Opinion
September 10, 1992
Appeal from the Supreme Court, New York County (Richard Lowe, III, J.).
Concur — Murphy, P.J., Kupferman, Ross and Smith, JJ.
The majority reverses the judgment convicting defendant, after nine days of trial, of murder and a lesser felony, on the ground that the trial court failed to recuse itself despite a prior relationship between the Trial Judge and defense counsel. Referring to defendant's motion to vacate the judgment of conviction and the request therein for his recusal on the ground that he acted in a manner that gave the appearance of impropriety, the Trial Judge stated at sentence that the assertions of defense counsel "are a distortion of an innocuous statement that was made in an open public corridor." There is nothing else in the record on the appeal from the judgment to indicate the existence of or bearing on any relationship between the two. Thus, the record is bereft of anything that would require, or even justify, the Trial Judge's recusal from participation in the trial. Accordingly, reversal of the judgment cannot be predicated on this ground. I am unable to comprehend how the majority can reverse a judgment "in the exercise of discretion" by reaching an issue that has no support in the record. Nor are there any claimed errors of record that warrant reversal.
The issue of a relationship between the Trial Judge and defense counsel is, however, squarely raised by defendant's CPL 440.10 motions. In light of the allegations contained therein, the Trial Judge erred in refusing to disqualify himself from considering these motions. While there is no basis for statutory disqualification pursuant to Judiciary Law § 14, Canon 3 (C) (1) (a) of the Code of Judicial Conduct calls upon a Judge to disqualify himself "in a proceeding in which his impartiality might reasonably be questioned, including but not limited to instances where * * * he has * * * personal knowledge of disputed evidentiary facts concerning the proceeding." Where, as here, there are disputed factual allegations regarding the Trial Judge's out-of-court conduct toward defense counsel during the trial and the prior personal relationship between the two, a sufficient showing has been made of an abuse of discretion in denying recusal with respect to the post-judgment motions.
Accordingly, I would hold the appeal in abeyance, reverse the orders denying defendant's CPL 440.10 motions to vacate the judgment and grant the motions to the extent of remanding the matter for further proceedings before another Justice.