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

1126
KA 11-02132
PRESENT: SCUDDER, P.J., SMITH, FAHEY, CARNI, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ANTHONY S. MOLARO, DEFENDANT-APPELLANT.


PAUL J. VACCA, JR., ROCHESTER, FOR DEFENDANT-APPELLANT.

LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (WILLIAM G. ZICKL OF
COUNSEL), FOR RESPONDENT.


     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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                                             KA 11-02132

Patrick, 183 NY 52, 54).




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