Katz v. Denzer
| Decision Date | 17 May 1979 |
| Parties | In the Matter of the Application of Robert A. KATZ, as attorney for Nicasio Garcia, Petitioner, For a judgment under Article 78 of the CPLR, etc., v. The Hon. Richard G. DENZER, etc., Respondent. The PEOPLE of the State of New York, Respondent, v. Nicasio GARCIA and Jose Manuel Pollock, Defendants-Appellants. |
| Court | New York Supreme Court — Appellate Division |
M. Dwyer, New York City, for respondent.
R. A. Katz, G. B. Lefcourt, New York City, for defendants-appellants and petitioner.
Before KUPFERMAN, J. P., and FEIN, SANDLER and SILVERMAN, JJ.
CPLR Article 78 petition to prohibit respondent from sitting as the trier of fact or judge on remand hearing and for other relief, is unanimously denied; the motion of respondent to dismiss the petition for failure to state a claim, is granted and the petition is dismissed; the motion of proposed intervenor Jose Pollock to intervene in the Article 78 proceeding, is denied, all without costs. 3532, 3534, 3535 People v. Nicasio Garcia and Jose Manuel Pollock.
Motion by defendant Garcia, joined in by defendant Pollock, for reargument, is unanimously denied, without costs. Rules of Appellate Division, First Department § 600.14(a).
So much of the application as seeks leave to appeal from the order of April 2, 1979, is referred to Justice Silverman of this Court who denies leave. CPL § 450.15; § 460.15 subd. 1.
This Article 78 proceeding is both procedurally and substantively defective. The attorney for a defendant in a criminal case is not a proper party petitioner, even nominally, to bring an Article 78 proceeding. Matter of Klein on behalf of Tyson v. Haft, App.Div., 415 N.Y.S.2d 1 (1st Dept. March 29, 1979).
As there is no claim of any relationship of the judge to the parties or the subject matter, there is no basis for a claim for legal disqualification. The claim just becomes one of alleged actual bias of the judge. As to such a claim "the judge himself is the sole arbiter." People v. Patrick, 183 N.Y. 52, 54, 75 N.E. 963, 964. Even if actual bias or prejudice is shown, it would not be grounds for disqualification but would only be reviewable on appeal on a showing that it had unjustly affected the result. State Division of Human Rights v. Merchants Mutual Insurance Co., 59 A.D.2d 1054, 1056, 399 N.Y.S.2d 813, 815; Matter of Rotwein, 291 N.Y. 116, 123, 51 N.E.2d 669, 672; Matter of Fitzgerald v. Wells, 9 A.D.2d 812, 192 N.Y.S.2d 719, app. dsmd. 9 N.Y.2d 864, 216 N.Y.S.2d 686, 175 N.E.2d 819.
In view of this determination, it would be...
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