Opinion 02-58

June 7, 2002

Digest:         Where a judge has been a witness and testified in the grand jury concerning alleged tampering by the defendant with a witness in a case over which the judge was presiding, the judge should not preside in a retrial or sentencing of the defendant, or at the sentencing of another defendant in an unrelated case, who is also a defendant in the witness tampering case.

Rule:            22 NYCRR 100.3(E)(1).

Opinion:

         On each of the first two days of a criminal trial over which the inquiring judge was presiding, the judge saw the defendant “signal to two people in the audience.” On the third day, a key witness failed to appear. The next day the witness did appear and testified that the same two people in the audience had “coercively encouraged his leaving the courthouse and going home.” Both individuals were arrested and indicted, along with the defendant, for witness tampering. The inquiring judge had testified in the grand jury.

         One of the persons indicted is the defendant’s brother who previously had taken a plea in front of the inquirer in a felony stolen car case. He was given youthful offender treatment and a conditional discharge, and the matter was adjourned six weeks, pending a probation report. At the time, he “was warned about all promises being negated should he be arrested before sentencing.”

         The trial over which the judge was presiding ended in a partial verdict, and the counts on which the jury was hung are scheduled for retrial. At the trial, the judge, following a hearing, made a determination that the “witness tampering was something defendant was responsible for and could be elicited at trial at establishing consciousness of guilt.”

         In view of what the judge characterizes as “this unusual scenario,” the judge seeks advice on the following issues:

         1.       May I sentence the defendant who entered the plea before me on the stolen car case now that he has been found to have violated the warning about generating a rearrest before sentencing? I did not testify at the violation hearing, but did testify in the grand jury on the subject of tampering with a witness.

         2.       Can I preside at the retrial of the unresolved counts? I have testified in the grand jury as to the trial defendant’s potential witness tampering activity.

         3.       Can I sentence the trial defendant on the count of Criminal Possession of a Weapon in the Third Degree that he was originally convicted of?

         The Committee is of the opinion that each of the judge’s questions arising out of this undoubtedly “unusual scenario,” requires a “no” answer. It is our view that in each instance, the fact of the judge’s involvement in the witness tampering matter, including the judge’s ruling in the original trial that those facts can be elicited at trial to show consciousness of guilt, creates a situation “ in which the judge’s impartiality might reasonably be questioned.” 22 NYCRR 100.3(E)(1).

         We note that neither the defendant nor his brother have been convicted of witness tampering. Yet the judge is clearly a witness to aspects of that charge, and may, indeed, have views as to their guilt. The appearance of having such views, arising out of the judge’s involvement as a witness, and his/her ruling in the original trial, could readily be perceived as raising reasonable questions of impartiality in both sentencing matters and in the retrial. Under such circumstances, we believe the better course is for the judge to exercise recusal in each of the three proceedings.