| People v Weekes |
| 2007 NY Slip Op 09613 [46 AD3d 583] |
| December 4, 2007 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v MarkC. Weekes, Also Known as Mark C. Weeks, Appellant. |
—[*1] Francis D. Phillips II, District Attorney, Goshen, N.Y. (Andrew R. Kass of counsel), forrespondent.
Appeal by the defendant from an amended judgment of the County Court, Orange County(Berry, J.), rendered June 2, 2006, convicting him of burglary in the first degree, upon his plea ofguilty, and imposing sentence.
Ordered that the amended judgment is affirmed.
On September 29, 2000 the defendant pleaded guilty to burglary in the first degree inexchange for a sentencing recommendation of between 5 and 14 years of imprisonment. At thetime of his plea, the defendant was not informed by either his attorney or the sentencing courtthat pursuant to Penal Law § 70.45 (1) a period of post-release supervision was amandatory component of his sentence. At sentencing, the court imposed a 10-year term ofimprisonment, but failed to include a period of post-release supervision. When the defendantbegan serving his sentence, the New York State Department of Correctional Services added afive-year period of post-release supervision. Subsequently, the defendant moved to vacate hisjudgment of conviction and withdraw his plea, arguing that the failure to inform him that hissentence included post-release supervision vitiated the knowing, voluntary, and intelligent natureof his plea. The County Court denied his motion but modified his sentence to include a four-yearperiod of post-release supervision. After a Justice of this Court granted the defendant leave toappeal, we reversed (see People vWeekes, 28 AD3d 499 [2006]) and granted the defendant's motion, directing the CountyCourt, upon remittal, to afford the defendant the opportunity to withdraw his plea of guilty(cf. People v Hill, 9 NY3d 189 [2007]). If the defendant decidednot to withdraw his plea, the County Court was [*2]instructed to"sentence him to any lawful sentence within the range to which the defendant originally agreed"(People v Weekes, 28 AD3d at 500). Upon remittal, the defendant declined to withdrawhis plea of guilty, and the County Court resentenced him to a term of 10 years' imprisonment anda four-year period of post-release supervision.
Contrary to the defendant's contention, the County Court did not err when it resentenced him.Rather, in accordance with this Court's directive, the County Court imposed a "lawful sentencewithin the range to which the defendant originally agreed" (see People v Weekes, 28AD3d at 500).
There is no merit to the defendant's contention that the County Court Judge who accepted thedefendant's plea of guilty and imposed the initial sentence should have, upon remittal, recusedhimself from the proceedings. Absent a legal disqualification under Judiciary Law § 14, ajudge is the sole arbiter of recusal (see People v Moreno, 70 NY2d 403, 405 [1987]).This decision is within the personal conscience of the court and will not be overturned absent animprovident exercise of discretion (id.;see Modica v Modica, 15 AD3d 635, 636 [2005]; People v Grier, 273 AD2d403, 405 [2000]). Contrary to the defendant's contention, there is no evidence in the record tosuggest that the County Court Judge was biased (see People ex rel. Rivas v Walsh, 40 AD3d 1327, 1328[2007];People v Grier, 273 AD2d at 405).
The defendant's remaining contentions are without merit. Crane, J.P., Lifson, Covello andMcCarthy, JJ., concur.