Opinion 04-84

September 14, 2004

Digest:         On the facts stated, a judge need not recuse himself/herself as a result of having previously provided a deposition involving the same party in a wholly unrelated matter, since disposed of.

Rules:          22 NYCRR 100.3(E)(1)(a)-(e);Opinion 99-78 (Vol. XVIII).

Opinion:

         A judge is currently presiding over a criminal case involving a defendant about whom the judge previously provided a deposition in a case involving a stolen discount card, a matter wholly unrelated to the charges now pending. Since providing the statement in the stolen discount card case, the judge accepted a plea of guilty to marijuana possession in a subsequent prosecution of the defendant where the issue of recusal was not raised.

         Thereafter the same defendant was arrested again, and as a result, the judge has a new matter before him/her involving criminal charges. The attorney representing the defendant on the latest case has requested that the judge recuse himself/herself due to the earlier participation in the discount card case.

         The judge now inquires whether participation in the discount card case as a witness requires recusal in the most recent matter pending before the court.

         Section 100.3(E)(1) of the Rules Governing Judicial Conduct in pertinent part, provides that “a judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned.” Sections (E)(1)(a)- (e) of the Rules enumerate specific instances in which “impartiality might reasonably be questioned,” thus rendering a judge disqualified. None of those provisions applies to the facts stated in the inquiry.

         Accordingly, it is the Committee’s opinion that the judge is not disqualified based on the circumstances presented, especially since the matter complained of was resolved more than a year ago. However, where recusal is not mandatory, the decision whether to recuse is within the sound discretion of the judge.