People v Chai

[*1] People v Chai 2012 NY Slip Op 51870(U) Decided on September 26, 2012 Just Ct Of Town Of Kinderhook, Columbia County Dellehunt, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 26, 2012
Just Ct of Town of Kinderhook, Columbia County

People of the State of New York, Plaintiff,

against

Adam Chai, Defendant.



XXXXX



FOR THE PEOPLE

PAUL CZAJKA, ESQ.

Columbia County District Attorney

325 Columbia Street

Suite 260

Hudson, New York12534

FOR THE DEFENDANT:

Adam Chai

Defendant Pro Se

60 Hennett Street

Valatie, New York 12184

David A. Dellehunt, J.

By letter motion dated July 11, 2012 Columbia County District Attorney Paul Czajka (hereinafter "the DA") sought to have the Court voluntarily recuse itself from "any and all Criminal and Vehicle and Traffic matters in Columbia County"; the DA's motion was not on notice to anyone.[FN1] The Court denied the DA's application in writing, on notice to the Columbia County Public Defender's Office, the Conflict Defender's Office and the Columbia County Bar Association, without prejudice to the DA seeking recusal in any individual case by formal written motion upon notice to the respective parties and counsel. See, Kamen v. Diaz-Kamen, [*2]40 AD3d 937, 938 (2nd Dept. 2007), (noting that "recusal is more properly done on a case-by-case basis", quoting Matter of Winston, 243 AD2d 638, 639 [2nd Dept. 1997]).

The DA now moves by Order to Show Cause for the Court's recusal in the above-referenced matter. The instant motion is one of 80 separate Orders to Show Cause filed in this Court and the Kinderhook Village Court between August 6-7, 2012, all seeking the same relief and relying on identical submissions.[FN2] Although served, defendant failed to submit written opposition to the instant motion.[FN3] Pending a determination on this motion, prosecution of this matter has been stayed.[FN4]

It is axiomatic that absent a legal disqualification under Judiciary Law §14, which is not at issue here, a judge is the sole arbiter of recusal. Barney v. Van Auken, 97 AD3d 959, 960 (3rd Dept. 2012), quoting Kampfer v. Rase, 56 AD3d 926 (3rd Dept. 2008), lv. den. 11 NY3d 716 (2009);see, People v. Moreno, 70 NY2d 403, 405 (1987); Gonzalez v. L'Oreal USA, Inc., 92 AD3d 1158, 1159 (3rd Dept. 2012), lv. dis. 19 NY3d 874 (2012). A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to instances where ... the judge has a personal bias or prejudice concerning a party... . Rules Governing Judicial Conduct (22 NYCRR) § 100.3 (E)(1) (a)(i).

In the instant case, as in every other motion for recusal filed by the DA, the DA's request for recusal rests, in large part, on allegations that, in 2004, the undersigned criticized the DA, then a sitting County Court Judge. Further, the DA contends that the purported "animus" that the Court has for him, as evidenced by the alleged 2004 remarks, has caused the Court to interfere with the DA's "unfettered" discretion to prosecute cases. The DA alleges that the Court has interfered with the DA's prosecutorial discretion by relying on faulty legal reasoning and has [*3]influenced other local Judges to do the same.[FN5] Based on the foregoing, the DA seeks the Court's recusal in this matter.[FN6]

As to the DA's assertion regarding a statement the undersigned purportedly made in 2004, the DA attaches a newspaper article. See, Mason, Dems Endorse Joern's Run for Big League', Register Star [April 23, 2004], Czajka Affirmation, Exhibit A. First, the Court notes that the alleged quotes and attributions were made in the context of the undersigned speaking at a Democratic Caucus regarding the possibility of running on the Democratic line in 2004 for the seat of Columbia County Judge. See, Id.[FN7] The reported statements were taken out of context and did not accurately reflect the undersigned's actual comments at said caucus. After the article appeared in the local newspaper, the undersigned informed the DA (the then-sitting County Judge) that the reported statements were inaccurate. The actual comments made at the caucus reflected how the undersigned generally viewed a judge's role and, more specifically, how the undersigned would conduct himself if elected as a County Judge.

Significantly, the undersigned's comments were not directed at the then-sitting County Judge, a fact about which the DA was made aware in 2004. In addition, the undersigned's comments were not made in the course of any litigation before that Judge or any other judge.[FN8] Accord, People v. Lazzaro, 180 AD2d 696 (2nd Dept. 1992); People v. Palmer, 143 AD2d 469, 470 (3rd Dept. 1988),, appeal den. 73 NY2d 858 (1988). Accordingly, the DA's reliance on In re Soares (97 AD3d 242 [4th Dept. 2012]) is unavailing. In that case, the District Attorney for Albany County was censured for issuing a written press release criticizing the decision of a sitting Judge in a pending criminal matter. In contrast here, (1) no statements were made regarding a sitting Judge, (2) no statements were released to the press, and (3) no statements were made regarding a pending criminal case. Cf., In re Soares, supra.

Contrary to the DA's assertions, the Court holds no "animus" toward the DA or his staff which would prevent it from acting in a fair and impartial manner in any matter, including the instant one, in which the DA or his staff appears. See, Barney v. VanAuken, supra. at 960; De Ruzzio v. De Ruzzio, 288 AD2d 725, 726 (3rd Dept. 2001).[FN9] In addition, the comments upon which the DA relies are attenuated in time and have no bearing on the instant matter pending [*4]before the Court. Accord, Advisory Comm. on Jud. Ethics Op. 90-136 (1990) ("The fact that the attorney appearing before the Judge was ... an opponent in a political campaign does not per se require disqualification or recusal, especially where the election was one and a half years ago"), citing Advisory Comm. on Jud. Ethics Op. 91-146 (1991). The mere allegation of bias is insufficient to require recusal. Robert Marini Builder, Inc. v. Rao, 263 AD2d 846, 848 (3rd Dept. 1999); see, Saratoga Harness Racing, Inc. v. Roemer, 290 AD2d 928, 930 (3rd Dept. 2002); People v. Willsey, 148 AD2d 764, 765-766 (3rd Dept. 1989).

As to the DA's contention that the Court's purported bias has led it to interfere with the DA's unfettered discretion to determine whether or not to prosecute a case, the Court rejects this argument as well. Initially, the Court notes that the DA's reliance on Cantwell v. Ryan, 309 AD2d 1042 (3rd Dept. 2003) is inapposite. In Cantwell, supra. the Third Department examined CPL 190.75 (3) and determined that, after a charge is dismissed by the Grand Jury, a Court may not direct a District Attorney to present other or additional charges to a Grand Jury for consideration. Id. at 1043. That decision, however, does not give a District Attorney the unfettered power to withdraw a case after an accusatory instrument has been filed in the local Criminal Court and demand that the local Criminal Court dismiss the matter. Rather, the Court of Appeals has held that a local Criminal Court does not have the authority to dismiss a case for "failure to prosecute" under any circumstances. People v. Douglass, 60 NY2d 194 (1983). A local Criminal Court only has the authority to dismiss a case under certain proscribed provisions of the Criminal Procedure Law or where the prosecution fails to produce evidence at trial that is sufficient to meet the prosecution's burden of proof. Id. at 204-206; see also, People v. Roman, 35 Misc 3d 133A, 2012 NY Slip Op. 50697(U) (App Term, 2nd Dept. 2012); People v. Pueblas, 18 Misc 3d 131A, 2008 NY Slip Op. 50076(U) (App Term, 2nd Dept. 2008) ("The trial court has no statutory or inherent authority to dismiss a criminal proceeding for failure to prosecute."); People v. Tartaglione, 5 Misc 3d 126A, 2004 NY Slip Op. 51190(U) (App Term, 2nd Dept. 2004)("Moreover, it is well settled that a trial court can dismiss a pending criminal prosecution only upon the limited grounds codified in the Criminal Procedure Law.")

Otherwise, the DA's contention merely highlights a difference of opinion regarding the Court's interpretation of legal precedent and, as such, does not serve as a basis for recusal. See, e.g., Glatzer v. Bear, Stearns & Co., Inc., 95 AD3d 707 (1st Dept. 2012); Gonzalez V. L'Oreal USA, Inc., supra. at 1160; Anonymous v. Anonymous, 222 AD2d 295, 296 (1st Dept. 1995). By interpreting legal precedent such as People v Douglass, supra., the Court is carrying out its duty to interpret and apply the prevailing law in each and every case. Seegenerally, Cox v. Katz, 22 NY2d 903, 905 (1968), cert. den. 394 US 919 (1969). Moreover, this Court has never interfered with the DA's ability to seek available legal remedies where the DA disagrees with a ruling of this Court.

In sum, the Court denies the DA's request for the Court to recuse itself in the instant matter, and in any case brought upon the same grounds, finding it overall lacking in merit and substance. Further, to grant such request in this matter, and in any other case in which the DA has brought an identical motion would, in effect, shut this Court down.[FN10] In the absence of ill [*5]will, a Judge has an affirmative duty not to recuse himself, but to preside over the case (emphasis in original). See, Spremo v. Babchick, 155 Misc 2d 796, 800 (Sup. Ct., Queens County 1992). There is no legitimate basis for recusal and under the circumstances presented it would be a great disservice to the community to grant the same. Id. The Court has searched its conscience and finds that it can preside in the instant matter, and in any other matter involving the DA,[FN11] in a fair and impartial matter without prejudice toward or bias against any party. Accordingly, since no reasonable basis exists for questioning the Court's partiality (see, Robert Marini Builder, Inc. v. Rao, supra. at 848), recusal is unwarranted and the DA's motion is denied in its entirety.

This opinion shall constitute the Decision and Order of the Court.

ENTER.SO ORDERED.

September, 2012_________________________ Kinderhook, New YorkDavid A. Dellehunt

Kinderhook Town Justice Footnotes

Footnote 1: The request for recusal was directed to the undersigned as Kinderhook Town Justice and Kinderhook Village Justice.

Footnote 2: It should be noted that on August 6, 2012 the DA presented 17 identical Orders to Show Cause seeking the Court's recusal from cases scheduled to be heard in the Kinderhook Village Court, and on August 7, 2012 the DA presented 63 identical Orders to Show Cause seeking the same relief with respect to cases scheduled to be heard in the Kinderhook Town Court.

Footnote 3:

Of the aforesaid 80 Orders to Show Cause, the DA only effectuated service upon 10 defendants, and failed to effectuate service upon the remaining defendants or their counsel. It should be further noted that an additional 51 Orders to Show Cause were presented, but not signed by the Court because they were not accompanied by signed Affirmations. See, Connors, Practice Commentaries, McKinney's Cons. Laws of NY, Book 7B, CPLR C2214:27. No replacement Orders to Show Cause have been submitted. The Assistant District Attorneys appearing in the Kinderhook Town Court and Kinderhook Village Court since August 6, 2012 have continued to announce their intention to file written motions for the Court's recusal in every case that is scheduled to be heard, but have failed to submit any further motions or serve papers upon necessary parties and their counsel.

Footnote 4: By letter dated September 18, 2012 the DA's Office informed the Court of its unilateral decision to no longer appear in either the Kinderhook Town Court or Kinderhook Village Court until a decision is rendered on the instant motion.

Footnote 5: As to the allegations that the Court influenced other local Criminal Court Judges regarding the adherence to the principles espoused in People v. Douglass, 60 NY2d 194 (1983), any advisement to local Court Judges by the undersigned was limited to the undersigned's role as Special Counsel to the Town and Village Courts in the Third Judicial District.

Footnote 6: In this instance, as in every other motion filed to date, the DA fails to raise an issue regarding recusal specific to the litigation or to the individual defendant.

Footnote 7: As is clear from the article, the nomination went to another candidate.

Footnote 8: Nor could the undersigned have appeared before him since, at the time, he served as a Confidential Law Clerk to a Supreme Court Justice.

Footnote 9: The District Attorney's staff has appeared without objection for more than six months in both the Kinderhook Village Court and Kinderhook Town Court prior to seeking the Court's recusal.

Footnote 10: Similarly, the initiation of duplicative recusal motions in the Kinderhook Town Court and Kinderhook Village Court has inconvenienced numerous defendants, including but certainly not limited to expectant mothers, college students home on break, and individuals enduring cancer treatments . . . by forcing them to make multiple appearances in matters sometimes involving relatively minor traffic infractions. Some defendants have traveled great distances or taken time off from their employment, only to be informed that the case is stayed pending the determination of a motion, which in most cases, is never served upon the defendant. Seemingly, Orders to Show Cause were presented without regard to the procedural posture of a case, including some that were presented on cases that were already settled or where the only unresolved matter was payment of an outstanding fine and surcharge.

Footnote 11: However, the Court may consider a recusal motion in those cases raising issues specific to the litigation or the individual defendant.