People v. Swartz

160 A.D.3d 1296

76 N.Y.S.3d 246

The PEOPLE of the State of New York, Respondent,

v.Troy SWARTZ, Appellant.

107997

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

Calendar Date: March 28, 2018

Decided and Entered: April 26, 2018

Andrew Kossover, Public Defender, Kingston (Michael K. Gould of counsel), for appellant.

D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), for respondent.

Before: Garry, P.J., McCarthy, Lynch, Clark and Pritzker, JJ.

MEMORANDUM AND ORDER

Garry, P.J.

Appeal from a judgment of the County Court of Ulster County (Williams, J.), rendered July 29, 2015, upon a verdict convicting defendant of the crimes of sexual abuse in the first degree and strangulation in the second degree.

Following a jury trial, defendant was convicted of sexual abuse in the first degree and strangulation in the second degree. County Court thereafter determined that defendant was a persistent felony offender and sentenced him to two concurrent prison terms of 25 years to life. Defendant appeals.

We reject defendant's contention that County Court improperly sentenced him as a persistent felony offender. Defendant admitted to being convicted of four prior felonies and that he was incarcerated for more than one year on each conviction (see Penal Law § 70.10[1] ). Moreover, nothing in the record suggests that County Court abused its discretion in determining that defendant's "history and character" and "the nature and circumstances of his criminal conduct are such that extended incarceration and lifetime supervision of [him] are warranted to best serve the public interest" ( CPL 400.20[1][b] ). County Court addressed defendant's criminal history, which spans over 30 years and includes numerous convictions, multiple parole violations and crimes involving violent and offensive acts against women, and defendant was provided an opportunity to be heard. Accordingly, we cannot conclude that County Court abused its discretion in imposing an aggregate sentence of 25 years to life (see People v. Wicks, 73 A.D.3d 1233, 1237, 900 N.Y.S.2d 485 [2010], lv denied 15 N.Y.3d 857, 909 N.Y.S.2d 34, 935 N.E.2d 826 [2010] ; People v. Stokes, 290 A.D.2d 71, 76, 736 N.Y.S.2d 781 [2002], lv denied 97 N.Y.2d 762, 742 N.Y.S.2d 623, 769 N.E.2d 369 [2002], cert denied 537 U.S. 859, 123 S.Ct. 230, 154 L.Ed.2d 97 [2002] ; People v. Andre, 232 A.D.2d 884, 886, 649 N.Y.S.2d 212 [1996], lv denied 89 N.Y.2d 918, 654 N.Y.S.2d 720, 677 N.E.2d 292 [1996] ). Finally, defendant's contention that County Court was biased and should have recused itself is unpreserved for our review, as he failed to make an appropriate motion or request that the court recuse itself (see People v. Ganoe, 122 A.D.3d 1003, 1003–1004, 995 N.Y.S.2d 837 [2014], lv denied 25 N.Y.3d 1163, 15 N.Y.S.3d 295, 36 N.E.3d 98 [2015] ; People v. Bigwarfe, 35 A.D.3d 904, 905, 825 N.Y.S.2d 813 [2006], lv denied 8 N.Y.3d 878, 832 N.Y.S.2d 490, 864 N.E.2d 620 [2007] ). In any event, the record contains no evidence of judicial bias, and the fact that County Court may have been familiar with some of defendant's prior crimes, due to the court's former position as Ulster County District Attorney, does not warrant the court's recusal (see People v. Kenyon, 108 A.D.3d 933, 941–942, 970 N.Y.S.2d 638 [2013], lv denied 21 N.Y.3d 1075, 974 N.Y.S.2d 324, 997 N.E.2d 149 [2013] ; People v. Alnutt, 172 A.D.2d 1061, 1061, 569 N.Y.S.2d 317 [1991], lv denied 78 N.Y.2d...