PEOPLE v. RILEY

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Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. Peter RILEY, Defendant-Appellant.

Decided: April 13, 2000

WALLACH, J.P, LERNER, RUBIN and BUCKLEY, JJ. Kimberly T. Morgan, for Respondent. Kevin P. Gilleece, for Defendant-Appellant.

Judgment, Supreme Court, Bronx County (Steven Barrett, J.), rendered January 29, 1997, convicting defendant, after a nonjury trial, of rape in the first degree, and sentencing him to a term of 6 to 18 years, unanimously affirmed.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence.   We see no reason to disturb the court's determinations concerning credibility.

 Defendant's claim that he was denied effective assistance because his counsel did not request the court to recuse itself would require a CPL 440.10 motion in order to further develop the record as to the surrounding circumstances.   We note that counsel attempted to dissuade defendant from waiving a jury trial (compare, People v. Browne, 220 A.D.2d 313, 632 N.Y.S.2d 785), but defendant insisted upon proceeding to a nonjury trial before a Justice he now claims should have been recused.   To the extent the existing record permits review, we find that defendant received meaningful representation (see, People v. Benevento, 91 N.Y.2d 708, 713-714, 674 N.Y.S.2d 629, 697 N.E.2d 584), and that counsel was not ineffective for failing to make a recusal motion (People v. Otis, 186 A.D.2d 828, 589 N.Y.S.2d 816).   The court was under no obligation to recuse itself on the grounds of its allegedly acrimonious relationship with defendant and its knowledge of prejudicial information, including defendant's history of courtroom disruptions, since a Judge sitting as trier of fact is presumed capable of considering only proper evidence (see, People v. Moreno, 70 N.Y.2d 403, 521 N.Y.S.2d 663, 516 N.E.2d 200).   For the same reasons, we reject defendant's claim that the court should have recused itself sua sponte.

 We perceive no abuse of sentencing discretion.

MEMORANDUM DECISION.