Opinion 17-162

December 7, 2017

Digest:         A judge who was the District Attorney when a defendant was convicted may not preside in a subsequent application to seal the criminal conviction pursuant to Criminal Procedure Law § 160.59.

Rules:          CPL § 160.59; § 160.59(1)(b); (7)(b), (e); Judiciary Law § 14; 22 NYCRR 100.1; 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(b)(i); 100.3(F); Opinions 14-10; 03-87.

Opinion:

         The inquiring full-time judge presides in criminal matters, but previously served as the District Attorney in the same county. The judge asks if he/she may preside in an application to seal a criminal conviction under CPL § 160.59, where the judge was the District Attorney at the time of the original conviction.

         A judge must always uphold the judiciary’s integrity and independence (see 22 NYCRR 100.1), avoid even the appearance of impropriety (see 22 NYCRR 100.2) and act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge must disqualify him/herself in any proceeding where the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]), including where specifically mandated by rule or law. The Judiciary Law provides a judge “shall not sit as such in, or take any part in the decision of, an action, claim, matter, motion or proceeding ... in which [he/she] has been attorney or counsel” (Judiciary Law § 14). Similarly, the Rules Governing Judicial Conduct require a judge to disqualify him/herself when “the judge knows that (i) the judge served as a lawyer in the matter in controversy” (22 NYCRR 100.3[E][1][b][i]). Disqualification on this ground is not subject to remittal (see 22 NYCRR 100.3[F]).

         For purposes of analyzing disqualification requirements, we conclude a CPL § 160.59 sealing application is a continuation of the original case. We note, for example, that the “sentencing judge” must consider multiple specified factors related to the underlying conviction, including the circumstances and seriousness of the offense and statements of the victim (see CPL § 160.59[7][b], [e]).¹

         The District Attorney is the official in charge and under whose authority criminal proceedings were conducted (see Opinion 14-10). Thus, a judge who previously served as the District Attorney is disqualified for all such cases charged or investigated by his/her office during his/her tenure as the District Attorney, whether or not he/she had actual personal knowledge of or involvement in the particular matter (see id.). We have advised “a judge who had been the District Attorney should not preside in any criminal case pending as a prosecution or as a matter under investigation by the District Attorney’s Office while he/she [was] District Attorney” (id.; see also Opinion 03-87; 22 NYCRR 100.3[E][1][b][i]; Judiciary Law § 14).

         Accordingly, this judge is disqualified from presiding over a CPL § 160.59 sealing application for a prosecution that took place when he/she was the District Attorney.

_______________________

¹ Where, as here, the “judge who pronounced sentence upon the conviction under consideration” no longer serves “in a court in the jurisdiction in which the conviction was obtained,” then the term “sentencing judge” also means “any other judge who is sitting in the criminal court where the judgment of conviction was entered” (CPL § 160.59[1][b]).