Issue before the Court: Whether a due process violation occurs when the sole judge deciding a criminal defendant’s appeal as of right is the same judge who convicted the defendant after a bench trial.  (After convicting the defendant in City Court, the judge was elected to County Court.)

 

Held: Yes.  Although Article VI of the State Constitution does not explicitly bar this scenario, recusal was nonetheless required as a matter of due process.  The case was sent back to County Court for a de novo appeal.

 

CAL Observes: This kind of scenario could only happen upstate.  Interestingly, until 1961, when article VI of the State Constitution was revamped, this scenario was explicitly disallowed.  In the 1961 revamp, this language was dropped–inadvertently according to the Novak decision.  See footnote 1.  Perhaps if there’s a constitutional convention they could remember to put the language back in.   No fireworks here, but what if the newly-elected appellate judge was just one in an appellate panel of three or four or five?  BTW, this was Judge Feinman’s first authored opinion.