| People v Regan |
| 2021 NY Slip Op 01808 [192 AD3d 1393] |
| March 25, 2021 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Walter J. Regan, Appellant. |
Thomas H. Kheel, Ithaca, for appellant.
Matthew Van Houten, District Attorney, Ithaca (Andrew J. Bonavia of counsel), forrespondent.
Pritzker, J. Appeal from a judgment of the Supreme Court (Cassidy, J.), rendered October 26,2018 in Tompkins County, upon a verdict convicting defendant of the crime of criminalcontempt in the second degree.
In connection with a Family Court matter, an order of protection was issued againstdefendant directing that, among other things, he stay away from his spouse's residence.Thereafter, defendant went to the Tompkins County Sheriff's Office and informed a sergeant thathe planned to violate the terms of the order of protection by staging a peaceful protest against,what he believed, were illegal and invalid court rulings against him in connection with theFamily Court matter. Although the sergeant advised defendant against violating the order ofprotection, defendant thereafter went to his spouse's residence where he then called 911 to reportthat he was currently violating the order of protection. The sergeant was dispatched to thespouse's residence and defendant, who was standing in the driveway with his hands in the air,was arrested.
Defendant was subsequently charged with criminal contempt in the second degree. Followingdefendant's arraignment, the matter was transferred to Supreme Court and referred to theIntegrated Domestic Violence part for further proceedings. Defendant moved, as is relevant tothis appeal, for recusal of the trial judge on the grounds that he was biased and prejudiced.Supreme Court denied the motion for recusal. Following the jury trial, defendant was foundguilty of criminal contempt in the second degree and was sentenced to 10 months in jail.Defendant appeals.
Defendant's sole contention is that Supreme Court improperly denied the motion for recusalbecause the court was biased and prejudiced against him. Recusal is not mandated as a matter oflaw "[w]hen the alleged impropriety arises from information derived during the performance ofthe court's adjudicatory function" (People v Moreno, 70 NY2d 403, 405 [1987]; see People v Morgan, 149 AD3d1148, 1154-1155 [2017]). "Absent legal disqualification (see Judiciary Law§ 14), which defendant does not allege, a [trial] judge is the sole arbiter of recusaland his or her decision, which lies within the personal conscience of the court, will not bedisturbed absent an abuse of discretion" (People v Kenyon, 108 AD3d 933, 941 [2013] [internal quotationmarks and citation omitted], lv denied 21 NY3d 1075 [2013]; see People vMoreno, 70 NY2d at 405; People vGarrow, 148 AD3d 1459, 1460 [2017], lv denied 29 NY3d 1031 [2017]).
In support of his motion, defendant makes confusing assertions that the trial judge's bias isevidenced by his babysitter and former associate being tangentially involved in the Family Courtmatter. Defendant offers no further information as to how these individuals or their relationshipinfluenced the Family Court matter or how it relates to the instant criminal matter other than toassert a general allegation of collusion. Defendant also contends[*2], without explanation, that the provision in the order of protectionthat he surrender all firearms somehow evinces Supreme Court's bias. In short, the foregoingallegations are insufficient to establish any bias on the part of Supreme Court against defendantin order to support the motion for recusal (see People v Morgan, 149 AD3d at 1155;People v Kenyon, 108 AD3d at 941-942; see generally People v Moreno, 70NY2d at 407).
We are also unpersuaded by defendant's assertion that there was an appearance ofimpropriety because the trial judge presided over the Family Court matter prior to the instantoffense. Defendant has not set forth, nor does our review of the record reveal, any evidence tosupport the conclusion that the trial judge was unable to impartially preside over this matter(see People v Morgan, 149 AD3d at 1155; People v Kenyon, 108 AD3d at 941).Accordingly, we find no abuse of discretion in Supreme Court denying defendant's recusalmotion (see People v Moreno, 70 NY2d at 407; People v Morgan, 149 AD3d at1155; People v Kenyon, 108 AD3d at 941-942).
Garry, P.J., Egan Jr., Lynch and Clark, JJ., concur. Ordered that the judgment isaffirmed.