People v. Diaz

• Decision Date: 21 January 1986
• Parties: The PEOPLE of the State of New York v. James DIAZ, Defendant.
• Court: New York County Court

Page 698

498 N.Y.S.2d 698

130 Misc.2d 1024

The PEOPLE of the State of New York v. James DIAZ, Defendant.

Suffolk County Court, Trial Term,

Part VI.

Jan. 21, 1986.

Patrick Henry, Suffolk County Dist. Atty., Riverhead (Timothy Mazzei, of counsel), for the People.

Martin I. Efman, Paul Gianelli, Hauppauge, for defendant.

STUART NAMM, Judge.

In an unprecedented action in the County of Suffolk, the prosecutor, on behalf of the People of the State of New York, requests an order disqualifying or recusing this court from presiding as the assigned judge of two separate indictments charging the defendant, James Diaz, with the commission of two counts of Burglary in the First Degree, Assault in the Second Degree and the Unlawful Possession of Marijuana (Indictment # 1924-85) and Assault in the Second Degree and Sexual Abuse in the First Degree (Indictment # 1103-84).

Citing the provision of Judiciary Law § 14, the Code of Judicial Conduct, Canon 3(C)1)(a), and the Rules of the Chief Administrator of the Courts § 100.3(c)(i), the prosecutor, pointing to actions taken and rulings by the court as trial judge in People of the State of New York v. Peter Corso and a previous prosecution of this defendant, unrelated to the instant indictments, both of which resulted in not guilty verdicts by a trial jury, and referring to pronouncements of this court, now claims "... that at the very least, the appearance of partiality exists or that a reasonable question exists thereon, to recuse or disqualify only on these matters," and that the people will be deprived of a fair trial if such request is not granted.

The request by the prosecution for recusal of this court is opposed by each of the attorneys who represent the defendant, one of whom argues that if this court were to grant the instant application, "... then the continued function of this Court or any other Court in actions involving the Suffolk County District Attorney's office would be impossible ... would also result in the de facto impeachment of a duly elected official by the Suffolk County District Attorney's office ..."

The instant application impacts upon the administration of justice and raises serious issues of law, some of which have been addressed previously in this state, and others which are novel and of first impression in this jurisdiction, but which have been considered in federal courts.

It is beyond dispute that a judge must be free from all prejudice or bias, actual or implied, and an impartial arbiter of all causes over which he presides. A judge should disqualify himself from a case "... in which his impartiality might reasonably be questioned ... where ... he has a personal bias or prejudice concerning a party ..." Code of Judicial Conduct, Appdx Judiciary Law, Canon 3(c)(1)(a)

At the outset, it should be noted, however, that the people emphasize that such recusal is sought "only on these matters " to "insure the integrity of the judicial process." By so stating, the people implicitly contend that the bias and prejudice of this court is somehow channeled toward the prosecution of this particular defendant.

In affidavits replete with out-of-context quotations, inaccurate quotations, and arguments fueled in large measure by newspaper accounts and incomplete transcripts, they raise the serious allegation "that a pattern of conduct of this Court in these cases, as well as in other recent matters, has established a bias or animosity such that this Court's impartiality might reasonably be questioned." In support of such application, they cite this court's decision in the case of People of the State of New York v. Peter Corso dismissing an indictment, after a second Dunaway hearing conducted sua sponte, for the reasons set forth therein, as further evidence of the court's "prejudice, bias and animus." Though the Corso decision pre-dated the first Diaz trial, and the preliminary hearings conducted thereon, it was not until after a jury had acquitted James Diaz of all charges including Murder in the Second Degree, and a new indictment was handed up by the grand jury charging Diaz with crimes committed while released on bail pending trial of indictment number 1103-84, that the prosecutor sought to have this court recuse itself as the presiding judge.

It would appear, therefore, that an investigation which has been initiated by the New York State Temporary Commission of Investigations is the impetus for the instant application. In that regard, the prosecutor argues that "this Court should not at the same time be an accuser/complainant in one forum and preside as a judge over proceedings involving the same defendant in another." However, they provide no evidence, other than a NEWSDAY account, to support the contention that this court is an "accuser."

Canon 3(b)(3) of the Code of Judicial Conduct, Appdx Judiciary Law provides, in part, as follows:

"A judge should take or initiate appropriate disciplinary measures against a ... lawyer for unprofessional conduct of which the judge may become aware." (emphasis added ).

Consequently, this court, as a result of certain prosecutorial and police conduct which it observed during the course of the aforesaid Corso and Diaz trials, and after conclusion of the Diaz trial, requested that Governor Mario Cuomo appoint a special prosecutor to conduct an independent investigation out of "a deep abiding concern for the integrity of the criminal justice system in the County of Suffolk." ¹

Canon 1 of the Code of Judicial Conduct, Appdx Judiciary Law provides, in part, as follows:

"An independent and honorable judiciary is indispensable to justice in our society."

It was toward that end that such investigation was requested, since it appeared that the independence, honor and integrity of this court was being threatened by conduct both within and without the confines of the courtroom. Nevertheless, any action by the governor was deferred pending the outcome of the instant investigation which had already been initiated by the state commission prior to this court's request, upon its own initiative, and the governor's office had been so apprised by counsel to the commission. Suffice it to say, therefore, that this court is neither the accuser nor the complainant in the pending investigation. Even if it were, in view of the conduct which the court observed during the Corso and Diaz trials, this court would be constrained by the Code of Judicial Conduct and its own conscience to take the unpleasant step of requesting such an inquiry. The fact that the instant cases involve the same defendant is of absolutely no import, and cannot form a proper basis for this court's self disqualification.

Where the people contend, as they do, that the request for such an investigation places this court in an accusatory posture with respect to the office of the district attorney of Suffolk County, such contention clearly is misplaced. If that were the case, and it certainly is not, this court should properly recuse itself from presiding over any criminal matter in the County of Suffolk. Obviously, such argument cannot be made with validity; thus, the attempt to focus this court's alleged bias toward the prosecution of the Diaz indictments.

It is well settled law both in this state and in the federal courts that in order for bias and prejudice to be disqualifying it "... must stem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case." Bd. of Educ. v. Pisa, 55 A.D.2d 128, 136, 389 N.Y.S.2d 938, citing United States v. Grinnell Corp., 384 U.S. 563, 583, 86 S.Ct. 1698, 1710, 16 L.Ed.2d 778. Clearly, although the people "artfully" couch their arguments in the language of "perception of partiality," they ultimately contend, without providing any concrete basis therefor, that this court is guilty of actual bias, prejudice and animosity with respect to their prosecution of James Diaz. However, if there be any such bias, and there is none, such bias, in order to disqualify the court, would have to result from a source outside of the confines of this court, and not from the conduct which this court observed during the course of its function as a trial judge. For the law to be otherwise, would be to allow the culprit to benefit from his own wrongdoing.

It is certainly not the intent of the law or the Code of Judicial Conduct to permit a party to engage in conduct "in a course of litigation that might cause any conscientious judge to express, even in caustic terms, his disapproval of it, and thereby put himself in position thereafter to urge successfully motions to disqualify the judge in his subsequent cases before him." United States v. Zagari, 419 F.Supp. 494, 505, citing Davis v. Board of School Commissioners of Mobile County, 517 F.2d 1044. Parties or lawyers, once embroiled in a self created controversy with a judge, "would have a license under which the judge would serve at their will." Davis supra at 1050.

It is important to note at this juncture, however, that while the district attorney, who is not involved personally in these cases, remains the same, neither pending case is being prosecuted...