| People v Strohman |
| 2009 NY Slip Op 06887 [66 AD3d 1334] |
| October 2, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v HenryStrohman, Appellant. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Jodi A. Danzig of counsel), forrespondent.
Appeal from an order of the Onondaga County Court (William D. Walsh, J.), enteredFebruary 1, 2008 pursuant to the 2005 Drug Law Reform Act. The order, inter alia, granteddefendant's application for resentencing upon defendant's 2004 conviction of criminal possessionof a controlled substance in the second degree and specified the sentence that would be imposed.
It is hereby ordered that the order so appealed from is unanimously affirmed and the matteris remitted to Onondaga County Court for further proceedings in accordance with the followingmemorandum: Defendant appeals from an order pursuant to the 2005 Drug Law Reform Act([DLRA-2] L 2005, ch 643, § 1) granting his application for resentencing upon hisconviction of criminal possession of a controlled substance in the second degree (Penal Law§ 220.18 [former (1)]) and specifying that County Court would impose a determinatesentence of incarceration of 10½ years plus a period of postrelease supervision of fiveyears. We previously reversed an order granting defendant's application for resentencing, and weremitted the matter to County Court to determine defendant's application in compliance withDLRA-2 (People v Strohman, 46AD3d 1373 [2007]).
We reject defendant's contention that the proposed new sentence is harsh and excessive. Thecourt upon remittal properly set forth in its decision the reasons for the proposed new sentence,taking into consideration the magnitude of the crime, defendant's prior criminal history, theadvantageous terms of the original plea bargain and the fact that defendant had already obtainedone reduction of his sentence for his postindictment cooperation with the police (see generally People v Boatman, 53AD3d 1053 [2008]; People vNewton, 48 AD3d 115, 119-120 [2007]). We therefore conclude that the court properlyexercised its discretion in determining the length of the proposed new sentence. We further rejectdefendant's contention that the proposed new sentence was unauthorized as a matter of law. Evenassuming, arguendo, that defendant's contention is properly raised on an appeal from aspecifying order (see L 2005, ch 643, § 1), we conclude that the proposed newsentence falls within the sentencing parameters of Penal Law § 70.71 (3) (b) (ii).
The present contention of defendant that the court should have granted his motion for [*2]recusal because of the court's general bias against drug crimes, asevidenced in a codefendant's case, is not preserved for our review (see CPL 470.05 [2]).The only ground raised by defendant in support of his motion for recusal was that he had filed acomplaint with the Judicial Conduct Commission against the court, thereby creating a conflict ofinterest akin to the mandatory grounds for recusal contained in Judiciary Law § 14. In anyevent, we reject defendant's contention. "Absent a legal disqualification under Judiciary Law§ 14, a Trial Judge is the sole arbiter of recusal . . . [and a] court's decision inthis respect may not be overturned unless it was an abuse of discretion" (People vMoreno, 70 NY2d 403, 405-406 [1987]; see People v Oehler, 52 AD3d 955, 956-957 [2008], lvdenied 11 NY3d 792 [2008]). We perceive no abuse of discretion here. Defendant also failedto preserve for our review his contention that the court erred in denying his motion for recusalbecause the court's refusal to propose a new sentence lesser than the previously imposedminimum sentence evinced a bias against DLRA-2 and a determination to thwart theameliorative effects of that legislation. In any event, we reject that contention as well.
We therefore affirm the order and remit the matter to County Court to afford defendant anopportunity to withdraw his application for resentencing before the proposed new sentence isimposed, as required by DLRA-2 (see Boatman, 53 AD3d at 1054).Present—Scudder, P.J., Hurlbutt, Peradotto, Green and Gorski, JJ.