People v. Hazzard

• Decision Date: 19 June 2015
• Docket Number: 538 KA 13-01797
• Citation: 2015 N.Y. Slip Op. 05317,129 A.D.3d 1598,12 N.Y.S.3d 415
• Parties: The PEOPLE of the State of New York, Respondent, v. Kurt J. HAZZARD, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

129 A.D.3d 1598
12 N.Y.S.3d 415
2015 N.Y. Slip Op. 05317

The PEOPLE of the State of New York, Respondent
v.
Kurt J. HAZZARD, Defendant–Appellant.

538 KA 13-01797

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

June 19, 2015.

12 N.Y.S.3d 416

Bruce R. Bryan, Syracuse, for Defendant–Appellant.

Leanne K. Moser, District Attorney, Lowville, D.J. & J.A. Cirando, Esqs., Syracuse (John A. Cirando of Counsel), for Respondent.

PRESENT: SCUDDER, P.J., SMITH, SCONIERS, WHALEN, and DeJOSEPH, JJ.

Opinion

MEMORANDUM:

129 A.D.3d 1598

Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, rape in the first degree (Penal Law § 130.35 [1 ] ), arising from allegations that he had sexual intercourse with a 15–year–old girl on December 25, 2011. On appeal, defendant contends that County Court abused its discretion in denying his recusal motion. We reject that contention. It is well settled that, “[u]nless disqualification is required under Judiciary Law § 14, a judge's decision on a recusal motion is one of discretion ... ‘This discretionary decision is within the personal conscience of the court when the alleged appearance of impropriety arises from inappropriate awareness of nonjuridical data’ ... [Thus,] for any alleged 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 [or her] participation in the case’ ” (People v. Glynn, 21 N.Y.3d 614, 618, 977 N.Y.S.2d 692, 999 N.E.2d 1137 ; see People v. Alomar, 93 N.Y.2d 239, 246, 689 N.Y.S.2d 680, 711 N.E.2d 958 ). “Even ... when recusal is sought based upon ‘impropriety as distinguished from legal disqualification, the judge ... is the sole arbiter’ ” (People v. Moreno, 70 N.Y.2d 403, 406, 521 N.Y.S.2d 663, 516 N.E.2d 200 ). Defendant does not contend that recusal was mandatory, and we agree with the People that the court did not abuse its discretion in denying defendant's motion.

We reject defendant's further contention that the court erred in refusing to suppress a towel upon which both the victim's DNA and defendant's DNA, sperm, and seminal fluid were found. At

12 N.Y.S.3d 417

the time of the offense, the victim's grandmother had custody of the victim and her siblings, and they and defendant all lived in the same house. The towel was found in that house by the victim and her mother's boyfriend, who went there to

129 A.D.3d 1599

retrieve the victim's belongings after this incident was reported to the authorities. “It is well settled that a search by a private person, even an unlawful search, does not implicate Fourth Amendment considerations” (People v. Adler, 50 N.Y.2d 730, 736–737, 431 N.Y.S.2d 412, 409 N.E.2d 888, cert. denied 449 U.S. 1014, 101 S.Ct. 573, 66 L.Ed.2d 473 ), unless the private conduct is “so pervaded by governmental involvement that it loses its character as such and invokes the full panoply of constitutional protections” (People v. Ray, 65 N.Y.2d 282, 286, 491 N.Y.S.2d 283, 480 N.E.2d 1065 ). Here, defendant failed to demonstrate “a clear connection between the police and the private investigation ...; completion of the private act at the instigation of the police ...; close supervision of the private conduct by the police ...; [or] a private act undertaken on behalf of the police to further a police objective” (Ray, 65 N.Y.2d at 286, 491 N.Y.S.2d 283, 480 N.E.2d 1065 ; see People v. Ruppert, 42 A.D.3d 817, 817–818, 839 N.Y.S.2d 866, lv. denied 9 N.Y.3d 964, 848 N.Y.S.2d 33, 878 N.E.2d 617 ).

Contrary to defendant's further contention, viewing the evidence in light of the elements of the crimes relating to the December incident as charged to the jury (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we conclude that the verdict is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). It is well settled that “ ‘those who see and hear the witnesses can assess their credibility and reliability in a manner that is far superior to that of reviewing judges who must rely on the printed record’ ” (People v. Woolson, 122 A.D.3d 1353, 1354, 997 N.Y.S.2d 865, quoting People v. Lane, 7 N.Y.3d 888, 890, 826 N.Y.S.2d 599, 860 N.E.2d 61 ), and that “[t]he credibility of the victim and the weight to be accorded her testimony were matters for the jury” (People v. Halwig, 288 A.D.2d 949, 949, 732 N.Y.S.2d 208, lv. denied 98 N.Y.2d 710, 749 N.Y.S.2d 8, 778 N.E.2d 559 ; see People v. Gray, 15 A.D.3d 889, 890, 788 N.Y.S.2d 792, lv. denied 4 N.Y.3d 831, 796 N.Y.S.2d 586, 829 N.E.2d 679 ). Here, we conclude that the jury's determination to credit the victim's testimony with respect to this incident is supported by the weight of the evidence, including her testimony that defendant held her down and restrained her while forcing her to engage in sexual intercourse (see People v. Littebrant, 55 A.D.3d 1151, 1154–1155, 867 N.Y.S.2d 550, lv. denied 12 N.Y.3d 818, 881 N.Y.S.2d 26, 908 N.E.2d 934 ), and DNA evidence linking defendant to the crimes (see generally People v. Mitchell, 43 A.D.3d 1337, 1338, 841 N.Y.S.2d 901, lv. denied 9 N.Y.3d 1036, 852 N.Y.S.2d 22, 881 N.E.2d 1209 ; People v. Griffin, 41 A.D.3d 1285, 1287, 837 N.Y.S.2d 812, lv. denied 9 N.Y.3d 923, 844 N.Y.S.2d 178, 875 N.E.2d 897, reconsideration denied 9 N.Y.3d 990, 848 N.Y.S.2d 608, 878 N.E.2d 1024 ). Indeed, we note that the People's DNA expert testified that, in “the semen-stained cutting from the bath towel, the sperm fraction is a mixture profile consistent with DNA from [defendant] mixed with DNA from” the victim.

Defendant further contends that the court erred in prohibiting

129 A.D.3d 1600

him from questioning the People's expert regarding prior sexual conduct by the victim....