Opinion
09-058-S.
3-10-2010
THE PEOPLE OF THE STATE OF NEW YORK, v. KHRISTOPHER A. YAGER, Defendant.
Kristy L. Sprague, Esq., Essex County District Attorney, (Brian W. Felton, Esq., of counsel), Elizabethtown, New York. Kurt Mausert, Esq., Saratoga Springs, New York, for the defendant.
Motion by the defendant for judicial disqualification and recusal.
By felony complaint dated April 1, 2009, the defendant was charged in the justice court of the town of Ticonderoga with the crime of rape in the third degree ( Penal Law §130.25[2]), a class E felony. He was also charged with endangering the welfare of a child ( Penal Law §260.10[1]), a class A misdemeanor. The charges arise out of an incident alleged to have occurred in or about December, 2008 when it is claimed that the defendant, who was then twenty-three years of age, engaged in sexual intercourse with the fifteen year old daughter of his girlfriend.
The defendant appeared before this Court on October 1, 2009 for the purpose of waiving indictment, consenting to the filing of a superior court information charging him with one count of rape in the third degree, and entering a plea of guilty thereto in accordance with a plea agreement reached with the then district attorney. The written plea agreement provided, among other things, that "[b]oth sides acknowledge sentencing is in the sole discretion of the Court", that "[b]oth sides [are] free to argue at time of sentence", and that the recommended sentence was a split sentence of six months in jail with ten years of probation as well as an eight year stay away and refrain from contact/communication order of protection. Counsel for defendant, Kurt Mausert, Esq. (Mausert) advised the Court that his client was seeking a sentence of straight probation, asserting that this had been agreed to by the district attorney then in office based upon letters and entreaties by the alleged victim's mother who was still involved in a relationship with the defendant. Mausert also represented that the district attorney had agreed that the plea could be withdrawn by the defendant if "the Court does not agree to the sentence that we are hoping for." The assistant district attorney did not confirm this agreement and ultimately stated that he only had the plea agreement and was "not aware of any changes that we were just going to recommend straight probation."
The written plea agreement was executed by the defendant on September 1, 2009, by Mausert on September 4, 2009, and by an assistant district attorney on September 15, 2009.
October 1, 2009 transcript, page 5, line17 through page 6, line 1.
Id., at page 9, lines 9-14.
The Court informed the parties that it would "conditionally commit to nothing more than the six/ten split; and if I read the report and I am convinced that it should be something less than that, then I'll do that; but I can't make any other commitment at this time." Mausert then informed the Court that "[t]he only commitment I would be looking for is the commitment to allow my client to withdraw his guilty plea should the Court not decide to impose [straight] probation." After further discussion about the Court's desire for a new pre-sentence report, and the right of the defendant to submit a pre-sentence memorandum containing any other information he and Mausert wished to be considered, the Court advised the parties that "the only thing I am willing to conditionally commit to, nothing more than the six/ten split; and that I will certainly consider straight probation, and I will be happy to consider all the information before I make that decision. If I decide I am going to do something more than six/ten, absolutely, I will give your client the right to withdraw his guilty plea." At this point the parties agreed to allow the defendant to waive indictment and consent to the superior court information being filed, with the defendant entering a not guilty plea and a pre-plea report being ordered. Before proceeding with the waiver of indictment, the following colloquy took place between the Court and Mausert:
Id., at page 6, lines 5-9.
Id., at lines 10-13.
Id., page 7, line 22 through page 8, line 5.
Id., page 15, lines 2-6.
"THE COURT: All right, is your client ready to go to trial, to waive indictment and the Superior Court Information? MR. MAUSERT: Yes. THE COURT: We'll go that far."
The defendant proceeded to waive indictment, consent to the filing of the superior court information, and enter a plea of not guilty to the sole charge of rape in the third degree. He also consented to a pre-plea investigation and the preparation and filing of a report thereon. At no time did the Court make any other commitment, conditional or otherwise regarding sentencing. Moreover, the defendant did not perform his obligations under the plea agreement relative to entering a guilty plea and waiving his rights to appeal.
After the filing of the pre-plea investigation and report, which included a recommendation of jail time and probation, the parties again appeared on November 10, 2009. At that time, the People's position on sentencing continued to be as stated in the unperformed written plea agreement, namely a split sentence of six months in jail and a probation term of ten years. Mausert challenged that position as well as the report's sentence recommendation, representing to the Court that he had spoken with another assistant district attorney and to probation who both purportedly agreed to a sentence of "straight probation." The Court also inquired as to the status of charges in adjoining Washington County involving a similar reported prior incident between the defendant and the alleged victim occurring prior to the incident underlying the charges before this Court. Notably, Mausert acknowledged for the first time to this Court that the more serious charges against the defendant are lodged in Washington County. Mausert advised the Court that he had spoken with an assistant district attorney in Washington County and was advised that if the defendant was sentenced "to ten years probation . . . my client would then plead to a misdemeanor in the Putnam Town Court in Washington County and the District Attorney in Washington County would be satisfied with the term of probation being served by him in this county." The Court informed the parties that it would not impose a probation sentence and requested additional information from the People relative to the Washington County charges. At no time did the defendant or Mausert represent or state to the Court that the defendant would accept a split sentence. Rather, they continued to argue for a sentence of probation only.
November 10, 2009 transcript, page 2, lines 15-18.
Id., page 2, line 22 through page 3, line 5, and lines 10-16.
Id., at page 9, lines 5-8.
Id., page 4, lines 2-9.
Id., page 5, lines 18-21; page 8, lines 7-8; page 10, lines 5-6.
Id., page 6, lines 20-23, and page 7, lines 10-16.
By letter dated November 20, 2009, Mausert recited his version of the events on October 1st and November 10th and advised the Court that the defendant was now prepared to enter a guilty plea to the superior court information and accept a split sentence of six months in jail and ten years probation. Mausert also requested being advised whether the Court would impose such a sentence under those circumstances because if not he would "make the appropriate motions as soon as possible". In its letter in response, dated November 23, 2009, this Court informed Mausert that it was not bound by any conditional commitment since the defendant did not fulfill his obligations under the plea agreement, including entry of a guilty plea and waiver of his appeal rights, and that the defendant did not waive indictment and consent to the superior court information being filed based upon any such commitment. Furthermore, this Court stated, "To the extent that you and he feel otherwise, I am prepared to allow him to withdraw his waiver and consent, after which I will vacate the superior court information, so as to then allow the district attorney to present this case to the grand jury." The defendant has not responded to that offer.
"If you are not willing to sentence to straight probation, then my client will be prepared to come in and plead guilty to the SCI and ask that you honor your word of sentencing to no more than a 6/10 split."
In a letter dated December 1, 2009, Mausert disputed the contents of this Court's November 23rd letter and requested that the Court recuse itself or else he would "proceed with motion practice". By letter dated December 3, 2009, this Court advised that it would "await your motion as the matters set forth in your letter were not accurate. Moreover, I can and will be fair and impartial in this case, but I am not bound by any agreement between you and the District Attorney's Office regarding sentencing nor have I committed to such an agreement." Again, Mausert wrote to this Court professing "great exception" to the Court's statement relative to accuracy and requesting that the Court advise him of "what assertions you consider to be inaccurate before drafting my motion." By letter dated December 9, 2009, this Court responded that Mausert's credibility was not questioned, only his "interpretation and recollection of what occurred", and that the decision on the recusal motion would be based upon the transcripts of the October 1st and November 10th proceedings. The Court also directed the Essex County district attorney to inform the Washington County district attorney of the status of this case and that no commitment had been made to a concurrent sentence.
In his motion, the defendant contends that disqualification and recusal are required. He claims that the Court changed and was inconsistent in its position regarding sentencing, improperly attempted to influence the proceedings in Washington County, including engaging in ex parte communications with members of the Essex County district attorney's office, and may have obtained information relevant to the case from a source outside this criminal action, namely a person in need of supervision proceeding purportedly involving the sister of the alleged victim. For the reasons that follow, the defendant's motion is denied in all respects.
The defendant's motion papers consist of a notice of motion dated January 29, 2010, the combined affirmation and memorandum of law of Kurt Mausert, Esq. dated January 29, 2010 with exhibits A through F, and response affirmation of Kurt Mausert, Esq. dated February 22, 2010. The People did not submit papers in opposition to the motion, choosing instead to file a letter dated February 13, 2010 stating, "It is the People's belief that Hon. Richard B. Meyer did not act improperly in this matter. We will take no position on the motion."
While judicial disqualification is mandated under certain limited circumstances (see Judiciary Law §14; 22 NYCRR §100.3[E][1][a]-[g]), no such circumstances exist here. In all other situations, disqualification rests in the discretion of the trial judge as "a matter of personal conscience" (People v. Smith, 63 NY2d 41, 68, 479 NYS2d 706, 719, 468 NE2d 879, 892). Moreover, "[r]ecusal, as a matter of due process, is required only where there exists a direct, personal, substantial or pecuniary interest in reaching a particular conclusion (see, Tumey v. State of Ohio, 273 US 510, 523, 47 SCt 437, 71 LEd 749), or where a clash in judicial roles is seen to exist (see, In re Murchison, 349 US 133, 75 SCt 623, 99 LEd 942, supra)" (People v. Alomar, 93 NY2d 239, 246, 689 NYS2d 680, 684, 711 NE2d 958, 962). "The alleged bias and prejudice to be disqualifying must stem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case' (United States v. Grinnell Corp., 384 US 563, 583, 86 SCt 1698, 1710, 16 LEd2d 778; see also, Berger v. United States, 255 US 22, 31, 41 SCt 230, 232, 65 LEd 481 [ bias or prejudice which can be urged against a judge must be based upon something other than rulings in the case']" (People v. Moreno, 70 NY2d 403, 407, 521 NYS2d 663, 666, 516 NE2d 200, 203). This Court has no direct, or even indirect, interest in the outcome of this case, and no facts establishing such an interest or a clash of judicial roles either exist or are alleged (see Kampfer v. Rase, 56 AD3d 926, 867 NYS2d 742, leave to appeal denied 11 NY3d 716, 874 NYS2d 5, 902 NE2d 439; compare People v. Smith, 272 AD2d 679, 708 NYS2d 485, leave to appeal denied 95 NY2d 938, 721 NYS2d 615, 744 NE2d 151 [trial judge may properly preside "over both the Family Court proceedings and the County Court criminal charges pertaining to the same incidents"]; Stampfler v. Snow, 290 AD2d 595, 735 NYS2d 255 [recusal required of Family Court judge who initiated contempt proceeding, questioned only witness at contempt hearing, ruled on motions to quash and dismiss, and acted as trier of fact and sentencing court]).
The defendant's contention that this Court has been inconsistent in its statements regarding sentencing is belied by the record. This Court consistently represented its willingness to conditionally commit to a split sentence of six months in jail and ten years of probation. At no time on or before November 10, 2009 did the defendant or his attorney represent to the Court that the defendant would accept a split sentence. Only in Mausert's letter of November 20, 2009 did the defendant or Mausert state, for the first time, that a split sentence would be acceptable. As of that time, despite two court appearances, the defendant had not entered a guilty plea, waived his appeal rights to the fullest extent allowed by law, or otherwise performed his obligations required by the plea agreement. This Court was and is under no obligation to impose any sentence under such circumstances (see People v. Jenkins, 11 NY3d 282, 869 NYS2d 370, 898 NE2d 553).
Furthermore, "[t]he Court of Appeals has rejected the argument that contract principles are applicable to plea agreements and that a defendant may compel specific performance of such an agreement (see People v. McConnell, 49 NY2d 340, 425 NYS2d 794, 402 NE2d 133; People v. Selikoff, 35 NY2d 227, 360 NYS2d 623, 318 NE2d 784, cert. denied 419 US 1122, 95 SCt 806, 42 LEd2d 822)" (People v. Rubendall, 4 AD3d 13, 19, 772 NYS2d 346, 351) except where a defendant has irrevocably changed his position to his detriment (see People v. McConnell, 49 NY2d 340, 425 NYS2d 794, 402 NE2d 133). Certainly it cannot be said that the defendant so changed his position, especially since his waiver of indictment and consent to the superior court information allowed him to avoid possible conviction for the misdemeanor crime of endangering the welfare of a child. As stated by the Court of Appeals in People v. Farrar, 52 NY2d 302, 306, 437 NYS2d, 961, 962-963, 419 NE2d 864, 865-866,
"While the court legitimately may indicate that a proposed sentence is fair and acceptable, the necessary exercise of discretion cannot be fixed immutably at the time of the plea, for the decision requires information that may be unavailable then. Indeed such a view of the plea bargaining process and sentencing function was expressly disapproved in People v. Selikoff, 35 NY2d 227, 360 NYS2d 623, 318 NE2d 784. The court there made clear that the sentencing function rests primarily with the Judge, whose ultimate obligation is to impose an appropriate sentence and who must exercise his or her responsibility at the time of sentencing in the light of information obtained from the presentence report or other source (id., at pp. 238-240, 360 NYS2d 623, 318 NE2d 784). Any other rule would negate the distinctions between the court's role in sentencing and accepting a plea and ignore the procedures designed to ensure that an appropriate sanction be imposed. Thus, a sentence negotiated prior to the plea, and in most cases prior to receipt of a presentence report, does not automatically become the sentence of the court. Just as the court must be free to impose a more severe sentence when warranted, the plea and sentence process must leave the court leeway to consider a lesser penalty when the facts and justice so require. No less can be accepted if the integrity of the criminal justice system is to be maintained."
Contrary to the arguments advanced by Mausert, a court is not bound by an agreement between counsel, or by the desires of the alleged victim, in determining an appropriate sentence. Should the defendant be convicted, it is the duty of this Court to determine "an appropriate sentence . . . after due consideration given to, among other things, the crime charged, the particular circumstances of the individual before the court and the purpose of a penal sanction, i.e., societal protection, rehabilitation and deterrence (see People v. McConnell, 49 NY2d 340, 346, 425 NYS2d 794; Penal Law, s 1.05, subd. 5)" (People v. Farrar, supra, at 305-306, 437 NYS2d at 962, 419 NE2d at 865) as well as "promotion of . . . successful and productive reentry and reintegration into society ( Penal Law §1.05[6]). "The law and strong public policy of this State mandate that the court, detached from outside pressures often brought to bear on the prosecution and defense, make that determination. Quite simply, the court must perform the delicate balancing necessary to accommodate the public and private interests represented in the criminal process" (People v. Farrar, supra at 306, 437 NYS2d at 962, 419 NE2d at 865). "In the end, the court must weigh the demands of the community for punishment against the individual posture of the defendant" (People v. Notey, 72 AD2d 279, 283, 423 NYS2d 947, 950).
Even assuming arguendo that this Court failed to go forward in accordance with a sentencing commitment, the defendant's remedy is withdrawal of his guilty plea (see People v. Bonville, 69 AD3d 1223, 894 NYS2d 208). Here, there is no guilty plea to withdraw, only the defendant's waiver of indictment and consent to be prosecuted on the superior court information. This Court has previously extended to the defendant an offer to allow him to withdraw his waiver and consent, but the offer has been ignored.
Similarly, this Court has not expressed any bias against the defendant or the People. To the contrary, this Court has expressed, and continues to affirm, the ability to be fair and impartial to the defendant and to the People in this case. The defendant is charged with a serious sex felony involving the teenage daughter of his girlfriend. The charge pending before this Court does not encompass the first alleged offense of this nature against the child, and represents at least the second alleged incident of sexual intercourse with the same child. It is significant that the charges in Washington county are of an admittedly more serious nature than those before this Court.
November 10, 2009 transcript, page 9, lines 5-8.
The claims by Mausert of possible ex parte communications by this Court with members of either the Essex or Washington county district attorney's office are sheer fantasy and fiction. When combined with other baseless assertions in the motion papers, defendant's motion constitutes, at best, an attempt to manufacture conditions for recusal. As to Mausert's complaint regarding this Court's direction for the Essex County district attorney's office to notify its counterpart in Washington County of the status of this case, again the assertions are groundless. Mausert repeatedly represented to this Court that both the district attorney and probation department agreed to his demand for a straight probation sentence, notwithstanding the written plea agreement and pre-plea report which each recommend a split sentence of jail time plus a term of probation. These claims were contradicted by the assistant district attorney on the record at both appearances, and to this date they remain unsubstantiated by the assistant district attorney or the probation department. Under these circumstances, this Court would be remiss in failing to insure that the Washington County district attorney was apprised of the status of this case from the perspective of both the defendant and the People. This is particularly so since Mausert concedes that the more serious charge is in Washington County. There is simply no factual or legal basis for recusal based upon nonexistent bias (see People v. Brown, 270 AD2d 917, 705 NYS2d 778 leave to appeal denied 95 NY2d 851, 714 NYS2d 2, 736 NE2d 863).
Finally, as to the defendant's assertion of disqualification based upon an unrelated PINS proceeding involving the alleged victim's sister as the respondent, this Court has no recollection of the particular PINS case, nor of any request for adjournment or the reasons therefor. A request for adjournment of the PINS proceeding purportedly because the alleged victim here was scheduled for an abortion procedure in Vermont does not have any bearing on this case even now that it is brought to the attention of this Court in the defendant's motion. "When the alleged impropriety arises from information derived during the performance of the court's adjudicatory function, then recusal could surely not be directed as a matter of law" (People v. Moreno, 70 NY2d 403, 405, 521 NYS2d 663, 665, 516 NE2d 200, 202). Such a request, if in fact made, occurred during the performance of this Court's adjudicatory function, and as such does not warrant recusal (see People v. Wallis, 24 AD3d 1029, 806 NYS2d 760, leave to appeal denied 6 NY3d 854, 816 NYS2d 760, 849 NE2d 983 [recusal not required where judge, in prior Family Court proceeding, called defendant "scum" and a "predator"]).
The defendant is hereby granted fifteen days from the date hereof to notify the Court in writing as to whether he will either (a) withdraw his waiver of indictment and his consent to be prosecuted by superior court information subject to the condition that all time since October 1, 2009 is chargeable to the defendant for all speedy trial purposes, or (b) enter a guilty plea in accordance with the terms of the written plea agreement without any sentencing commitment by this Court. Should the defendant decline to do either one, the parties shall comply with the following schedule for discovery and pretrial motions:
1. discovery pursuant to CPL §240.20, §240.30 and §240.43, and Brady v. Maryland, 373 US 83, 83 SCt 1194, 10 LEd2d 215, shall be completed no later than March 30, 2010; and 2. a bill of particulars, as requested pursuant to CPL §200.95 shall be served and filed no later than March 30, 2010; and 3. the defendant shall respond to the People's demands for alibi and defenses no later than March 30, 2010; and 4. all pre-trial motions pursuant to CPL Article 255 shall be filed and served in compliance with CPLR Rule 2214 and noticed with a return date of no later than April 9, 2010 on submission only, and with affidavits and affirmations containing only factual averments and no legal citations or arguments (see In re Taylor, 265 AD 858, 37 NYS2d 675; People v. Mirasola, 35 Misc 2d 886, 231 NYS2d 645; People v. Buckman, 333 NYS2d 452, 70 Misc 2d 220).
The defendant shall next personally appear with counsel before this Court on April 20, 2010 at 11:15 a.m.
IT IS SO ORDERED.