| People v Rios-Davilla |
| 2009 NY Slip Op 05909 [64 AD3d 482] |
| July 21, 2009 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v German Rios-Davilla, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Timothy C. Stone of counsel), forrespondent.
Judgment, Supreme Court, New York County (William A. Wetzel, J.), rendered May 19,2003, convicting defendant, after a jury trial, of criminal possession of a controlled substance inthe first and third degrees, and sentencing him to an aggregate term of 23 years to life, and order,same court and Justice, entered June 13, 2008, which denied defendant's application to beresentenced under the Drug Law Reform Act (L 2004, ch 738), unanimously modified, on thelaw, and the matter remanded to Supreme Court to exercise its discretion and determine, eitheron the current record or on the basis of any additional submissions the parties might make,whether substantial justice dictates denial of the resentencing application, and otherwiseaffirmed.
The court properly exercised its discretion in declining to recuse itself. Defendant did notestablish that the court's impartiality might reasonably be questioned, or that the court had anyother ethical obligation to grant the recusal motion. Defendant's recusal motion was based onallegations that after his first trial ended in a hung jury, the court had a conversation with jurorsin which it expressed an opinion that the evidence had warranted a guilty verdict. Defendant didnot submit any affidavits from former jurors, and we see no reason to disturb the court's ownfindings as to the nature of its conversations with such jurors. The court indicated that, at most, ithad expressed an opinion on the strength of the People's case that it had formed throughinformation it learned while presiding over the proceedings (see People v Moreno, 70NY2d 403, 405-406 [1987]).
Defendant failed to preserve his arguments that during the trial, the court improperlydenigrated defense counsel in the jury's presence and improperly participated in the examinationof witnesses (see People v Charleston, 56 NY2d 886, 887-888 [1982]), and we decline toreview them in the interest of justice. As an alternative holding, we find no basis for reversal.Although some of the court's comments and interventions were inappropriate, they were not soegregious as to deprive defendant of a fair trial (see People v Arnold, 98 NY2d 63, 67[2002]; People v Moulton, 43 NY2d 944 [1978]; compare People v Retamozzo, 25 AD3d 73 [2005]).[*2]
The court's charge, viewed as a whole, conveyed thecorrect standards (see People v Fields, 87 NY2d 821, 823 [1995]; People vColeman, 70 NY2d 817 [1987]), and it did not misstate the burden of proof in a criminalcase or contain any other constitutional errors.
Any error in precluding defendant from laying a foundation for the introduction of certainphotographs was harmless in view of the overwhelming evidence of defendant's guilt and thephotographs' limited probative value (see People v Crimmins, 36 NY2d 230 [1975]).Defendant failed to preserve his argument that the court's ruling deprived him of hisconstitutional right to present a defense (see People v Lane, 7 NY3d 888, 889 [2006]), and we decline toreview it in the interest of justice. As an alternative holding, we also reject it on the merits(see Crane v Kentucky, 476 US 683, 689-690 [1986]).
However, the court misapplied the Drug Law Reform Act in denying defendant'sresentencing motion. After oral argument of the motion, the court first stated that it was "notgoing to talk to" defendant's favorable prison record or whether he had shown remorse for hiscrimes, and then found that because defendant had been found in possession of 100 kilograms ofcocaine at his home, he was "exactly the person who the statute was intended not to benefit."However, as we recognized in People vArana (32 AD3d 305 [2006]), any person serving a sentence for an A-I drug felony,such as defendant, is eligible to apply for resentencing pursuant to the 2004 enactment. Thecourt's statements indicate it erroneously believed that the volume of drugs in defendant'spossession rendered him ineligible for resentencing, thus obviating the need to exercise itsdiscretion in determining whether "substantial justice" required denial of the application (seeid. at 307; compare e.g. People vMontoya, 45 AD3d 496 [2007], lv dismissed 10 NY3d 768 [2008] [courtproperly applied substantial justice standard in considering but denying large-scale trafficker'sapplication]). Concur—Andrias, J.P., Catterson, Renwick, DeGrasse and Freedman, JJ.