Opinion
January 20, 1987
Appeal from the County Court, Orange County (Ritter, J.).
Ordered that the judgments are modified, as a matter of discretion in the interest of justice, by providing that all of the sentences shall run concurrently. As so modified, the judgments are affirmed.
Contrary to the defendant's contention, there was no requirement that the Trial Judge be disqualified from presiding over the trial (see, People v. Tartaglia, 35 N.Y.2d 918, 919; People ex rel. Stickle v. Fay, 14 N.Y.2d 683; People v. Harris, 117 A.D.2d 881, 882), notwithstanding our earlier decision which reversed the conviction of the defendant's accomplice (People v Smith, 120 A.D.2d 753). This is especially so since the defendant and Smith were tried separately, before juries (cf. People v Corelli, 41 A.D.2d 939; People v. Vetrano, 42 A.D.2d 987), and while the Trial Judge, before assuming his judicial office, had, as an Assistant District Attorney, prosecuted Smith, he did not prosecute this defendant.
We do find, however, that the defendant's sentences were excessive to the extent indicated, as it appears that he was impermissibly penalized for asserting his right to a trial (see, People v. Patterson, 106 A.D.2d 520). Mangano, J.P., Niehoff, Lawrence and Kunzeman, JJ., concur.