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

1050
KA 12-00345
PRESENT: SCUDDER, P.J., SMITH, FAHEY, LINDLEY, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

CHESTER W. WARREN, DEFENDANT-APPELLANT.


D.J. & J.A. CIRANDO, ESQS., SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR
DEFENDANT-APPELLANT.

GREGORY S. OAKES, DISTRICT ATTORNEY, OSWEGO (MICHAEL G. CIANFARANO OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Oswego County Court (Walter W.
Hafner, Jr., J.), rendered May 27, 2011. The judgment convicted
defendant, upon a jury verdict, of sexual abuse in the first degree
(two counts) and endangering the welfare of a child (three counts).

     It is hereby ORDERED that the judgment so appealed from is
reversed on the law, the recusal motion is granted and a new trial
before a different judge is granted.

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of two counts of sexual abuse in the first degree
(Penal Law § 130.65 [3]) and three counts of endangering the welfare
of a child (§ 260.10 [1]), resulting from four separate incidents.
Before trial, defendant moved for recusal on the ground that County
Court (Hafner, J.) had a personal bias or prejudice against defendant
and his girlfriend as a result of a confrontation between the Judge
and the girlfriend, as well as a complaint filed by the prosecutor
against the Judge that referenced the confrontation.

     “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
Williams, 66 AD3d 1440, 1441-1442, lv denied 13 NY3d 911). “Yet, . .
. it may be the better practice in some situations for a court to
disqualify itself in a special effort to maintain the appearance of
impartiality” (Moreno, 70 NY2d at 406).

     This is one of those situations. In support of his motion for
recusal, defendant submitted an affidavit from defendant’s girlfriend
in which she alleged as follows: “During July 2008, I was wearing a
support Robert Genant for County Court Judge t-shirt at the Oswego
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                                                         KA 12-00345

County Fair. Mr. Genant was running against [Judge Hafner] in his bid
for reelection to the bench . . . Judge Hafner, without my permission,
took numerous photographs of me wearing the Genant t-shirt over the
course of approximately an hour as I moved around the fairgrounds . .
. While I was at a picnic table at the fair, Judge Hafner approached
me, yelled at me, and told me that I was going to go to jail for
wearing the t-shirt. He apparently believed that I was using my
position as a Director of the fair to improperly support the Genant
candidacy. I became so frightened that I immediately removed the
shirt . . . Subsequently, Judge Hafner visited the home I share with
[defendant] presumably to apologize for the incident. I refused to
speak to him, and instead sent [defendant] outside to tell Judge
Hafner that I was not willing to listen to what he might have to say .
. . In the summer of 2009, I was contacted by Gregory Oakes, Esq. [the
prosecutor who ultimately tried defendant’s case] regarding the
incident with Judge Hafner. Attorney Oakes asked if I would be
willing to provide information in support of a grievance that was
being prepared against Judge Hafner. I answered in the affirmative .
. . Upon information and belief, my recollection of the details of the
incident that occurred between me and Judge Hafner during 2008 was
included in a grievance filed against Judge Hafner.”

     Although the grievance was ultimately denied, defendant contended
in support of his motion for recusal that his ability to present a
defense would be hindered because Judge Hafner’s status as the
presiding judge might affect defendant’s decision whether to call his
girlfriend as a witness. The prosecutor confirmed the accuracy of the
facts set forth in the affidavit of defendant’s girlfriend.
Critically, however, the prosecutor added that defendant’s girlfriend
and defendant were “specifically referenced . . . by name” in the
grievance and that the court had been provided with a copy of that
grievance. The prosecutor did not oppose the recusal motion.

     At argument of the recusal motion, defense counsel contended that
defendant was considering a bench trial, and that defendant’s
constitutional right to present a defense at a bench trial would be
impaired because he might not call his girlfriend as a witness if
Judge Hafner continued to preside over the case. In continuing to
preside over the case, Judge Hafner left himself in the position to
impose sentence on defendant, shortly after defendant was referenced
in a grievance filed against Judge Hafner. We note that the grievance
was provided to Judge Hafner before he determined the recusal motion.
Under these circumstances, we conclude the court should have granted
the recusal motion, and we thus reverse the judgment, grant the
recusal motion and grant a new trial before a different judge.

     We now turn to defendant’s remaining contentions. Although
defendant contends that reversal is warranted based on the alleged
misconduct of the prosecutor in referring to religion, he failed to
object to any of those references and thus failed to preserve his
contention for our review (see People v Rawleigh, 89 AD3d 1483, 1484,
lv denied 18 NY3d 961; People v Weinberg, 75 AD3d 612, 613-614, lv
denied 15 NY3d 896). In any event, defendant’s contention lacks merit
because defense counsel opened the door to those references by
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                                                        KA 12-00345

initially questioning defendant’s girlfriend on religious issues and
the prosecutor did not thereby denigrate anyone’s religion, nor were
his questions prejudicial or inflammatory (see People v Caicedo, 173
AD2d 630, 631, lv denied 78 NY2d 963; cf. People v Forchalle, 88 AD2d
645, 646). Defendant’s remaining contentions related to prosecutorial
misconduct are not preserved for our review (see CPL 470.05 [2]), and
we decline to exercise our power to review those contentions as a
matter of discretion in the interest of justice (see CPL 470.15 [6]
[a]).

     We reject defendant’s contention that discrepancies in the date
on which one incident occurred warrant reversal. Where, as here,
there is a distinct variance between a date in the indictment and the
proof at trial, reversal is not required when the defense “consist[s]
of a categorical denial that the incident[] even occurred” (People v
Stevens, 176 AD2d 997, 998; see also People v Morgan, 246 AD2d 686,
687, lv denied 91 NY2d 975). “Moreover, the discrepancies did not
hamper the ability of defendant to present a defense and are
excusable” (People v Holman, 249 AD2d 947, 947, lv denied 92 NY2d
899). We note in addition that the court’s charge clarified the date
on which the incident in question occurred, and thus “there was no
danger that the jury convicted defendant of an unindicted act or that
different jurors convicted defendant based on different acts” (People
v Whitfield, 255 AD2d 924, 924, lv denied 93 NY2d 981; see People v
Caballero, 23 AD3d 1031, 1032, lv denied 6 NY3d 846).

     Viewing the evidence in light of the elements of the crimes as
charged to the jury (see People v Danielson, 9 NY3d 342, 349), we
conclude that the verdict is not against the weight of the evidence
(see generally People v Bleakley, 69 NY2d 490, 495). “The credibility
of the witnesses was an issue for the jury to determine, and we
perceive no basis for disturbing that determination” (People v Newman,
87 AD3d 1348, 1350, lv denied 18 NY3d 926; see People v Burgos, 90
AD3d 1670, 1671, lv denied 19 NY3d 862; People v Kalen, 68 AD3d 1666,
1667, lv denied 14 NY3d 842). We further conclude that defendant
received meaningful representation (see generally People v Schulz, 4
NY3d 521, 530-531; People v Baldi, 54 NY2d 137, 147).

     We reject defendant’s contention that the court erred at
sentencing when it permitted the victim of the sexual abuse counts to
make a statement via electronic recording. Where, as here, a
defendant has been convicted of a felony, the court upon proper notice
“shall accord the victim the right to make a statement” (CPL 380.50
[2] [b]). CPL 380.50 does not specifically permit or prohibit the
presentation of an electronically recorded statement; it merely
requires that the victim’s statement precede statements from defendant
or defense counsel made pursuant to CPL 380.50 (1) (see CPL 380.50 [2]
[c]). CPL 380.50 (2) was enacted to “elevate[] what had previously
been a privilege . . . ‘to a right’ ” (People v Hemmings, 2 NY3d 1, 6,
rearg denied 2 NY3d 824). Inasmuch as a defendant has no right of
confrontation or cross-examination at sentencing (see People v Leon,
10 NY3d 122, 125-126, cert denied 554 US 926; People v Gilbert, 17
AD3d 1164, 1164-1165, lv denied 5 NY3d 762), no right of a defendant
                                 -4-                          1050
                                                         KA 12-00345

is violated when a victim’s statement is submitted in the form of an
electronic recording. “Aside from parameters of punishment defined by
the statute which defines the offense, the only real limit to the
court’s discretion in imposing sentence is the defendant’s right to be
sentenced on reliable and accurate information (United States v
Atkins, 480 F2d 1223). This right, in turn, is protected by the
procedural right to a reasonable opportunity to ‘refute the
aggravating factors which might have negatively influenced the
court’ ” (People v Bolson, 185 Misc 2d 753, 755-756, affd 284 AD2d
340, lv denied 96 NY2d 898, quoting People v Redman, 148 AD2d 966,
966, lv denied 74 NY2d 745; see People v May, 263 AD2d 215, 220-221,
lv denied 94 NY2d 950).

     In view of our determination to grant a new trial, we need not
address defendant’s remaining contention concerning the severity of
the sentence.

     All concur except SCUDDER, P.J., and SMITH, J., who dissent and
vote to affirm in the following Memorandum: We respectfully dissent.
While we agree with the majority that recusal may have been the better
practice inasmuch as the allegations of “personal bias or prejudice”
created a reasonable basis upon which to question the Trial Judge’s
impartiality (22 NYCRR 100.3 [E] [1] [a] [i]; see People v Moreno, 70
NY2d 403, 405-406), we cannot agree that reversal is required. Where,
as here, there is no statutory basis to prevent a Trial Judge from
hearing the case (see Judiciary Law § 14), the decision on a recusal
motion is a matter addressed to the discretion and personal conscience
of the Trial Judge (see Moreno, 70 NY2d at 405-406). A Trial Judge’s
“decision in this respect may not be overturned unless it was an abuse
of discretion” (id. at 406; see People v Strohman, 66 AD3d 1334, 1336,
lv dismissed 13 NY3d 911; People v Williams, 57 AD3d 1440, 1441, lv
denied 12 NY3d 789). We perceive no such abuse of discretion in this
case.

     Several years before defendant was arrested and this case was
tried, the Trial Judge allegedly had a verbal altercation with
defendant’s girlfriend. The prosecutor who tried this case filed a
grievance against the Trial Judge based in part on that alleged
altercation. As the majority notes, the grievance was ultimately
denied. In Strohman (66 AD3d at 1335-1336), we held that it was not
an abuse of discretion for a Trial Judge to deny a defendant’s recusal
motion even though it was the defendant himself who had filed a
complaint against the Trial Judge with the Judicial Conduct
Commission. Here, the grievance was filed by the prosecutor, and it
was based on an alleged altercation between the Trial Judge and
defendant’s girlfriend that had occurred years earlier.

     Contrary to defendant’s contention, there is no evidence that
“ ‘[t]he alleged bias and prejudice . . . result[ed] in an opinion on
the merits on some basis other than what the [Trial J]udge learned
from his participation in the case’ ” (Moreno, 70 NY2d at 407, quoting
United States v Grinnell Corp., 384 US 563, 583), or that “any alleged
bias or prejudice on the part of the [Trial] Judge unjustly affected
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                                                         KA 12-00345

the result of the case” (People v Nenni, 269 AD2d 785, 786, lv denied
95 NY2d 801; see Moreno, 70 NY2d at 407). Defendant does not, and
indeed cannot, point to any evidentiary ruling or sentencing decision
that resulted from the alleged bias or prejudice. Rather, the only
basis for defendant’s contention that the alleged bias and prejudice
potentially affected the result is the statement of defense counsel
that defendant was “considering” a bench trial and questioned whether
the Trial Judge could remain unbiased. That statement, however,
establishes only that defendant questioned whether the Trial Judge
could be impartial if he were to sit as the fact-finder. It does not
establish that the Trial Judge, i.e., “the sole arbiter of recusal,”
questioned his own ability to be impartial (Moreno, 70 NY2d at 405).

     Because we agree with the majority that there is no other basis
for reversal, we would affirm.




Entered:   November 9, 2012                     Frances E. Cafarell
                                                Clerk of the Court
