
    The People of the State of New York, Plaintiff, v. Robert Whitney, Defendant.
    County Court, Jefferson County,
    October 11, 1973.
    
      Roger A. Williams for defendant. John Bastían, District Attorney, for plaintiff.
   William J. McClusky, J.

By his plea of guilty to a violation of subdivision 1 of section 215.50 of the Penal Law, before the Honorable Donald F. Holmes, Justice of the Village of Carthage, the defendant was convicted on April 24, 1973. Following the receipt "of a probation report, the defendant upon appearing before the court on August 10, 1973 was sentenced to serve a term of 179 days in the Jefferson County Jail.

The defendant has appealed, his main ground being that the Village Justice was disqualified by reason of interest, to act in this matter.

It is a maxim of every code in every country that no man should be a Judge in his own case. It is not left to his discretion whether he shall act or not.

In the instant cáse, Town Justice Holmes signed the information charging the defendant with a violation of the Penal Law. Therefore, as the complaining witness he may not sit in judgment of the case. Section 14 of the Judiciary Law states in part: A judge shall not sit as such in, or take any part in the decision of, an action, claim, matter, motion or proceeding * * * in which he is interested ”. A Judge shall not preside at a trial where he may be called as a material witness to the crime. (People v. Horton, 47 Misc 2d 58.) This may not be waived by a guilty plea or otherwise. (People v. Thayer, 61 Misc. 573; People v. Berry, 23 A D 2d 955.)

Judgment of the Village Court of the Village of Carthage, is reversed and the information dismissed.  