Opinion 09-223

December 3, 2009

Digest:         A town justice who disqualifies him/herself from all cases involving a particular attorney must do so at the outset of each case, and may not conduct an arraignment before doing so.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(E)(1); Opinions 98-27 (Vol. XVI); 97-59 (Vol. XV); 95-05 (Vol. XIII); CPL §170.10; VTL 1193[2][e][1]; 1194[2][b]

Opinion:

         A town justice who disqualifies him/herself from all cases involving a particular attorney asks how he/she should proceed when the attorney appears with a client for arraignment. The inquiring judge advises that the court is very busy and that he/she sits for two week periods, alternating with his/her co-judge. The inquiring judge is particularly concerned about DWI cases where he/she would have to suspend the defendant’s driver’s license immediately. If the inquiring judge disqualifies him/herself before conducting the arraignment, the defendant then must wait until the inquiring judge’s co-judge sits. Or, where the police arrest a defendant and hold him/her for arraignment when the court is next in session and the attorney appears at the arraignment, the police would have to transport the defendant to an alternate court. According to the inquirer, the closest alternate arraigning court is several miles away, and the area is frequently subject to heavy traffic. Therefore, transporting a defendant to an alternate court for arraignment would cause significant delays for both the defendant and for law enforcement officials.

         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]).

         The Committee previously has advised that a judge who must disqualify him/herself in certain cases, must do so even for arraignments (see Opinions 98-27 [Vol. XVI] [ City Court Judge whose spouse is Deputy Chief of Police in same city where judge presides must disqualify him/herself from presiding in all ex parte matters involving city police department (e.g. arraignments, applications for search warrants) where defendant is not represented.]; Opinion 97-59 [Vol. XV] [where arresting police officer is likely to be material witness and is judge’s first degree relative, judge must disclose relationship and disqualify him/herself in any arraignment or other proceeding in which his/her relative is involved]; Opinion 95-05 [Vol. XIII] [part-time lawyer/judge may not preside over proceedings involving current clients and may not arraign current, recent or past clients]). Accordingly, the judge in the present inquiry also may not conduct an arraignment when he/she must disqualify him/herself because the defendant is represented by a particular attorney. An arraignment is not merely administrative, but, rather, is a significant stage in the criminal proceeding when the judge must advise the defendant of his/her rights, issue a securing order, and, in some cases, suspend the defendant’s license to drive (see CPL §170.10; VTL 1193[2][e][1]; 1194[2][b]).

         Therefore, if the inquiring judge will disqualify him/herself in every case where a particular attorney appears, he/she must do so at the outset and may not conduct an arraignment beforehand.

The Committee is not insensitive to the administrative difficulties which concern the inquiring judge. However, a defendant’s rights and the public’s confidence in the integrity, impartiality, and independence of the judiciary (see 22 NYCRR 100.2[A]) are paramount. Therefore, the Committee suggests that the inquiring judge confer with his/her Supervising Judge to determine the best way to manage the cases in question.