People v. Alomar

• Decision Date: 30 March 1999
• Citation: 689 N.Y.S.2d 680,93 N.Y.2d 239,711 N.E.2d 958
• Parties: , 711 N.E.2d 958, 1999 N.Y. Slip Op. 2636 The PEOPLE of the State of New York, Respondent, v. Carlos ALOMAR, Appellant. The People of the State of New York, Respondent, v. Adele Morales, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 680

689 N.Y.S.2d 680

93 N.Y.2d 239, 711 N.E.2d 958, 1999 N.Y. Slip Op. 2636

The PEOPLE of the State of New York, Respondent, v. Carlos ALOMAR, Appellant.

The People of the State of New York, Respondent, v. Adele Morales, Appellant.

Court of Appeals of New York.

March 30, 1999.

Rosemary Herbert, New York City, and Richard M. Greenberg for appellant in the first above-entitled action.

Daniel A. Warshawsky, New York City, and Richard M. Greenberg for appellant in the second above-entitled action.

Robert T. Johnson, District Attorney of Bronx County, Bronx (Jacqueline M. Vernon, Joseph N. Ferdenzi, Allen H. Saperstein and Jennifer Correale of counsel), for respondent in the first above-entitled action.

Robert M. Morgenthau, District Attorney of New York County, New York City (Michael S. Morgan and James D. Gibbons of counsel), for respondent in the second above-entitled action.

OPINION OF THE COURT

SMITH, J.

In these two unrelated criminal cases, combined for the purpose of this appeal, the primary issue is whether the defendants were denied their constitutional rights to due process and to confront the witnesses against them when a Judge who presided over the original proceeding also presided over a reconstruction hearing. In both cases, the Appellate Division found no constitutional error. For the reasons that follow, we agree with the Appellate Division, and affirm in both cases.

People v. Alomar

In 1990, defendant Carlos Alomar was tried in Supreme Court, Bronx County, and convicted by a jury of murder in the second degree (Penal Law § 125.25 ). He was thereafter sentenced to an indeterminate term of imprisonment of 25 years to life, and, claiming a violation of his constitutional rights under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69, he prepared an appeal. However, when it became evident that the voir dire minutes of the trial had been lost, defendant moved in the Appellate Division for a summary reversal of his conviction or, in the alternative, for a hearing to reconstruct the minutes of the voir dire proceeding. By order of the Appellate Division, defendant's latter request was granted and the case remanded to the trial court for further proceedings.

During the reconstruction hearing, testimony regarding the voir dire proceeding was supplied both by the assistant district attorney who had tried the case and by defendant's former trial counsel. In addition many of the venirepersons appeared and again provided to the court their pertinent background information. As the hearing proceeded, however, the Judge, who had also presided over the original trial, made clear that he intended to rely on his own recollection of the prior proceeding in his reconstruction of the record. Defendant objected and called for the Judge's recusal, arguing that it was improper for a Judge to serve as both fact witness and trier of fact. The Judge declined to recuse himself and, at the close of the reconstruction hearing, placed his detailed recollections of (reconstructed) facts on the record. The record was then certified to the Appellate Division for appeal.

Over one dissent, the Appellate Division affirmed, with the majority concluding that "[t]he original trial judge properly presided over the reconstruction hearing and thus the defendant's recusal motion was properly denied" (245 A.D.2d 219, 220, 666 N.Y.S.2d 408). The dissent, on the other hand, concluded that the Judge should not have presided over the reconstruction hearing because he "was a witness to the proceedings upon which the adjudication of defendant's Batson claim was premised" and because his participation "deprive[d] the defendant of his due process right to have his claim decided by a neutral and detached magistrate and of his right to confront witnesses" (id., at 220-221, 666 N.Y.S.2d 408). The Chief Judge of this Court granted leave to appeal.

People v. Morales

In 1994, defendant Adele Morales was tried in Supreme Court, New York County, and convicted by a jury of attempted robbery in the first degree (Penal Law § 110/160.15 ) and criminal possession of a weapon in the fourth degree (Penal Law § 265.01 ). She was thereafter sentenced, as a second felony offender, to concurrent terms of imprisonment of four to eight years and one year respectively, and she appealed claiming error in the trial court's charge to the jury. In the Appellate Division, defendant argued that the trial court's reasonable doubt charge to the jury diluted the People's constitutionally mandated burden of proof. In particular, defendant pointed to four places in the trial transcript where the Trial Judge told the jury that the People did not have to prove her guilt "beyond all reasonable doubt." Claiming the four transcript references to be in error, the People moved, in response, to enlarge the appellate record to include a supporting affidavit from the trial court stenographer or, in the alternative, for an order remanding the case to the trial court to reconstruct and settle the record. By order of the Appellate Division, the People's latter request was granted and the case remanded to the trial court for further proceedings.

Prior to the start of the reconstruction hearing, defendant moved to have the Trial Judge recused and the matter transferred to another court. Defendant argued that because the sole issue of the hearing pertained to the conduct of the Trial Judge, the Judge himself was a potential witness to be subjected to cross-examination, and that her right to confrontation and a fair hearing required his recusal. Relying on the First Department's ruling in People v. Carney, 73 A.D.2d 9, 425 N.Y.S.2d 323, appeal after remand 86 A.D.2d 987, 449 N.Y.S.2d 123, revd. on other grounds 58 N.Y.2d 51, 457 N.Y.S.2d 776, 444 N.E.2d 26, the court declined recusal and the hearing ensued, with the sole testimony being provided by the trial court stenographer.

At the hearing, the court stenographer testified that the four disputed transcript references to the word "reasonable" were made by her in error. At the close of the hearing, the Trial Judge concluded, based on his own recollections and notes and the testimony of the court stenographer, that the four disputed references were indeed errors. Thus, the Trial Judge settled the record by omitting the disputed references from the transcript, and, as modified, he certified the transcript for appeal. Upon defendant's return to the Appellate Division, a unanimous court affirmed, concluding that "[t]he trial court appropriately declined to recuse itself from the resettlement proceeding and properly resettled the transcript," and that the earlier challenged charge represented transcription errors (244 A.D.2d 300, 665 N.Y.S.2d 846). A Judge of this Court granted defendant leave to appeal.

Discussion

Defendants contend that the Trial Judges, by presiding over trial and reconstruction hearing, deprived them of their State and Federal due process rights to a neutral and detached jurist, to a fair hearing, and to the right to confront the witnesses against them (see, N.Y. Const., art. I, § 6; U.S. Const. 6th, 14th Amends.). For support, defendants rely heavily on the 1955 decision of the United States Supreme Court in In re Murchison, 349 U.S. 133, 75 S.Ct. 623, 99 L.Ed. 942. In Murchison, a State Judge, sitting as a "one-man grand jury," charged two witnesses summoned to appear before him with perjury and contempt. He thereafter ordered the two men to return and show cause why they should not be punished. The same Judge then tried both individuals in open court, convicted and sentenced them for criminal contempt. The Supreme Court held that the procedure violated the defendants' due process rights. In analyzing the issues, the Court concluded, "It would be very strange if our system of law permitted a judge to act as a grand jury and then try the very persons accused as a result of his investigations. * * * Having been a part of that process a judge cannot be, in the very nature of things, wholly disinterested in the conviction or acquittal of those accused" (id., at 137, 75 S.Ct. 623, 99 L.Ed. 942).

The cases at bar are substantially different from the situation addressed by the Supreme Court in Murchison where the Trial Judge served in the roles of complainant, indicter, prosecutor and judge, a situation at odds with the notion of fundamental fairness. Here, the Judges served only to fulfill the proper judicial role of passing upon the accuracy of the records of proceedings before them (see, CPL 460.70; CPLR 5525[c],[d]; Judiciary Law § 7-a; People v. Roldan, 96 A.D.2d 476, 477, 465 N.Y.S.2d 35, appeal after remand 99 A.D.2d 410, 470 N.Y.S.2d 589, affd. 64 N.Y.2d 821, 486 N.Y.S.2d 928, 476 N.E.2d 327).

Defendants cite to cases in which a reconstruction hearing was held before a different Judge (see, e.g., People v. Jones, 220 A.D.2d 356, 633 N.Y.S.2d 27, lv. denied 87 N.Y.2d 974, 642 N.Y.S.2d 204, 664 N.E.2d 1267; People v. Koberstein, 216 A.D.2d 868, 629 N.Y.S.2d 363; People v. Michalek, 218 A.D.2d 750, 630 N.Y.S.2d 782, lv denied 86 N.Y.2d 874, 635 N.Y.S.2d 955, 659 N.E.2d 778; People v. Parchment, 218 A.D.2d 752, 630 N.Y.S.2d 778, lv. denied 87 N.Y.2d 906, 641 N.Y.S.2d 235, 663 N.E.2d 1265; People v. Law, 202 A.D.2d 691, 610 N.Y.S.2d 834), as well as cases where it was specifically decreed that a different Judge preside (see, People v. Armlin, 37 N.Y.2d 167, 173, 371 N.Y.S.2d 691, 332 N.E.2d 870; People v. McDaniel, 168 A.D.2d 926, 928, 565 N.Y.S.2d 334, lv. denied 76 N.Y.2d 861, 560 N.Y.S.2d 1001, 561 N.E.2d 901; People v. Basora, 90 A.D.2d 851, 852, 457 N.Y.S.2d 84). Here, however, we deal not with what procedures might be preferred in light of particular factual circumstances, but rather with what is constitutionally required. ¹

Recusal, as a matter of due process, is required only where there exists a direct, personal, substantial or pecuniary interest in reaching a particular conclusion...