
    The People of the State of New York, Plaintiff, v. Anthony D. Gerra, Defendant.
    County Court, Schenectady County,
    December 26, 1958.
    
      Romolo Versad for defendant.
    
      Morris Marshall Cohn (James H. Could of counsel), for plaintiff.
   Archibald C. Wemple, J.

The defendant’s attorney, in an affidavit, alleges that Honorable Louis J. Rinaldi, Police Court Justice of the City of Schenectady, has shown bias and prejudice against him as an attorney, and that, by reason thereof, the defendant herein cannot be given a fair and impartial trial. The defendant’s attorney cites one or two incidents which he claims established a state of mind on the part of the Police Judge which should disqualify him from presiding at this trial.

Certainly this defendants-and every defendant — is entitled to a fair and impartial trial. Such presupposes that the trial will be held before a magistrate whose mind is not affected by extraneous or prejudicial motivation. The affidavit points up a personality conflict which is to be regretted, since it obscures the real issue herein.

It should be noted that the Judge complained of has not seen fit to answer the charges outlined in the affidavit. The defendant’s counsel argues that this is proof that they are true. Whether true or false, it is unfortunate for either counsel or the Judge to display, in public, animosity toward each other. The Bench and Bar should always keep in mind a mutual responsibility to uphold the traditions of a noble profession and, at the same time, participate together in the wholesome and honest administration of justice. At least, the Judge should have informed this court of his position in the alleged controversy so that this application could be passed upon intelligently.

Be that as it may, a careful reading of the affidavit fails to show that the Police Judge has any prejudiced feeling toward this defendant or that, for the reasons stated, this defendant could not receive a fair trial in the court below. The hostility, if any, between Judge and counsel, or vice versa, has no place in this trial.

If the application is not tardy, perhaps a jury trial can be provided here. But, in any event, the remedy of appeal is available if errors are present in the trial. Let the trial proceed with emphasis on justice on the part of all concerned herein.

This is a type of action which could and should be tried in the Police Court and should not be transferred to the Supreme or County Court unless for good and substantial reason shown.

This court feels that the defendant can have a fair trial in the lower court. Therefore, the relief requested herein is denied.

Submit order accordingly.  