PEOPLE v. SMITH (2018)

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Jerald S. Carter, J.), rendered August 18, 2016, convicting him of aggravated family offense, criminal contempt in the second degree (two counts), and tampering with a witness in the fourth degree, after a nonjury trial, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's contention that the trial judge should have recused himself from presiding at the nonjury trial is unpreserved for appellate review, as the defendant failed to make such a request in the trial court (see People v. Jackson, 185 A.D.2d 363, 586 N.Y.S.2d 625;  People v. Bishop, 111 A.D.2d 398, 489 N.Y.S.2d 365).  In any event, this contention is without merit.  The judge was not legally disqualified under Judiciary Law § 14, and therefore his decision as to the need for recusal was a matter of discretion and personal conscience (see People v. Smith, 123 A.D.3d 950, 999 N.Y.S.2d 459;  People v. Modica, 80 A.D.3d 590, 914 N.Y.S.2d 266).  Considerable deference should be accorded the judge's exercise of discretion (see People v. Brims, 145 A.D.3d 1025, 45 N.Y.S.3d 488;  People v. Grier, 273 A.D.2d 403, 709 N.Y.S.2d 607).

Although the judge who decided the pretrial Sandoval motion (see People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849, 314 N.E.2d 413) also presided at the trial, this fact alone did not require recusal (see People v. Montpeirous, 133 A.D.2d 709, 519 N.Y.S.2d 876;  People v. Lombardi, 76 A.D.2d 891, 428 N.Y.S.2d 709).  The judge had no direct, personal, substantial, or pecuniary interest in reaching a particular conclusion, and there was no clash of judicial roles (see People v. Alomar, 93 N.Y.2d 239, 246, 689 N.Y.S.2d 680, 711 N.E.2d 958;  People v. Brims, 145 A.D.3d at 1026, 45 N.Y.S.3d 488).  The judge was not legally disqualified from conducting a nonjury trial, which the defendant requested based on a fully informed waiver of his right to a jury trial, despite having acquired information inadmissible before the factfinder of guilt or innocence (see People v. Moreno, 70 N.Y.2d 403, 404, 521 N.Y.S.2d 663, 516 N.E.2d 200;  People v. Dones, 250 A.D.2d 381, 672 N.Y.S.2d 339;  People v. Rosa, 212 A.D.2d 376, 622 N.Y.S.2d 261).  Absent a showing of prejudice, a judge, by virtue of his or her learning and experience, is presumed to have considered only the competent evidence adduced at trial in reaching a verdict (see People v. Montpeirous, 133 A.D.2d at 709, 519 N.Y.S.2d 876;  People v. Lombardi, 76 A.D.2d at 891, 428 N.Y.S.2d 709).  The receipt of information regarding the defendant's criminal history during the course of the Sandoval hearing did not disqualify the judge from presiding at the subsequent nonjury trial (see People v. Grier, 273 A.D.2d at 406–407, 709 N.Y.S.2d 607;  People v. Latella, 112 A.D.2d 324, 491 N.Y.S.2d 774).

BALKIN, J.P., AUSTIN, SGROI and IANNACCI, JJ., concur.