Opinion 17-31

May 17, 2017

Dear:

         This responds to your inquiry (17-31) asking if you may continue to preside in a matter when the complainant is your co-judge’s adult child. Although you maintain a social and professional relationship with your co-judge, you have no relationship with his/her child other than purely “happenstance” interactions which, as described, do not require disclosure or disqualification (see Opinion 11-125). Nonetheless, on realizing the relationship between the complainant and your co-judge, you made full disclosure on the record, and the defendant (represented by counsel) agreed to proceed.

The Committee has advised that “the fact that a witness is a close relative of the inquiring justice’s co-judge does not, in and of itself, preclude the inquiring judge from determining the witness’s credibility, as long as the judge can be fair and impartial” (Opinion 09-239). Absent any other basis for disqualification, you are therefore “the sole arbiter of recusal. This discretionary decision is within the personal conscience of the court” (People v Moreno, 70 NY2d 403, 405 [1987]). Of course, if you question your ability to be fair and impartial in a matter involving your co-judge’s child, you must not preside.

         Enclosed, for your convenience, are Opinions 15-107/15-110, 11-125, and 09-239 which address these issues.

                                                 Very truly yours,

George D. Marlow, Assoc. Justice

                                                 Appellate Div., First Dep’t (Ret.)

                                                 Committee Co-Chair

Hon. Margaret T. Walsh

                                                 Family Court Judge

                                                 Acting Justice, Supreme Court

                                                 Committee Co-Chair

Encls.