People v. Hymes

193 A.D.3d 975

146 N.Y.S.3d 660

The PEOPLE, etc., respondent,

v.John HYMES, appellant.

2017–10081

Ind. No. 1841/15

Supreme Court, Appellate Division, Second Department, New York.

Argued—March 23, 2021

April 21, 2021

Janet E. Sabel, New York, N.Y. (David Crow and Dechert LLP [Douglas W. Dunham, Ellen P. Quackenbos, and Daniel Goldberg–Gradess ], of counsel), for appellant.

Melinda Katz, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Jie Gao of counsel), for respondent.

MARK C. DILLON, J.P., SYLVIA O. HINDS–RADIX, COLLEEN D. DUFFY, PAUL WOOTEN, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Ira Margulis, J.), rendered August 15, 2017, convicting him of burglary in the first degree (three counts), robbery in the first degree, attempted robbery in the first degree (two counts), robbery in the second degree, criminal possession of a weapon in the second degree (six counts), and endangering the welfare of a child, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is modified, as a matter of discretion in the interest of justice, by vacating the sentence imposed; as so modified, the judgment is affirmed, and the matter is remitted to the Supreme Court, Queens County, for resentencing before a different Justice.

The defendant's arguments as to the legal sufficiency of the evidence are unpreserved for appellate review (see People v. Hawkins, 11 N.Y.3d 484, 872 N.Y.S.2d 395, 900 N.E.2d 946 ; People v. Viera, 172 A.D.3d 762, 100 N.Y.S.3d 38 ; People v. Cancel, 70 A.D.3d 960, 897 N.Y.S.2d 444 ). In any event, contrary to the defendant's contention, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that it was legally sufficient to establish, beyond a reasonable doubt, the defendant's guilt of criminal possession of a weapon in the second degree under counts 11, 12, 14, and 15, burglary in the first degree under count 1, attempted robbery in the first degree, and endangering the welfare of a child based on an acting in concert theory (see Penal Law § 20.00 ; People v. Dillard, 176 A.D.3d 1097, 112 N.Y.S.3d 743 ; People v. Hoke, 114 A.D.3d 538, 980 N.Y.S.2d 120 ). Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5] ; People v. Danielson, 9 N.Y.3d 342, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 N.Y.3d 383, 779 N.Y.S.2d 399, 811 N.E.2d 1053 ). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902 ).

In previously affirming the judgment of conviction of a codefendant, we held that the Supreme Court's determination to permit the People to amend the indictment did not change the theory of the case or unduly prejudice the defense (see People v. Bull, 177 A.D.3d 898, 110 N.Y.S.3d 574 ). Thus, the defendant's present contention in this regard is without merit.

The trial justice improvidently exercised his discretion in denying the defendant's request to recuse himself from presiding over the sentencing proceeding on the ground that the justice's law clerk was a former Queens County Assistant District Attorney who, in that capacity, had worked on the early stages of the case. " ‘Absent a legal disqualification under Judiciary Law § 14, a Trial Judge is the sole arbiter of recusal. This discretionary decision is within the personal conscience of the court’ " ( People v. Suazo, 120 A.D.3d 1270, 1271, 992 N.Y.S.2d 138, quoting People v. Moreno, 70 N.Y.2d 403, 405, 521 N.Y.S.2d 663, 516 N.E.2d 200 ). "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 N.Y.2d 239, 246, 689 N.Y.S.2d 680, 711 N.E.2d 958 ). "Not only must judges actually be neutral, they must appear so as well" ( People v. Novak, 30 N.Y.3d 222, 226, 66 N.Y.S.3d 147, 88 N.E.3d 305 ).

Here, after the verdict was rendered, but prior to sentencing, the trial justice hired as his law clerk a former Queens County Assistant District Attorney who had been involved in the investigation and the early stages of the defendant's prosecution. " ‘[A] law clerk is probably...