Opinion
1003 KA 18–00465
12-20-2019
The PEOPLE of the State of New York, Respondent, v. Virgil BROWN, Defendant–Appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (DEBORAH K. JESSEY OF COUNSEL), FOR DEFENDANT–APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (MICHAEL J. HILLERY OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (DEBORAH K. JESSEY OF COUNSEL), FOR DEFENDANT–APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (MICHAEL J. HILLERY OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, DEJOSEPH, CURRAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the resentence so appealed from is unanimously affirmed.
Memorandum: Defendant was convicted upon a jury verdict of predatory sexual assault against a child ( Penal Law § 130.96 ). On a prior appeal, we rejected the majority of defendant's contentions, but we also concluded that defendant was deprived of effective assistance of counsel at sentencing, and we therefore modified the judgment of conviction by vacating the sentence and remitted the matter to County Court for assignment of new counsel and resentencing ( People v. Brown, 152 A.D.3d 1209, 1212, 59 N.Y.S.3d 234 [4th Dept. 2017], lv denied 30 N.Y.3d 978, 67 N.Y.S.3d 580, 89 N.E.3d 1260 [2017] ). He now appeals from the resentence.
Contrary to defendant's contention, the court did not abuse its discretion in denying defendant's recusal motion upon remittal (see People v. Hazzard, 129 A.D.3d 1598, 1598, 12 N.Y.S.3d 415 [4th Dept. 2015], lv denied 26 N.Y.3d 968, 18 N.Y.S.3d 604, 40 N.E.3d 582 [2015] ; People v. Weekes, 46 A.D.3d 583, 585, 847 N.Y.S.2d 214 [2d Dept. 2007], lv denied 10 N.Y.3d 845, 859 N.Y.S.2d 404, 889 N.E.2d 91 [2008] ). Where, as here, "recusal is sought based upon ‘impropriety as distinguished from legal disqualification, the judge ... is the sole arbiter’ " of whether to grant such a motion ( People v. Moreno, 70 N.Y.2d 403, 406, 521 N.Y.S.2d 663, 516 N.E.2d 200 [1987] ). Contrary to his further contentions, defendant failed to demonstrate that the court displayed actual bias (see People v. McCray, 121 A.D.3d 1549, 1551, 993 N.Y.S.2d 413 [4th Dept. 2014], lv denied 25 N.Y.3d 1204, 16 N.Y.S.3d 526, 37 N.E.3d 1169 [2015] ), or that the court's rulings were indicative of bias against defendant (see generally People v. Walker, 100 A.D.3d 1522, 1523, 953 N.Y.S.2d 917 [4th Dept. 2012], lv denied 20 N.Y.3d 1104, 965 N.Y.S.2d 801, 988 N.E.2d 539 [2013] ).
We have reviewed defendant's contention that he was deprived of effective assistance of counsel at resentencing, and we conclude that it lacks merit (see generally People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 [2005] ; People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981] ). Finally, the resentence is not unduly harsh or severe.