Opinion 14-144

October 23, 2014

 Digest:         Under the specific circumstances presented, where a judge (a) concludes that a prosecutor’s proposed plea bargain in a case before the judge contradicts the People’s prior statement on the record in another pending criminal case where the judge was the alleged victim, and (b) believes that non-disclosure of the apparent contradiction may constitute a fraud on the court and/or Brady/Giglio violations in the other criminal case, the judge must disclose the contradiction to the judge and lawyers in the other criminal case, and must disqualify him/herself from all cases involving the individual at issue.

Rules:          Judiciary Law § 14; § 212(2)(l); 22 NYCRR 100.2; 100.2(A); 100.3(B)(6); 100.3(D)(2); 100.3(E)(1); 100.3(E)(1)(a)(i); 100.3(E)(1)(c); 22 NYCRR 101.1; Opinion 13-173; 02-85; People v Steadman, 82 NY2d 1 (1993); Brady v Maryland, 373 U.S. 83 (1963); Giglio v United States, 405 U.S. 150 (1972).

Opinion:

         The inquiring judge states he/she is currently presiding over certain criminal and civil proceedings involving an individual (the “Witness/Defendant”) who was previously called as a witness in an unrelated felony case in which the judge was the alleged victim or complainant (the “First Case”).¹ Due to the inquiring judge’s personal involvement as complainant, the judge knows that when the prosecution called the Witness/Defendant to testify in the First Case, the prosecution advised the jury and the presiding judge that the Witness/Defendant “was given no consideration for” his/her testimony in any other pending criminal cases.

         The inquiring judge notes that the present criminal proceedings against Witness/Defendant, which are currently assigned to the inquiring judge, were already pending at the time Witness/Defendant testified in the First Case. The prosecution has now offered a plea bargain to Witness/Defendant, which the inquiring judge believes is “too lenient.” In response to the judge’s concerns, the prosecutor explained the negotiated sentence reflects “some consideration for” Witness/Defendant’s testimony in the First Case. The inquiring judge asks if he/she may continue to preside over Witness/Defendant’s criminal and civil cases under the facts presented. The judge further asks if he/she must disclose to the judge and/or defense counsel in the First Case “that the People are now offering” Witness/Defendant favorable treatment based on his/her testimony in the First Case.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2), must respect and comply with the law (see 22 NYCRR 100.2[A]), and must always act to promote public confidence in the judiciary’s integrity and impartiality (see id.). A judge must disqualify him/herself in any proceeding in which the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]) and in other specific circumstances as required by rule or by law (see generally id.; Judiciary Law § 14). For example, a judge is disqualified if the judge has a personal bias or prejudice concerning a party (see 22 NYCRR 100.3[E][1][a][i]) or if the judge knows he/she has an interest that could be substantially affected by the proceeding (see 22 NYCRR 100.3[E][1][c]).

         It appears from the facts presented that the prosecutor’s representation in the First Case that Witness/Defendant “was given no consideration for” his/her testimony may have been literally true when made, and the Committee notes the inquiring judge had, and has, no obligation to investigate the truth of this assertion (see, e.g., Opinion 13-173).² However, the inquiring judge now has direct personal knowledge that this statement is no longer true, and the judge has concluded that non-disclosure may result in a fraud on the court and/or possible Brady/Giglio violations in the First Case, which remains ongoing.³ Therefore, under the specific circumstances presented, the inquiring judge must disclose to the judge and lawyers in the First Case that the prosecution is now offering Witness/Defendant favorable treatment based on Witness/Defendant’s testimony in the First Case (see generally 22 NYCRR 100.2[A] [a judge must respect and comply with the law, and must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality]). In so doing, the judge must avoid any impermissible ex parte communications (see 22 NYCRR 100.3[B][6]).

         Under the circumstances presented, the Committee further believes the inquiring judge’s impartiality might reasonably be questioned in the criminal and civil matters involving Witness/Defendant, based on the inquiring judge’s interest in the outcome of the First Case, which is still pending or impending, and the inquiring judge’s concomitant discomfort with the prosecutor’s recommendation of leniency for Witness/Defendant in the present criminal case (see 22 NYCRR 100.3[E][1]; 100.3[E][1][a][i]; 100.3[E][1][c]). The inquiring judge should therefore disqualify him/herself in the criminal and civil matters involving Witness/Defendant so the cases may be reassigned to another judge.

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         ¹ The judge had obtained an order of protection against a particular individual, and Witness/Defendant’s testimony concerned that individual’s alleged violation of the order of protection. The individual was convicted of violating the order of protection, and is awaiting sentencing.

         ² Although the inquiring judge does not ask about his/her disciplinary responsibilities, the Committee notes that a judge may take into account his/her own conclusions about the motivations underlying the improper conduct when deciding whether he/she has received information indicating a substantial likelihood that an attorney has committed a substantial violation of the Rules of Professional Conduct (see 22 NYCRR 100.3[D][2]; Opinion 02-85 [advising that judge must report attorneys who altered a stipulation “[i]f ... the judge concludes that, the attorneys involved engaged in a deliberate deception intended to perpetrate a fraud and deceive the parties and/or the court,” but the judge otherwise retains full discretion]).

         ³ The Committee cannot comment on a prosecutor’s disclosure obligations, a legal issue that may have possible constitutional dimensions (see Judiciary Law § 212[2][l]; 22 NYCRR 101.1; see generally, e.g., People v. Steadman, 82 NY2d 1 [1993]; Brady v Maryland, 373 U.S. 83 [1963]; Giglio v United States, 405 U.S. 150 [1972]).