You are here: / / THE JUDGE’S LAW CLERK WAS THE DISTRICT ATTORNEY WHO PROSECUTED DEFENDANT;...
,

THE JUDGE’S LAW CLERK WAS THE DISTRICT ATTORNEY WHO PROSECUTED DEFENDANT; THE JUDGE SHOULD NOT HAVE DECIDED DEFENDANT’S MOTION TO VACATE HIS CONVICTION (THIRD DEPT).

The Third Department, reversing County Court, determined defendant’s motion to vacate his conviction should not have been considered by the judge whose law clerk was the District Attorney at the time of defendant’s conviction:

As one of the grounds raised in his CPL article 440 motion, defendant argued that he was deprived of his right to appear before the grand jury due to the actions of the District Attorney. The parties do not dispute that, at the time that defendant’s CPL article 440 motion was decided, the judge’s law clerk was the former District Attorney who had prosecuted defendant. That said, defendant contends that the judge should have recused himself from deciding defendant’s motion. We agree. “Not only must judges actually be neutral, they must appear so as well” … . In view of the law clerk’s direct involvement in defendant’s case during her tenure as the District Attorney and the allegations made in the CPL article 440 motion about her conduct while she was prosecuting him, as well as taking into account the need to maintain the appearance of impartiality, it was an improvident exercise of discretion for the judge to decide defendant’s motion … . People v Roshia, 2022 NY Slip Op 03546, Third Dept 6-2-22

Practice Point: The judge should not have decided defendant’s motion to vacate his conviction because the judge’s law clerk was the DA who prosecuted defendant.

 

You might also like
THE BUILT-IN WATER HEATER WAS A “STRUCTURE” AND PLAINTIFF WAS ENGAGED IN “REPAIR” WITHIN THE MEANING OF LABOR LAW 240(1); A SHELF ROUTINELY USED AS A PLATFORM TO ACCESS THE BUILT-IN WATER HEATER COULD CONSTITUTE A DANGEROUS CONDITION WITHIN THE MEANING OF LABOR LAW 200 (THIRD DEPT).
PETITIONER, A FORMER CORRECTION OFFICER SEEKING REINSTATEMENT, WAS ENTITLED TO THE RECORDS OF THE PSYCHOLOGICAL EXAMINATION WHICH FOUND HIM UNFIT; THE WAIVER OF THE RIGHT TO REVIEW THOSE DOCUMENTS, SIGNED BY PETITIONER, WAS A NULLITY (THIRD DEPT).
FAMILY COURT DID NOT PROVIDE FATHER WITH EVERY REASONABLE INFERENCE AND RESOLVE ALL CREDIBILITY ISSUES IN HIS FAVOR WHEN CONSIDERING MOTHER’S MOTION TO DISMISS THE CUSTODY MODIFICATION PETITION AFTER FATHER’S TESTIMONY; ALTHOUGH FATHER DESCRIBED WHAT THE CHILDREN TOLD HIM, SUCH HEARSAY CAN BE ADMISSIBLE IN ABUSE AND NEGLECT PROCEEDINGS; IN ADDITION, THE LINCOLN HEARING, WHICH WAS CANCELLED BY THE JUDGE, COULD HAVE SERVED TO CORROBORATE FATHER’S TESTIMONY; MATTER REMITTED (THIRD DEPT).
District Attorney’s Former Status as a Judge Hearing Cases Involving the Department of Social Services Did Not Preclude the District Attorney from Issuing Subpoenas for Department Records
THE “ESSENTIAL ELEMENTS” TEST SHOULD BE USED TO DETERMINE WHETHER AN OUT-OF-STATE NON-SEXUAL CONVICTION CAN BE USED TO ASSESS RISK-LEVEL POINTS UNDER SORA (THIRD DEPT).
THE EVIDENCE THAT DEFENDANT INTENDED TO PURCHASE DEALER QUANTITIES OF COCAINE FROM A DEALER (SANCHEZ) AND COOKED CRACK COCAINE FOR THAT DEALER WAS NOT LEGALLY SUFFICIENT EVIDENCE OF AN INTENT TO ORGANIZE OR LEAD THE DEALER’S DISTRIBUTION NETWORK; CONSPIRACY CONVICTON REVERSED (THIRD DEPT).
THE LIEN LAW DOES NOT PROVIDE THAT A TOWING COMPANY STORING A CAR PURSUANT TO A POLICE IMPOUND HAS THE RIGHT TO DEMAND A RELEASE FROM THE POLICE DEPARTMENT AND A HOLD HARMLESS AGREEMENT BEFORE RELEASING THE CAR, THE CAR SHOULD HAVE BEEN RELEASED WHEN PETITIONER FIRST REQUESTED IT, IN ADDITION, THE $50 A DAY STORAGE FEE IS EXCESSIVE (THIRD DEPT).
Independent Reason for Incarceration Precludes Habeas Corpus Relief

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

THERE WAS NO EVIDENCE DEFENDANT SHARED THE ATTACKERS’ INTENT TO ROB THE... DEFENDANT’S PLEA COLLOQUY NEGATED AN ESSENTIAL ELEMENT (JURAT) OF HIS...