Opinion
No. KA 07-01770.
December 31, 2008.
Appeal from a judgment of the Niagara County Court (Sara S. Sperazza, J.), rendered July 26, 2007. The judgment convicted defendant, upon a jury verdict, of rape in the first degree, rape in the third degree, sexual abuse in the first degree, criminal possession of a controlled substance in the seventh degree and criminal sale of a controlled substance in the third degree.
MARIA A. MASSARO, NIAGARA FALLS, FOR DEFENDANT-Appellant.
MICHAEL J. VIOLANTE, DISTRICT ATTORNEY, LOCKPORT (THOMAS H. BRANDT OF COUNSEL), FOR Respondent.
Before: Martoche, J.P., Smith, Fahey and Pine, JJ.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him following a jury trial of, inter alia, rape in the first degree (Penal Law § 130.35). On a prior appeal, we reversed the judgment of conviction and remitted the matter for a Wade hearing and a new trial ( People v Williams, 34 AD3d 1180). Defendant now contends that County Court erred in determining, following the Wade hearing, that the victim had an independent source for her in-court identification of defendant. We reject that contention, inasmuch as the People demonstrated the existence of an independent source by clear and convincing evidence ( see People v Chipp, 75 NY2d 327, 335, cert denied 498 US 833). Defendant further contends that the court erred in refusing to recuse itself. We reject that contention. The court was not disqualified pursuant to Judiciary Law § 14, nor can it be said that the court abused its discretion in refusing to recuse itself ( see People v Moreno, 70 NY2d 403, 405-406). We have reviewed defendant's remaining contentions and conclude that they are without merit.