Opinion: 04-58

June 3, 2004

Digest:          A judge is not required to recuse in violation of probation re-sentencing cases, merely because the judge has been made aware of local budgetary factors concerning incarceration in a local facility as opposed to a state facility, even if the judge regards such information as intended to influence his or her judicial decisions.

Rule:             22 NYCRR; 100.2; 100.3 (E)(1).

Opinion:

           The Administrative Judge of a Judicial District issued a memorandum to the inquiring judge and others who preside in that district, concerning the greater cost to counties when defendants who have violated probation are re-sentenced to local correctional facilities as opposed to state prison. This information was also verbally relayed to the inquiring judge and other judges of that district at a meeting.

           The inquiring judge seeks an opinion as to whether in future felony violation of probation re-sentencing matters, the judge must recuse in such matters, or, alternatively, in order to avoid an appearance of impropriety, advise the litigants as to the content of the memorandum and provide the parties with the opportunity to move for the recusal of the judge.

           The circumstances as set forth in the inquiry do not require disqualification pursuant to the Rules Governing Judicial Conduct. 22 NYCRR 100.3(E)(1). Here, the inquiring judge has not indicated that his/her decision-making process in re-sentencing probation violators has been compromised in any way, or that future sentencing of probation violators will be based on fiscal considerations. In fact, the inquiring judge sent a memorandum to the Administrative Judge indicating the judge’s disapproval of the suggestion that budgetary issues be considered in sentencing determinations. Under these circumstances, the inquiring judge is not required to recuse in such cases in the future. Further, there is no requirement for the judge to disclose to the litigants the existence or content of the memorandum, regardless of the District Attorney’s position concerning the incarceration location of the probation violator.

           Mere statistical information provided to a judge by an administrative authority does not in and of itself give rise to an appearance of impropriety or of partiality as defined by the Rules. 22 NYCRR 100.2. Nor does the offering of what may be deemed a gratuitous recommendation as to how the judge should fulfill his/her judicial obligations, in and of itself, render the judge disqualified. The judge, however, must make the determination as to whether he/she has been influenced or his/her impartiality impaired by dint of receiving such information or recommendations.