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
"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
The grievance against Hafner that included Warren's
girlfriend was ultimately "denied," the Fourth Department said.
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
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
Warren's attorney, John Cirando, said he was "gratified" by
Oakes, the district attorney, did not return a call seeking
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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