Opinion
8 KA 18–01039
03-13-2020
The PEOPLE of the State of New York, Respondent, v. Thomas SIMCOE, Defendant–Appellant.
DAVID J. FARRUGIA, PUBLIC DEFENDER, LOCKPORT (JOSEPH G. FRAZIER OF COUNSEL), FOR DEFENDANT–APPELLANT. CAROLINE A. WOJTASZEK, DISTRICT ATTORNEY, LOCKPORT (THOMAS H. BRANDT OF COUNSEL), FOR RESPONDENT.
DAVID J. FARRUGIA, PUBLIC DEFENDER, LOCKPORT (JOSEPH G. FRAZIER OF COUNSEL), FOR DEFENDANT–APPELLANT.
CAROLINE A. WOJTASZEK, DISTRICT ATTORNEY, LOCKPORT (THOMAS H. BRANDT OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., CENTRA, LINDLEY, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously reversed on the law and the matter is remitted to Niagara County Court for further proceedings in accordance with the following memorandum: Defendant appeals from an order that summarily denied his CPL 440.10 motion to vacate a judgment of conviction entered following a nonjury trial in Niagara County Court in 2008. The Judge who denied defendant's motion had been the Niagara County District Attorney when defendant was indicted in 2007 on the charges that resulted in the judgment now sought to be vacated and, in fact, had signed the indictment. Thus, we conclude that the Judge was disqualified from entertaining the motion pursuant to Judiciary Law § 14, which provides in relevant 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 [or she] is a party, or in which he [or she] has been attorney or counsel " (emphasis added). Inasmuch as "this statutory disqualification deprived the court of jurisdiction," the order on appeal is void ( People v. Rosario, 170 A.D.3d 1275, 1276, 95 N.Y.S.3d 619 [3d Dept. 2019] ; see People v. Alteri, 47 A.D.3d 1070, 1070, 850 N.Y.S.2d 258 [3d Dept. 2008] ; see also People v. Wright, 16 A.D.2d 743, 743, 227 N.Y.S.2d 217 [4th Dept. 1962] ). We therefore reverse the order and remit the matter to County Court for further proceedings on the motion before a different judge (see People v. Fardan, 49 A.D.3d 1304, 1305, 852 N.Y.S.2d 861 [4th Dept. 2008] ).