rendered June 13, 1991, convicting defendant, after a jury trial, of criminal possession of a weapon in the third degree, and sentencing him to a term of 3 Vi to 7 years, unanimously held in abeyance and the matter remanded for a new hearing on defendant’s motion to suppress physical evidence.

The Judge before whom the original hearing was held took ill, and could not decide the motion. A new Judge was assigned to the matter and, without notice to defendant, rendered a decision on the motion. This was in contravention of Judiciary Law § 21, which dictates that a Judge (other than on an Appellate Division or the Court of Appeals) "shall not decide or take part in the decision of a question, which was argued orally in the court, when he was not present and sitting therein as a judge.” It has been made clear that this applies not only to oral argument of motions, but to the taking of testimony, and violation is a defect so fundamental that it cannot be waived (Michel v Michel, 31 AD2d 313).

A contrary result is not required by the decisions of this Court in People v Cannon (168 AD2d 356, lv denied 77 NY2d 904) and People v Lewis (71 AD2d 7). In each of those cases, [439]*439the newly substituted Justice was not assigned to decide an issue of law that was argued before the first Justice before the illness, but only to preside over a jury deliberation and verdict.

We do not find that the defendant has ever unequivocally conceded that the original hearing Judge resolved credibility issues before reserving decision. Further, we find that the court made only precatory expressions of admiration for the testifying police witness, and not findings of fact that bound the deciding Justice.

Accordingly, a new hearing is required. Concur—Sullivan, J. P., Ellerin, Kupferman, Ross and Asch, JJ.

People v. Cameron, 194 A.D.2d 438, 599 N.Y.S.2d 256, 1993 N.Y. App. Div. LEXIS 6279 (N.Y. Ct. App. 1993).

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