AD2 order dated June 21, 2011, affirming judgment of conviction after a jury trial. Decision below: 85 A.D.3d 1055, 925 N.Y.S.2d 841. Smith, J., granted leave February 28, 2012.

ISSUES PRESENTED: (1) Where the trial judge had reserved decision on the defendant’s motion for a trial order of dismissal, and later suggested that defense counsel move to set aside the guilty verdict upon papers, and where the trial judge then recused himself and another judge was substituted, whether Judiciary Law §21 prohibited the second judge from deciding the motion to set aside rather than declaring a mistrial. (2) The sufficiency of the evidence.

Issue before the Court: Whether Judiciary Law § 21 bars a substitute judge from deciding a question of law presented in a motion argued orally before another judge.

Held: No, so long as a transcript or recording of the prior argument is available for review, and “the substitute indicates on the record the requisite familiarity with the proceedings and no undue prejudice occurs to the defendant or the People.”