        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

725
KA 13-02058
PRESENT: SCUDDER, P.J., FAHEY, PERADOTTO, VALENTINO, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JAMES W. EVANS, DEFENDANT-APPELLANT.


JONES & MORRIS, VICTOR (MICHAEL A. JONES, JR., OF COUNSEL), FOR
DEFENDANT-APPELLANT.

R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA (ROBERT C.
JEFFRIES OF COUNSEL), FOR RESPONDENT.


     Appeal from an order of the Ontario County Court (William F.
Kocher, J.), dated February 28, 2013. The order granted the
application of defendant for resentencing pursuant to CPL 440.46.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed and the matter is remitted to Ontario County
Court for further proceedings in accordance with the following
Memorandum: Defendant appeals from an order granting his application
for resentencing pursuant to CPL 440.46 and specifying and informing
him of the term of the determinate sentence County Court would impose
upon resentencing (see L 2004, ch 738, § 23). He contends that the
court erred in refusing to recuse itself and that, as a result, the
proposed new sentence of eight years of incarceration plus three years
of postrelease supervision is an abuse of discretion and was
improperly influenced by the court’s personal animosity toward
defendant. We affirm.

     “Absent a legal disqualification under Judiciary Law § 14, a
Trial Judge is the sole arbiter of recusal . . . [and a] court’s
decision in this respect may not be overturned unless it was an abuse
of discretion” (People v Moreno, 70 NY2d 403, 405-406; see People v
Strohman, 66 AD3d 1334, 1336, lv dismissed 13 NY3d 911). Although
defendant had used profanity in addressing the court in an unrelated
sentencing proceeding, the court stated that it could be fair and
impartial and that defendant’s prior comments would not impact the
court’s ability to be objective. We perceive no basis to conclude
that the court’s discretionary determination to deny recusal was an
abuse of discretion, and we conclude that the proposed new sentence of
eight years is not “harsh or excessive” in light of all the “facts or
circumstances relevant to the imposition of a new sentence” (L 2004,
ch 738, § 23).
                                   -2-                           725
                                                           KA 13-02058

     We thus affirm   the order, and we remit the matter to County Court
to afford defendant   an opportunity to withdraw his application for
resentencing before   the proposed new sentence is imposed (see CPL
440.46 [3]; L 2004,   ch 738, § 23).




Entered:   June 20, 2014                          Frances E. Cafarell
                                                  Clerk of the Court
