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On 12 June 1992, the defendant was charged with kidnapping

On 12 June 1992, the defendant was charged with kidnapping in the first degree, seven counts of rape in the first degree, twelve counts of sodomy in the first degree, eighteen counts of sexual abuse in the first degree, robbery in the first degree, two counts of assault in the second degree, criminal possession of a weapon in the fourth degree, and criminal possession of stolen property in the fifth degree. The People thereafter moved to dismiss the sexual abuse charges. On 14 January 1993, a jury trial began on the remaining counts.

Allegedly, in the early morning hours of 23 May 1992, the complainant, who was then 19 years of age, was accosted by the defendant as she emerged from a subway station near the Brooklyn-Queens border on her way home from an evening spent with girlfriends at a Manhattan dance club. The defendant stabbed her in the upper thigh and then forced her at knifepoint to walk several blocks with her eyes closed until they arrived at his one-room apartment. When they were inside, the defendant made her undress, and then blindfolded her with her own blouse and tied her to a bed. The defendant kept her in that position for most of the next twenty hours while he beat her, stole her property, and subjected her to at least four separate sexual attacks, each including acts of rape and sodomy, both oral and anal. The defendant also offered her as a birthday present to his neighbor who raped her.

Consequently, the defendant was arrested by the police when they were able to find his apartment by locating a church the complainant had seen from his window. The complainant identified him in a lineup and, acting under the authority of a search warrant, officers entered his room and discovered a knife, a bloody sheet, ropes tied to the bed, the complainant’s jewelry, her hairclip, her underwear, and flyers she had been given at the dance club.

On 28 January 1993, the People’s case was drawing to a close. No proceedings were scheduled for Friday, 29 January 1993, out of respect for the defendant’s religious obligations.

On 1 February 1993, when proceedings resumed, the parties were told that the Justice of the court, Justice A had been admitted to the hospital for cardiac surgery and would be unable to return to work for at least two months. Thus, the matter was transferred to another Justice, Justice B, whose courtroom was nearby. Justice B then told the jurors of Justice A’s illness, and dismissed them with instructions to return the following day. After the matter was adjourned, defense counsel appeared in another Justice’s courtroom, Justice C’s, to answer a calendar call in an unrelated case. As he awaited the production of his client, he approached the bench and informed Justice C of Justice A’s condition and of the likelihood that an issue would arise over whether another judge could be substituted to complete the trial. In what was later described as an academic discussion, Justice C told counsel that he saw nothing to prevent a substitution provided that the new judge adhered to all rulings made by the original judge and was furnished with the record of prior proceedings to become familiar with the evidence in the case. Justice C then asked counsel whether he could cite any potential prejudice to his client as a result of a substitution, but the discussion ended before counsel could address the question. The following day, Justice B questioned the jurors and all gave assurances that they could render a fair and impartial verdict if the trial continued. Nevertheless, the defendant moved for a mistrial based upon Justice A’s inability to continue the trial. The People opposed the motion, arguing that another judge should be substituted. Regardless, Justice B was apparently scheduled for a vacation and would be unable to complete the trial if it continued. The matter was transferred, and it was ultimately assigned to the herein Justice, Justice C, for all purposes.

Immediately thereafter, defense counsel sought Justice C’s recusal. According to the defense counsel, in the informal discussion he had initiated with Justice C the day before, he had indicated a predisposition toward allowing the trial to continue with a substituted judge. The substance of that discussion was then fully recounted for the record and is not the subject of dispute. The defense counsel made clear that he was asking only that Justice C recuse himself from deciding his motion for a mistrial; and that the defense had no objection to him my presiding over the trial itself if it continued.

Following an extensive argument, Justice C concluded that the question of whether one judge could be substituted for another in the circumstances of the case was purely an issue of law which could be properly addressed on a motion to set aside any guilty verdict returned in the case; and, since the recusal motion was addressed solely to my deciding the substitution question, that issue could be addressed in a post-verdict motion as well. In order not to delay the proceedings further, and to avoid ruling precipitously on a novel question of law, Justice C reserved decision pending verdict and ordered the trial to proceed. In the event of acquittal, the issue would be rendered moot and the defendant would win early release. In the event of conviction, the parties would have a full opportunity to research and brief the issue in the context of a motion to set aside the verdict.

On 4 February 1993, the People rested without presenting any additional evidence, and the case was adjourned to the following Monday. Meanwhile, Justice C received and read the entire transcript of all prior proceedings in the case, and the defendant unsuccessfully sought a stay of the trial from an Associate Justice of the Appellate Division, Second Department. The resumption of trial was delayed one day by the illness of a juror.

On 9 February 1993, according to the defendant, when he took the witness stand in his own behalf, on the day in question, he met the complainant when he stopped at an all-night convenience store on his way home; asked her to go out which, he explained, meant that he was asking her for sex; she replied that she would not go out with him unless he bought her some cocaine from the dealers who sold drugs outside the store; he did so and she agreed to accompany him to his room; soon after they arrived, the defendant left the complainant to go downstairs to the bathroom; when he returned to the room, he found her sitting naked on the bed bleeding from her leg. She explained that she had torn her pants and cut her leg when she sat on a mirror which was under the cover. Apparently, the defendant and the complainant remained in the room together over the course of the next ten hours. They engaged in no sexual activity, however, because the defendant was turned off by the complainant’s drug use and by her revelation that she had recently suffered from crabs and lice. The two spent most of their time together speaking of personal matters. The complainant told the defendant of her son and of the trouble she was having in her relationship with her boyfriend. The defendant spoke of his own children and of his indecision over whether to marry. Ultimately, the complainant left and the defendant did not see her again that day. The defendant resolutely denied having struck or robbed the complainant, or having offered her as a birthday present to his neighbor, and denied having told a detective that he had had consensual sex with the complainant on the night in question.

On 10 February 1993, summations were delivered and Justice C charged the jury, submitting a total of eighteen counts for consideration. The jury was also instructed on the issue of geographic jurisdiction which the defense had raised at trial. The defendant had no exceptions to the charge as given.

The following day, the jury found the defendant guilty of kidnapping in the first degree, five counts of rape in the first degree, four counts of sodomy in the first degree, one count of robbery in the third degree, and one count of assault in the second degree. The jury acquitted the defendant of four counts of sodomy in the first degree and one count of robbery in the first degree. No verdict was returned on the lesser included offense of kidnapping in the second degree.

Defendant now seeks to have the aforesaid guilty verdicts set aside on the ground that it was improper for Justice C to have completed the trial over his objection; and renews his motion for Justice C’s recusal.

The principal issue presented on this motion to set aside a verdict is whether a judge who becomes incapacitated after evidence has begun at a jury trial may be replaced by another judge to complete the trial without the defendant’s consent. The precise issue appears to be one of first impression in New York, and is presented unadorned by collateral considerations as the defendant, who strongly objected to the substitution, makes no claim that he was prejudiced by it.

Upon due consideration, the defendant’s motion was denied in all respects.

First, there was no suggestion here that Justice C has an actual or apparent bias arising from some personal interest in the outcome of the case or some connection with it that would require his disqualification as a matter of law. And, absent such a legal disqualification, a Trial Judge is the sole arbiter of recusal and must be guided by personal conscience in making the decision. Justice C’s knowledge of the circumstances surrounding the substitution issue came wholly from a conversation initiated by the very attorney who now seeks his recusal. Moreover, the facts of which Justice C was told were already on the record and therefore it cannot be said that he ever had an inappropriate awareness of non-juridical data. The fact that in casual conversation Justice C expressed a preliminary view on a question of law without the benefit of research or argument should not disqualify him from considering the issue now. Were it otherwise, judges who express any view on an issue of law, whether in an opinion, lecture, article or informal discussion, would forever be barred from considering any similar issue in a judicial capacity. Proof that a judge has never considered or thought about an important issue of law, and therefore approaches it with a mind that is a complete tabula rasa, would be evidence of lack of qualification, not lack of bias. Finding no ground, apparent or real, to conclude that Justice C could not hold the balance nice, clear and true between the State and the accused, Justice C declined to recuse himself, and thus turned into the issue of substitution.

Second, a judge in the herein State, in charging a jury, is required, among other things, to state the material legal principles applicable to the particular case, and, so far as practicable, to explain the application of the law to the facts. No personal evaluation of the witnesses or impression of the atmosphere of the case enters into the performance of that function. When deciding whether to submit a lesser included offense or to charge on a particular defense, for example, the judge is called upon to view the evidence, not on the basis of a personal evaluation, but in the light most favorable to the defendant. Moreover, instructions on such subjects as evaluating the credibility of witnesses are general and depend on the category of the witnesses and not at all on the judge’s personal assessment of them. That a substituted judge who has read the trial transcript can adequately fulfill a court’s charging responsibilities is amply demonstrated by the fact that the defendant here had not a single exception to the charge as given. Indeed, the defendant here has made no claim of cognizable prejudice whatsoever. Thus, the fact that a substituted judge has not personally heard the witnesses who testified before the substitution does not, in and of itself, impair that judge’s ability to perform the judicial functions and responsibilities necessary for the completion of a jury trial in conformance with New York law. In the absence of a showing of prejudice, a judge who becomes incapacitated and unable to continue a jury trial after evidence has begun may be replaced by another judge of coordinate jurisdiction who has reviewed and become thoroughly familiar with the trial record, and such substitution may be made even without the defendant’s consent. It is the judicial policy of the herein State to facilitate the administration of justice, a policy which seeks to eliminate delay in the trial of criminal actions or costly retrial, with due regard for the constitutional rights of a defendant. Consistent with that policy, the substitution here was indeed proper and that it would be entirely unwarranted to set aside the jury verdict and require a retrial, all in pursuit of a rule for which there is no good reason.

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