| People v Adams |
| 2010 NY Slip Op 05448 [74 AD3d 1897] |
| June 18, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Anne E.Adams, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (J. Michael Marion of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (Michael F. Griffith, A.J.),rendered April 23, 2009. The judgment convicted defendant, upon her plea of guilty, of drivingwhile intoxicated, offering a false instrument for filing in the second degree, and attemptedtampering with physical evidence.
It is hereby ordered that the judgment so appealed from is unanimously modified on the lawby vacating the sentence and as modified the judgment is affirmed, and the matter is remitted toErie County Court for resentencing.
Memorandum: Defendant appeals from a judgment convicting her upon her plea of guilty ofdriving while intoxicated (Vehicle and Traffic Law § 1192 [3]), offering a false instrumentfor filing in the second degree (Penal Law § 175.30), and attempted tampering withphysical evidence (§§ 110.00, 215.40 [1] [a]). Defendant agreed to be charged bysuperior court information (SCI), and she pleaded guilty in County Court to the crimes chargedin the SCI. Subsequent to the entry of the plea, the Erie County Court Judge assigned to the caserecused herself. Wyoming County Court Judge Griffith, who was serving as an Acting SupremeCourt Justice (ASCJ) for the Eighth Judicial District, informed the People and defendant that hewould preside over the sentencing, which would take place in Erie County. Although the recordcontains no documentation that ASCJ Griffith had been assigned to the case, he neverthelessthereafter presided over the sentencing in Supreme Court, Erie County. The People concede thatthe record does not contain any evidence of a transfer of the case from County Court to SupremeCourt pursuant to 22 NYCRR 200.11 (d) (4). Defendant was sentenced to, inter alia, 15 days injail, and the court ordered her to write letters of apology both to the police officers involved andto the Bar Association of Erie County. A stay of execution of the judgment was granted by aJustice of this Court.
Contrary to defendant's contention, the Erie County Court Judge who recused herself did notviolate any provision of the law and the decision whether to recuse herself therefore was left toher sound discretion (see Judiciary Law § 14; 22 NYCRR 100.3 [E], [F]; People v Williams, 57 AD3d 1440[2008], lv denied 12 NY3d 789 [2009]; People v Whitfield, 275 AD2d 1034[2000], lv denied 95 NY2d 971 [2000]). We agree with defendant, however, that she wasillegally sentenced in Supreme Court after [*2]her plea had beenentered in County Court. We note at the outset that her contention that the sentence is illegalsurvives the waiver of her right to appeal (see People v Seaberg, 74 NY2d 1, 9 [1989];People v Cheatham, 266 AD2d 875 [1999], lv denied 94 NY2d 917 [2000]), andthat her contention that ASCJ Griffith presided unlawfully may be raised for the first time onappeal and is not precluded by her guilty plea (see People v Rodriguez y Paz, 58 NY2d327, 336-337 [1983]). With respect to the merits of defendant's contention, defendant is correctthat, in order to remove a criminal action from County Court to Supreme Court, the UniformRules for the New York State Trial Courts require that such removal be authorized by the ChiefAdministrator and that it occur prior to the entry of a plea or commencement of trial (see22 NYCRR 200.14). Neither condition was met here, and thus ASCJ Griffith had noauthority to preside over sentencing, rendering the sentence illegal. We therefore modify thejudgment by vacating the sentence, and we remit the matter to County Court for resentencing. Inlight of our determination, we do not reach defendant's remaining contentions.Present—Centra, J.P., Carni, Lindley and Pine, JJ.