Joint Opinion 09-172/10-31

March 11, 2010

 Digest:         (1) A criminal court judge who testified as a fact witness in a different court on behalf of a criminal defendant’s adversary about the criminal defendant’s physical condition at arraignment may continue to preside in the pending criminal matter involving the same defendant, unless the judge believes that he/she cannot be impartial. (2) A judge presiding in a Family Court proceeding who learns that a party has been charged with forging the judge’s signature on an order and signs an affidavit indicating that the signature on the order is not his/hers need not disqualify him/herself from the Family Court proceeding, unless the judge believes that he/she cannot be impartial.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(a) (ii); 100.3(E)(1)(b)(iii); Joint Opinion 07-78/07-121; Opinions 06-169; 98-118 (Vol. XVII); 91-25 (Vol. VII); 89-76 (Vol. IV); People v Moreno, 70 NY2d 403 (1987).

Opinion:

         The judge in inquiry 09-172 arraigned a defendant on criminal charges involving domestic violence. Thereafter, pursuant to a subpoena, the judge testified as a fact witness in a different court on behalf of the criminal defendant’s adversary in that different court as to whether the criminal defendant bore physical injuries at the time of the criminal court arraignment. The judge testified that he/she saw no sign of physical injuries when he/she arraigned the defendant in the criminal court. The judge now asks whether he/she may continue to preside in that criminal court case.

         The judge in inquiry 10-31 is presiding in Family Court over a number of petitions involving the same family. The judge has learned that a party to the proceeding was charged with forging the inquiring judge’s signature on a “purported Supreme Court Order (name-change order)” when an assistant district attorney and an investigator asked the judge to sign an affidavit indicating that the signature on the document was not the judge’s signature. The judge did sign the affidavit. Several parties have moved for the judge’s recusal. The judge asks whether he/she must recuse based on signing the affidavit if he/she is subpoenaed to testify or if he/she is called to and does testify at the accused party’s criminal trial.

         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, a judge must disqualify him/herself in any proceeding where the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]), including when the judge has personal knowledge of disputed evidentiary facts concerning the proceeding (see 22 NYCRR 100.3[E][1][a][ii]) or has been a material witness concerning the proceeding (see 22 NYCRR 100.3[E][1][b][iii]).

         The Committee previously has advised that a judge may testify as a fact witness (see Opinions 98-118 [Vol. XVII] [judge may testify as a fact witness regarding an automobile accident]; 89-76 [Vol. IV][judge may testify as a witness in Surrogate’s Court proceeding as to judge’s conversations with decedent and judge’s observations of decedent’s demeanor]) and that a judge presiding in a criminal case need not disqualify him/herself because he/she was a witness against the defendant in a separate proceeding involving perjury (see Opinion 91-25 [Vol. VII]).

         Neither Joint Opinion 07-78/07-121 nor Opinion 06-169 dictates a different result. In Joint Opinion 07-78/07-121, the Committee advised that a judge who presides in both a Problem Solving Court and a Family Court over cases involving the same parties must disqualify him/herself should he/she become a fact witness in the Family Court proceeding as the result of presiding in the Problem Solving Court. And, in Opinion 06-169, the Committee advised that where the District Attorney asked a judge to cooperate in a criminal investigation of the acknowledgment of a post-nuptial agreement that was the subject of a divorce proceeding pending before the judge, the judge must disqualify him/herself to avoid the appearance that extra-judicial considerations influenced his/her judgment, which would call into question the judge’s independence and impartiality. In each of these Opinions, the judge’s extra-judicial knowledge was directly related to and relevant in cases pending before them and in which they had to render decisions.

         In contrast, neither of the inquiring judges is a witness in the matter in which he/she is presiding (see Opinion 91-25 [Vol. VII]). Therefore, there is no inherent basis to question their impartiality. Indeed, unless disqualification is mandated pursuant to the Rules Governing Judicial Conduct (22 NYCRR 100.3[E]) or Judiciary Law §14, the trial judge "is the sole arbiter of recusal. This discretionary decision is within the personal conscience of the court . . . " (see People v Moreno, 70 NY2d 403 [1987]). Therefore, neither inquiring judge is required to disqualify him/herself unless he/she cannot be impartial.