People v. Van Alphen

• Citation: 195 A.D.3d 1307,150 N.Y.S.3d 389
• Decision Date: 24 June 2021
• Docket Number: 109320
• Parties: The PEOPLE of the State of New York, Respondent, v. Goliath VAN ALPHEN, Appellant.
• Court: New York Supreme Court — Appellate Division

195 A.D.3d 1307
150 N.Y.S.3d 389

The PEOPLE of the State of New York, Respondent,
v.
Goliath VAN ALPHEN, Appellant.

109320

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

Calendar Date: April 22, 2021
Decided and Entered: June 24, 2021

150 N.Y.S.3d 392

John Ferrara, Monticello, for appellant.

Paul Czajka, District Attorney, Hudson (James Carlucci of counsel), for respondent.

Before: Garry, P.J., Egan Jr., Lynch and Colangelo, JJ.

MEMORANDUM AND ORDER

Colangelo, J.

195 A.D.3d 1307

Appeal from a judgment of the County Court of Columbia County (Koweek, J.), rendered October 18, 2016, upon a verdict convicting defendant of the crimes of predatory sexual assault against a child (four counts), promoting a sexual performance by a child, criminal solicitation in the third degree, criminal sexual act in the first degree and aggravated sexual abuse in the third degree (four counts).

In June 2015, defendant and his three codefendants were charged with various crimes relating to their alleged sexual abuse of four children born in 2002, 2004, 2006 and 2004 (hereinafter victims A, B, C and D, respectively) over a period of several years. Defendant was charged with committing 19 of the 58 crimes charged in the indictment – namely, four counts of predatory sexual assault against a child, four counts of

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course of sexual conduct against a child in the first degree, six counts of aggravated sexual abuse in the third degree, two counts of criminal sexual act in the first degree, one count of aggravated sexual abuse in the third degree, one count of promoting the sexual performance of a child and one count of solicitation in the third degree. Following a joint jury trial, defendant was convicted of four counts of predatory sexual assault against a child, four counts of aggravated sexual abuse in the third degree, and one count each of promoting a sexual performance by a child, criminal solicitation in the third degree and criminal sexual act in the first degree.¹ Defendant was sentenced to prison terms of 25 years to life for each conviction of predatory sexual assault against a child, 25 years, followed by 25 years of postrelease supervision, for his conviction of criminal sexual act in the first degree, seven years, followed by 10 years of postrelease supervision, for each conviction of aggravated sexual abuse in the third degree, 2? to 7 years for his conviction of promoting a sexual performance by a child, and 1? to 4 years for his conviction of solicitation in the third degree. The court directed that all of the sentences run consecutively, except that the sentence on his conviction for criminal sexual act in the first degree is to run concurrently with his sentence for one of the predatory sexual assault convictions. Defendant appeals.

Defendant initially argues that Paul Czajka, the Columbia County District Attorney (hereinafter DA), should have been disqualified from representing the People in this case and a special prosecutor appointed because, prior to being elected as the DA, he was the Family Court Judge who presided over matters involving defendant and his children. Judiciary Law § 17, the governing authority for disqualifications,

150 N.Y.S.3d 393

provides that "[a] judge ... or former judge ... shall not act as attorney or counsellor in any action, claim, matter, motion or proceeding, which has been before him [or her] in his [or her] official character." Thus, the central inquiry is whether the "matter[s], ... or proceeding[s]" over which Family Court (Czajka, J.) presided are the same as the instant prosecution of defendant. We must answer this question in the negative.

As the People correctly contend, the petitions over which Family Court presided involved allegations that defendant neglected his children, based on his use of cocaine and his failure

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to enroll and stay enrolled in a drug rehabilitation program. Allegations of sexual abuse, the focus of the instant prosecution, were never raised in the Family Court matters. In addition, the parties to the proceedings were distinct from each other. The Department of Social Services commenced the Family Court proceedings against defendant on behalf of his children, whereas the indictment was brought against defendant in the name of the People of the State of New York. We note that the cases cited by defendant that favor disqualification concerned disqualification of a district attorney from prosecuting defendants in criminal cases over which he or she presided in the same court as a County Judge (see e.g. People v. Sumter, 169 A.D.3d 1275, 1276, 92 N.Y.S.3d 924 [2019] ; People v. Oakley, 104 A.D.3d 1059, 960 N.Y.S.2d 759 [2013] ; Matter of Czajka v. Koweek, 100 A.D.3d 1136, 1139, 953 N.Y.S.2d 394 [2012] ). It is clear to this Court that the instant criminal matter was not before the Family Court Judge "in his official character" ( Judiciary Law § 17 ; compare People v. Sumter, 169 A.D.3d at 1276, 92 N.Y.S.3d 924 ). "Nor is there any allegation of factual ties between the present matter and any prior matters over which [the Family Court Judge] presided" ( People v. Burks, 172 A.D.3d 1640, 1642, 99 N.Y.S.3d 790 [2019] [citation omitted], lv denied 33 N.Y.3d 1102, 106 N.Y.S.3d 665, 130 N.E.3d 1275 [2019] ). Accordingly, we find that Judiciary Law § 17 does not compel the DA's disqualification here (see id. ; Matter of Columbia County Subpoena Duces Tecum Dated Mar. 20, 2013 [Czajka], 118 A.D.3d 1081, 1083, 987 N.Y.S.2d 488 [2014] ; see also Matter of Gordon, 192 A.D.3d 1206, 1208–1210, 145 N.Y.S.3d 141 [2021, Colangelo, J., dissenting]).

Defendant next contends that the grand jury was extended in contravention of CPL 190.15(1) and the grand jury thus lacked jurisdiction to act and return a superseding indictment against him. Pursuant to CPL 210.35, a grand jury proceeding is defective and an indictment subject to dismissal where, among other reasons, the grand jury is "illegally constituted" ( CPL 210.35[1] ). Defendant argues that that the grand jury was illegally constituted because the People failed to comply with the time requirements for requesting an extension of the term, and the term was improperly extended to consider entirely new matters. Defendant's contentions are belied by the record.

First, the record reflects that both the People's request for the extended grand jury term and the order granting that request were made within the statutorily prescribed period (see CPL 190.15[1] ). Second, defendant argues that the order of extension was improper, and the resulting superseding indictment impermissibly issued, because the People, in their request

195 A.D.3d 1310

to extend the grand jury term, failed to mention defendant or unfinished business concerning defendant as a reason for the extension; rather, the People set forth projected new matters and new individuals to be examined. In support of his position, defendant principally relies upon the

150 N.Y.S.3d 394

Court of Appeals' decision in People v. Williams, 73 N.Y.2d 84, 538 N.Y.S.2d 222, 535 N.E.2d 275 (1989). We find such reliance to be misplaced. In Williams , the request for the grand jury's extension dealt exclusively with new matters and new individuals to investigate. Further, the...