People v. Herron

• Decision Date: 19 November 2021
• Docket Number: 957,KA 19-01383
• Citation: 199 A.D.3d 1476,157 N.Y.S.3d 221
• Parties: The PEOPLE of the State of New York, Respondent, v. Christopher E. HERRON, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

199 A.D.3d 1476
157 N.Y.S.3d 221

The PEOPLE of the State of New York, Respondent,
v.
Christopher E. HERRON, Defendant-Appellant.

957
KA 19-01383

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

Entered: November 19, 2021

ADAM H. VAN BUSKIRK, AUBURN, FOR DEFENDANT-APPELLANT.

PRESENT: WHALEN, P.J., SMITH, LINDLEY, CURRAN, AND DEJOSEPH, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that the case is held, the decision is reserved and the matter is remitted to Allegany County Court for further proceedings in accordance with the following memorandum: On appeal from a judgment convicting him upon his Alford plea of, inter alia, two counts of burglary in the second degree ( Penal Law § 140.25 [2] ) and one count of criminal possession of a weapon in the second degree ( § 265.03 [1] [b] ), defendant contends that County Court abused its discretion in refusing to recuse itself. We reject that contention. " ‘[U]nless disqualification is required under Judiciary Law § 14, a judge's decision on a recusal motion is one of discretion’ " ( People v. Hazzard , 129 A.D.3d 1598, 1598, 12 N.Y.S.3d 415 [4th Dept. 2015], lv denied 26 N.Y.3d 968, 18 N.Y.S.3d 604, 40 N.E.3d 582 [2015] ), and "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 [1987] ). Here, defendant did not allege a disqualification, he made no showing that the court displayed actual bias (see People v. McCray , 121 A.D.3d 1549, 1551, 993 N.Y.S.2d 413 [4th Dept. 2014], lv denied 25 N.Y.3d 1204, 16 N.Y.S.3d 526, 37 N.E.3d 1169 [2015] ), and we conclude that the court did not abuse its discretion in denying defendant's request.

Defendant contends that the plea was not voluntarily entered because the record does not contain sufficient evidence of his actual guilt to support an Alford plea. By failing to move to withdraw the plea or vacate the judgment of conviction on the ground that the record lacked the requisite " ‘strong evidence of actual guilt,’ " however, defendant failed to preserve

157 N.Y.S.3d 224

his contention for our review, and this case does not fall within the narrow exception to the preservation requirement ( People v. Elliott , 107 A.D.3d 1466, 1466, 965 N.Y.S.2d 899 [4th Dept. 2013], lv denied 22 N.Y.3d 996, 981 N.Y.S.2d 2, 3 N.E.3d 1170 [2013] ; see People v. Lopez , 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ). In any event, we conclude that "the record establishes that defendant's Alford plea was the product of a voluntary and rational choice, and the record ... contains strong evidence of actual guilt" ( Elliott , 107 A.D.3d at 1466, 965 N.Y.S.2d 899 [internal quotation marks omitted]).

Defendant's contention that the People failed to establish that the weapon he was convicted of possessing was operable is a challenge to the legal sufficiency of the evidence before the grand jury, which does not survive the guilty plea (see People v. Gillett , 105 A.D.3d 1444, 1445, 963 N.Y.S.2d 906 [4th Dept. 2013] ; People v. Lawrence , 273 A.D.2d 805, 805, 710 N.Y.S.2d 262 [4th Dept. 2000], lv denied 95 N.Y.2d 867, 715 N.Y.S.2d 222, 738 N.E.2d 370 [2000] ).

Defendant's contention that the court erred in failing to conduct a proper inquiry into his request for substitution of counsel lacks merit. The record establishes that the court made the requisite " ‘minimal inquiry’ " into defendant's reasons for requesting new counsel ( People v. Porto , 16 N.Y.3d 93, 100, 917 N.Y.S.2d 74, 942 N.E.2d 283 [2010] ; see People v. Small , 166 A.D.3d 1471, 1471, 88 N.Y.S.3d 316 [4th Dept. 2018], lv denied 32 N.Y.3d 1177, 97 N.Y.S.3d 607, 121 N.E.3d 235 [2019] ), and determined that there was no good cause for substitution of counsel (see People v. French , 172 A.D.3d 1909, 1910, 97 N.Y.S.3d 922 [4th Dept. 2019], lv denied 33 N.Y.3d 1104, 106 N.Y.S.3d 686, 130 N.E.3d 1296 [2019] ; People v. Adger , 83 A.D.3d 1590, 1592, 921 N.Y.S.2d 436 [4th Dept. 2011], lv denied 17 N.Y.3d 857, 932 N.Y.S.2d 22, 956 N.E.2d 803 [2011] ).

Contrary to defendant's further contention, the court did not err in refusing to suppress the evidence seized as the result of a traffic stop. Preliminarily, we note that defendant does not contest the basis for the initial stop and, in any event, the New York State Trooper who performed the stop had probable cause to stop the vehicle that defendant was driving based on defendant's commission of a traffic violation, i.e., speeding (see People v. Robinson , 97 N.Y.2d 341, 348-349, 741 N.Y.S.2d 147, 767 N.E.2d 638 [2001] ). Defendant's contention that the Trooper detained him for a period of time that exceeded constitutionally permissible limits lacks support in the record, which reflects that the backup...