People v. Durham

• Decision Date: 24 June 2021
• Docket Number: 111489
• Citation: 149 N.Y.S.3d 697,195 A.D.3d 1318
• Parties: The PEOPLE of the State of New York, Respondent, v. Spencer B. DURHAM, Appellant.
• Court: New York Supreme Court — Appellate Division

195 A.D.3d 1318
149 N.Y.S.3d 697

The PEOPLE of the State of New York, Respondent,
v.
Spencer B. DURHAM, Appellant.

111489

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: June 2, 2021
Decided and Entered: June 24, 2021

149 N.Y.S.3d 698

Carolyn B. George, Albany, for appellant.

J. Anthony Jordan, District Attorney, Fort Edward (Taylor Fitzsimmons of counsel), for respondent.

Before: Lynch, J.P., Clark, Aarons, Reynolds Fitzgerald and Colangelo, JJ.

MEMORANDUM AND ORDER

Clark, J.

Appeal, by permission, from an amended order of the County Court of Washington County (Hall Jr., J.), entered May 31, 2019, which denied, among other things, defendant's motion pursuant to CPL 440.10 to vacate the judgment convicting him of the crimes of grand larceny in the third degree (two counts), scheme to defraud in the first degree and issuing a bad check (two counts), without a hearing.

Following a jury trial, defendant was convicted of the crimes of grand larceny in the third degree (two counts), scheme to defraud in the first degree and issuing a bad check (two counts) and was sentenced

149 N.Y.S.3d 699

as a persistent felony offender to an aggregate prison term of 20 years to life. Upon defendant's direct appeal, this Court affirmed ( 148 A.D.3d 1293, 49 N.Y.S.3d 567 [2017], lv denied 29 N.Y.3d 1091, 63 N.Y.S.3d 7, 85 N.E.3d 102 [2017] ). In September 2018, defendant separately moved pro se to vacate the judgment of conviction pursuant to CPL 440.10 and to disqualify County Court from ruling upon the CPL article 440 motion. The People opposed the requested relief, and County Court denied defendant's motions without a hearing. When defendant advised the court that he neither received the People's papers in opposition nor a copy of the court's written decision and order, County Court afforded defendant additional time to file a reply and thereafter issued an amended decision and order, wherein the court again denied the requested relief. Defendant appeals, by permission, from County Court's amended order.

We affirm. With respect to defendant's disqualification motion, the case law makes clear that, absent a statutory basis for disqualification (see Judiciary Law § 14 ), which defendant does not allege, "a trial judge is the sole arbiter of recusal and his or her decision, which lies within the personal conscience of the court, will not be disturbed absent an abuse of discretion" ( People v. Regan, 192 A.D.3d 1393, 1394, 145 N.Y.S.3d 188 [2021] [internal quotation marks, brackets and citations omitted], lv denied 37 N.Y.3d 959, 147 N.Y.S.3d 514, 170 N.E.3d 388 [May 25, 2021] ; see People v. Garrow, 148 A.D.3d 1459, 1460, 51 N.Y.S.3d 208 [2017], lv denied 29 N.Y.3d 1031, 62 N.Y.S.3d 300, 84 N.E.3d 972 [2017] ; People v. Lee, 129 A.D.3d 1295, 1296, 13 N.Y.S.3d 581 [2015], lv denied 27 N.Y.3d 1001, 38 N.Y.S.3d 111, 59 N.E.3d 1223 [2016] ).

The record before us does not contain any of the exhibits appended to defendant's recusal motion – documents that purportedly reflect, among other things, County Court's bias relative to the asserted denial of defendant's requests for investigative services and/or a psychiatric evaluation.¹ In any event, the substance of these requests was addressed and decided on the prior appeal, wherein we noted that County Court twice awarded defendant funds for investigative services – despite defendant's earlier failure to demonstrate why such services were necessary ( 148 A.D.3d at 1295, 49 N.Y.S.3d 567 ). We also upheld the denial of defendant's request for funding for a psychiatric examination – citing, among other things, defendant's failure to provide timely notice of his intent to offer psychiatric evidence ( id. at 1296, 49 N.Y.S.3d 567 ). The balance of defendant's bias argument, which includes claims of judicial eye-rolling and allegedly on-the-record accusations that defendant was feigning illness to delay his trial, is based solely upon defendant's self-serving affidavit and the speculative assertions contained therein. Absent record evidence to support defendant's claim of bias, we find no abuse of discretion in County Court's determination that recusal was unwarranted (see People v. Moreno, 70 N.Y.2d 403, 407, 521 N.Y.S.2d 663, 516 N.E.2d 200 [1987] ; People v. Regan, 192 A.D.3d at 1394, 145 N.Y.S.3d 188 ).

As to defendant's motion to vacate the judgment of conviction, "[t]he purpose served by a CPL article 440 motion is to inform a court of facts not reflected in the record and unknown at the time of the

149 N.Y.S.3d 700

judgment. By its very nature, the procedure cannot be used as a vehicle for an additional appeal" ( People v. Spradlin, 192 A.D.3d 1270, 1273, 143 N.Y.S.3d 155 [2021] [internal quotation marks and citations omitted], lv denied 37 N.Y.3d 960, 147 N.Y.S.3d 545, 170 N.E.3d 419 [May 24, 2021] ). "On a motion to vacate a judgment of conviction, a hearing is only required...