• Appellate Division, Fourth Department
  • KA 11-02132
  • Before: Scudder, P.J., Smith, Fahey, Carni, and Valentino, JJ.
  • For Plaintiff: For Respondent: Lawrence Friedman, District Attorney, Batavia (William G. Zickl of Counsel)
  • For Defendant: For Defendant-Appellant: Paul J. Vacca, Jr., Rochester

 

Cite as: The People v. Anthony S. Molaro, KA 11-02132, NYLJ 1202578314535, at *1 (App. Div., 4th, Decided November 9, 2012)

Before: Scudder, P.J., Smith, Fahey, Carni, and Valentino, JJ.

Decided: November 9, 2012

ATTORNEYS

For Defendant-Appellant: Paul J. Vacca, Jr., Rochester

For Respondent: Lawrence Friedman, District Attorney, Batavia (William G. Zickl of Counsel)

MEMORANDUM AND ORDER

 

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Appeal, by permission of a Justice of the Appellate Division of the Supreme Court in the Fourth Judicial Department, from an order of the Genesee County Court (Mark H. Dadd, J.), dated September 27, 2011. The order denied the motion of defendant to vacate his conviction pursuant to CPL 440.10.

It is hereby ORDERED that the order so appealed from is unanimously affirmed.

Memorandum

Defendant appeals from an order denying his CPL article 440 motion to vacate the judgment convicting him of attempted burglary in the second degree (Penal Law §§110.00, 140.25 [2]). Defendant contends that Judge Noonan, who accepted his plea of guilty and thereafter recused himself, was disqualified from taking any part in the action under Judiciary Law §14 based upon his relationship with the prosecutor (see People v. Berry, 23 AD2d 955, 955; see also La Pier v. Deyo, 100 AD2d 710, 710). We agree with County Court (Dadd, J.), however, that Judiciary Law §14 did not require Judge Noonan's disqualification. The statute mandates disqualification where, inter alia, the judge "is related by consanguinity or affinity to any party to the controversy within the sixth degree." The Assistant District Attorney who prosecuted defendant was not a party to the controversy but, rather, was a public servant representing the People in the criminal action (see CPL 1.20 [31], [32]; see generally People v. Robinson, 27 Misc 3d 635, 637). Judge Dadd also properly concluded that recusal of Judge Noonan was not required under Rules of the Chief Administrator of the Courts (22 NYCRR) §100.3 (E) (1) (e) inasmuch as the prosecutor was not "within the fourth degree of relationship" to Judge Noonan. As Judge Noonan's first cousin once removed, the prosecutor was within the fifth degree of relationship (see Advisory Comm on Jud Ethics Ops 07-06 [2007]). "Absent a legal disqualification under Judiciary Law §14, [Judge Noonan was] the sole arbiter of recusal" (People v. Moreno, 70 NY2d 403, 405; see People v

 

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Patrick, 183 NY 52, 54).

See Full Text Opinion