Opinion
June 17, 1993
Appeal from the Supreme Court, New York County, Shirley Levittan, J., Peter McQuillan, J., Charles Tejada, J.
The Judge before whom the original hearing was held took ill, and could not decide the motion. A new Judge was assigned to the matter and, without notice to defendant, rendered a decision on the motion. This was in contravention of Judiciary Law § 21, which dictates that a Judge (other than on an Appellate Division or the Court of Appeals) "shall not decide or take part in the decision of a question, which was argued orally in the court, when he was not present and sitting therein as a judge." It has been made clear that this applies not only to oral argument of motions, but to the taking of testimony, and violation is a defect so fundamental that it cannot be waived (Michel v Michel, 31 A.D.2d 313).
A contrary result is not required by the decisions of this Court in People v. Cannon ( 168 A.D.2d 356, lv denied 77 N.Y.2d 904) and People v. Lewis ( 71 A.D.2d 7). In each of those cases, the newly substituted Justice was not assigned to decide an issue of law that was argued before the first Justice before the illness, but only to preside over a jury deliberation and verdict.
We do not find that the defendant has ever unequivocally conceded that the original hearing Judge resolved credibility issues before reserving decision. Further, we find that the court made only precatory expressions of admiration for the testifying police witness, and not findings of fact that bound the deciding Justice.
Accordingly, a new hearing is required.
Concur — Sullivan, J.P., Ellerin, Kupferman, Ross and Asch, JJ.