Summary
rejecting defendant's contention that the judge "should have recused himself from ruling on the validity of a search warrant he issued," as that "decision is a matter of individual conscience for the court"
Summary of this case from Hirning v. DooleyOpinion
Argued March 30, 1995
Decided May 2, 1995
Appeal from the Appellate Division of the Supreme Court in the Fourth Judicial Department, W. Patrick Falvey, J.
Griffith J. Winthrop, Canandaigua, for appellant.
Donald A. Schneider, District Attorney of Yates County, Penn Yan, for respondent.
MEMORANDUM.
The order of the Appellate Division should be affirmed.
Defendant contends that the Trial Judge in this case should have recused himself from ruling on the validity of a search warrant he issued while sitting as a Town Court Justice, and that the Judge's failure to recuse constituted reversible error. We disagree. Nothing in Judiciary Law § 14 compels such recusal. The decision is a matter of individual conscience for the court (see, People v Moreno, 70 N.Y.2d 403, 405; see also, People v Liberatore, 79 N.Y.2d 208, 217 [a Judge may entertain a motion to suppress evidence seized pursuant to an eavesdropping warrant he or she has issued]; People v Tambe, 71 N.Y.2d 492, 506 [a Judge issuing a search or eavesdropping warrant may entertain a motion to suppress evidence seized pursuant to it]). We additionally reject defendant's argument that a rule prohibiting Judges from entertaining motions to suppress evidence seized pursuant to the warrants they have issued is necessary to protect the integrity of trials. "There is no basis to conclude that [Judges who review their own search warrants] fail to give suppression motions anything less than fair and impartial consideration and further review is available by the Appellate Division which possesses the same power in such matters as does the suppression court" (People v Tambe, supra, at 506).
In addition, the trial court properly denied defendant's motion to suppress evidence seized pursuant to the search warrant. The application for the search warrant contained a detailed signed statement by a codefendant, Charles Burkett, which was itself sufficient to establish probable cause. Both the basis of Burkett's information and his reliability could be inferred from the statement because Burkett made the statement based on his own observations and involvement with the crime, against his own penal interests, and with the express understanding that making a false written statement was a crime (see, People v Johnson, 66 N.Y.2d 398, 403-404; People v Comforto, 62 N.Y.2d 725; People v Hanlon, 36 N.Y.2d 549). Moreover, there is no evidence in the record to support defendant's present claim that Burkett's statement was the product of a search conducted the day before the statement was given. Thus, we need not address the legality of that search.
We have examined defendant's other claims and find them to be unpreserved, without merit, or beyond the review power of this Court.
Chief Judge KAYE and Judges SIMONS, TITONE, BELLACOSA, SMITH, LEVINE and CIPARICK concur.
Order affirmed in a memorandum.