This case is not published in a printed volume and its disposition appears in a table in the reporter.
Mr. Guaman is represented by Kenneth Finkleman, Esq. of The Legal Aid Society, Criminal Defense Division, Queens County. The prosecutor is ADA Frank Di Piazza of the Queens County District Attorney's Office.
Gene R. Lopez, J.
The defendant is charged with two counts of driving while intoxicated (Vehicle and Traffic Law 1192 , ) and one count of aggravated driving while intoxicated (Vehicle and Traffic Law 1192 [2-a]). This Court, before referring this case to a judicial hearing officer (JHO) for a pre-trial suppression hearing, granted, with the consent of the People, the defendant's request to reopen, at his discretion, the suppression hearing upon receiving additional Rosario material. 
On May 10, 2007, a JHO presided at the pre-trial suppression hearing. The People presented one witness, Police Officer Dean Pei, and rested. The defendant presented one witness, Cleaver Redrovan, and rested. Each party made closing remarks. The JHO marshaled the evidence each party presented. The JHO credited Police Officer Pei's account, set forth on the record his proposed findings of fact and conclusions of law, and recommended the denial of defendant's motions to suppress statements and the results of the breathalyzer test. The defendant informed both the People and the JHO of his intention to reopen the hearing upon receipt of the missing Rosario material. The case was adjourned to June 14, 2007 for further proceedings.
The defendant on July 5, 2007 filed a motion requesting a de novo suppression hearing in which he alleged for several reasons the JHO "was not an unbiased fact finder in this case when the original hearing was held and he certainly will not be at the reopened hearing ." (affirmation of defense counsel at 14) First, the defendant, in support of his allegation that the JHO demonstrated bias toward him, points to an off the record conversation held on May 10, 2007 shortly after the conclusion of the hearing.  According to defense counsel, the following conversation ensued:
Defense Counsel: Judge it would be helpful if when there are two witnesses a civilian and a police officer if you would state why you believe one and not the other. Don't just say well I believe the police.
JHO: Well I usually do.
Defense Counsel: Well, that is not very satisfying.
JHO: Well, I don't find you very satisfying.
The defendant asserts that this discussion reflects a predisposition by the JHO to "... [believe] the police simply because they are the police," (affirmation of defense counsel at 14) and that predisposition in favor of the police affected his decision to credit Police Officer Pei's account rather than Mr. Redrovan's.
Second, the defendant argues that the JHO has a personal dislike for defense counsel. The defendant, to support this contention, points to another case, People v Oberoi, Docket No.
2007QN007301, in which his defense counsel appeared before the same JHO to conduct a pre-trial suppression hearing. According to portions of the transcript of that case submitted by defendant, the JHO prevented the defense counsel, during cross-examination of the People's witnesses, from pursuing a line of questioning and did not allow defense counsel to make a record of his objections. Defense counsel disagreed with the JHO's rulings, further argument ensued, and the JHO terminated the hearing and returned the case to the all-purpose part. When the parties learned that the all-purpose part was closed, the following exchange occurred: Defense counsel stated to the JHO "I just think its going to end up getting sent back here again for the continuation." The JHO replied "I hope not with you, but if it has to be, it has to be." (Transcript at 28.) The case was then adjourned to the next day. Defense counsel asserts that the next day, an off the record conversation was held between the presiding judge in the all-purpose part and the JHO.
A court tasked with the responsibility to review the adjudicative recommendations of a JHO who has conducted a pre-trial proceeding relies on its plenary power of independent review. Courts, in the exercise of that power, have the express authority to accept, reject or modify in whole or in part the JHO's recommendations. (CPL 255.20; People v. Scalza, 76 N.Y.2d 604, 609 ; People v Jones, 152 Misc.2d 113 [App Term, 1st Dept], appeal dismissed 80 N.Y.2d 833 .) Indeed, reviewing courts have remanded proceedings for further development of the record on a point critical to the proper adjudication of an issue (People v Ufie, Crim Ct, Queens County, Aug. 28, 2007, Zigman, J., Docket No. 2006QN061183 [directed additional testimony be taken from a witness to clarify facts]; People v Morris, 186 Misc.2d 564 [Crim Ct, New York County 2000][directed continued cross-examination of a witness based on newly disclosed Rosario material]), or granted de novo hearings to remove a deficiency in the proceeding fundamental to the integrity and fairness of the proceeding (People v Capel Bunn, Crim Ct, Queens County, May 16, 2006, Zayas, J., Docket Nos. 2005QN030587-88 [abridgement of defendants' right to cross examine]; People v Padgett, Crim Ct, Queens County, Mar. 5, 2007, Raciti, J., Docket No.2005QN029379 [failure of JHO to make findings of fact]). Similarly, it is necessary for this Court to review under its plenary power of independent review a claim that the conduct of the JHO presiding over a pre-trial hearing has tainted the proceedings in a way that offends due process, eroded the appearance of fairness or called into question the results of the proceedings. (See generally People v Alomar, 93 N.Y.2d 239 ; Matter of Khan v Dolly, 39 A.D.3d 649 [2d Dept 2007].) Here, the defendant is asking this court to recuse the JHO from continuing with the pre-trial hearing because of bias and personal dislike and to remand the case for a de novo hearing notwithstanding the defendant did not move for recusal before the JHO or voice any objection at the hearing regarding the JHO's alleged conduct.
Recusal, generally a matter of conscience and personal to the judge before whom the proceeding is pending, is not automatically required as a matter of due process unless a statutory ground for disqualification exists under Judiciary Law 14. (People v Moreno, 70 N.Y.2d 403 ; Chang v SDI International Inc., 15 A.D.3d 520 [2d Dept 2005]; People v Hines, 260 A.D.2d 646 [2d Dept], lv denied 93 N.Y.2d 1019 .) In this case, no statutory ground exists that mandates the disqualification of the JHO. The defendant, in order to succeed on his claims that the JHO harbors a predisposition to favor police witnesses and a personal dislike toward his defense counsel, must show that the JHO's bias and prejudice affected the outcome of his motions to suppress. (People v Darling, 276 A.D.2d 922 [3rd Dept 2000], lv denied 96 N.Y.2d 733 ; Robert Marini Builder Inc. v Rao, 263 A.D.2d 846 [3rd Dept 1999]; Lawrence v Headley, 257 A.D.2d 837 [3rd Dept 1999]; Yan ...