Opinion
No. KA 05-01799.
March 14, 2008.
Appeal, by permission of a Justice of the Appellate Division of the Supreme Court in the Fourth Judicial Department, from an order of the Supreme Court, Oneida County (Barry M. Donalty, A.J.), entered July 21, 2005. The order denied defendant's motion pursuant to CPL 440.10 to vacate the judgment convicting defendant of murder in the second degree, criminal sale of a controlled substance in the third degree, criminal possession of a weapon in the third degree, and burglary in the second degree.
FRANK J. NEBUSH, JR., PUBLIC DEFENDER, UTICA (ESTHER COHEN LEE OF COUNSEL), FOR DEFENDANT-APPELLANT.
KAMAL FARDAN, DEFENDANT-APPELLANT PRO SE.
SCOTT D. McNAMARA, DISTRICT ATTORNEY, UTICA (STEVEN G. COX OF COUNSEL), FOR RESPONDENT.
Present: Hurlbutt, J.P., Martoche, Lunn, Green and Gorski, JJ.
It is hereby ordered that the order so appealed from is unanimously reversed on the law and the matter is remitted to Supreme Court, Oneida County, for further proceedings in accordance with the following memorandum: Defendant appeals from an order of Supreme Court, Oneida County, denying his motion pursuant to CPL 440.10 seeking to vacate the judgment convicting him after a jury trial of, inter alia, murder in the second degree (Penal Law § 125.25). We agree with defendant that the Justice who denied the motion was disqualified by reason of the fact he was District Attorney of Oneida County at the time of defendant's conviction ( see Judiciary Law § 14; People v Clement, 26 AD2d 968; People v Burgett, 15 AD2d 873). In view of that disqualification, the court lacked jurisdiction, and its order is void ( see People v Alteri, 47 AD3d 1070; People v Morgan, 277 App Div 956). We therefore reverse the order and remit the matter to Supreme Court for further proceedings on defendant's motion before a different justice. In light of our decision, we do not address the merits of defendant's contentions on appeal.