In this criminal proceeding, defense counsel makes this motion seeking to have me recuse myself from this matter.

The People oppose the motion.

Defendant is charged by felony complaint with one count of Criminal Sexual Act in the Second Degree (P.L. §130.45). The accusatory alleges that on August 26, 2009, the defendant "did while 19 years old, engaged in oral sexual contact with the victim (initials TY, with a DOB of 7/7/1995) who was less then 15 years of age."

Defense counsel argues that over the course of several months, the District Attorney and Legal Aid offices had been in communication over a possible disposition. Counsel argues that a disposition was proposed: a plea to a class A misdemeanor of Sexual Misconduct with six (6) years of probation with sex offender conditions, sex offender registration "SORA", and a permanent order of protection. Counsel contends that this matter was calendared on July 29, 2010 for a plea. I was the presiding judge in the criminal part that day. Defense counsel argues that the defendant was prepared to accept the plea, the prosecutor reiterated the plea offer and defense counsel , Mr. Vincent DeMarte, executed the Misdemeanor Conviction Waiver of Rights form. Counsel contends that I did not wish to accept the plea that morning and required the case to be put over to the afternoon calendar call. Counsel contends that I ultimately [*2]refused to accept the plea, advising the parties, in sum and substance that I had a daughter and had to be able to sleep at night. The matter was adjourned until August 19, 2010 for all purposes at defendant's request.

On August 19, 2010, the parties once again appeared before me and stated that a possible disposition had been reached in the matter, the same plea bargain indicated above. Defense counsel argues that I wanted to be persuaded why Mr. Nathan was getting this disposition, and specifically, why he was not receiving jail time. Counsel maintains I read the allegations, refused to accept the plea and once again mentioned that I was the father of a "fourteen (14) year old" and that I had to sleep at night. Defense counsel also argues that I refused to permit the case to be considered by either of the other two judges of the Court and during a subsequent conference, again expressed my concerns regarding this case.

Defense counsel argues that I have allowed my preconceived personal opinions and subjective bias to improperly color my sentencing consideration. Accordingly, defense counsel seeks to have me recuse myself from the matter.

In opposition, the people state that nothing in the record has given the People any indication that I cannot be fair and impartial toward the case, and accordingly, see no reason for me to recuse myself from the matter.

"Absent a legal disqualification under Judiciary Law §14, a Trial Judge is the sole arbiter of recusal . . .." (People v Moreno, 70 NY2d 403 (1970); People v Hinspeter, 12 AD3d 617 (2d Dept 2004)). It is a discretionary determination within the personal conscience of the court, and a court's decision in this respect may not be overturned unless it was an abuse of discretion (Id.). "Recusal, as a matter of due process, is required only where there exists a direct, personal, substantial or pecuniary interest in reaching a particular conclusion . . . (People v Alomar, 93 NY2d 239, 246).

Here, the defendant seeks to have me recuse myself on the basis that I rejected the plea offer based on my personal biases. Although a defendant may, as a matter of right, enter a plea of guilty to an entire indictment or information (CPL §§ 220.10 (2)); 220.60 (1); 340.20), a plea of guilty to a lesser offense may be entered only upon consent of the parties and the approval of the court (emphasis added) (People v Shervington, 25 AD3d 628 (2d Dept 2006). The Court must make clear that it is not required to accept the initial plea merely because the plea bargain had been acceptable to both the prosecution and defense (People v Smith, 272 Ad2d 679 (3d Dept 2000). The trial judge "may reject a plea offer in the exercise of sound judicial discretion" (Id.; citing People v Washington, 229 AD2d 726 (3d Dept 1996), lv denied 88 NY2d 1025; see also Santobello v New York, 404 US 257 (1971) (there is no absolute right to have a guilty plea accepted), and reasonable conditions may be attached to permission to enter a guilty plea (People v Shervington, supra 629 (citations omitted).

The Court takes exception to the unsubstantiated claims of bias but will address them to ensure that the record is absolutely clear on this matter. Bias of a judge can be established only by showing that it stems from an extrajudicial source and results in an opinion on the merits on some basis other than that learned by the judge from his participation in the case (U.S. ex rel Monty v McQuillan, 385 F. Supp 1308 (1974)). The Court is not disqualified by virtue of making remarks construed as adverse to a particular party prior to the conclusion of a trial (United States v Grinnell Corp, 384 U.S. [*3]563, 583 (1966); Ortiz v City of New York et al, 136 Misc 2d 500 (Sup. Ct. New York Co. 1987).

First, the Court has no professional or personal interest in the outcome of this case which would require disqualification. Second, the Court has no, and never had any personal relationship or interaction with the defendant and therefore there is no viabilty for any such claim of bias. Indeed, the only interaction this Court has had with the defendant is in this action. Third, I do not have a "fourteen year old daughter", hence, I never said that I had a fourteen year old daughter to think about when considering the plea offer. The remarks about me having a daughter were made during the bench conference by the Assistant District Attorney, which I completely rejected. I immediately informed counsel that my having a daughter had no basis in my decision to not accept the plea offer. There is absolutely no basis upon which I need to recuse or disqualify myself.

Based upon the above standards, and in consideration of all the circumstances present here, this Court finds that recusal is not warranted in this case (see People v Judkins, 210 AD2d 523 (3d Dept 1994)).

Defendant's motion for recusal is therefore denied.

This constitutes the Decision and Order of this Court.

Dated:October 13, 2010

Mount Vernon, New York

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HON. ADAM SEIDENAssociate City Judge of Mount Vernon