By Daniel Wiessner

ALBANY, N.Y., Nov 13 (Reuters) - An upstate New York judge should have recused himself from a sex abuse case because he had a confrontation with the defendant's girlfriend three years before the trial, a divided appeals court has ruled.

In a 3-2 decision, the Appellate Division, Fourth Department, ordered a new trial for Chester Warren, 80, finding that Oswego County Judge Walter Hafner erred by presiding over the case after Warren's girlfriend had filed a disciplinary grievance against the judge.

Warren was convicted last year of sexual abuse and endangering the welfare of a child and sentenced to four years in prison.

"It may be the better practice in some situations for a court to disqualify itself in a special effort to maintain the appearance of impartiality," the court wrote in an unsigned memorandum released Friday. "This is one of those situations."

According to the court, Warren's girlfriend, who is not named in the decision, testified in an affidavit that in 2008, she was working at the Oswego County Fair and wearing a T-shirt in support of Robert Genant, who was challenging Hafner for the county judgeship in that year's election. She claimed Hafner "approached me, yelled at me, and told me I was going to go to jail for wearing the t-shirt," the Fourth Department said.

The following summer, Warren's girlfriend was contacted by former Oswego County district attorney Donald Dodd regarding the incident with Hafner, and she agreed to provide information as part of a disciplinary grievance against the judge filed with the state Commission on Judicial Conduct, according to the court.

The grievance against Hafner that included Warren's girlfriend was ultimately "denied," the Fourth Department said.

ACTUAL HARM

Warren in 2009 was charged with sexual abuse after allegedly molesting a 7-year-old girl and showing graphic photos and a video to other young girls. At trial, Warren moved for Hafner's recusal. He argued that he was precluded from seeking a bench trial because he would not be able to call his girlfriend as a character witness for fear of the judge's potential bias against her.

The prosecution did not oppose the recusal motion, according to the Fourth Department.

Hafner declined to recuse himself, and in May 2011, a jury found Warren guilty of two counts of sexual abuse and three counts of endangering the welfare of a child.

The Fourth Department on Friday reversed.

In ordering a new trial before a different judge, the Fourth Department wrote, "In continuing to preside over the case, Judge Hafner left himself in the position to impose sentence on (Warren), shortly after defendant was referenced in a grievance filed against Judge Hafner."

The majority panel included Justices Eugene Fahey, Stephen Lindley and Salvatore Martoche.

In dissent, Presiding Justice Henry Scudder and Justice Nancy Smith said that Warren had failed to show any actual harm.

"(Warren) does not, and indeed cannot, point to any evidentiary ruling or sentencing decision that resulted from the alleged bias or prejudice," the dissent wrote in an unsigned memorandum.

Warren's attorney, John Cirando, said he was "gratified" by the decision.

Oakes, the district attorney, did not return a call seeking comment.

The case is People v. Chester Warren, New York State Supreme Court, Appellate Division, Fourth Department, No. 12-00345.

For the prosecution: Oswego County Assistant District Attorney Michael Cianfarano.

For Warren: John Cirando.

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