The People, etc., respondent, v. Alvin Smith, appellant.

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

The People, etc., respondent, v. Alvin Smith, appellant.

2016–09664

Decided: July 25, 2018

RUTH C. BALKIN, J.P. LEONARD B. AUSTIN SANDRA L. SGROI ANGELA G. IANNACCI, JJ. Martin Geduldig, Garden City, NY, for appellant. Madeline Singas, District Attorney, Mineola, N.Y. (Judith R. Sternberg and Jared A. Chester of counsel), for respondent.

Submitted—March 20, 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;  People v. Bishop, 111 A.D.2d 398).  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 AD3d 950;  People v. Modica, 80 AD3d 590).  Considerable deference should be accorded the judge's exercise of discretion (see People v. Brims, 145 AD3d 1025;  People v. Grier, 273 A.D.2d 403).

Although the judge who decided the pretrial Sandoval motion (see People v. Sandoval, 34 N.Y.2d 371) also presided at the trial, this fact alone did not require recusal (see People v. Montpeirous, 133 A.D.2d 709;  People v. Lombardi, 76 A.D.2d 891).  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;  People v. Brims, 145 AD3d at 1026).  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;  People v. Dones, 250 A.D.2d 381;  People v. Rosa, 212 A.D.2d 376).  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;  People v. Lombardi, 76 A.D.2d at 891).  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;  People v. Latella, 112 A.D.2d 324).

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

ENTER:

Aprilanne Agostino

Clerk of the Court