A divided upstate appellate panel has toppled a sex crime conviction because a trial judge who had three years earlier argued with the suspect’s girlfriend, and knew that the defendant’s name was on a grievance filed against the judge, refused to recuse himself from the case.

While all five Appellate Division, Fourth Department, justices agreed that it may have been advisable for Oswego County Court Judge Walter Hafner Jr. (See Profile) to have stepped aside, they differed on whether recusal was required and whether the judge’s decision to preside over People v. Warren, 12-00345, denied the defendant of a fair trial.

The case involves Chester Warren, who was convicted at a 2011 jury trial of first-degree sexual abuse and endangering the welfare of a child. Warren’s girlfriend, Debbie Smith, had previously quarreled with the judge in what was apparently a political dispute.

Records show Hafner was running for reelection in 2007 against an assistant district attorney, Robert Genant, when he encountered Smith at the Oswego County Fair. Smith, who was director of the fair, said in an affidavit that she was wearing a t-shirt advocating Genant’s election. Smith contends that Hafner followed her around the fairgrounds, snapping photos of her shirt, and then loudly confronted her at a picnic table and told her she would go to jail for wearing the garment.

“He apparently believed that I was using my position as director of the fair to improperly support the Genant candidacy,” Smith said in the affidavit. “I became so frightened that I immediately removed the shirt.”

Later, Hafner visited Smith’s home, where she lived with Warren, “presumably to apologize” for the fairground incident. But Smith refused to speak with the judge and instead sent Warren out to “tell Judge Hafner that I was not willing to listen to what he might have to say,” according to the affidavit.

The following summer, Smith said in the affidavit, she was contacted by the Oswego County district attorney, who “asked if I would be willing to provide information in support of a grievance that was being prepared against Judge Hafner.”

She agreed, and a grievance, naming her and Warren, was presented to the judge. Warren was later indicted in Oswego County on sex charges.

Warren’s trial attorney, John Conners of Oswego, filed a pretrial recusal motion, contending the defendant was considering a bench trial but would not consider that option if Hafner remained on the case. Although the district attorney did not oppose the recusal motion, Hafner refused to step aside and Warren was convicted by a jury. This appeal ensued.

“In continuing to preside over the case, Judge Hafner left himself in a position to impose sentence on defendant, shortly after defendant was referenced in a grievance filed against Judge Hafner,” the Fourth Department majority said in a memorandum joined by Justices Eugene Fahey (See Profile), Stephen Lindley (See Profile) and Salvatore Martoche (See Profile). “We conclude the court should have granted the recusal motion, and we thus reverse the judgment, grant the recusal motion and grant a new trial before a different judge.”

Presiding Justice Henry Scudder (See Profile) and Justice Nancy Smith (See Profile) dissented in a memorandum.

“While we agree with the majority that recusal may have been the better practice inasmuch as the allegations of ‘personal bias or prejudice’ created a reasonable basis upon which to question the Trial Judge’s impartiality, we cannot agree that reversal is required,” the dissenters said. “Where, as here, there is no statutory basis to prevent a Trial Judge from hearing the case, the decision on a recusal motion is a matter addressed to the discretion and personal conscience of the Trial Judge.”

Scudder and Smith added that Warren “does not, and indeed cannot, point to any evidentiary ruling or sentencing decision that resulted from the alleged bias or prejudice.” They noted that the complaint to the grievance committee, which was denied, was filed against Hafner by the prosecutor, not the defendant and not his girlfriend.

The appeal decided last week was argued by John Cirando of Syracuse for the defendant and Michael Cianfarano of Oswego for the district attorney.

“I am very gratified that the defendant’s right to a non jury trial was maintained,” Cirando said.

Cianfarano was not immediately available for comment.

Another Recusal Case

In another appeal decided last week out of Genesee County, the justices found no fault where a trial judge accepted an attempted burglary Alford plea (see North Carolina v. Alford, 400 U.S. 25, 1970) in a case prosecuted by his cousin.

The court said the assistant district attorney was not a party to the controversy, but “a public servant representing the People in the criminal action,” and was not “within the fourth degree of relationship” to Judge Robert Noonan (See Profile) that would require recusal under the Rules of the Chief Administrator of the Courts (22NYCRR Section 100.3).

Rather, the court said Assistant District Attorney William Zickl, a first cousin once removed of the judge, “was within the fifth degree or relationship.”

People v. Molaro, 11-02132, was argued by Paul Vacca Jr. of Rochester for Molaro and Zickl.

Justices Scudder, Smith, Fahey, Edward Carni (See Profile) and Joseph Valentino (See Profile) were on the panel.