| People v Evans |
| 2014 NY Slip Op 04653 [118 AD3d 1476] |
| June 20, 2014 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vJames W. Evans, Appellant. |
Jones & Morris, Victor (Michael A. Jones, Jr., of counsel), fordefendant-appellant.
R. Michael Tantillo, District Attorney, Canandaigua (Robert C. Jeffries of counsel),for respondent.
Appeal from an order of the Ontario County Court (William F. Kocher, J.), datedFebruary 28, 2013. The order granted the application of defendant for resentencingpursuant to CPL 440.46.
It is hereby ordered that the order so appealed from is unanimously affirmed and thematter is remitted to Ontario County Court for further proceedings in accordance with thefollowing Memorandum: Defendant appeals from an order granting his application forresentencing pursuant to CPL 440.46 and specifying and informing him of the term ofthe determinate sentence County Court would impose upon resentencing (see L2004, ch 738, § 23). He contends that the court erred in refusing to recuseitself and that, as a result, the proposed new sentence of eight years of incarceration plusthree years of postrelease supervision is an abuse of discretion and was improperlyinfluenced by the court's personal animosity toward defendant. We affirm.
"Absent a legal disqualification under Judiciary Law § 14, a Trial Judgeis the sole arbiter of recusal . . . [and a] court's decision in this respect maynot be overturned unless it was an abuse of discretion" (People v Moreno, 70NY2d 403, 405-406 [1987]; seePeople v Strohman, 66 AD3d 1334, 1336 [2009], lv dismissed 13 NY3d911 [2009]). Although defendant had used profanity in addressing the court in anunrelated sentencing proceeding, the court stated that it could be fair and impartial andthat defendant's prior comments would not impact the court's ability to be objective. Weperceive no basis to conclude that the court's discretionary determination to deny recusalwas an abuse of discretion, and we conclude that the proposed new sentence of eightyears is not "harsh or excessive" in light of all the "facts or circumstances relevant to theimposition of a new sentence" (L 2004, ch 738, § 23).
We thus affirm the order, and we remit the matter to County Court to afforddefendant an opportunity to withdraw his application for resentencing before theproposed new sentence is imposed (see CPL 440.46 [3]; L 2004, ch 738,§ 23). Present—Scudder, P.J., Fahey, Peradotto, Valentino andDeJoseph, JJ.