People v. Macedonio

• Decision Date: 04 May 2016
• Docket Number: No. SCI–3240/2008.,SCI–3240/2008.
• Parties: The PEOPLE of the State of New York, v. Robert MACEDONIO, Defendant.
• Court: New York Supreme Court

41 N.Y.S.3d 451 (Table)

The PEOPLE of the State of New York,
v.
Robert MACEDONIO, Defendant.

No. SCI–3240/2008.

Supreme Court, Suffolk County, New York.

May 4, 2016.

Thomas J. Spota, District Attorney of Suffolk County, by Michael J. Miller, Esq., Criminal Courts Building, Riverhead.

Matthew W. Brissenden, PC, Garden City, Attorney for Defendant.

Keahon, Fleisher & Ferrante, by William J. Keahon, Esq., Hauppauge, Attorney for Defendant.

Levine Sullivan Koch & Schulz, LLP, by Katherine M. Bolger, Esq., New York, Attorneys for Newsday, LLC.

JAMES HUDSON, J.

It is hereby

ORDERED, that the motion of Mr. Robert Macedonio for this Court to recuse itself from considering the post-sentence applications in this case is denied. It is further

ORDERED, that the application of Mr. Macedonio to seal the record in this matter pursuant to CPL § 160.58 is denied. It is further

ORDERED, that the application of Newsday for an order directing the unsealing of the subject search warrant affidavit is granted save for certain redactions imposed by the Court. It is further

ORDERED, that the application of Newsday for an order directing the unsealing of the plea agreement between the District Attorney's Office and Mr. Macedonio is granted save for certain redactions imposed by the Court. It is further

ORDERED, that the effective date of this decision shall be five days after its entry by the Clerk of the Court

Newsday has made a request to unseal the search warrant application relating to the prosecution of the Defendant and to unseal his plea agreement. The People and the Defendant oppose both of these applications.

Additionally, Mr. Macedonio has made a separate application to seal the entire court file in his matter pursuant to CPL § 160.58. Newsday has opposed this application.

Initially, the Court wishes to thank counsel for their eloquent and scholarly arguments which are a credit to our profession.

Prior to addressing the respective applications, the Court must consider a motion by Mr. Macedonio for the Court to recuse itself. Counsel for Newsday takes no position on the motion for recusal. The District Attorney's Office, however, has stated that it agrees “with Mr. Macedonio's observation that Newsday has maneuvered this Court into an untenable position. Nevertheless, we caution that Newsday could manufacture a similar problem by using its publication to question the actions of any other judge reviewing these motions” (Affirmation of ADA Michael Miller dated April 11th, 2016).

The gravamen of the motion for recusal is that a Newsday article appeared in February of this year which questioned the circumstances of Mr. Macedonio's plea, subsequent re-plea and re-sentence. This disposition, which was urged by both defense counsel and the District Attorney, was approved by the Court. Mr. Macedonio contends that since the Court was interviewed for the Newsday article and presided over the proceedings which Newsday has questioned, recusal is warranted. For the reasons discussed herein, the Court disagrees.

There is no basis for recusal under Judiciary Law § 14, nor under the common law (Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 129 S.Ct. 2252 [2009] ). Thus, the Court must look to the provisions of the Rules of Judicial Conduct and case law to determine if recusal is warranted.

Mr. Macedonio's reliance on 22 NYCRR Rule 100.3(B)(8) is misplaced. This rule prohibits a judge from making “any public comment about a pending or impending proceeding” (emphasis ours). Although the Court did speak with a Newsday reporter some months prior to the article's publication, it was to briefly relate the circumstances of the disposition of a case that had been closed four years earlier. As in the case of People v. Lazzaro, 180 A.D.2d 696, 696, 580 N.Y.S.2d 43, 44 (2nd Dept.1992) “[t]he challenged comments merely explained for public information the procedures of the court.' “

Although the Newsday article was critical of the Court, it must be noted that no comments made by the Court could be construed so as to infer a predisposition in deciding the instant applications (22 NYCRR § 100.3 [B] [4] ).

None of the specific subdivisions found in 22 NYCRR § 100.3 [E] which require disqualification are present in the case before the Court. Mr. Macedonio, however, contends that 22 NYCRR § 100.3 [E][1] should be applied in this instance. This section reads: “A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned.” Additionally, it is argued that our deciding these applications creates an appearance of impropriety in violation of 22 NYCRR § 100.2.

We must consider that the reason for Mr. Macedonio's request concerns press coverage of this Court. As pointed out in the District Attorney's affirmation, this pressure can be brought to bear on any jurist hearing these applications. If the Court were to recuse on the basis offered, the same circumstances could easily be repeated and my colleagues placed in a similar dilemma. Regardless of the outcome, any judge could be subjected to public calumny for their decision. Any jurist could have their impartiality questioned under these circumstances. This Court asserts that a claim of lack of impartiality would be as unreasonable in being directed towards this Court as any other. As with the case of a vexatious litigant who sues a judge who rules against him/her, the use of unfavorable press coverage could be used by the unscrupulous to create a false controversy. It would allow litigants “... a license under which the judge would serve at their will” (Spremo v. Babchik, 155 Misc.2d 796, 799–800, 589 N.Y.S.2d 1019, 1022 [Sup.Ct. Queens Co.1992], aff'd as modified, 216 A.D.2d 382, 628 N.Y.S.2d 167 [2nd Dept.1995]citing, Davis v. Board of School Commrs., 517 F.2d 1044 [5th Cir.1975], cited in People v. Diaz, 130 Misc.2d 1024, 498 N.Y.S.2d 698 ; U.S. v. Grismore, 564 F.2d 929 [10th Cir.1977] ).

The Court wishes to note that it is not invoking the venerable “Rule of Necessity,” which “provides a narrow exception to this principle, requiring a biased adjudicator to decide a case if and only if the dispute cannot otherwise be heard” (Pines v. State, 115 A.D.3d 80, 90, 979 N.Y.S.2d 142, 150, appeal dismissed, 23 N.Y.3d 982, 989 N.Y.S.2d 13 [2014] ). The aforementioned rule presumes the existence of a bias that all jurists would suffer from. In the case at bar the Court does not concede Mr. Macedonio's argument that this Court may harbor a bias. It merely notes that his claims would apply to all judges.

The admonition that the Court be unswayed by “... public clamor or fear of criticism ...” is one that all judges must adhere to (22 NYCRR § 100.3 [B] [1] ). For the Court to disqualify itself at this juncture would be an abdication of that responsibility.

Under these circumstances it is up to the conscience and discretion of the Court to determine if we should disqualify ourselves (People v. Harris, 133 A.D.3d 880, 22 N.Y.S.3d 62 [2nd Dept.2015], leave to appeal denied, 26 N.Y.3d 1145N.Y.S.3d, 2016 WL 1059312 [2016] ). The Court having searched its conscience, is comfortable in assuring the parties that it can be fair and impartial in this case (Silber v. Silber, 84 A.D.3d 931, 923 N.Y.S.2d 131 [2nd Dept.2011] ). Therefore, the motion for the Court to recuse is denied.

We now turn to the District Attorney and Mr. Macedonio's procedural objections to Newsday's motion.

The application brought by Newsday was originally made in the form of a letter. This matter was placed on the Court's Calendar February 11, 2016 to afford the People the opportunity to interpose any written opposition in connection with the application. The People and Mr. Macedonio's counsel requested an adjournment until February 18, 2016, for the purposes of submitting written opposition to the motion. Newsday's counsel consented to this request. Newsday was afforded the opportunity to submit supplemental material in support of its application. On February 18, 2016, the parties appeared before the Court. The People and Mr. Keahon (counsel for Mr. Macedonio) both objected to the Court considering the application based on a letter instead of by way of formal motion. Accordingly, the Court gave leave for Newsday to make its application pursuant to Article 22 of the CPLR. The instant motion was filed and made returnable on April 4, 2016. Thereafter, the Court received a communication from Mr. Keahon indicating that the parties had consented to adjourn the return date to April 13, 2016. During the time between Newsday's initial motion and the ultimate return date, Mr. Macedonio filed a motion for his case file to be sealed pursuant to CPL 160.58.

Both Mr. Macedonio and the District Attorney ask the Court to deny the application of Newsday on the grounds that its request should have been brought as an Article 78 proceeding. Newsday's protestations to the contrary, in addition to the substantive discussions contained therein, the very titles of the actions cited by the applicant demonstrate that the proper form to bring this request should be by a Special Proceeding (e.g., Crain Communications Inc. v. Hughs, 74 N.Y.2d 626, 541 N.Y.S.2d 971, [1989] ; Westchester Rockland Newspapers, Inc. v. Leggett, 48 N.Y.2d 430, 423 N.Y.S.2d 630 [1979] ). The cases brought to the Court's attention by the Respondents (e.g., N.Y. Post Corp. v. Leibowtiz, 2 N.Y.2d 677,...