People v. Fardan

49 A.D.3d 1304, 852 N.Y.2d 861

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 14, 2008
• Status: Published

Opinion

It is hereby ordered that the order so appealed from is unanimously reversed on the law and the matter is remitted to Supreme Court, Oneida County, for further proceedings in accordance with the following memorandum: Defendant appeals from an order of Supreme Court, Oneida County, denying his motion pursuant to CPL 440.10 seeking to vacate the judgment convicting him after a jury trial of, inter alia, murder in the second degree (Penal Law § 125.25 [2]). We agree with defendant that the Justice who denied the motion was disqualified by reason of the fact he was District Attorney of Oneida County at the time of defendant’s conviction (see Judiciary Law § 14; People v Clement, 26 AD2d 968 [1966]; People v Burgett, 15 AD2d 873 [1962]). In view of that disqualification, the court lacked jurisdiction, and its order is void (see People v Alteri, 47 AD3d 1070 [2008]; People v Morgan, 277 App Div 956 [1950]). We therefore reverse the order and remit the matter to Supreme Court for further proceedings on defendant’s motion before a different justice. In light of our decision, we do not address the merits of defendant’s contentions on appeal. Present-Hurlbutt, J.E, Martoche, Lunn, Green and Gorski, JJ.