People v. Glynn

999 N.E.2d 1137, 21 N.Y.3d 614

• Court: New York Court of Appeals
• Decided: October 17, 2013
• Status: Published

Opinions

OPINION OF THE COURT

Pigott, J.

The central issue in this case is whether the County Court Judge’s failure to recuse himself from the case deprived defendant of his right to a fair trial. We conclude that it did not.

Defendant was indicted for various drug offenses arising from an undercover operation involving the sale of marihuana. At a Huntley

* hearing, the County Court Judge informed the parties that he may have either represented or prosecuted defendant in the past. Neither party objected to his continuing to preside over the matter.

At a later hearing, however, defendant requested that the judge recuse himself, basing his request solely on the judge’s prior representation of him on unrelated criminal matters. Not recalling anything about those representations, the judge commented that defendant had been arrested 39 times and that he assumed that defendant “had a large majority of the defense bar at some point representing [him].” The judge ultimately found no reason to disqualify himself and denied the motion.

The judge proceeded to a discussion of the appropriate sentence if defendant were to accept a negotiated plea. He reviewed the presentence investigation and noted that the report showed defendant had never had a job “on the books,” had smoked marihuana daily for 32 years, and had an extensive criminal history. Additionally, the judge noted that, according to the presentence investigation report, defendant owed substantial sums in back child support for his 10 children. The judge continued by remarking that because the youngest child was only seven years old defendant was “going to owe well over a million dollars in child support.” In light of the report, the judge indicated that he would sentence defendant to four years’ incarceration.

The discussion then returned to the recusal request, and defendant argued this time that the judge was biased and prejudiced against him. The court noted that it had suppressed certain evidence, thus pointing out that it was not showing any bias against defendant. Defendant responded that the judge “didn’t do [him] any favors” because the judge had to follow the law. At that point, defense counsel attempted to stop defendant from engaging in a colloquy with the court, stating:

“Your Honor[,] [defendant] has not been cooperating with me when I ask him to do something he doesn’t do it, he never shows up to my office except for once. Judge and for the record your Honor on that [Huntley] hearing you suppressed two major statements, however one was, is going to be permitted. So I guess you were abundantly fair you know and I think you are. The offer is very, very reasonable Judge. For the record. And I’m hoping that my client takes this based upon the facts and circumstances surrounding his case.”

At a later hearing, defendant asked the court for a new attorney based on the statements made by defense counsel. The court ultimately relieved defense counsel and assigned new counsel of defendant’s choosing.

After a jury trial, defendant was convicted of criminal possession of marihuana in the second degree (Penal Law § 221.25), criminal sale of marihuana in the second degree (Penal Law § 221.50), criminal possession of marihuana in the fourth degree (Penal Law § 221.15) and criminal sale of marihuana in the fourth degree (Penal Law § 221.40).

Defendant appealed arguing, among other things, that the County Court Judge should have removed himself from the matter and that he was denied the effective assistance of counsel. The Appellate Division affirmed the judgment (93 AD3d 1341 [4th Dept 2012]), holding that the judge’s recusal was not warranted on any basis and that defendant received meaningful representation.

A Judge of this Court granted defendant leave to appeal (19 NY3d 973 [2012]).

I.

Unless disqualification is required under Judiciary Law § 14, a judge’s decision on a recusal motion is one of discretion (see People v Moreno, 70 NY2d 403, 405 [1987]). “This discretionary decision is within the personal conscience of the court when the alleged appearance of impropriety arises from inappropriate awareness of nonjuridical data” (id. [internal quotation marks omitted]). We have held that for any alleged bias and prejudice to be disqualifying it “must stem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case” (id. at 407, quoting United States v Grinnell Corp., 384 US 563, 583 [1966]; see also Berger v United States, 255 US 22, 31 [1921] [“bias or prejudice which can be urged against a judge must be based upon something other than rulings in the case”]). This Court’s review in this respect is limited to whether the judge abused his discretion as a matter of law (see Moreno, 70 NY2d at 407).

Defendant does not allege any statutory grounds for disqualification under the Judiciary Law and concedes that the judge was not required to recuse himself simply because he had previously defended or prosecuted defendant (see People v Lerario, 43 [3d Dept 2007]; see generally People v Tartaglia, 35 NY2d 918, 919-920 [1974]). Rather, defendant argues that the judge was biased and prejudiced against him, as demonstrated by his “inappropriate” comments about his character. Under these circumstances, defendant argues, recusal was warranted. We disagree.

The judge’s comments were not indicative of bias or prejudice. Rather, the comments were based on the information contained in the presentence investigation report and made during the course of the judge’s execution of his responsibilities in presiding over the matter. Further, there was no other record evidence that actual bias or prejudice existed. Indeed, the judge sua sponte raised the issue of his prior relation with defendant and could not recall any particulars of the past criminal matters. Thus, the court’s refusal to recuse itself was not an improvident exercise of discretion.

II.

Defendant next contends that both his original and later appointed defense counsel engaged in egregious and prejudicial conduct that demonstrated they were not devoted to his best interests. As it pertains to his first attorney, he points to two facts. The attorney did not take the opportunity, which the judge gave him, to request that the judge disqualify himself. He also told the judge that defendant was not cooperating with him and stated for the record that the judge was “abundantly fair” to defendant. Defendant argues that his first attorney thus became a witness against him, taking a position adverse to his interest.

As it pertains to his second attorney, defendant argues that the attorney had multiple inappropriate and contentious exchanges with the judge that undermined defendant’s case. He points to instances where the attorney accused the judge of being “sarcastic,” “down right mean” and “cruel.” Many of the comments were personal attacks on the judge and did not serve any purpose or strategy.

Although the first attorney took it upon himself, unnecessarily, to alert the court that defendant had not been cooperating with him and expressed his opinion on defendant’s recusal motion, he was replaced upon defendant’s request. Thus, the assignment of the new attorney remedied any harm (see generally People v Mitchell, 21 NY3d 964 [2013]).

Further, while we do not condone the second attorney’s alleged egregious comments and behavior, they were made outside the presence of the jury, and he otherwise provided meaningful representation to defendant. Among other things, he adequately attacked the credibility of the witnesses and effectively brought out on cross-examination deficiencies in the evidence. Thus, under our case law, defendant was not denied effective assistance of counsel (see People v Benevento, 91 NY2d 708, 712-713 [1998]).

III.

Defendant’s remaining contention, that the entirety of the circumstances of the case deprived him of a fair trial, is without merit.

Accordingly, the order of the Appellate Division should be affirmed.

People v Huntley, 15 NY2d 72 (1965); CPL 60.45.