Opinion
May 23, 1988
Appeal from the County Court, Rockland County (Meehan, J.).
Ordered that the judgment is affirmed.
Initially, we find that the testimony of the complainant Thomas Bader in conjunction with the other prosecution witnesses was legally sufficient to support the jury's finding that the defendant caused the extensive and debilitating injuries suffered by the complainant (see, People v Contes, 60 N.Y.2d 620). Moreover, upon the exercise of our factual review power we are satisfied that the jury's finding that the defendant intentionally struck Bader in the head with a club is not against the weight of the evidence (see, CPL 470.15).
The court properly denied the defendant's motion to enforce the terms of the original plea bargain. The court adhered to the terms of the plea bargain negotiations by allowing the defendant to withdraw his guilty plea. It is well settled that "any sentence `promise' at the time of plea is, as a matter of law and strong public policy, conditioned upon it being lawful and appropriate in light of the subsequent presentence report or information obtained from other reliable sources" (People v Selikoff, 35 N.Y.2d 227, 238, cert denied 419 U.S. 1122; see, People v Anonymous, 130 A.D.2d 497, lv denied 70 N.Y.2d 708; People v Pittman, 129 A.D.2d 592, lv denied 70 N.Y.2d 716; People v Harris, 118 A.D.2d 583, affd 69 N.Y.2d 850). Where the court determines that it cannot sentence a defendant as indicated prior to the acceptance of the plea, the proper procedure is to permit the defendant the choice of either withdrawing his plea or accepting sentence (see, People v Pittman, supra; People v Grant, 99 A.D.2d 536). In the instant case, the sentencing court, upon a review of the presentence report, the recommendation of the prosecutor, and the statements of one of the complainants and his father concerning the extent of his injury, properly afforded the defendant that option.
Additionally, we reject the defendant's contention that the Trial Judge should have recused himself following the resolution of the plea proceedings. A decision with respect to a recusal is generally a matter of personal conscience (People v Smith, 63 N.Y.2d 41, 68, cert denied 469 U.S. 1227, reh denied 471 U.S. 1049; People v Harris, 117 A.D.2d 881, 882). In the instant case, "[t]he court's refusal to recuse itself after having determined the inappropriateness of the proposed plea arrangement did not deprive the defendant of a fair trial" (People v Smith, 108 A.D.2d 763). The record before this court "demonstrates that the trial court presided in a fair and impartial manner and the defendant was in no way prejudiced [and, therefore,] the Trial Judge did not abuse his discretion in failing to recuse himself" (People v Montpeirous, 133 A.D.2d 709, lv denied 70 N.Y.2d 935).
Finally, we find that the defendant has failed to establish prima facie that the prosecutor's peremptory challenges were employed for a discriminatory purpose (see, Batson v Kentucky, 476 U.S. 79; People v Scott, 70 N.Y.2d 420). Weinstein, J.P., Rubin, Spatt and Sullivan, JJ., concur.