People v. Zappacosta
| Decision Date | 18 August 1980 |
| Parties | The PEOPLE, etc., Respondent, v. Anthony ZAPPACOSTA, Appellant. |
| Court | New York Supreme Court — Appellate Division |
E. Thomas Boyle, Smithtown, for appellant.
Patrick Henry, Dist. Atty., Riverhead (Charles M. Newell, Riverhead, of counsel), for respondent.
Before RABIN, J. P., and GULOTTA, COHALAN and MARGETT, JJ.
MEMORANDUM BY THE COURT.
Appeal by defendant from a judgment of the Supreme Court, Suffolk County, rendered June 28, 1979, convicting him of grand larceny in the second degree (23 counts), after a nonjury trial, and imposing sentence.
Judgment reversed, on the law, and new trial ordered. The facts have been considered and are determined to have been established.
In the most unusual circumstances of this case, we believe that the defendant's motion that the court recuse itself, thereby allowing the defendant to proceed with a nonjury trial before another Justice of the Supreme Court, should have been granted. Appellant was indicted for multiple counts of forgery and grand larceny stemming from the "bilking" of hundreds of thousands of dollars from a corporation of which appellant's codefendant was a trusted employee. Prior to appellant's trial, his codefendant entered a guilty plea and was sentenced to the maximum period of incarceration allowed by law. In the course of the plea colloquy, the court actively elicited statements from the codefendant which incriminated the appellant. By itself, this would generally not necessitate a court to recuse itself from trying the still pending indictment. The contrary result is reached here because of several extenuating circumstances.
The appellant herein sought to exercise his constitutional right to be tried by a Judge rather than by a jury (New York Const., art. I, § 2; People v. Davis, 49 N.Y.2d 114, 119, 424 N.Y.S.2d 372, 400 N.E.2d 313; People v. Duchin, 12 N.Y.2d 351, 239 N.Y.S.2d 670, 190 N.E.2d 17). He further sought to have the case assigned for trial to a Justice other than the one who had taken his codefendant's guilty plea and had determined his own challenge to the sufficiency of the indictment. This latter application was denied. Appellant was placed upon the horns of a dilemma of choosing either to be tried by a jury or tried by a Judge whom the appellant perceived to be biased against his cause. Although the instant record leaves no doubt as to the trial court's actual impartiality and total absence of any real prejudice, we must be constantly vigilant to avoid even the appearance of bias which may erode public confidence in the judicial system as quickly as would the damage caused by actual bias (People v. Corelli, 41 A.D.2d 939, 343 N.Y.S.2d 555; People v. Vetrano, 42 A.D.2d 987, 348 N.Y.S.2d 185). Thus, if the appellant's perception of bias was made in good faith and based upon identifiable factors, it was improper to circumscribe the exercise of his constitutional right to waive a jury trial by compelling him to accept trial by the challenged Judge when there were other Justices available (cf. United States v. Bryan, 2 Cir., 393 F.2d 90, 91).
Of significance in this case is that appellant's codefendant was his wife. The special nature of a marital relationship gives added credence to her statements which incriminated the appellant. Such statements were not necessary to the taking of her plea and necessarily constituted information on the ultimate issue of appellant's guilt which the court, as trier of fact, would not otherwise have had (cf. 22 NYCRR 33.3(c)(1)(i)). The marital relationship is also significant in terms of the circumstances of the criminal conduct. There is no question that the wife was, as the court so found, the primary mover of the criminal scheme and that only the wife committed the actual forgeries. The appellant's criminality was largely restricted to opening and drawing on bank accounts for the purpose of negotiating the forged checks. To some extent, the appellant's guilt is based upon the proper inference from the fact of large amounts of money available to the appellant and his wife, thereby refuting the appellant's claim that he was a mere dupe. Such...
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State v. Scott, AC 38035
...Silverman , 252 App. Div. 149, 297 N.Y.S. 449 (1937), Brent v. State , 63 Md. App. 197, 492 A.2d 637 (1985), and People v. Zappacosta , 77 App. Div. 2d 928, 431 N.Y.S.2d 96, leave to appeal denied, 52 N.Y.2d 839, 437 N.Y.S.2d 1044, 418 N.E.2d 693 (1980). The present case, however, is readil......
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McMahon v. Hodges
...result in People v. Zappacosta, finding that the "amalgam of peculiar circumstances" in the case warranted recusal. 77 A.D.2d 928, 431 N.Y.S.2d 96, 99 (2d Dep't 1980). In Zappacosta, defendant's wife, a codefendant, pled guilty. Id. at 98. During her plea allocution, the trial judge "active......
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People v. Moreno
...N.Y.S.2d ----, 513 N.E.2d 714 [Kaye, J.]; Matter of Johnson v. Hornblass, 93 A.D.2d 732, 733, 461 N.Y.S.2d 277). In People v. Zappacosta, 77 A.D.2d 928, 930, 431 N.Y.S.2d 96, the Appellate Division noted the presence of an "amalgam of peculiar circumstances" which required recusal despite a......
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State v. Scott
...v. Silverman, 252 App. Div. 149, 297 N.Y.S. 449 (1937), Brent v. State, 63 Md. App. 197, 492 A.2d 637 (1985), and People v. Zappacosta, 77 App. Div. 2d 928, 431 N.Y.S.2d 96, leave to appeal denied, 52 N.Y.2d 839 (1980). The present case, however, is readily distinguishable from each of thos......