People v. Petgen
| Decision Date | 14 May 1981 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Albert Bennett PETGEN, Appellant. |
| Court | New York Supreme Court — Appellate Division |
E. Stewart Jones, Jr., Troy (Robert M. Cohen, Troy, of counsel), for appellant.
Seymour Meadow, Greene County Dist. Atty., Catskill (James Eckl, Catskill, of counsel), for respondent.
Before MAHONEY, P. J., and CASEY, YESAWICH and WEISS, JJ.
Appeal from a judgment of the County Court of Greene County, rendered March 11, 1980, convicting defendant upon his plea of guilty of the crime of manufacture, transport, disposition and defacement of weapons and dangerous instruments and appliances.
In February, 1978 a Greene County Grand Jury handed down a 45-count indictment against the defendant, 43 counts of which charged unlawful possession of various weapons. Prosecution of the indictment was delayed pending a trial which ultimately resulted in a manslaughter conviction. That conviction was subsequently reversed because defendant had been deprived of the effective assistance of counsel (People v. Richard MM, 75 A.D.2d 389, 430 N.Y.S.2d 695). The same attorney who had represented defendant during the manslaughter trial also represented him on the indictment herein until September, 1979 when present counsel was retained.
In January, 1980 defendant moved for and was granted permission by Judge Fromer of the Greene County Court to file a motion to suppress evidence. A week later, the District Attorney's application to Judge Battisti, another Greene County Court Judge, for leave to reargue that motion was granted, Judge Fromer's order was vacated and the suppression hearing denied. Shortly thereafter, defendant pleaded guilty to the first count of the indictment in full satisfaction of all charges.
The primary issue raised relates to whether reargument could even be entertained by Judge Battisti. CPLR 2221 provides that a motion to reargue is to be made to the judge who signed the order "unless he is for any reason unable to hear it". In the affirmation offered in support of the People's motion to reargue, the District Attorney stated, and significantly it is not controverted, that Judge Fromer had disqualified himself from presiding at the trial of this action. That disqualification rendered him, within the meaning of CPLR 2221, unable to hear the People's application for reargument and made it quite proper for a judge of coordinate jurisdiction to entertain it in his stead.
Denial of leave to defendant to file the suppression motion was equally proper. Permission to file that motion was not sought until some 22 months after defendant's arraignment and 4 months after engaging new counsel. In light of that time frame and the discretion which CPL 255.20 (subd. 3) reposes in the trial court, its ruling was not an abuse of discretion.
Defendant would have us equate his original counsel's failure to make suppression motions with ineffective assistance of counsel. Inasmuch as the record in this case is barren of any discussion respecting the original counsel's choice of tactics and the reasons for handling this matter as he did, we are precluded from doing so (see People v. Aiken, 45 N.Y.2d 394, 408 N.Y.S.2d 444, 380 N.E.2d 272; People v. Rivera, 73 A.D.2d 528, 422 N.Y.S.2d 687).
Since the sentence imposed was not excessive, the judgment must be affirmed.
Judgment affirmed.
MIKOLL, J., dissents and votes to reverse in the following memorandum.
CPLR 2221 requires that a motion to modify or vacate an order shall be made, on notice, to the judge who signed the order unless he is unable to hear it. The statute reflects the sound policy that judges shall not pass on or review a matter already passed upon by another judge of equal authority or coordinate jurisdiction. The rule is intended to encourage finality, to avoid judge-shopping and the confusion and uncertainty that results from professional conflicts. It matters not whether the decision is...
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People v. Harris
...Justice. The defendant made an application pursuant to CPLR Section 2221, to reargue a motion to suppress evidence ( People v. Petgen, 81 A.D.2d 951, 439 N.Y.S.2d 692, affd. 55 N.Y.2d 529, 450 N.Y.S.2d 299, 435 N.E.2d 669; People v. Russo, 128 Misc.2d 876, 491 N.Y.S.2d 951), upon the ground......
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...language of CPLR 2221 which provides that a renewal application be held before the original Judge (See, also, People v. Petgen, 81 A.D.2d 951, 952, 439 N.Y.S.2d 692). The evils to be avoided become even more apparent by the facts of this case. Here, the City Court Judge did not simply deny ......
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...the judge is unable to hear the application (CPLR 2221[a]; Spahn v. Griffith, 101 A.D.2d 1011, 476 N.Y.S.2d 676; People v. Petgen, 81 A.D.2d 951, 952, 439 N.Y.S.2d 692; affd. on other grounds 55 N.Y.2d 529, 450 N.Y.S.2d 299, 435 N.E.2d 669). In this case, the justice who signed the order su......
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People v. Petgen
...count in full satisfaction of the 45-count indictment. On appeal from his resulting conviction the Appellate Division affirmed, 81 A.D.2d 951, 439 N.Y.S.2d 692, rejecting defendant's contentions that, as a Judge of co-ordinate jurisdiction, Judge Battisti had no authority to grant reargumen......