PEOPLE v. WILLIAMS

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

The PEOPLE of the State of New York, Respondent, v. Carlton WILLIAMS, Defendant-Appellant.

Decided: December 31, 2008

PRESENT:  MARTOCHE, J.P., SMITH, FAHEY, AND PINE, JJ. Maria A. Massaro, Niagara Falls, for Defendant-Appellant. Michael J. Violante, District Attorney, Lockport (Thomas H. Brandt of Counsel), for Respondent.

Defendant appeals from a judgment convicting him following a jury trial of, inter alia, rape in the first degree (Penal Law § 130.35 [1] ).   On a prior appeal, we reversed the judgment of conviction and remitted the matter for a Wade hearing and a new trial (People v. Williams, 34 A.D.3d 1180, 826 N.Y.S.2d 532).   Defendant now contends that County Court erred in determining, following the Wade hearing, that the victim had an independent source for her in-court identification of defendant.   We reject that contention, inasmuch as the People demonstrated the existence of an independent source by clear and convincing evidence (see People v. Chipp, 75 N.Y.2d 327, 335, 553 N.Y.S.2d 72, 552 N.E.2d 608, cert. denied 498 U.S. 833, 111 S.Ct. 99, 112 L.Ed.2d 70).   Defendant further contends that the court erred in refusing to recuse itself.   We reject that contention.   The court was not disqualified pursuant to Judiciary Law § 14, nor can it be said that the court abused its discretion in refusing to recuse itself (see People v. Moreno, 70 N.Y.2d 403, 405-406, 521 N.Y.S.2d 663, 516 N.E.2d 200).   We have reviewed defendant's remaining contentions and conclude that they are without merit.

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

MEMORANDUM: