Opinion
May 28, 1993
Appeal from the Ontario County Court, Harvey, J.
Present — Denman, P.J., Green, Balio, Fallon and Davis, JJ.
Judgment unanimously affirmed. Memorandum: We reject defendant's contention that the Trial Judge should have recused himself. The fact that the Judge had been the District Attorney when defendant was prosecuted on prior unrelated criminal matters does not, without more, require recusal (see, People v Jabaut, 188 A.D.2d 1082; People v Alnutt, 172 A.D.2d 1061, lv denied 78 N.Y.2d 1073; People v Jones, 143 A.D.2d 465, 467; see also, People v Moreno, 70 N.Y.2d 403, 405; cf., People v Tartaglia, 35 N.Y.2d 918, 919).
We also reject defendant's argument that his postarrest statement should have been suppressed as the product of an illegal arrest. Contrary to defendant's contention, his warrantless arrest within his girlfriend's home did not violate the principles enunciated in Payton v New York ( 445 U.S. 573). The record supports the suppression court's determination that the police entry into the home was consensual and that the consent was voluntarily given (see, People v Daly, 180 A.D.2d 872, 874, lv denied 79 N.Y.2d 1048; People v Matus, 166 A.D.2d 464, 465, lv denied 76 N.Y.2d 1022; People v Long, 124 A.D.2d 1016). Thus, the suppression court properly denied defendant's motion to suppress his postarrest statement made after he twice had been apprised of his Miranda rights and voluntarily agreed to waive those rights (see, People v Daly, supra, at 874; People v Matus, supra, at 465; see also, People v Casassa, 49 N.Y.2d 668, cert denied 449 U.S. 842). Further, we conclude that defendant's statement was knowingly and voluntarily made (see, People v Barksdale, 140 A.D.2d 531, 532, lv denied 72 N.Y.2d 915).
The jury could reasonably have concluded that the structure involved in the crimes constituted a "building" within the meaning of the burglary statutes (see, Penal Law § 140.00; see also, People v Mincione, 66 N.Y.2d 995; People v Schmid, 124 A.D.2d 896, lv denied 69 N.Y.2d 955; People v Fennell, 122 A.D.2d 69, lv denied 68 N.Y.2d 1000). The proof established that the structure was a permanent edifice used for "carrying on business therein" (Penal Law § 140.00), had a basement, was enclosed by cement block walls and a roof, and was supplied by electricity.
Defendant has not preserved for our review his contention that the trial court, having charged the jury that a witness was an accomplice as a matter of law, erred in failing to charge the jury that the witness's guilty plea was not binding on defendant (see, CPL 470.05). In any event, the court's error in failing to give that charge was harmless in view of the overwhelming evidence against defendant (see, People v Weinberg, 183 A.D.2d 932, 934, lv denied 80 N.Y.2d 977; People v Allen, 145 A.D.2d 957, 958, lv denied 73 N.Y.2d 974). There is no significant probability that the jury would have acquitted defendant but for that error (see, People v Crimmins, 36 N.Y.2d 230; People v Allen, supra, at 958; People v Scoville, 132 A.D.2d 731, 732, lv denied 70 N.Y.2d 755).
Finally, we conclude that the sentence imposed was neither harsh nor excessive.