At the March 18, 2011 status conference the defendant orally moved for your within Judge to recuse himself from the above captioned matter.

The People then orally joined in the application for recusal and after oral argument this court reserved decision and order a hearing.

The defendant was indicted under Indictment 227-2010 charging him five counts including attempted aggravated assault against a police officer. The defendant's vehicle was stopped on State Route 17, a public highway, by a New York State Trooper after speeding through a work zone in Orange County. Allegedly, while the Trooper was at the open driver's door, the defendant put his vehicle in motion, striking the Trooper with the door and allegedly dragging the Trooper along the highway. The Trooper was eventually thrown from the vehicle after the Trooper pulled his service revolver and shot the defendant, severely wounding him. [*2]

As a result the New York State Police broadcast for assistance. Approximately thirty Troopers^[FN1] responded including one who is your within Judge's son.

Following arraignment, Discovery and Omnibus Motion practice was concluded and this Court held pre-trial hearings.

Based upon the above, the defendant and the People have made application for your within Judge to recuse himself because of Trooper LaBuda's apparent involvement in the case.

Pursuant to the application for recusal this Court reserved its decision, and held a hearing on March 30, 2011.

The undisputed facts at the hearing show that Trooper Kurt LaBuda responded to the scene along with about thirty other New York State Troopers pursuant to a Broadcast. Trooper LaBuda did not witness the traffic stop or its aftermath. Trooper LaBuda did not take any statements from the defendant or anyone else and had no contact or involvement with the defendant.

Trooper LaBuda did receive an order from an unidentified Trooper at the scene to make a 911 call for an ambulance and later to search for evidence along State Route 17 with a dozen or more other Troopers, but nothing was found.

Trooper LaBuda has not had any discussions with his father, your within Judge, regarding this incident. Trooper LaBuda does not know the unidentified Trooper nor work with him.

Lastly, there are no plans to call Trooper LaBuda as a witness at trial by the People or the Defense, but both parties want the judge recused.^[FN2]

The defense originally based it's recusal request on allegations involving the inner workings of the New York State Police and that Trooper LaBuda was a potential witness. The District Attorney based his request on whether the Judge could be impartial because of the credibility of the New York State Police witnesses and, more specifically, the credibility of [*3]Trooper LaBuda if called as a witness. After the hearing there are no plans to call Trooper LaBuda as a witness by either the Defense or the People.

THE LAW

Recusal may be required under 22 NYCRR 100.3 or Judiciary Law §14.

A trial Judge is the sole arbiter of his own recusal unless recusal is a legal disqualification under Judiciary Law §14. People v Moreno, 70 NY2d 403(1987). A court's decision may not be overturned unless it was an abuse of discretion. People v Taraglia, 35 NY2d 918(1974).

If recusal is sought based upon impropriety (22 NYCRR 100.3) as distinguished from legal disqualification (Judiciary Law §14), the judge is the sole arbiter. People v Moreno, supra.

Recusal may be required under 22 NYCRR 100.3(E). There are no sections of 22 NYCRR 100.3 (E) which are applicable to the instant matter.

22 NYCRR 100.2(E)(1) requires that "A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to instances where: (d) the judge knows that the judge or the judge's spouse, or a person known by the judge to be within the sixth degree of relation ship to either of them, or a spouse of such person: (i) is a party to the proceeding.

When a case involves the judge's son to be a witness, not a party, recusal is not required. People v Willsey, 148 Ad2d 764 (3rd Dept., 1989). In this matter the judge's son, Trooper LaBuda, will not even be a witness in all probability.

Even the New York Court of Appeals in a venerable decision noted even when a judge's son was a subordinate counsel in the District Attorney's office recusal was not required. People v Patrick, 183 NY 52 (1905).

Both plaintiff and defendant fail to raise any legitimate basis for recusal in their arguments because there is no legal basis for disqualification under Judiciary Law § 14 or 22 NYCRR 100.3 or case law under People v Willsey, supra or People v Patrick, supra.

Although the legal arguments made by both the defense and the prosecution do not establish a legal basis for recusal that does not relieve this Court of its obligation to "SEARCH THE RECORD AND SEARCH HIS SOUL" for any other basis for recusal in order to present the transparency of the Judiciary and the Public's trust in the judicial system. Accordingly, notwithstanding the case law which clearly does not require recusal, your within Judge is aware that: [*4]

1. An Interested Witness jury charge pursuant to Criminal Jury Instruction 7.03 may be requested at the conclusion of any trial herein regarding Trooper. This is the first and only criminal prosecution involving a shooting by a New York State Trooper in Sullivan County.

2. There is or may be a civil suit against the New York State Police and/or the individual Trooper involved herein e.g., a cause of action for excessive force alleged.

Therefore, faced with the unique and singular legal issue of an interested witness^[FN3] charge and the civil suit notwithstanding the above rationale that recusal is not required, your within Judge, with an abundance of caution and the overriding need to allow justice to be perceived and to prevail, will recuse myself from any further appearances in this matter.

Based upon my recusal herein, this case should be referred to the Third Judicial District Administrative Judge,^[FN4] to designate a Judge to preside over the within matter.

This shall constitute the Decision and Order of this Court.

DATED: May 24, 2011

Monticello, NY

_______________________________

Hon. Frank J. LaBuda

Sullivan County Court Judge

and Surrogate