People v. Moreno

• Citation: 70 N.Y.2d 403,521 N.Y.S.2d 663
• Parties: , 516 N.E.2d 200 The PEOPLE of the State of New York, Respondent, v. Carlos MORENO, Appellant.
• Decision Date: 19 November 1987
• Court: New York Court of Appeals

Page 663

521 N.Y.S.2d 663

70 N.Y.2d 403, 516 N.E.2d 200

The PEOPLE of the State of New York, Respondent, v. Carlos MORENO, Appellant.

Court of Appeals of New York.

Nov. 19, 1987.

Alan S. Axelrod and Philip L. Weinstein, New York City, for appellant.

Mario Merola, Dist. Atty. (Billie Manning and Peter D. Coddington, New York City, of counsel), for respondent.

OPINION OF THE COURT

BELLACOSA, Judge.

A Judge, who during pretrial adjudication acquires information inadmissible before the fact finder of guilt or innocence, is not legally disqualified from conducting a bench trial which defendant chose based on a fully informed waiver of the jury trial right.

Defendant and two accomplices were indicted for offenses arising from a robbery of a Bronx service station during which an attendant was killed. A joint pretrial hearing resulted in a photo array being held inadmissible as unduly suggestive; a lineup identification being held admissible; an independent source basis being found for an in-court identification; and, a confession of one defendant implicating all three being held admissible. On motion, defendant Moreno's trial was severed from the confessing codefendant's trial and was consolidated with the other defendant's. The consolidated case, itself eventual severed also, was then assigned to a different Justice for trial, who first conducted and ruled on People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849, 314 N.E.2d 413, matters with respect to defendant Moreno. Moreno's attorney at one point advised the Trial Justice of the earlier suppressed photo array evidence.

Defendant Moreno then, against the advice of counsel, made an application to waive a jury trial. The court fully explained the pros and cons of jury and nonjury trials and explicitly informed Moreno during an allocution that, as the Judge who had presided at his Sandoval hearing, he would know more than a jury would about his criminal history. Defendant nevertheless duly waived the jury trial.

Moreno's counsel subsequently indicated he was considering an application that the Trial Justice recuse himself because of his knowledge of Moreno's criminal history and of the suppressed photo array. On the day the trial was to commence, counsel formally requested that the Trial Justice recuse himself, arguing that his pretrial acquired knowledge undermined the defense of misidentification. The Trial Justice refused, pointing out that Moreno was made aware of the scope of his knowledge during the allocution prior to executing the jury trial waiver, but he nevertheless offered to allow Moreno to withdraw his waiver. Defendant declined.

Moreno was tried nonjury and alone and was convicted of murder in the second degree, assault in the first degree, and attempted robbery in the first degree. At sentencing, he moved to set aside the verdict and for a new trial again on the recusal ground. The motion was denied. The Appellate Division affirmed the judgment of conviction.

Defendant argues that his right to a fair trial was violated because recusal is required to avoid the appearance of impropriety based on the bench Trial Judge's pretrial acquired knowledge of defendant's record and of inadmissible evidence of his involvement in the crimes charged.

Absent a legal disqualification under Judiciary Law § 14, a Trial Judge is the sole arbiter of recusal. This discretionary decision is within the personal conscience of the court when the alleged appearance of impropriety arises from inappropriate awareness of "nonjuridical data" (People v. Horton, 18 N.Y.2d 355, 362, 275 N.Y.S.2d 377, 221 N.E.2d 909; see also, People v. Smith, 63 N.Y.2d 41, 68, 479 N.Y.S.2d 706, 468 N.E.2d 879; People v. Patrick, 183 N.Y. 52, 54, 75 N.E. 963). When the alleged impropriety arises from information derived during the performance of the court's adjudicatory function, then recusal could surely not be directed as a matter of law. A court's decision in this respect may not be overturned unless it was an abuse of discretion (People v. Tartaglia, 35 N.Y.2d 918, 919-920, 364 N.Y.S.2d 901, 324 N.E.2d 368; People v. Horton, 18 N.Y.2d 355, 362, 275 N.Y.S.2d 377, 221 N.E.2d 909, supra ).

Unlike a lay jury, a Judge "by reasons of * * * learning, experience and judicial discipline, is uniquely capable of distinguishing the issues and of making an objective determination" based upon appropriate legal criteria, despite awareness of facts which cannot properly be relied upon in making the decision (People v. Brown, 24 N.Y.2d 168, 172, 299 N.Y.S.2d 190, 247 N.E.2d 153). Recognizing this key premise, "it suffices to say that there is no prohibition against the same Judge conducting a pretrial hearing as well as the trial itself" (People v. De Curtis, 63 Misc.2d 246, 249, 311 N.Y.S.2d 214 [App. Term], affd. 29 N.Y.2d 608, 324 N.Y.S.2d 406, 273 N.E.2d 136 [suppression hearing Justice not disqualified from presiding over nonjury trial]; see also, People v. Brown, 24 N.Y.2d 168, 299 N.Y.S.2d 190, 247 N.E.2d 153, supra [Huntley hearing Justice may preside over nonjury trial]; People v. Latella, 112 A.D.2d 324, 491 N.Y.S.2d 774 [Sandoval hearing Judge not disqualified from presiding at nonjury trial] ).

Even the court's appointment of special prosecuting counsel (People v. Smith, 63 N.Y.2d 41, 68, 479 N.Y.S.2d 706, 468 N.E.2d 879, supra ), prior association with a law firm employed by a party (Corradino v. Corradino, 48 N.Y.2d 894, 895, 424 N.Y.S.2d 886, 400 N.E.2d 1338), past prosecution of the defendant (People v. Tartaglia, 35 N.Y.2d 918, 364 N.Y.S.2d 901, 324 N.E.2d 368, supra; People ex rel. Stickle v. Fay, 14 N.Y.2d 683, 249 N.Y.S.2d 879, 198 N.E.2d 909; contra, People v. Corelli, 41 A.D.2d 939, 343 N.Y.S.2d 555), or past professional affiliation in a field specialized in by a party (Matter...