People v Guaman

[*1] People v Guaman 2007 NY Slip Op 52491(U) [18 Misc 3d 1110(A)] Decided on December 3, 2007 Criminal Court Of The City Of New York, Queens County Lopez, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 3, 2007
Criminal Court of the City of New York, Queens County

The People of the State of New York

against

Carlos A. Guaman, Defendant.



2007QN001867



Mr. Guaman is represented by Kenneth Finkleman, Esq. of The Legal Aid Society, Criminal Defense Division, Queens County. The prosecutor is ADA Frank Di Piazza of the Queens County District Attorney's Office.

Gene R. Lopez, J.

The defendant is charged with two counts of driving while intoxicated (Vehicle and Traffic Law §1192 [2], [3]) and one count of aggravated driving while intoxicated (Vehicle and Traffic Law §1192 [2-a]). This Court, before referring this case to a judicial hearing officer (JHO) for a pre-trial suppression hearing, granted, with the consent of the People, the defendant's request to reopen, at his discretion, the suppression hearing upon receiving additional Rosario material.[FN1]

On May 10, 2007, a JHO presided at the pre-trial suppression hearing. The People presented one witness, Police Officer Dean Pei, and rested. The defendant presented one witness, Cleaver Redrovan, and rested. Each party made closing remarks. The JHO marshaled the evidence each party presented. The JHO credited Police Officer Pei's account, set forth on the record his proposed findings of fact and conclusions of law, and recommended the denial of defendant's motions to suppress statements and the results of the breathalyzer test. The defendant informed both the People and the JHO of his intention to reopen the hearing upon receipt of the missing Rosario material. The case was adjourned to June 14, 2007 for further proceedings.

The defendant on July 5, 2007 filed a motion requesting a de novo suppression hearing in [*2]which he alleged for several reasons the JHO "was not an unbiased fact finder in this case when the original hearing was held and he certainly will not be at the reopened hearing [FN2]." (affirmation of defense counsel at ¶ 14) First, the defendant, in support of his allegation that the JHO demonstrated bias toward him, points to an off the record conversation held on May 10, 2007 shortly after the conclusion of the hearing.[FN3] According to defense counsel, the following conversation ensued:

Defense Counsel: Judge it would be helpful if when there are two witnesses a civilian and a police officer if you would state why you believe one and not the other. Don't just say well I believe the police.

JHO: Well I usually do.

Defense Counsel: Well, that is not very satisfying.

JHO: Well, I don't find you very satisfying.

The defendant asserts that this discussion reflects a predisposition by the JHO to "... [believe] the police simply because they are the police," (affirmation of defense counsel at ¶ 14) and that predisposition in favor of the police affected his decision to credit Police Officer Pei's account rather than Mr. Redrovan's.

Second, the defendant argues that the JHO has a personal dislike for defense counsel. The defendant, to support this contention, points to another case, People v Oberoi, Docket No.

2007QN007301, in which his defense counsel appeared before the same JHO to conduct a pre-trial suppression hearing. According to portions of the transcript of that case submitted by defendant, the JHO prevented the defense counsel, during cross-examination of the People's witnesses, from pursuing a line of questioning and did not allow defense counsel to make a record of his objections. Defense counsel disagreed with the JHO's rulings, further argument ensued, and the JHO terminated the hearing and returned the case to the all-purpose part. When the parties learned that the all-purpose part was closed, the following exchange occurred: Defense counsel stated to the JHO "I just think its going to end up getting sent back here again for the continuation." The JHO replied "I hope not with you, but if it has to be, it has to be." (Transcript at 28.) The case was then adjourned to the next day. Defense counsel asserts that the next day, an off the record conversation was held between the presiding judge in the all-purpose part and the JHO.

A court tasked with the responsibility to review the adjudicative recommendations of a JHO who has conducted a pre-trial proceeding relies on its plenary power of independent review. Courts, in the exercise of that power, have the express authority to accept, reject or modify in whole or in part the JHO's recommendations. (CPL 255.20[4]; People v Scalza, 76 NY2d 604, 609 [1990]; People v Jones, 152 Misc 2d 113 [App Term, 1st Dept], appeal dismissed 80 NY2d 833 [1992].) Indeed, reviewing courts have remanded proceedings for further development of the record on a point critical to the proper adjudication of an issue (People v Ufie, Crim Ct, [*3]Queens County, Aug. 28, 2007, Zigman, J., Docket No. 2006QN061183 [directed additional testimony be taken from a witness to clarify facts]; People v Morris, 186 Misc 2d 564 [Crim Ct, New York County 2000][directed continued cross-examination of a witness based on newly disclosed Rosario material]), or granted de novo hearings to remove a deficiency in the proceeding fundamental to the integrity and fairness of the proceeding (People v Capel & Bunn, Crim Ct, Queens County, May 16, 2006, Zayas, J., Docket Nos. 2005QN030587-88 [abridgement of defendants' right to cross examine]; People v Padgett, Crim Ct, Queens County, Mar. 5, 2007, Raciti, J., Docket No.2005QN029379 [failure of JHO to make findings of fact]). Similarly, it is necessary for this Court to review under its plenary power of independent review a claim that the conduct of the JHO presiding over a pre-trial hearing has tainted the proceedings in a way that offends due process, eroded the appearance of fairness or called into question the results of the proceedings. (See generally People v Alomar, 93 NY2d 239 [1999]; Matter of Khan v Dolly, 39 AD3d 649 [2d Dept 2007].) Here, the defendant is asking this court to recuse the JHO from continuing with the pre-trial hearing because of bias and personal dislike and to remand the case for a de novo hearing notwithstanding the defendant did not move for recusal before the JHO or voice any objection at the hearing regarding the JHO's alleged conduct.

Recusal, generally a matter of conscience and personal to the judge before whom the proceeding is pending, is not automatically required as a matter of due process unless a statutory ground for disqualification exists under Judiciary Law §14. (People v Moreno, 70 NY2d 403 [1987]; Chang v SDI International Inc., 15 AD3d 520 [2d Dept 2005]; People v Hines, 260 AD2d 646 [2d Dept], lv denied 93 NY2d 1019 [1999].)In this case, no statutory ground exists that mandates the disqualification of the JHO. The defendant, in order to succeed on his claims that the JHO harbors a predisposition to favor police witnesses and a personal dislike toward his defense counsel, must show that the JHO's bias and prejudice affected the outcome of his motions to suppress. (People v Darling, 276 AD2d 922 [3rd Dept 2000], lv denied 96 NY2d 733 [2001]; Robert Marini Builder Inc. v Rao, 263 AD2d 846 [3rd Dept 1999]; Lawrence v Headley, 257 AD2d 837 [3rd Dept 1999]; Yannitelli v D. Yannitelli & Sons Const. Corp., 247 AD2d 271 [1st Dept], lv denied 92 NY2d 875 [1998]; Matter of Malinda V., 221 AD2d 549 [2d Dept 1995], lv denied 87 NY2d 811 [1996]; Solow v Wellner, 157 AD2d 459 [1st Dept 1990].)

As to defendant's first ground that the JHO possesses a predisposition to find in favor of police witnesses, he points to the JHO's proposed findings of fact to support his claim. A review of the hearing record reflects the JHO made rulings during the course of a hotly contested hearing. These rulings were fair and impartial and were not skewed in favor and against either party. The JHO, following cogent argument made by each party, marshaled the evidence presented by each party in an evenhanded manner without misstatements of facts in the record. (See People v Lebron, 305 AD2d 799 [3rd Dept], lv denied 100 NY3d 583 [2003]; People v Darling, 276 AD2d 922 [3rd Dept 2000], lv denied 96 NY2d 733 [2001]; People v Montpeirous, 133 AD2d 709 [2d Dept], lv denied 70 NY2d 935 [1987].) Thereafter, the JHO rendered proposed findings of fact, including credibility determinations that had ample record support, and conclusions of law. (Cf. Zhong Sun v Board of Immigration Appeals, 2007 WL 2705601 [2d Cir][Board's decision vacated and case remanded for new hearing where adverse credibility determinations were based upon speculation and conjecture].)

The defendant also relies on an off the record conversation between his counsel and the [*4]JHO. When defense counsel remarked to the JHO that he should place on the record his reasons for believing the police witness over a civilian witness, the JHO replied that he usually does. The defendant claims that the JHO's reply constitutes an admission to a predisposition to favor police witnesses. This Court rejects the defendant's interpretation that the JHO remarks reflect a predisposition to favor police witnesses. The defendant's interpretation of the JHO's remark is misleading; the hearing record belies any such conclusion. (People v Darling, 276 AD2d 922 [3rd Dept 2000]; lv denied 96 NY2d 733 [2001].) Moreover, the JHO's reply can be interpreted to mean that he in fact usually puts on the record his reasons for finding in favor of one witness rather than the other. In any event there is no requirement in the law that the Judge or JHO place on the record the reasons for believing one witness over the other. CPL 710.60(6) requires a court in determining a motion to suppress to set forth on the record its findings of fact, its conclusions of law and its reasons for its determination. In this regard, the defense counsel was asking the JHO to do that for which there is no legal requirement. In this case, the JHO, by marshaling the evidence, and finding the police witness credible, implicitly rejected the defendant's version of events. (Kaywood Properties, Ltd. v Glover, 34 AD3d 645 [2d Dept 2006]; People v Jenkins, 31 AD3d 665 [2d Dept], lv denied 7 NY3d 868 [2d Dept 2006].)As to his other ground that the JHO harbors a personal dislike towards his defense counsel, the defendant relies on a prolonged exchange between counsel and the JHO during an unrelated case which resulted in the JHO terminating the hearing before its conclusion. The defendant's claim is insufficient. The appellate court in Lawrence v Headley, 257 AD2d 837, 838 (3rd Dept 1999), found no bias where the hearing officer "made various brusque comments" to the defendant. Also, in People v Hoehne, 203 AD2d 480, 481 (2d Dept), lv denied 83 NY2d 967 [1994], the appellate court found no prejudice where the hearing court had had "past frictions with the . . . Legal Aid Society." Lastly, in People v Cline, 192 AD2d 957, 959 [3rd Dept], lv denied 81 NY2d 1071 [1993], the appellate court found that although the trial court had some years earlier informed defense counsel in a prior proceeding " not to appear before him again,'" the defendant had failed to establish that the trial court's impartiality was compromised.

For these reasons, the defendant's request for a de novo hearing is denied. The defendant, however, may renew his request before the JHO.[FN4]

Since the defendant now has the command log, the defendant's request to reopen the hearing is granted and the case is to be sent forthwith to the hearing part for defense counsel to cross-examine Police Officer Pei regarding the command log entries.[FN5] [*5]

The foregoing constitutes the decision and order of the Court.

Dated: December 3, 2007

Queens County, New York

________________________________

GENE R. LOPEZ, J.C.C. Footnotes

Footnote 1:At the suppression hearing, the arresting officer testified as to his observations of the defendant, including the defendant's physical description. This information is contained as an entry on the command log and thus, relates to the arresting officer's hearing testimony.

Footnote 2: In this instant motion, the defendant, in the alternative, requests that the hearing be re-opened for him to cross-examine the police officer as to the command log entries.

Footnote 3: According to defense counsel, court staff and a colleague of defense counsel were also present.

Footnote 4:See 22 NYCRR § 122.11; Code of Judicial Conduct [22 NYCRR] § 100.3 [E][1][a][i].

Footnote 5:The People attached a copy of the command log to their affirmation in opposition which was filed and served on July 10, 2007. Although the defendant is not moving to dismiss the accusatory instrument on speedy trial grounds, he asks that May 10 to July 5, 2007 (56 days) be charged to the People for speedy trial purposes. This Court declines to do so since such ruling would not be binding on the court who may ultimately decide a speedy trial motion in this case. (People v Berkowitz, 50 NY2d 333 [1980]; People v Grainger, 164 Misc 2d 294 [Crim Ct, New York County 1995]; People v Nevarez, 142 Misc 2d 1064 [Crim Ct, New York County 1989].)