The People of the State of New York v. L.M., Defendant. (2026)

The District Attorney has submitted papers, dated April 27, 2026, returnable Saturday, May 30, 2026, moving for my recusal from considering the matter of People v. L.M., which has been pending since June 7, 2024. I am left to ask myself, why now, after the conclusion of an extensive hearing, is the prosecution raising this issue.

In their filing, the District Attorney admits that there are no reasons under Judiciary Law § 14 for me to recuse. The District Attorney argues instead that I am emotionally attached to the juvenile defendant, and points to colloquies and various rulings that on their face are neutral, but are objectionable to the People. Defense counsel opposes the motion in a filing dated May 14, 2026.

The procedural posture of the case I set forth as follows:

The matter came on as a search warrant close to close of business on June 7, 2024. Later that evening, after the juvenile defendant was charged with arson and murder, the matter came on for arraignment. I determined that the juvenile defendant had been in police custody for several hours, and offered snack food from chambers to the juvenile defendant. Before and during the arraignment, I reviewed Criminal Procedure Law Article 722, and my OCA training on Youth Part procedures. I attempted to locate an appropriate placement for the juvenile defendant, as required by Criminal Procedure Law § 510.15(1). That statute requires that a remanded child under the age of 16 must be placed in a "specialized secure juvenile detention facility." Despite attempts to find a placement, no calls to OCFS availed, and the order directing the placement of the child in a facility was ignored. The arraignment was concluded at 10:07PM. Having exhausted all efforts to comply with the governing statute, I adjourned for the evening and signed a securing order for the Columbia County Jail.

The next morning, on Saturday June 8, 2024, I inspected the facilities in which the juvenile defendant was incarcerated. There, I was informed by the Undersheriff of Columbia County that OCFS had granted a waiver for the incarceration of the juvenile defendant in that facility, but would not extend the waiver for a second day. I then summoned the Commissioner of the Department of Social Services, the Columbia County Undersheriff and counsel for the prosecution and defense to address this issue in court.

Undersheriff Jacqueline Salvatore, now Sheriff Salvatore, reiterated the efforts she had made to make the incarceration safe and appropriate for a child. The Columbia County District Attorney stated on the record that law enforcement agents tried for hours to attempt to comply with the law requiring placement of children in an OCFS Facility. During the Saturday afternoon appearance, a single phone call by the Deputy Commissioner of Social Services to an OCFS emergency number secured a placement for the juvenile defendant in compliance with the law.

I have no recollection of crying at this appearance, but I do assert that I was appropriately concerned with the disregard for the law and blatant violation of the juvenile defendant's rights. The District Attorney, along with the Columbia County Sheriff, the Columbia County Undersheriff, and the Commissioner of the Department of Social Services all conceded at the Saturday, June 8, 2024 appearance that the Court's concern was appropriate and proportional to the gravity of the situation. It was mentioned by more than one person at the hearing that this tragedy was unprecedented in Columbia County, and it was clear that not one agency was prepared to address it, not the police, not the Court, not the prosecution. There was no appropriate placement for the juvenile defendant available until the Deputy Commissioner of Social Services made arrangements during the court appearance.

At the Saturday, June 8, 2024 appearance I raised the possibility of mitigation. Criminal Procedure Law 722.22(1)(b) states, in pertinent part, "after arraignment of a juvenile offender . . . the court may . . . on its own motion . . . with the consent of the district attorney order removal of an action . . . if the court finds . . . mitigating circumstances that bear directly upon the manner in which the crime was committed . . . " I also commented that "I don't know the full facts and circumstances of what transpired." Defense counsel stated that he would draft a written submission to the Court with respect to that issue. I encouraged the prosecution and defense to bring more facts to light with respect to mitigation, stating:

Okay so we're going to do the preliminary hearing on Monday unless something changes. He'd have to bring an order to show cause in regard to anything else before we could even consider it. But it may be something, and I don't know the circumstances. And both of you might have a lot more information than me. But a fifteen year old prosecuted as an adult, who doesn't really sit well with me.

A preliminary hearing was held on June 10, 2024. Due to the age of the juvenile defendant, and because reasonable cause to hold the matter over for the Grand Jury had not yet been determined pursuant to Criminal Procedure Law § 722.20, I closed the proceedings to the press and spectators. As a matter of judicial discretion, I determined that the matter should not be made a spectacle. I allowed certain members of the juvenile defendant's family and the decedent's family to attend and listen to the frankly gruesome testimony of the police witnesses. The prosecution raised no objection to the closing of the courtroom to the press at the time, only raising the issue that the family of the decedent should be allowed to be present.

Prior to testimony being taken at the preliminary hearing, I noted that I had attended high school with the decedent for the class of 1984, and had seen him on the street approximately two weeks prior to the preliminary hearing, and that we had exchanged greetings. Neither the prosecution nor the defense raised an objection to the matter going forward at that time, nor was there any legitimate basis for objection.

Upon the revelation at the June 10, 2024 preliminary hearing that the State Police had been investigating an abuse allegation by the juvenile defendant prior to the alleged crime on June 7, 2024, I pointed out to the parties that information might be mitigation.

An omnibus motion was filed on behalf of the juvenile defendant on November 15, 2024, and answered by the prosecution on February 5, 2025. As a part of that motion, I reviewed the Grand Jury minutes from June 28, 2024. The People's witness at the Grand Jury had denied that there was evidence of abuse in response to questions from a Grand Juror, who, like myself, apparently wondered how this unnatural event unfolded.

The defense proposed a plea of guilty to the Indictment on or around February 24, 2025. The prosecution did not want to go forward with the guilty plea on that court date, as they wanted to have the family of decedent attend the plea.

The March 10, 2025 decision and order on the omnibus motion ordered, among other things, a Clayton hearing prior to entertaining a plea of guilty. In its motion for recusal the prosecution points to a footnote quoting a well-known pop song, in which the singer exhorts the listener to give a helping hand to a child, or the child might grow up to be an angry young man someday. The footnote references and event at the school, which seems to be a cry for help made by the juvenile defendant shortly before the fatal fire.

On April 1, 2025, I addressed on the record an email dated March 13, 2025 which was received by and put forward by the prosecution. The email stated that "[the judge] knows my family on a personal level." I have no recollection of any such personal involvement with the victim's family. At that appearance, I requested and have not yet received any specifics as to my personal involvement with the victim's family.

Also, on the April 1, 2025 appearance, I acknowledged that "obviously, in this case, it's very traumatic. We have a young woman accused of — and again, it's an accusation, but she is accused of killing her father. So it's traumatic to an awful lot of people, and a lot of people are here today."

The Clayton hearing was scheduled for three days in January and February 2026, and was open to spectators and press. During that hearing, the prosecution objected to the testimony of Dr. Jacqueline Bashkoff. This objection was on the ground that Dr. Bashkoff had worked with me in different contexts during her nearly 44 years in practice, and my 32 years of practicing law. The prosecution then objected to Dr. Bashkoff's qualifications as an expert witness. The prosecution objected multiple times to Dr. Bashkoff's opinion as to the utility of incarceration for the juvenile defendant, and to Dr. Bashkoff's opinion as to how the juvenile defendant would fare in a prison environment.

The Court qualified Dr. Bashkoff as an expert witness after she placed her qualifications on the record. I then permitted Dr. Bashkoff to testify about her opinion concerning these issues as pertinent to, among other things, "the purpose and effect of imposing upon the defendant a sentence authorized for the offense." CPL § 210.40(1)(f).

The juvenile defendant testified at the Clayton hearing on February 19, 2026. Prior to the juvenile defendant taking the stand, the Court requested briefing on the scope of cross examination. Letters were submitted by the defense and prosecution on February 6 and 9, 2026.I declined to make a proactive ruling, reserving rulings on evidentiary determinations until the evidence came in.

Upon cross examination, the first question from the prosecution to the then 17 year old defendant was " . . . you killed your father, correct?" The defense's objection to this line of questioning was sustained as beyond the scope of direct, and to preserve the juvenile defendant's Fifth Amendment privilege. The prosecution states in their recusal motion that I seemed angry in sustaining the objection. This emotion is not reflected in the record. During some colloquy, I cited some caselaw with respect to the relevance of this line of questioning. I allowed the prosecution to make the argument that this questioning was necessary to establish "evidence of guilt." I then advised the prosecutor "you can ask another question, sir." At no time was I rude, loud, or discourteous.

The prosecution argued there, as in the pending recusal motion, that the juvenile defendant's age was irrelevant to the proceeding. I did bring CPL § 210.40(1)(d) to the prosecution's attention, which directs the Court to consider "the history, character and condition of the defendant." The age and maturity of the accused is clearly a factor to be considered.

After submitting summations on the Clayton hearing on April 24, 2026, the prosecution now moves for my recusal.

The matter of deciding whether recuse is within the sound discretion of the individual judge. "Absent a legal disqualification under Judiciary Law § 14, a Trial Judge is the sole arbiter of recusal." People v. Moreno, 70 NY2d 403, 405 (1987). Judiciary Law § 14 states, in pertinent part:

A judge shall not sit as such in, or take any part in the decision of, an action, claim, matter, motion or proceeding to which he is a party, or in which he has been attorney or counsel, or in which he is interested, or if he is related by consanguinity or affinity to any party to the controversy within the sixth degree. The degree shall be ascertained by ascending from the judge to the common ancestor, descending to the party, counting a degree for each person in both lines, including the judge and party, and excluding the common ancestor.

"Recusal, as a matter of due process, is required only where there exists a direct, personal, substantial or pecuniary interest in reaching a particular conclusion, or where a clash in judicial roles  ¹ is seen to exist." People v Alomar, 93 NY2d 239, 246 (1999) (internal citations omitted). "The alleged bias and prejudice to be disqualifying 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." Board of Ed. Of City School Dist. Of City of Buffalo v. Pisa, 55 AD2d 128, 136 (4th Dep't 1976), citing United States v. Grinnell Corp., 384 U.S. 563, 583 (1966).

I have no pecuniary interest in this matter and I am not related to the parties by consanguinity or affinity. My opinion on the merits of this case, not yet rendered, is based solely on what I have learned through my participation in this case, and not through any extrajudicial source.

As a former attorney, I have consulted with the Chief Counsel on Judicial Ethics, and used opinions from the Advisory Committee on Judicial Ethics as a guidepost. Opinion 20-73 prohibits a Judge from sitting on cases in which 1) he has represented a litigant within the past two years, and 2) the matter is the same case in which he or attorneys under his supervision have participated as counsel. I determined pursuant to this guideline that in the instant matter I have no conflicts of interest.

The United States Supreme Court has stated that "judicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge." Liteky v. United States, 510 U.S. 540, 555 (1994). There are vanishingly few cases in which a Judge is disqualified for harsh words. In fact, defendants are often unsuccessful in demonstrating said bias. People v. Wallis, 24 AD3d 1029, 1031 (3d Dep't 2005); People v. Shultis, 61 AD3d 1116, 1117 (3d Dep't 2009). In fact, I have not demonstrated animus to the People, or the victims in this case, and I have strived to maintain a dignified, orderly courtroom.

The timing of this motion for recusal is notable. "[W]here, as here, a party inexplicably withholds an allegation of bias until after the court adversely rules against it, denial of the recusal motion is generally warranted and the courts' discretion in so ruling will not be disturbed." Glatzer v. Bear, Stearns & Co., 95 AD3d 707, 707—08 (1st Dep't 2012). (internal citations omitted). The prosecution submitted a motion to recuse almost two years after the inception of this matter. The interest of justice hearing was ordered over one year ago. The motion to recuse is submitted after the People's summation on the Clayton hearing, and yet, the recusal motion must be decided first, drawing out an already lengthy and difficult case. No motion to re-argue the omnibus motion or filings objecting to the Clayton hearing have been presented to the Court, despite the order having been rendered March 10, 2025.

The prosecution now complains of a statement I made that the inception of this case, that the prosecution of a child as an adult "doesn't really sit well with me." As stated above, this comment was taken out of context to create the appearance of prejudgment. In fact, my gentle exhortation to the prosecution on June 8, 2024 to consider mitigating evidence is not demonstrative of bias, and is in line with the statutory scheme that mandates consideration of mitigating evidence to determine whether a matter should be removed to Family Court. CPL §§ 722.20(4)(i); 722.20(6)(c); 722(1)(b).

The prosecution complains that an interest of justice hearing was ordered at all, suggesting that this step is an improper contravention of the law. The procedure is explicitly laid out in Criminal Procedure Law § 210.40, and it is within the bounds of the statute and the case law. People v. Clayton, 41 AD2d 204 (2d Dep't 1973). This Court retains "a residuum of inherent discretion to act in the unusual case that cries out for fundamental justice beyond the confines of conventional considerations of 'legal or factual merits of the charge or even on the guilt or innocence of the defendant.' " People v. Belge, 41 NY2d 60, 62—63, Fuchsberg in concurrence (1976).

The prosecution cites the fact that some evidentiary rulings were adverse to the People as a reason for recusal. "Notably, the fact that a judge issues a ruling that is not to a party's liking does not demonstrate either bias or misconduct." Gonzalez v. L'Oreal USA, Inc., 92 AD3d 1158, 1159—60 (3d Dep't 2012).

The fact that I sustained an objection to prosecution's query of the defendant as to whether she killed her father is cited as a reason for recusal. The scope of cross examination at a pretrial hearing is distinct and separate from cross examination of the defendant at trial- the ultimate issue at a Clayton hearing is not proof of guilt beyond a reasonable doubt.

There is a dearth of case law concerning the scope of cross examination at a Clayton hearing.² The question was clearly posed to be sensational, and any answer to it — a yes or a no — would have added no information of value for the purpose of the hearing. The utility of cross examination concerning the issue of guilt or innocence at a pre-trial hearing is minimal. "[E]ven where a defendant gives testimony at a preliminary and separate proceeding, this conduct does not constitute a waiver of his Fifth Amendment privilege for the main trial . . . " Ryder v. Harris, 93 AD2d 971, 972 (3d Dep't 1983).

The juvenile defendant here did not claim she was innocent on direct examination, nor on cross examination. Further questioning during the prosecution's vigorous cross examination of the juvenile defendant clarified the matter. The ruling did not impede the prosecution's case in any meaningful way; there was substantial evidence of culpability introduced by the prosecution at the hearing.

The prosecution avers that I was "visibly angry" in sustaining the defenses' objection to their question — "Did you kill your father?" Even if this is true, which it is not, I had already voiced my concerns about this type of questioning at a Clayton hearing, and requested briefing concerning it. I did not raise my voice, and I did not prevent the prosecution from making his arguments. I merely sustained an objection after hearing argument. Mild irritation at lawyerly tactics does not form a basis for recusal.

When [ ] counsel repeatedly and persistently attempts to introduce irrelevant evidence . . . he must expect that once the trial judge has made his basic ruling successive objections [ ] will undoubtedly be sustained. Nor is it surprising that such wasteful tactics will lead a trial judge, during the heat of a nine-day trial, sometimes to become impatient. Judges, while expected to possess more than the average amount of self-restraint, are still only human. They do not possess limitless ability, once passion is aroused, to resist provocation. United States v. Weiss, 491 F.2d 460, 468 (2d Cir. 1974).

The prosecution further protests that I made inconsistent rulings on the admission of evidence. I am not aware of any inconsistencies, except for the inconsistent arguments as to hearsay made by the prosecution during the Clayton hearing.

The prosecution also complains in their recusal motion that I have an "emotional attachment" to the juvenile defendant concerning this specific matter. This statement appears to be an attack on my personal integrity, a quality upon which I pride myself. Setting aside the fact that this is a suggestive and inappropriate thing to say about a Judge and a juvenile defendant, it is untrue. I have always maintained a deep and abiding concern for all the people in Columbia County and beyond, a fact that I have worn on my sleeve even before campaigning for judicial office. I continue to wear this concern for my community as a badge of courage, notwithstanding the prosecution's attempts to degrade my empathy.³ Notwithstanding the prosecution's puzzling assertion, I am confident I can continue to preside over this case without bias, fear, or favor.

The prosecution argues that the Court has no good reason to question why the child protective investigation was unfounded, or to note inconsistencies in the testimony offered by the People. Simply put, the thing speaks for itself. A man tragically died in a fire, apparently set by his own minor child. The shocking and disturbing facts of this case should bear some scrutiny.

I evaluate all matters before me on a case-by-case basis. I acknowledge and respect the humanity of all individuals who come before me. The gravity and implications of the accusations lodged against the juvenile defendant are not lost on the Court. I am disturbed at the loss of life and the fact that all interventions failed to prevent this horrible tragedy.

The Raise the Age statute was enacted to change the trajectory of juvenile offenders' lives, after the New York State Legislature considered scientific research that focused on brain development and poor outcomes for justice involved children. The District Attorney here has declined to consent to the removal of the matter to Family Court from the outset of this case. The prosecution apparently made this decision prior to a thorough examination of the facts and circumstances, by the District Attorney's own statement on the second appearance date of June 8, 2024, to wit:

[w]e would oppose and not consent to a removal to Family Court because despite the age of the victim it's also highly unusual for a child of this age to commit the sort of heinous intentional act that she's accused of.

The prosecution's objections to the Court's examination of the facts leading up to the tragic incident are strange. The prosecution will admit no possibility of rehabilitation for this juvenile defendant, and yet, she will still be relatively young upon release from prison, even if found guilty and sentenced to the maximum term of incarceration.

The juvenile defendant's behaviors and statements leading up to the incident were documented by authorities. The Hudson Police Department, when confronted with this juvenile, rightfully referred her for hospitalization. Unfortunately, that intervention was not enough to save a man's life. Despite threats made by the juvenile defendant to commit the act she allegedly eventually followed through with — statements memorialized in documents and testimony before the court — inadequate safeguards were implemented, resulting in catastrophe.

Sadly, even after a plenary hearing on interest of justice factors, the court is left with more questions, which may or may not have any satisfactory answers. The prosecution's fierce resistance to the Court's attempts to develop a record upon which to base a decision is noted as an attempt to subvert the spirit of the Raise the Age law.

It cannot be ruled out that this motion to recuse is a lawyerly tactic to avoid a potentially adverse ruling or to judge-shop. A judge cannot allow a party to bait or provoke a judge into recusal by embroiling themselves in a self-created controversy with that judge. Matter of Clark, 87 Misc 3d 1207(A), 2025 NY Slip. Op. 51492(U) at 34.

The judge presiding over a case is in the best position to appreciate the implications of those matters alleged in a recusal motion. In deciding whether to recuse himself, the trial judge must carefully weigh the policy of promoting public confidence in the judiciary against the possibility that those questioning his impartiality might be seeking to avoid the adverse consequences of his presiding over their case. In re Drexel Burnham Lambert Inc., 861 F.2d 1307, 1312 (2d Cir. 1988).

Upon a full and fair consideration of the facts and circumstances before me, it is my duty to decline to recuse. "The easiest course of action which this court could take in these matters would be to recuse itself. This court would then be free of the albatross which has weighed heavily upon it for the last several months." People v. Diaz, 130 Misc 2d 1024, 1030 (Suffolk Co. Ct. 1986). I have always conducted my court with fairness and impartiality to all involved, and I consider it my duty and responsibility preside over this matter. Therefore, I decline to recuse myself.

The People's motion for recusal is DENIED.

This is the Decision and Order of the Court.

Dated: June 1, 2026

Hudson, New York

ENTER:

Michael C. Howard, J.C.C.

FOOTNOTES

1.   A "clash in judicial roles" is typically raised when a judge considers himself part of the prosecution. In re Murchison, 349 U.S. 133, fn 8 (1955).

2.   Case law supports restriction of cross of a defendant at suppression hearings based upon relevance. Cross examination as to the ultimate question of guilt or innocence can be limited by suppression hearing courts so defendants are not deterred from offering evidence on the important issue of coercion or voluntariness of the confession. People v. Huntley, 46 Misc 2d 209 (NY County Court 1965); People v. Blackwell, 128 Misc 2d 599 (NY Co. 1985).The Raise the Age Law [Criminal Procedure Law § 722.20(4)] lays out evidentiary rules for determinations concerning juveniles: "The court may make such inquiry as it deems necessary. Any evidence which is not legally privileged may be introduced. If the defendant testifies, his testimony may not be introduced against him in any future proceeding, except to impeach his testimony as such future proceeding as inconsistent prior testimony." The treatment of defendant testimony in pretrial suppression hearings and in Raise the Age hearings guided the Court in its rulings in the instant case.

3.   I am a 34 year member of the Hudson Rotary Club, an international service organization. We have a 4-Way Test to evaluate everything we think, say and do. 1) It is the truth?, 2) Is it fair to all concerned?, 3) Will it build goodwill and better friendships?, and 4) Is it beneficial to all concerned? I apply those principles to my statements and action on and off the bench, as best as I can.

Michael C. Howard, J.