PEOPLE v. WHITFIELD

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

PEOPLE of the State of New York, Plaintiff-Respondent, v. Leonard F. WHITFIELD, Defendant-Appellant.

Decided: September 29, 2000

PRESENT:  GREEN, J.P., HAYES, WISNER, SCUDDER and LAWTON, JJ. John E. Tyo, Shortsville, for defendant-appellant. Kristin M. Sunser-King, Syracuse, for plaintiff-respondent.

 Defendant appeals from a judgment convicting him following a bench trial of robbery in the first degree (Penal Law §§ 20.00, 160.15 [2] ) and conspiracy in the fourth degree (Penal Law § 105.10[1] ) in connection with the robbery of the mini-mart where he was employed.   County Court did not violate defendant's constitutional right to counsel by denying defendant's motion for substitution of counsel on the day of the trial.   Defense counsel advised the court that he acknowledged defendant's right to waive a jury trial, but that he disagreed with defendant's decision as a matter of trial strategy, and defendant requested new counsel because of that disagreement.   Defendant did not provide the court with any further explanation.   Thus, the court properly determined that defendant failed to demonstrate good cause for substitution of counsel (see, People v. Sawyer, 57 N.Y.2d 12, 18-19, 453 N.Y.S.2d 418, 438 N.E.2d 1133, rearg. dismissed 57 N.Y.2d 776, 454 N.Y.S.2d 1033, 440 N.E.2d 1343, cert. denied 459 U.S. 1178, 103 S.Ct. 830, 74 L.Ed.2d 1024;  People v. Anthony, 270 A.D.2d 837, 705 N.Y.S.2d 541;  People v. Tucker, 261 A.D.2d 877, 878, 690 N.Y.S.2d 799, lv. denied 94 N.Y.2d 830, 702 N.Y.S.2d 601, 724 N.E.2d 393).

 We reject defendant's contention that the court erred in refusing to recuse itself on the ground that the court had presided when two codefendants entered guilty pleas.  “Absent a legal disqualification under Judiciary Law § 14, a Trial Judge is the sole arbiter of recusal.  * * * When the alleged impropriety arises from information derived during the performance of the court's adjudicatory function, then recusal could surely not be directed as a matter of law.   A court's decision in this respect may not be overturned unless it was an abuse of discretion” (People v. Moreno, 70 N.Y.2d 403, 405-406, 521 N.Y.S.2d 663, 516 N.E.2d 200), and here there was no abuse of discretion (see, People v. Bennett, 238 A.D.2d 898, 899-900, 660 N.Y.S.2d 772, lv. denied 90 N.Y.2d 855, 661 N.Y.S.2d 181, 683 N.E.2d 1055, 90 N.Y.2d 890, 662 N.Y.S.2d 433, 685 N.E.2d 214, cert. denied 524 U.S. 918, 118 S.Ct. 2302, 141 L.Ed.2d 161).

Defendant's sentence is neither unduly harsh nor severe.

Judgment unanimously affirmed.

MEMORANDUM: