People v. Dachille

14 A.D.2d 903, 221 N.Y.S.2d 748, 1961 N.Y. App. Div. LEXIS 7952

Opinion

We see no reason why the defendant cannot receive a fair trial in Richmond County. However, in view of the opinions expressed by the County Judge on sentence after the previous trial, we believe that the action should be tried at a term of the Supreme Court or before another Judge as is provided by section 44 of the Code of Criminal Procedure. We have no doubt that if the trial should proceed before the County Judge of Richmond County he would make every effort to afford the defendant a fair and impartial trial; nor do we intend any reflection on such County Judge or ascribe to him any but the highest motives. We believe, however, that there is at least a possibility that defendant’s rights may be prejudiced if he is required to proceed to a retrial before a Judge whose opinion with respect to defendant’s guilt and character is known and to whom the jurors must look for guidance during the course of the trial (cf. Sherk v. Catena, 235 App. Div. 686; People v, Dormann, 180 Misc. 160), Nolan, P. J., Ughetta, Christ, Pette and Brennan, JJ., concur.