The Court of Appeals in Albany

ALBANY – A Schenectady man’s lawyer argued in front of the state’s highest court Wednesday that a judge’s choice to rule on an appeal of his own lower court decision was an “abuse of discretion.”

“I’m asking this court … as the basic principles of fundamental due process that, in fact, this should not be a practice that should be allowed by law or by statute,” said Danielle Neroni Reilly, the attorney for appellant Brian Novak, who argues the county court judge should have recused himself.

After Schenectady County Court Judge Matthew Sypniewski, a Democrat, was elected to the position in November 2014, he was assigned the appeal of a decision in which he had found the defendant guilty of all charges when he served as a Schenectady City Court judge. Sypniewski, in his capacity as a county court judge, affirmed Novak’s conviction.

Novak’s attorney argued that Sypniewski should have had the foresight to recuse himself from the case in order to maintain the appearance of impartiality (NYLJ, Sept. 1).

Associate Judge of the Court of Appeals Jenny Rivera asked Reilly, who has her own law office in Albany, if her argument on Sypniewski not recusing himself was based on the appearance of bias, or based on actual bias.

“Appearance of impropriety. Judge Sypniewski is a fair judge through and through. There’s no indication that he had an actual bias in this case,” Reilly said. “But that’s not what I’m asking the court to determine. I think the court has to determine that Brian Novak went before [Sypniewski] and then had basically no appellate review because no one was there to review his decision on the law.”

While federal law prohibits the practice, there is no provision in New York state that explicitly addresses whether judges can determine appeals taken from their own decisions, the parties in the appeal argue.

In August 2012, Novak was arraigned in Schenectady City Court on a misdemeanor charge of driving while intoxicated and related traffic infractions. The following year, the Schenectady County District Attorney’s Office filed a superseding prosecutor’s information charging Novak with the lesser offense of driving while ability impaired. Novak proceeded to a bench trial before then-City Court Judge Sypniewski, who found him guilty on all charges. Novak appealed his conviction to the county court, which was assigned to Sypniewski once he was elected to the position.

Tracey Brunecz, an assistant district attorney for Schenectady County, argued before the court that the situation did not require a mandatory recusal.

“Do you think there’s just a fundamental appearance of a problem with the person who is sitting on your as of right appeal being the same person that presided over your trial? Doesn’t that undercut, as your adversary was saying?” Associate Judge Michael Garcia asked Brunecz.

“If you’re going to make the argument that if there is an appearance of impropriety and you have the discretion to decide whether to sit or not, the mere fact that you do make the decision … That’s a bootstrap argument.”