Opinion 09-11

January 29, 2009

Digest:         A judge who presided over a concluded criminal trial and proceeding in a Domestic Violence Court should not meet with the victim of the criminal conduct in order for the victim to speak to the judge about the history of abuse he/she experienced before the trial and to thank the judge for considering the victim’s views at the time of sentencing.

Rules:          22 NYCRR 100.0 (U) and (V); 100.2; 100.2(A); 100.3(B)(6); Opinion 91-132 (Vol. VIII)

Opinion:

         A judge who currently presides in a Domestic Violence Court, but will soon begin a new assignment in the Matrimonial Part, advises that an assistant district attorney contacted him/her on behalf of a domestic violence victim who was involved in a criminal case that was tried in the judge’s court, resulting in a conviction. The assistant district attorney advised the judge that the domestic violence victim in the case “would love” to speak to the judge about the history of abuse he/she experienced before the trial and to thank the judge for considering his/her views at the time of sentencing. According to the judge, the defendant currently is serving a term of imprisonment and there are no other pending matters before him/her at this time. The judge further advises that two years ago he/she also presided over a matrimonial case involving the same victim and the defendant and ruled on a post-judgment motion in the matter approximately one year ago.

         A judge must avoid impropriety and the appearance of impropriety in all the judge’s activities (see 22 NYCRR 100.2) and 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]). Therefore, subject to certain limitations that are not relevant to this inquiry, a judge must not permit ex parte communications concerning a pending or impending proceeding (see 22 NYCRR 100.3[B][6]). A “pending proceeding” is one that has begun but has not yet reached final disposition, and an “impending proceeding” is one that is reasonably foreseeable but has not yet been commenced (see 22 NYCRR 100.0[U] and [V]).

         Although the inquiring judge will soon begin a new assignment in the Matrimonial Part and states that there are no pending matters before him/her involving either the defendant or the victim of the defendant’s criminal conduct, based on the judge’s extensive and recent involvement in both a criminal and a matrimonial case involving these individuals, it is reasonably foreseeable that a collateral or post-judgment application, an appeal, a parole hearing, or other proceeding may be filed either in the inquiring judge’s court or in another court or tribunal of competent jurisdiction involving one or both of them. In addition, engaging in the proposed ex parte meeting with a domestic violence victim whose former spouse recently was convicted in the judge’s court could at the very least create an appearance of impropriety (see 22 NYCRR 100.2; Opinion 91-132 [Vol. VIII] [judge who presided in murder trial over a year earlier may not attend luncheon hosted by daughter of two murder victims to thank friends and neighbors for their love and support, as doing so creates an appearance of impropriety]). Therefore, the judge should not meet with a domestic violence victim in order for him/her to speak to the judge about the history of abuse he/she experienced before a trial in the Domestic Violence Court and to thank the judge for considering his/her views at the time of sentencing (see 22 NYCRR 100.2; 100.3[B][6]).