Opinion
3096
06-15-2018
The People of the State of New York, Plaintiff, v. William Cerasoli and MARY CERASOLI, Defendants.
Appearances of Counsel: For the People John Yetman, Esq. Walsh, Markus, McDougal & DeBellis, LLP 229 7th Street, Ste. 200 Garden City, New York 11530 For the defendants: Mildred J. Michalczyk, Esq. 16 Walnut Avenue East E. Farmingdale, New York 11735-3840
Appearances of Counsel: For the People John Yetman, Esq. Walsh, Markus, McDougal & DeBellis, LLP 229 7th Street, Ste. 200 Garden City, New York 11530 For the defendants: Mildred J. Michalczyk, Esq. 16 Walnut Avenue East E. Farmingdale, New York 11735-3840 Steven G. Leventhal, J.
In appearance summons number 3096 dated May 12, 2014, and in an information of the same date, it was charged that on October 2, 2012, the defendants violated Section 345-30 (Front yards), Subsection E (Vision Clearance) of the Code of the Incorporated Village of Massapequa Park (the "Village Code"), and Section 345-40 (Fences and similar obstructions), Subsection B(2) (Obstruction of view prohibited) of the Village Code by failing, after service of a notice to cure, to remove a fence measuring 48 inches in height, situated in an area described as a thirty five foot triangle, located at 51 Roosevelt Avenue in the Village of Massapequa Park (the "Premises"), thus causing the view at the adjacent traffic intersection to be obstructed.
I. Procedural History
Previously, defendants moved to dismiss appearance summons number 3096 on the grounds that: (i) the Village should be estopped from enforcing the applicable sections of the Village Code because the Village Building Department issued a permit for the fence here, and issued permits for other fences that exceed the height restriction imposed by the Village Code; and (ii) dismissal of the appearance summons would further the interests of justice because the defendants relied in good faith upon the fence permit issued by the Building Department, and the fence does not imperil traffic safety by obstructing the view at the intersection. By a Decision and Order dated October 21, 2016, defendants' motion to dismiss the appearance summons was denied.
A. Estoppel
The erroneous issuance of a building permit is insufficient to estop a municipality from enforcing its zoning code, even when the results are harsh. Parkview Associates v. City of New York, et al., 71 NY2d 274 (1988).
In E.F.S. Ventures Corp. v. Foster et al., 71 NY2d 359 at 370 (1988), the Court explained that:
Generally, governmental agencies are not subject to the defense of estoppel for two reasons. First, the doctrine is not applied against the government, as a matter of policy, because to do so could easily result in large scale public fraud. As stated long ago by the United States Supreme Court, 'It is better that an individual should now and then suffer by [governmental] mistakes, than to introduce a rule against an abuse, of which , by improper collusions, it would be very difficult for the public to protect itself.' The second, and more fundamental, reason why estoppel is not generally permitted against the government is that to do so may violate the doctrine of separation of powers .(Internal Citations omitted) In Foster, the Court concluded that a judicial estoppel preventing respondents from implementing statutory SEQRA requirements would place the court in opposition to the elected branches of government and override legislative mandates establishing environmental review procedures. Similarly here, a judicial estoppel preventing the Building Department from implementing the zoning chapter of the Village Code would place the court in opposition to the elected Board of Trustees and override its legislative mandate.
In Parkview Associates, supra, the height of a building on Park Avenue in Manhattan exceeded the limitation imposed by the applicable zoning provision. The Court concluded that reasonable diligence by the defendant would have disclosed the bureaucratic error and, therefore, the defendant could not invoke estoppel against the City of New York. Similarly here, the regrettable hardship to the defendants would have been avoided had they consulted the Village Code, or had their fence contractor done so.
Defendants argued that they should not be held to the same standard as the sophisticated developer in Parkview Associates. While defendants' level of sophistication may reasonably be distinguished from that of the developer in Parkview Associates, so too, their financial hardship pales in comparison. Moreover, the same obligation of reasonable diligence and good faith inquiry apply in both cases. While Mr. Cerasoli made a good faith inquiry before submitting his permit application and erecting the fence, apparently neither he nor his contractor consulted the Village Code, as was their obligation to do.
The Village Building Department here, like the New York City Department of Buildings in Parkview Associates, had no discretion to issue a building permit that failed to conform to the applicable law. The defendants here, like the developer in Parkview Associates, failed to apply to the Zoning Board of Appeals for an area variance. The Village personnel here had no power to bind the Zoning Board of Appeals, and the erroneous advice received by the defendants was no substitute for a variance. See, Carmelo Carbone v. Town of Bedford, 144 AD2d 420 (2d Dept. 1988). Accordingly, the Court determined that neither estoppel nor laches were available to the defendants as a defense to the charges set forth in the appearance summons.
B. The Interest Of Justice
Criminal Procedure Law ("CPL") Section 170.40(1) provides, in pertinent part, that:
An information may be dismissed in the interest of justice when, even though there may be no basis for dismissal as a matter of law , such dismissal is required as a matter of judicial discretion by the existence of some compelling factor, consideration or circumstance clearly demonstrating that conviction or prosecution of the defendant upon such accusatory instrument or count would constitute or result in injustice. In determining whether such compelling factor, consideration, or circumstance exists, the court must, to the extent applicable, examine and consider, individually and collectively, the following:
(a) the seriousness and circumstances of the offense;
(b) the extent of harm caused by the offense;
(c) the evidence of guilt, whether admissible or inadmissible at trial;
(d) the history, character and condition of the defendant;
(e) any exceptionally serious misconduct of law enforcement personnel in the investigation, arrest and prosecution of the defendant;
(f) the purpose and effect of imposing upon the defendant a sentence authorized for the offense;
(g) the impact of a dismissal on the safety or welfare of the community;
(h) the impact of a dismissal upon the confidence of the public in the criminal justice system;
(i) where the court deems it appropriate, the attitude of the complainant or victim with respect to the motion;
(j) any other relevant fact indicating that a judgment of conviction would serve no useful purpose.
The discretion of the court to dismiss an accusatory instrument in the interest of justice is neither absolute nor uncontrolled. People v. Kelley, 141 AD2d 764 (2nd Dept. 1988). It is well settled that the discretion to dismiss an accusatory instrument in the interest of justice should be exercised sparingly and "only in those rare cases where there is a compelling factor which clearly demonstrates that prosecution would be an injustice". People v. Hunter Sports Shooting Grounds, Inc., 47 Misc 3d 139(A) (Appellate Term, 2d Dept. 2015), quoting People v. Candelaria, 50 AD3d 913, 913 (2d Dept. 2008). In the absence of such a compelling factor, the court should not circumvent the prosecutorial discretion granted to the People. See People v. Richman, 44 Misc 3d 34 (Appellate Term, 2d Dept. 2015). In evaluating the statutory criteria to determine whether the circumstance compel dismissal in the interests of justice, the court "must maintain a sensitive balance between the interests of the individual and of the State. People v. Kelley, supra, citing People v. Clayton, 41 AD2d 204, 208 (2d Dept. 1973).
Here, the offense implicates the legitimate and substantial state interest in protecting motorists and pedestrians from death, injury and property damage. The defendants argued that the presence of a traffic control device minimized the likelihood of an automobile accident occurring at the intersection. However, it is for the Board of Trustees, and not this Court, to determine what regulations will best advance the state interest in ensuring traffic safety. The People alleged, on information and belief, that accidents have occurred at the intersection. However, without competent evidence, the Court was unable to determine, as a matter of fact, whether those accidents occurred and, if so, whether they were caused by the existence of defendants' fence. While the ultimate question of defendants' guilt was reserved for trial, the defendants did not dispute that the fence exceeded the maximum height permitted by the Village Code nor that, despite notice of the violation, they neither removed the fence nor applied to the Zoning Board of Appeals for a variance.
No evidence of the history, character and condition of the defendants was presented by either side, except that the defendants have resided at the Premises for approximately 44 years. The Court assumed for purposes of the motion that Mr. and Mrs. Cerasoli were respected, law abiding members of the community. While it is regrettable that an error by the Building Department in issuing the fence permit caused them to incur unnecessary cost, there was no evidence of misconduct on the part of the Code Enforcement Officer in issuing the appearance summons.
Before the appearance summons was issued, the defendants were afforded the opportunity to remedy the Code violation or to seek administrative relief in the form of a variance issued by the Zoning Board of Appeals. They declined to do either. The imposition of a fine upon conviction will likely have the effect of compelling compliance by the defendants. Dismissal of the appearance summons would frustrate the legitimate state interest in promoting traffic safety, might encourage others to commit similar Code violations, and could undermine public confidence in the administration and enforcement of the Village Code.
The Court determined that dismissal here would not further the interests of justice.
II. Defendants' Second Pre-Trial Motion To Dismiss
Immediately before the trial commenced, defendants made an oral application to dismiss the appearance summons on the grounds that the Village Code had subsequently been amended to reduce the area in which obstructions are prohibited, and that the Village had not revoked the building permit issued for the fence. The Court reserved decision on the oral application to dismiss, and the parties were granted leave to supplement their arguments in writing. Defendants supplemented their arguments in support of the motion to dismiss by a letter dated May 21, 2017. The People submitted an affirmation in opposition dated June 9, 2017.
CPL Section 255.20(1) provides, in pertinent part, that "all pre-trial motions shall be served or filed within forty-five days of arraignment and before commencement of trial, or within such additional time as the court may fix ." CPL Section 255.20(2) provides, in pertinent part, that "all pre-trial motions whenever practicable, shall be included within the same set of motion papers, and shall be made returnable on the same date ." CPL Section 255.20(1) provides that:
Notwithstanding the provisions of subdivisions one and two hereof, the court must entertain and decide on its merits, at any time before the end of the trial, any appropriate pre-trial motion made based on grounds of which the defendant could not, with due diligence, have been previously aware, or which, for other good cause, could not reasonably have been raised within the period specified in subdivision one of this section or included within the single set of motion papers as required by subdivision two. Any other pre-trial motion made after the forty-five day period may be summarily denied, but the court, in the interest of justice, and for good cause shown, may, in its discretion, at any time before sentence entertain and dispose of the motion of the merits.
Defendants' second motion to dismiss was not made within forty-five days of arraignment, nor included within the same set of motion papers submitted in support of their first motion to dismiss. Further, defendants second motion to dismiss was not made on grounds of which the defendants could not, with due diligence, have been previously aware. No basis in the interests of justice nor good cause shown were offered to support consideration of defendants' untimely, second pre-trial motion to dismiss. Nevertheless, in the interest of a full and fair consideration of the issues raised, the Court deemed the motion to have been made at the close of evidence, for a trial order of dismissal pursuant to CPL Section 290.10, and considered the motion on its merits.
III. Evidence At Trial
A trial was conducted on April 21, 2017. The People called Building Inspector Garret Lamb, who testified that he issued the appearance summons after observing a four foot tall open picket fence on the property line at the Premises. On cross examination, he acknowledged that the Building Department file contained a permit for the fence, and that the fence conformed to the specifications set forth in the permit. He further testified that, based on his personal observation, while passing the Premises in a moving vehicle, the fence appears to be solid, obstructing a driver's view of the area lower than its four foot height. Mr. Lamb testified that this creates a risk that a driver will fail to observe a child that may be running or riding a bicycle. Mr. Lamb testified that he informed Mr. Cerasoli that the placement of the fence was in violation of the Village Code, and that the fence must be removed. Photographs of the Premises (Exhibits A, B and C) were received in evidence, and the People rested.
The parties stipulated that a permit was issued for the fence and that the fence was built pursuant to the specifications of the permit.
The defendants called Mr. Cerasoli, who testified that the fence complies with the Village Code requirement that it be "50 percent see through". He testified that the fence was constructed in March or April of 2010, in accordance with instructions that he received from an unidentified Village employee, and that the cost of installation was $7,000. Mr. Cerasoli acknowledged that, prior to the issuance of the appearance summons, he received letters from the Village informing him that the fence was in violation of the Village Code. Mr. Cerasoli testified that, in his opinion, the fence does not obstruct the view of traffic, and that an accident could not occur at his corner unless a driver disobeyed a traffic light at the intersection. Mr. Cerasoli acknowledged that he had observed there to be accidents at the corner notwithstanding the traffic light. Mr. Cerasoli testified that permits were issued for other, similar fences built prior to his.
On cross examination, Mr. Cerasoli acknowledged that he took no steps to remove the fence, notwithstanding that, prior to the issuance of the appearance summons, he received written notification advising him of the violation. The Building Department property card for the Premises, defendants' permit application and survey, a receipt for the cost of installation of the fence, and property card for another property with a fence alleged by the defendants to be similarly nonconforming, and photographs depicting other fences alleged by the defendants to be similarly nonconforming were received in evidence. The defendants rested.
A. The Village Code
Village Code Section 345-30(E) (Vision clearance), last amended on September 18, 2006, states that:
On any corner lot on which a front yard is required by this chapter, it shall be unlawful to construct or maintain or permit to remain any fence or any other structure, whether temporary or permanent, within 35 feet of the curbline which obstructs a view of more than 30 inches above the level of the sidewalk of the adjacent street pavement.
Village Code Section 345-30 (Front yards), Subsection B (Corner lots) provides, in pertinent part, that "[a] lot shall have a front yard along its principal frontage . A corner lot shall also have a front yard along its side street frontage ."
Village Code Section 345-40(B)(2) (Obstruction of view prohibited), last amended on or before June 12, 2000), states that:
On any corner plot, on which a front or side yard is required, no wall, fence or structure shall be erected and no hedge, tree, shrub or other growth shall be maintained in such location within such required front or side yard space as to cause danger to traffic by obstruction of the view.
Village Code Section 345-30B provides that the front yard of a corner lot in any residential district shall have minimum depth of 25 feet.
B. Subsequent Amendment Of Village Code
Defendants were charged with violating Village Code Section 345-30E (Vision clearance) as it existed at the time of the alleged violations, i.e. prohibiting certain obstructions within 35 feet of the curbline. They offered no authority to support their claim that the subsequent amendment of Section 345-30(E), reducing the regulated area to that within 25 feet of the curbline, would invalidate the appearance summons.
To be sure, a defendant is entitled to the benefit of all subsequent changes in applicable decisional law occurring prior to conviction. See, People v. Catalanotte, 137 AD2d 697, 699-700 (2d Dep't 1988); People v. Martinez, 20 NY3d 971, 976 - 977 (2012) (Smith, concurring). Here, defendants did not seek the benefit of subsequent decisional law. Rather, they claimed that they were somehow exculpated by a subsequent legislative amendment to the local law that they are charged with having violated as it existed on the date of their alleged violation, October 2, 2012. Moreover, the subsequent reduction of the regulated area from a distance to the corner of 35 feet to a distance of 25 feet would not be availing, as the un-contradicted testimony of Code Enforcer Garet Lamb was that the fence was erected "right to the property line".
C. The Extant Building Permit
Defendants were charged with violating the zoning code, not with performing work without a permit. They offered no authority to support their claim that revocation of the building permit was a prerequisite to prosecution of the zoning code violation. As this Court stated in its decision and order of October 21, 2016, the erroneous issuance of a building permit is insufficient to estop a municipality from enforcing its zoning code, even when the results are harsh. Parkview Associates v. City of New York, et al., 71 NY2d 274 (1988); see also, B. & G. Constr. Corp. v. Board of Appeals, 309 NY 730, 732 (1955) ("The prior issue to petitioner of a building permit could not confer rights in contravention of the zoning laws.") (citations and internal quotes omitted); see also, Buffalo v. Roadway Transit Co., 303 NY 453, 463 (1952). Here, a formal revocation of the building permit was not a prerequisite to a prosecution for violating the zoning laws.
D. Defendants' Due Process Claim
Defendants argued that the failure of the Village to revoke the permit deprived them of due process as guaranteed by the Fourteenth Amendment to the United States Constitution and, in particular, of an appeal to the Zoning Board of Appeals and, if the appeal were denied, the opportunity to challenge the denial in an Article 78 proceeding.
"To succeed on a claim of a procedural due process violation 'a plaintiff must establish that the state action deprived him of a protected property interest'. Moody Hill Farms Ltd. Pshp. v. United States DOI, 205 F.3d 554, 561 (2d Cir. 1999), quoting Sanitation & Recycling Indus., Inc. v. City of New York, 17 F.3d 985, 995 (2d Cir. 1997).To be constitutionally protected, a property interest must be based on a "legitimate claim of entitlement". Such interests are "created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law-rules that support claims of entitlement." Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 577 (1972), Safepath Sys. LLC v. New York City Dept. of Ed., 563 Fed. Appx. 851, 854-855 (2d Cir. 2014).
Here, to succeed on their due process claim, defendants were required to establish that the Village, in issuing the appearance summons without first revoking the building permit, deprived them of a protected property interest. Defendants erroneously rely on the principle that a property owner, having commenced construction under a prior zoning code, may acquire a vested right to complete the construction pursuant to the prior code. To the contrary, the defendants here violated the then existing code at the time their fence was erected. Similarly, defendants erroneously rely upon the principal that a property owner may acquire a vested right based on a legally issued building permit. Here, however, the fence permit was invalid ab initio, as the building department lacked the authority to issue a permit for construction that would violate the Village Code.
Plaintiffs did not acquire a constitutionally protected property interest as a result of the permit, because the permit was issued in violation of the Village Code Section 345-30E. Vested rights can only be acquired through reliance on a legally issued permit. "Vested rights cannot be acquired, however, where there is reliance on an invalid permit." Matter of Perlbinder Holdings, LLC v. Srinivasan, 27 NY3d 1, 8 (2016), see also, Glacial Aggregates LLC v Town of Yorkshire, 14 NY3d 127, 136 (2010), Westbury Laundromat, Inc. v. David Mammina, 62 AD3d 888, 890 (2d Dept. 2009).
Further, as stated in Rivera-Powell v. N.Y.C. Board of Elections, 470 F. 3d 458 (2d Cir. 2006), the due process clause does not protect against all deprivations of interests, but "only against deprivations without due process of law." Id. at 464. See also Sloan v. Schulkin, 2017 U.S. App. LEXIS 7817, *3 (2d Cir. May 3, 2017) Therefore, "it is necessary to ask what process the State provided, and whether it was constitutionally adequate." Rivera-Powell, 470 F. 3d at 464-65.
In his trial testimony, Mr. Cerasoli acknowledged that, prior to the issuance of the appearance summons, he received written notification from the Village advising him that the fence was in violation of the Village Code. As the Village Prosecutor correctly noted, New York Village Law Section 7-712-a (Board of appeals procedure) provides at subsection 5 that any order, requirement, decision, interpretation or determination of an administrative official charged with the enforcement of the local zoning code may be appealed to the Zoning Board of Appeals. The defendants did not avail themselves of an administrative appeal and, not having done so, failed to exhaust their administrative remedies. They were unable to claim that they were deprived of an opportunity to appeal to the Zoning Board of Appels and, if the appeal were denied, the opportunity to challenge the denial in an Article 78 proceeding.
E.Defendants' Claim of Selective Enforcement
Defendants introduced evidence in the form of a property card, photographs and testimony that other properties in the Village have similarly nonconforming fences, three of which are on the Cerasoli's block. Defendants claim that the Village has treated them differently than other similarly situated property owners.
In order to establish a claim for selective prosecution, "a litigant must show that the law was enforced with both 'an unequal hand' and 'an evil eye'; to wit, there must be a showing not only that the law was not applied to others similarly situated but also that the selective application of the law was deliberately based upon an impermissible standard such as race, religion or some other arbitrary classification" See People v. Blount, 90 NY2d 998, 999 (1997), quoting Matter of 303 West 42nd Street Corp. v. Klein, 46 NY2d 686 (1979).
Since the Cerasoli's do not belong to a protected class, and do not allege that the Village was motivated by impermissible considerations such as race, religion, or intent to inhibit or punish the exercise of constitutional rights, they must show that the Village acted "with malevolent intent". Bower Assoc. v. Town of Pleasant Valley, 2 NY3d 617, 631 (2004). The Court of Appeals elaborated on the elements of an equal protection claim as follows:
[E]ven different treatment of persons similarly situated, without more, does not establish a claim. What matters is impermissible motive: proof of action with intent to injure—that is, proof that the applicant was singled out with an "evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances". Id. (citations omitted)
Here, the evidence at trial did not establish that the Village refrained from enforcing the fence regulation against other property owners. Rather, the Court took judicial notice that other similar violations have been prosecuted in this court. Further, there was no evidence that the defendants were deliberately selected for enforcement based upon an impermissible consideration. Accordingly, the defendants failed to establish a defense of selective enforcement.
For the foregoing reasons, defendants' motion for a trial order of dismissal was denied in its entirety.
F.The Verdict
In a decision and order dated September 5, 2017, the Court found that the People had met their burden of proof beyond a reasonable doubt that, on October 2, 2012, the defendants violated Section 345-30 (Front yards), Subsection E (Vision Clearance) and Section 345-40 (Fences and similar obstructions), Subsection B(2) (Obstruction of view prohibited) of the Village Code by failing, after service of a notice to cure, to remove a fence measuring 48 inches in height, situated in an area described as a thirty five foot triangle, located at 51 Roosevelt Avenue in the Village of Massapequa Park, thus causing the view at a certain traffic intersection to be obstructed.
IV.Defendants' Post-Trial Motion
Defendants now move pursuant to CPL Section 440.10 to vacate the judgment of conviction on various grounds; they renew their motion to dismiss in furtherance of the interests of justice; and they seek an order of recusal by the presiding Associate Village Justice. A.Motion to Vacate Judgment Of Conviction
Defendants move pursuant to CPL Section 440.10 to vacate the judgment of this Court on the grounds that:
• the judgment was procured by duress, misrepresentation or fraud on the part of the court or the prosecutor (CPL 440.10(1)(b)),
• material evidence adduced at trial resulting in the judgment was false and was, prior to entry of the judgment, known by the prosecutor or court to be false (CPL 440.10(1)(c)),
• material evidence adduced by the people at trial resulting in the judgment was procured in violation of the defendants' rights under the constitution of this state or of the United States (CPL 440.10(1)(d)),
• new evidence has been discovered since the entry of a judgment based on a verdict of guilty after trial, which could not have been produced by the defendants at trial and which creates the probability that had such evidence been received at trial the verdict would have been more favorable to the defendant (CPL 440.10(1)(g)), and
• the judgment was obtained in violation of a right of the defendants under the constitution of this state or of the United States (CPL 440.10(1)(h)).
Defendants' motion to vacate the judgment of conviction is denied as premature. "A 'judgment' is comprised of a conviction and the sentence imposed thereon and is completed by imposition and entry of the sentence." CPL Section 1.20(15). Sentence has not been imposed and, therefore, no judgment has been entered.
B.Renewed Motion to Dismiss in the Interests of Justice
Defendants' renewed motion to dismiss in furtherance of the interests of justice follows the negotiation of a "settlement" agreement between the defendants and the village prosecutor pursuant to which it was agreed, inter alia, that the defendants would cure the code violation by moving the nonconforming fence, expressly conditioned upon an agreement by the People to move this Court for an order of dismissal in the interests of justice.
A motion was accordingly made by the People, but withdrawn after an ex parte conversation with the Court that was memorialized on April 20, 2018, in a proceeding at which all parties were represented by counsel. In the ex parte conversation, the Court noted that a motion to dismiss in the interests of justice had already been denied, and that the motion would be frivolous if not supported by a change in circumstances. The People withdrew their motion. At the next appearance date, April 20, 2018, the Court invited either side to resubmit the motion.
Weighing all of the factors set forth in CPL Section 170.40(1), the Court adheres to its previous conclusion that dismissal here would not further the interests of justice, notwithstanding the defendants' post-conviction agreement to move the fence. The offense implicates the legitimate and substantial state interest in protecting motorists and pedestrians from death, injury and property damage. Dismissal of the appearance summons might encourage others to commit similar Code violations, and could undermine public confidence in the administration and enforcement of the Village Code.
C.Motion to Disqualify Presiding Justice
Defendants request that the Court recuse itself based on the ex parte conversation described above and memorialized on April 20, 2018 with all counsel present, based on counsel's perception that the Court was rude during the April 20, 2018 proceedings, and based on a claim of bias in that the defendants are being treated differently than other defendants for whom "deals are made and approved orally".
Absent a legal disqualification under Judiciary Law § 14, a trial judge is the sole arbiter of recusal. People v. Moreno, 70 NY2d 403, 405 (1987). Judiciary Law § 14 provides, in pertinent part, that:
A judge shall not sit as such in, or take any part in the decision of, an action, claim, matter, motion or proceeding to which he is a party, or in which he has been attorney or counsel, or in which he is interested, or if he is related by consanguinity or affinity to any party to the controversy within the sixth degree .
The Court of Appeals has noted that " 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. Even then, however, when recusal is sought based upon "impropriety as distinguished form legal disqualification, the judge is the sole arbiter." Id at 406. [Internal quotations, citations omitted]. "[I]n the absence of a violation of express statutory provisions, bias or prejudice or unworthy motive on the part of a Judge, unconnected with an interest in the controversy, will not be a cause of disqualification, unless shown to affect the result." Johnson v. Hornblass, 93 AD2d 732, 733 (1st Dep't 1983).
The Rules of the Chief Administrative Judge provide, in pertinent part, that:
A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to instances where the judge has a personal bias or prejudice concerning a party.
22 N.Y.C.R.R. Section 100.3(E)(1)(a)(i).
Here, the ex parte conversation between the Court and the prosecutor was fully disclosed to counsel in the proceedings held on April 20, 2018. The Court informed counsel for both sides that either of them may resubmit the motion to dismiss in furtherance of the interests of justice. A close reading of the transcript of the April 20, 2018 proceedings fails to demonstrate any bias or rudeness on the part of the presiding justice.
Nor may bias be found in the Court's denial of the defendants' motion to dismiss in furtherance of the interests of justice notwithstanding an agreement between the People and the defendants that the matter should be dismissed upon the Defendants' relocation of the fence. The routine, pre-trial plea bargaining that occurs between prosecutors and defendants is not analogous to a post-conviction agreement that the matter should be dismissed in the interests of justice. Such a dismissal is not the province of the parties. It is granted at the court's discretion, the contours of which are limited by statute and case law. It would be a cynical misuse of the Court's authority to dismiss in the interests of justice if that authority were traded as a bargaining chip to induce compliance by a defendant convicted after trial. The motion for disqualification is denied.
The foregoing constitutes the decision and order of the Court. SO ORDERED: _____________________ Steven G. Leventhal, J.