People v. Willsey
| Decision Date | 02 March 1989 |
| Citation | 148 A.D.2d 764,538 N.Y.S.2d 342 |
| Parties | The PEOPLE of the State of New York, Respondent, v. James F. WILLSEY, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Dennis J. Lamb, Troy, for appellant.
James B. Canfield, Rensselaer County Dist. Atty. (Stephen Hogan, of counsel), Troy, for respondent.
Before MAHONEY, P.J., and CASEY, MIKOLL, YESAWICH and LEVINE, JJ.
Appeal from a judgment of the County Court of Rensselaer County (Harris, J.), rendered March 29, 1985, upon a verdict convicting defendant of the crimes of murder in the second degree (two counts), burglary in the first degree and criminal use of a firearm in the first degree.
Defendant was convicted of various crimes stemming from the fatal shooting of Thomas Kidder in the back with a shotgun. Evidence against defendant included his detailed, signed confession to the homicide which is unchallenged on this appeal, testimony placing him and his car near or at the scene at the time of the incident (in one case fleeing), defendant's ownership and possession of the murder weapon, blood on defendant's hand and shotgun which matched that of the victim, and testimony that defendant had spoken of planning to kill Kidder.
On the day of the shooting, July 21, 1984, defendant was taken into custody. After confessing to the crime, he was asked about the disappearance of Joseph Zappola, whom defendant eventually admitted killing and burying; he also drew a map showing the location of the body and helped police locate it. Defendant had dated Zappola's wife, Shirley, while Zappola was in prison. The day Zappola was released from jail in June 1983, defendant waited for, met and shot him to death; defendant has heretofore been tried and convicted of murdering Zappola (see, People v. Willsey, 144 A.D.2d 106, 534 N.Y.S.2d 445). Subsequently, Shirley met and married Kidder but continued her intimate association with defendant, albeit intermittently.
At trial, to establish defendant's motive for killing Kidder, the People set about proving that defendant slew whoever stood between him and Shirley. Rensselaer County Judge M. Andrew Dwyer, Jr., ruled in response to defendant's omnibus motion that his conviction for Zappola's murder was admissible under the motive exception to the Molineux rule (see, People v. Molineux, 168 N.Y. 264, 293-294, 61 N.E. 286). After a jury had been drawn and sworn, defendant informed Dwyer that he intended to call the Judge's son, a tenant of the victim, as a witness and moved for Dwyer's recusal. At a hearing on this motion, Dwyer noted the absence of any actual bias, given his son's dearth of knowledge regarding the shooting, but recused himself nonetheless to avoid the appearance of any impropriety that would result were his son called to testify. Acting Rensselaer County Judge F. Warren Travers, who took over the case, granted defendant's motion for a mistrial. The matter was then rescheduled for trial before Acting Rensselaer County Judge Joseph Harris. Defendant sought de novo review of all motions passed upon by Dwyer, including any decisions on suppression matters. County Court, finding that the prior proceedings were not flawed simply because Dwyer chose to stand aside, denied the request and concluded further that evidence of the Zappola killing was admissible not only to show motive, as Dwyer had determined, but a possible common scheme and plan as well, another Molineux exception. Convicted, as noted, defendant appeals; we affirm.
At the outset, defendant maintains that Dwyer's recusal tainted his earlier determinations of defendant's motions. Where, however, recusal is not mandated by statute (see, Judiciary Law § 14) but rather is resorted to voluntarily to avoid the appearance of impropriety, judicial proceedings had prior to the recusal motion remain valid, absent a showing of actual bias or actual impropriety (see, United States v. Murphy, 7th Cir., 768 F.2d 1518, 1541, cert denied 475 U.S. 1012, 106 S.Ct. 1188, 89 L.Ed.2d 304; cf., 28 NY Jur 2d, Courts and Judges, § 111, at 203-204). Inasmuch as Dwyer's son was a witness,...
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