| People v Suazo |
| 2014 NY Slip Op 06114 [120 AD3d 1270] |
| September 10, 2014 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Francis Suazo, Appellant. |
Lynn W. L. Fahey, New York, N.Y. (Janet Claire Lê of counsel), forappellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano,Laura T. Ross, and Ayelet Sela of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Kron, J.), rendered August 12, 2011, convicting him of burglary in the first degree, uponhis plea of guilty, and imposing sentence. The appeal brings up for review the denial,after a hearing (Holder, J.), of that branch of the defendant's omnibus motion which wasto suppress identification testimony.
Ordered that the matter is remitted to the Supreme Court, Queens County, for a denovo suppression hearing before a different hearing Justice, and a report thereafter, onthat branch of the defendant's omnibus motion which was to suppress identificationtestimony, and the appeal is held in abeyance in the interim. The Supreme Court, QueensCounty, shall file its report with all convenient speed.
Contrary to the People's contention, the defendant's purported waiver of his right toappeal was invalid (see People vMoyett, 7 NY3d 892, 892-893 [2006]; People v Lopez, 6 NY3d 248, 256 [2006]; People v Woods, 115 AD3d997 [2014]).
At the outset of the hearing on that branch of the defendant's omnibus motion whichwas to suppress identification testimony, it was revealed that one of the People'switnesses was married to the hearing Justice's law clerk. Nonetheless, the hearing Justicepresided over the hearing, found the People's witnesses to be credible, and denied thedefendant's motion.
Contrary to the People's contention, under the particular circumstances of this case,the defendant did not affirmatively waive his contention that the hearing Justiceimprovidently exercised his discretion in presiding over the hearing (cf. People vGrier, 273 AD2d 403 [2000]). While this contention is unpreserved for appellatereview, we nevertheless reach it in the exercise of our interest of justice jurisdiction(see CPL 470.05 [2]).
"Absent a legal disqualification under Judiciary Law § 14, a Trial Judgeis the sole arbiter of recusal. This discretionary decision is within the personal conscienceof the court" (People v Moreno, 70 NY2d 403, 405 [1987]). "A court's decisionin this respect may not be overturned unless it was an improvident exercise of discretion"(D'Andraia v Pesce, 103AD3d 770, 771 [2013]). "Recusal, as a matter of due process, is required only wherethere exists a direct, personal, substantial or [*2]pecuniary interest in reaching a particular conclusion, orwhere a clash in judicial roles is seen to exist" (People v Alomar, 93 NY2d 239,246 [1999] [citation omitted]).
It was an improvident exercise of discretion for the hearing Justice to preside overthe suppression hearing. "[A] law clerk is probably the one participant in the judicialprocess whose duties and responsibilities are most intimately connected with the judge'sown exercise of the judicial function" (Oliva v Heller, 839 F2d 37, 40 [2d Cir1988]). "Law clerks are simply extensions of the judges at whose pleasure they serve"(id. at 40 [internal quotation marks omitted]). Here, the hearing Justice was thetrier of fact, and the credibility of Detective William Wilkerson, who was married to theJustice's law clerk, was a critical issue at the hearing. The marital relationship betweenDetective Wilkerson and the hearing Justice's law clerk created, at a minimum, theappearance that the hearing Justice could not be impartial in assessing DetectiveWilkerson's credibility. While it is true that, unlike a lay jury, a judge is "uniquelycapable of . . . making an objective determination based upon appropriatelegal criteria, despite awareness of facts which cannot properly be relied upon in makingthe decision" (People vBest, 19 NY3d 739, 744 [2012] [internal quotation marks omitted]), "judges arehuman," and not immune from "psychological" and unconscious influences (id. at744; see Caperton v A. T. Massey Coal Co., 556 US 868, 883 [2009]; Peoplev Browne, 220 AD2d 313, 314-315 [1995]; People v Zappacosta, 77 AD2d928, 930 [1980]). Under these circumstances, the hearing Justice should have recusedhimself "in a special effort to maintain the appearance of impartiality" (People vMoreno, 70 NY2d at 406).
Accordingly, we hold the appeal in abeyance and remit the matter to the SupremeCourt, Queens County, before a different hearing Justice, to hear and report on thatbranch of the defendant's omnibus motion which was to suppress identificationtestimony. Skelos, J.P., Hall, Duffy and Barros, JJ., concur.