| People v Garrow |
| 2017 NY Slip Op 02471 [148 AD3d 1459] |
| March 30, 2017 |
| Appellate Division, Third Department |
[*1](March 30, 2017)
| The People of the State of New York, Respondent, v BenjaminGarrow, Appellant. |
Lisa A. Burgess, Indian Lake, for appellant.
Andrew J. Wylie, District Attorney, Plattsburgh (Jaime A. Douthat of counsel), forrespondent.
Devine, J. Appeals (1) from a judgment of the Supreme Court (Lawliss, J.), renderedNovember 26, 2012 in Clinton County, convicting defendant upon his plea of guilty of the crimeof predatory sexual assault against a child, and (2) by permission, from an order of said court,entered April 5, 2016 in Clinton County, which denied defendant's motion pursuant to CPL440.10 to vacate the judgment of conviction, without a hearing.
Defendant pleaded guilty to predatory sexual assault against a child pursuant to a negotiatedplea agreement that included a waiver of appeal. In accordance with that agreement, defendantwas sentenced to a prison term of 20 years to life. Defendant subsequently moved pursuant toCPL article 440 to vacate the judgment of conviction, claiming, among other things, thatSupreme Court erred in failing to sua sponte recuse itself from this matter because it presidedover a prior neglect proceeding in which defendant's improper conduct with the victim played amajor role. Supreme Court denied the motion to vacate without a hearing. Defendant nowappeals from the judgment of conviction and, with permission, from the order denying hismotion to vacate.
Defendant's contention on direct appeal that Supreme Court should have recused itself isunpreserved for our review given defendant's failure to move for that relief or otherwise raise theissue before Supreme Court (see Peoplev White, 81 AD3d 1039, 1039 [2011]; People v Mabry, 27 AD3d 835, 836 [2006]). Moreover, havingvalidly waived his right to appeal, he is foreclosed [*2]fromadvancing the argument on direct appeal (see People v White, 81 AD3d at 1039; People v McCafferty, 1 AD3d 799,799 [2003], lv denied 2 NY3d 743 [2004]). To that end, the record reflects that the courtadequately explained the right to appeal and the consequences of an appeal waiver andascertained that defendant understood them, after which defendant signed a written appeal waiverin open court (see People v Lopez, 6NY3d 248, 256 [2006]). Defendant's related claim on direct appeal that counsel wasineffective for failing to move for recusal is unpreserved for our review, as defendant did notraise this claim at any point in Supreme Court or move to withdraw his guilty plea on this ground(see People v Austin, 141 AD3d956, 957-958 [2016]; People vO'Neill, 116 AD3d 1240, 1241 [2014]).
Defendant advanced the bias claim in his CPL article 440 motion as well, relying upon anorder issued by Supreme Court in the related neglect proceeding concluding that defendant had"raped" the child, which defendant contends constituted a prejudgment of his guilt in this matterand required recusal. Where, as here, the "basis for recusal does not involve a mandatorystatutory disqualification pursuant to Judiciary Law § 14, the trial judge was thesole arbiter regarding recusal" (People vShultis, 61 AD3d 1116, 1117 [2009], lv denied 12 NY3d 929 [2009]). Therecord before us does not support the conclusion that Supreme Court's dual role in both theneglect proceeding and this criminal matter, which was entirely appropriate under the rulesgoverning the Integrated Domestic Violence part of Supreme Court, was improper in any respect(see People v Kenyon, 108 AD3d933, 941 [2013], lv denied 21 NY3d 1075 [2013]; Matter of Karina U., 299AD2d 772, 773 [2002], lv denied 100 NY2d 501 [2003]; People v Smith, 272AD2d 679, 681-682 [2000], lv denied 95 NY2d 938 [2000]).
Finally, defendant was not denied meaningful representation due to trial counsel's failure torequest that Supreme Court recuse itself. Given the strong evidence of guilt and beneficial pleaoffer, as well as the unlikelihood such a request would have been granted, defendant has notdemonstrated "the absence of strategic or other legitimate explanations" for counsel's decisionnot to seek recusal (People v Wragg,26 NY3d 403, 409 [2015]; seePeople v Stahl, 141 AD3d 962, 966-967 [2016], lv denied 28 NY3d 1127[2016]). Accordingly, Supreme Court properly denied defendant's motion without a hearing(see CPL 440.30 [4]).
McCarthy, J.P., Egan Jr., Lynch and Clark, JJ., concur. Ordered that the judgment and orderare affirmed.