| People v Rampino |
| 2008 NY Slip Op 07707 [55 AD3d 348] |
| October 9, 2008 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Anthony Rampino, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Timothy C. Stone of counsel), forrespondent.
Order, Supreme Court, New York County (Edward J. McLaughlin, J.), entered on or aboutMarch 8, 2006, which denied defendant's motion for resentencing pursuant to the Drug LawReform Act (L 2004, ch 738), unanimously reversed, on the law, and the matter remanded to adifferent Justice for a de novo determination.
As the People concede, a remand to Supreme Court is necessary given that Supreme Courterroneously denied defendant his statutory right to an opportunity for a hearing on his applicationfor resentencing. We direct that the motion be heard before a different Justice because theappearance of fairness and impartiality has been compromised by the actions of the Justice towhom defendant's application was assigned (see Fresh Del Monte Produce N.V. v EastbrookCaribe A.V.V., 40 AD3d 415, 421 [2007] [directing that matter be reassigned to anotherJustice where party had "raise(d) a reasonable concern about the appearance of impartiality"]).
The following constitutes the relevant portion of the record on the date the resentencingapplication was to be heard:
"The Court: I was just told that [defendant] is in Elmhurst Hospital complaining of chestpains.
"So I don't have any—I've thought about this case considerably.
"I'm denying the application for altering his sentence. I don't know whether we're actuallygoing to get him here in the courtroom. And so you folks can do with this situation as youchoose.
"The application is denied. If the First Department tells me to do it again, that's fine. Thiscase is finished. Okay. Have a nice day."
Nothing in the record warrants the conclusion that defendant was feigning chest pains, andSupreme Court made no such suggestion.[*2]
The mandate of the governing statute is unequivocal. Itspecifies that the court "shall offer an opportunity for a hearing and bring the applicant before it"(L 2004, ch 738, § 23). This Court's case law at the time of Supreme Court's oral rulingwas no less unequivocal in construing "[t]he plain language of the statute" as mandatingdefendant's production (People v Figueroa, 21 AD3d 337, 339 [2005], lv denied 6NY3d 753 [2005]). After inexplicably denying defendant his statutory right, Supreme Courtissued a written decision denying the application.
We need not discuss the substantive reasons articulated by Supreme Court in its subsequentwritten decision. It is enough to note that Supreme Court made numerous findings adverse todefendant's application. Defendant should not be required to overcome the hurdle of persuadingthe same Justice that he also erred in making these findings. Concur—Saxe, J.P., Sweeny,McGuire, Renwick and Freedman, JJ.