Opinion 14-128

September 26, 2014

PERSONAL AND CONFIDENTIAL

Dear :

         This responds to your inquiry (14-128) asking whether you may continue to preside over a criminal case where the defendant caused a mistrial by telephoning the court purporting to be a trial juror; caused a delay in the trial by feigning a heart attack; and now has indicated his intention to commence an action against you, apparently to secure your disqualification before you can impose his sentence.

         Neither Judiciary Law § 14 nor Section 100.3(E)(1) of the Rules Governing Judicial Conduct mandates disqualification under these circumstances. Accordingly, the Committee has previously advised that a judge need not exercise recusal where one of the litigants in a proceeding pending before the judge has commenced an action against the judge. Indeed, any rule requiring automatic recusal under such circumstances could enable unsuccessful or disgruntled litigants to engage in judge shopping. Thus, as long as you believe you can be fair and impartial, you may continue to preside over the criminal matter.

         Enclosed, for your convenience, are Opinions 14-105; 13-41; and 88-54 which address this issue.

                                       Very truly yours,

George D. Marlow, Assoc. Justice

Appellate Division, First Dept. (Ret.)

Committee Chair

Encls.