PEOPLE v. DOYLE

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

The PEOPLE, etc., respondent, v. James DOYLE, appellant.

Decided: February 28, 2005

GLORIA GOLDSTEIN, J.P., DANIEL F. LUCIANO, STEPHEN G. CRANE, and ROBERT A. SPOLZINO, JJ. Michael A. Fiechter, Bellmore, N.Y., for appellant. Denis Dillon, District Attorney, Mineola, N.Y. (Lawrence J. Schwarz and Douglas Noll of counsel), for respondent.

Appeal by the defendant from a judgment of the County Court, Nassau County (Weinberg, J.), rendered October 29, 2003, convicting him of criminal trespass in the second degree and criminal contempt in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 Upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see CPL 470.15 [5] ).   The defendant's contention that the trial judge should have recused herself, sua sponte, because she issued an order of protection against him is unpreserved for appellate review (see People v. Jackson, 185 A.D.2d 363, 586 N.Y.S.2d 625).   In any event, the defendant's contention is without merit.   Where, as here, no basis for disqualification pursuant to Judiciary Law § 14 was presented, it was up to the conscience and discretion of the Judge to decide whether or not to recuse herself (see People v. Moreno, 70 N.Y.2d 403, 405-406, 521 N.Y.S.2d 663, 516 N.E.2d 200;  People v. Hines, 260 A.D.2d 646, 647, 690 N.Y.S.2d 63).

The defendant's challenge to the trial court's Sandoval ruling (see People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849, 314 N.E.2d 413) is without merit.   The court balanced the relevant factors and formulated an appropriate compromise (see People v. Walker, 83 N.Y.2d 455, 458-459, 611 N.Y.S.2d 118, 633 N.E.2d 472;  People v. Rivera, 268 A.D.2d 445, 446, 701 N.Y.S.2d 631).

 Contrary to the defendant's contention, the trial court properly permitted the prosecution to introduce evidence of his prior assault against the complainant.   This evidence was relevant as background material to enable the jury to understand the defendant's relationship with the complainant, to explain the issuance of an order of protection, and as evidence of motive and intent in the commission of the charged crimes (see People v. Morgan, 1 A.D.3d 531, 767 N.Y.S.2d 267;  People v. Lawrence, 297 A.D.2d 290, 291, 745 N.Y.S.2d 918;  People v. Howe, 292 A.D.2d 542, 739 N.Y.S.2d 587;  People v. Wright, 288 A.D.2d 409, 410, 733 N.Y.S.2d 225).

The defendant's remaining contentions either are unpreserved for appellate review or without merit.

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