County Court, Fulton CountyOct 18, 1965
48 Misc. 2d 26 (N.Y. Misc. 1965)
48 Misc. 2d 26264 N.Y.S.2d 42

October 18, 1965

Ernest Abdella for defendant.

H. Andrew Schlusberg, District Attorney, for plaintiff.

The defendant was indicted by the Fulton County Grand Jury for murder in the first degree in connection with the fatal shooting of Gloversville Patrolman Charles C. Dunham. The defendant has moved for my disqualification in this case because of my connection with the Police Benevolent Association of the City of Gloversville. There is no merit in this contention. Section 14 Jud. of the Judiciary Law provides in part that: "A judge shall not sit as such in, or take any part in the decision of, an action * * * in which he is interested" and it has been held by the highest court in our State ( Matter of Hancock, 91 N.Y. 284) that this interest must be an interest in a pecuniary or property right, and one from which the Judge might profit or lose.

Although the P.B.A. has honored me by designating me as its counsel, I have had no retainer from them and, except for representing them in 1961, I have never transacted any business for them. It is important to note that the P.B.A. is not a party to this action in which the People of the State of New York are plaintiffs and Mr. Rowley is the defendant.

It is a fundamental principle in the proper administration of justice that the litigants are entitled to and should receive a fair and impartial trial. It is equally indispensable that there should not be any suspicion or doubt as to the Judge's fairness and integrity thus insuring the respect and confidence of the community. I know that the reason advanced for my disqualification is legally insufficient. The question of when a Judge should disqualify himself is generally one of conscience. I am satisfied in my own mind that I can preside at the trial of this case with impartiality and see to it that the defendant's rights are scrupulously protected.

However, in the light of the seriousness of the crime with which Mr. Rowley is charged and the severe sentence which could be imposed upon him in the event of his conviction, there should not be the slightest impression in his or anyone else's mind that the court's decision might be swayed by anything other than the merits of the case.

I have, therefore, decided to disqualify myself thus removing any possible doubt that may exist in the mind of the defendant on that score.

Accordingly, I shall request the Presiding Justice of the Appellate Division and the Administrative Judge of the Fourth Judicial District to assign another Judge to preside at the trial herein.