Opinion 12-103

September 7, 2012

Dear Justice:

         This responds to your inquiry (12-103) asking whether you may preside over cases in which your cousin’s child, a law enforcement officer, is likely to appear before you in traffic court.

         A judge must disqualify him/herself when a relative who is related within the sixth degree of consanguinity is a party to a proceeding (see 22NYCRR 100.3[E][1][d][1]). Although your cousin’s child is likely to appear before you as a law enforcement officer, in that capacity, he/she will not appear as a party. Therefore, you are not required to disqualify yourself pursuant to this section of the Rules.

         A judge must also disqualify him/herself when a relative who is related within the fourth degree of consanguinity is likely to be a material witness (see 22 NYCRR 100.3[E][1][e]). As a law enforcement officer, it is likely that your cousin’s child will appear before you as a material witness. However, he/she is related to you within the fifth degree of consanguinity, not the fourth. Therefore, you are not required to disqualify yourself pursuant to this section of the Rules.

         Nevertheless, if you cannot be impartial when your cousin’s child appears in your court or if you believe that your impartiality might otherwise reasonably be questioned when he/she appears, you must disqualify yourself (see 22 NYCRR 100.3[E][1]).

         Enclosed, for your convenience, is Opinion 11-147 which addresses this issue.

                                                 Very truly yours,

George D. Marlow, Assoc. Justice

Appellate Division, First Dept. (Ret.)

Committee Chair

Enc.