Opinion 07-193

December 6, 2007

Digest:         A judge who is the victim of a crime perpetrated by an individual the judge had sentenced to prison for a different crime may appear in court when the defendant is sentenced for the crime and speak about any matter relevant to sentence.

Rules:          Criminal Procedure Law §380.50; 22 NYCRR 100.2(A),(C); 100.3(B)(8), (D); Opinion 07-104.

Opinion:

         A judge who is the victim of a crime perpetrated by an individual the judge had sentenced to prison for committing a different crime asks if he/she can appear in court when the defendant is sentenced to voice his/her opposition to the plea and sentence. The judge is dissatisfied with the terms of the plea agreement entered into by the District Attorney, as it was reached without any notice to the judge or the judge’s spouse. The judge also is concerned about the sentencing judge’s relationship with the defense attorney and wants to ask the sentencing judge why he/she has not recused from the case.

         A judge must act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary (see 22 NYCRR 100.2[A]) and must not lend the prestige of judicial office to advance his/her private interests (see 22 NYCRR 100.2[C]). Nevertheless, a judge is entitled to the rights that are afforded any other crime victim, including making a statement with regard to any matter that is relevant to the question of sentence (see Criminal Procedure Law §380.50). This is the case even though a judge is prohibited from making any public comment about a pending or impending case, as such prohibition does not apply to proceedings in which the judge is a litigant in a personal capacity (see 22 NYCRR 100.3[B][8]). While a crime victim is not a traditional litigant or party, we deem a judge/victim to be one for the limited purpose of speaking at sentencing. The inquiring judge, therefore, may appear in court when the defendant is sentenced to speak about any matter that is relevant to the question of sentence (cf. Opinion 07-104 [A judge who was a victim of a crime may, solely in his/her capacity as crime victim, provide a written statement expressing his/her views on whether the defendant should be released on parole]).

         To the extent that the relationship between the presiding judge and the defense attorney is not relevant to the convicted criminal’s sentence, the inquiring judge should refrain from addressing it at the sentencing. Rather, If the inquiring judge has “information indicating a substantial likelihood” that the presiding judge or the defense attorney has committed a “substantial violation” of the Rules Governing Judicial Conduct or the Code of Professional Responsibility respectively, he/she must take appropriate action (see 22 NYCRR 100.3[D]).