Appeal from a judgment of the Oswego County Court (Walter W. Hafner, Jr., J.), rendered May 27, 2011.
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Released on November 9, 2012
PRESENT: SCUDDER, P.J., SMITH, FAHEY, LINDLEY, AND MARTOCHE, JJ.
The judgment convicted defendant, upon a jury verdict, of sexual abuse in the first degree (two counts) and endangering the welfare of a child (three counts).
It is hereby ORDERED that the judgment so appealed from is reversed on the law, the recusal motion is granted and a new
trial before a different judge is granted.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of two counts of sexual abuse in the first degree (Penal Law § 130.65 ) and three counts of endangering the welfare of a child (§ 260.10 ), resulting from four separate incidents. Before trial, defendant moved for recusal on the ground that County Court (Hafner, J.) had a personal bias or prejudice against defendant and his girlfriend as a result of a confrontation between the Judge and the girlfriend, as well as a complaint filed by the prosecutor against the Judge that referenced the confrontation.
"Absent a legal disqualification under Judiciary Law § 14, a Trial Judge is the sole arbiter of recusal . . . [and a] court's decision in this respect may not be overturned unless it was an abuse of discretion" (People v Moreno, 70 NY2d 403, 405-406; see People v Williams, 66 AD3d 1440, 1441-1442, lv denied 13 NY3d 911). "Yet, . . . it may be the better practice in some situations for a court to disqualify itself in a special effort to maintain the appearance of impartiality" (Moreno, 70 NY2d at 406).
This is one of those situations. In support of his motion for recusal, defendant submitted an affidavit from defendant's girlfriend in which she alleged as follows: "During July 2008, I was wearing a support Robert Genant for County Court Judge t-shirt at the Oswego County Fair. Mr. Genant was running against [Judge Hafner] in his bid for re-election to the bench . . . Judge Hafner, without my permission, took numerous photographs of me wearing the Genant t-shirt over the course of approximately an hour as I moved around the fairgrounds . . . While I was at a picnic table at the fair, Judge Hafner approached me, yelled at me, and told me that I was going to go to jail for wearing the t-shirt. He apparently believed that I was using my position as a Director of the fair to improperly support the Genant candidacy. I became so frightened that I immediately removed the shirt . . . Subsequently, Judge Hafner visited the home I share with [defendant] presumably to apologize for the incident. I refused to speak to him, and instead sent [defendant] outside to tell Judge Hafner that I was not willing to listen to what he might have to say . . . In the summer of 2009, I was contacted by Gregory Oakes, Esq. [the prosecutor who ultimately tried defendant's case] regarding the incident with Judge Hafner. Attorney Oakes asked if I would be willing to provide information in support of a grievance that was being prepared against Judge Hafner. I answered in the affirmative . . . Upon information and belief, my recollection of the details of the incident that occurred between me and Judge Hafner during 2008 was included in a grievance filed against Judge Hafner."
Although the grievance was ultimately denied, defendant contended in support of his motion for recusal that his ability to present a defense would be hindered because Judge Hafner's status as the presiding judge might affect defendant's decision whether to call his girlfriend as a witness. The prosecutor confirmed the accuracy of the facts set forth in the affidavit of defendant's girlfriend. Critically, however, the prosecutor added that defendant's girlfriend and defendant were "specifically referenced . . . by name" in the grievance and that the court had been provided with a copy of that grievance. The prosecutor did not oppose the recusal motion.
At argument of the recusal motion, defense counsel contended that defendant was considering a bench trial, and that defendant's constitutional right to present a defense at a bench trial would be impaired because he might not call his girlfriend as a witness if Judge Hafner continued to preside over the case. In continuing to preside over the case, Judge Hafner left himself in the position to impose sentence on defendant, shortly after defendant was referenced in a grievance filed against Judge Hafner. We note that the grievance was provided to Judge Hafner before he determined the recusal motion. Under these circumstances, we conclude the court should have granted the recusal motion, and we thus reverse the judgment, grant the recusal motion and grant a new trial before a different judge.
We now turn to defendant's remaining contentions. Although defendant contends that reversal is warranted based on the alleged misconduct of the prosecutor in referring to religion, he failed to object to any of those references and thus failed to preserve his contention for our review (see People v Rawleigh, 89 AD3d 1483, 1484, lv denied 18 NY3d 961; People v Weinberg, 75 AD3d 612, 613-614, lv denied 15 NY3d 896). In any event, defendant's contention lacks merit because defense counsel opened the door to those references by initially questioning defendant's girlfriend on religious issues and the prosecutor did not thereby denigrate anyone's religion, nor were his questions prejudicial or inflammatory (see People v Caicedo, 173 AD2d 630, 631, lv denied 78 NY2d 963; cf. People v Forchalle, 88 AD2d 645, 646). Defendant's remaining contentions related to ...