| People v Singh |
| 2019 NY Slip Op 02728 [171 AD3d 953] |
| April 10, 2019 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Harpreet Singh, Appellant. |
Fasulo Braverman & DiMaggio, LLP, New York, NY (Samuel M. Braverman ofcounsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, JohnnetteTraill, and William H. Branigan of counsel), for respondent.
Appeal by the defendant, by permission, from an order of the Supreme Court, Queens County(Robert Charles Kohm, J.), dated July 11, 2016. The order, after a hearing, denied the defendant'smotion pursuant to CPL 440.10 to vacate a judgment of the same court rendered June 23, 2010,and to grant him youthful offender treatment.
Ordered that the order is affirmed.
The facts underlying this case were previously set forth by this Court on the defendant'sdirect appeal from the judgment of conviction (see People v Singh, 109 AD3d 1010 [2013]).
On June 27, 2013, while the defendant's direct appeal was still pending, the Court of Appealsdecided People v Rudolph (21NY3d 497, 499 [2013]), holding that, pursuant to CPL 720.20 (1), "where a defendant iseligible to be treated as a youthful offender, the sentencing court 'must' determine whether he orshe is to be so treated," and that "compliance with this statutory command cannot be dispensedwith, even where defendant has failed to ask to be treated as a youthful offender, or has purportedto waive his or her right to make such a request." In July 2015, the defendant moved in the trialcourt to vacate his judgment of conviction pursuant to CPL 440.10, on the ground that "he wasentitled to a hearing to determine his eligibility for sentencing as a youthful offender." The court,in an order dated October 29, 2015, initially denied the motion on the ground that the defendantwas ineligible for youthful offender treatment because of a prior youthful offender adjudicationwhich was based upon a plea of guilty to robbery in the first degree. The court stated that it wasits "fervent hope that the defendant continue to serve his entire sentence and that he then bedeported from this country." However, on November 10, 2015, on its own motion, the courtvacated that determination, on the ground that the prior youthful offender adjudication was for adifferent person with the same name as the defendant, and directed a hearing on whether thedefendant should be afforded youthful offender treatment.
On December 4, 2015, prior to the commencement of the hearing, defense counsel made anoral application for the trial court to recuse itself, based on the court's alleged bias against hisclient that was demonstrated in the order dated October 29, 2015, which had been vacated. Thecourt denied the application and proceeded with a hearing on whether the defendant should beafforded youthful offender treatment. At the conclusion of the hearing, the court denied thedefendant's motion. On appeal, the defendant contends that the court erred in refusing to recuseitself and in finding the defendant ineligible for youthful offender treatment.
"Absent a legal disqualification under Judiciary Law § 14, a court is the solearbiter of the need for recusal, and its decision is a matter of discretion and personal conscience"(Burke v Carrion, 101 AD3d920, 921 [2012]; see 22 NYCRR 100.3; People v Moreno, 70 NY2d 403,405 [1987]; Matter of McGrath vD'Angio, 85 AD3d 794, 795 [2011]; EECP Ctrs. of Am. v Vasomedical, Inc.,277 AD2d 349 [2000]). A court's "determination that recusal is not warranted will not bedisturbed unless it constitutes an improvident exercise of discretion" (Irizarry v State of New York, 56 AD3d613, 614 [2008]; see Matter of Imrev Johnson, 54 AD3d 427, 427-428 [2008]). The defendant does not allege that the judgewas legally disqualified by reason of interest or consanguity pursuant to Judiciary Law§ 14. Rather, the defendant contends, inter alia, that the judge was "legallydisqualified" from presiding over the youthful offender hearing, because the judge "improperlyand incorrectly obtained personal knowledge of disputed facts," in violation of 22 NYCRR 100.3(B) (6), which prohibits certain ex parte communications with the court, and 22 NYCRR 100.3(E) (1) (a), which deals with disqualification based upon personal bias or prejudice against aparty and personal knowledge of disputed facts. However, for alleged bias and prejudice to bedisqualifying, "[it] must stem from an extrajudicial source and result in an opinion on the meritson some basis other than what the judge learned from his participation in the case" (UnitedStates v Grinnell Corp., 384 US 563, 583 [1966]; see Berger v United States, 255 US22, 31 [1921]). Here, there is no indication that the erroneous information obtained by the courtof the defendant's criminal record, which, in fact, related to another person, was improperlyobtained, and the erroneous information apparently did not affect the court's ultimatedetermination. Rather, the court based its ultimate determination of the question of whether thedefendant was eligible for youthful offender treatment firmly on what the judge learned from hisparticipation in the case (see United States v Grinnell Corp., 384 US at 583), both at thetrial and the hearing.
On the merits, the defendant was convicted of numerous counts of rape in the first degree andcriminal sexual act in the first degree, and, pursuant to CPL 720.10 (3), would be eligible foryouthful offender treatment only if the court determined that one or more of the following factorsexisted: "(i) mitigating circumstances that [bore] directly upon the manner in which the crimewas committed; or (ii) where the defendant was not the sole participant in the crime, thedefendant's participation was relatively minor although not so minor as to constitute a defense tothe prosecution" (CPL 720.10 [3]).
In this case, there were no mitigating circumstances bearing directly upon the manner inwhich the enumerated sex crimes were committed, and the defendant's role in those crimes wasnot minor.
Accordingly, we agree with the Supreme Court's denial of the defendant's motion pursuant toCPL 440.10 to vacate the judgment of conviction rendered June 23, 2010, and to grant himyouthful offender treatment (see Peoplev Middlebrooks, 25 NY3d 516, 527 [2015]). Rivera, J.P., Cohen, Hinds-Radix andMaltese, JJ., concur.