Opinion 12-50

March 28, 2012

Dear Justice:

            This responds to your inquiry (12-50) asking whether you must disqualify yourself from hearing and deciding a contempt application against a defendant which was brought two days before your scheduled visit,¹ pursuant to court mandate,² to the correctional facility in which the defendant was incarcerated. Further, the superintendent who conducted the tour was called as a witness against the defendant at the contempt hearing.

         Even though you had no contact with the defendant, you disclosed that you received a tour of the facility by the superintendent/witness, the People had no objection to your hearing the contempt application, and defense counsel left the issue of disqualification to your discretion, you are nevertheless concerned that your tour of the facility may be misconstrued, the testimony of the superintendent on behalf of the People may give the appearance of impropriety, and the orientation you received about the facility’s operations could be construed as obtaining information outside the record.

         The Committee previously has advised that, if disqualification is not mandatory and a judge believes that he/she can be fair and impartial, whether to preside is within the judge’s discretion, based on the circumstances of the particular case.

         Here, you did not have any contact with the defendant nor did you and the superintendent discuss the subject matter of the pending contempt application or the content of the superintendent’s testimony (see 22 NYCRR 100.3[B][6][a]). Therefore, the Committee sees no reason to conclude that your impartiality might reasonably be questioned, and, thus, you are not required to disqualify yourself (see 22 NYCRR 100.3[E][1]).

         Enclosed, for your convenience, is Opinion 09-75 which addresses this issue.

                                       Very truly yours,

George D. Marlow, Assoc. Justice

Appellate Division, First Dept. (Ret.)

Committee Chair

Enc.

     ¹On December 19, 2011, the People moved by order to show cause to find the defendant in criminal contempt for willful disobedience of a prior court order. This application was brought two days before your previously scheduled visit to the correctional facility.

     ²Rules of the Chief Judge, 22 NYCRR 17.1(4)(d)(1).