Opinion 18-99

August 20, 2018

Dear Justice :

         This responds to your inquiry (18-99) asking whether you must grant defendant’s recusal motion in an alcohol-related criminal case involving a car accident. Immediately following the accident and the driver’s arrest, the driver’s friend¹ went to your home late at night and attempted to discuss the case with you. Because you did not immediately recognize this person, you called 911, and a sheriff’s deputy responded. However, you eventually realized you were acquainted with this person and his/her family and advised him/her you were prohibited from discussing a pending matter with anyone. In addition, at the arraignment, you disclosed to the prosecutor and defendant’s counsel what had happened at your home the evening of the accident and, further, that you could remain fair and impartial.

Defense counsel has moved for your recusal based on a myriad of reasons including allegations that you knew defendant was an employee of the person who came to your house the night of the accident; that you have an adverse opinion of and are threatened by defendant’s employer/friend because you called 911; and that you engaged in ex parte communications in which defendant’s employer/friend gave you some undisclosed outside knowledge of the facts of the case. The People do not oppose the motion other than to note that recusal is solely within the court’s discretion.

  A judge must disqualify him/herself in circumstances required by rule or law (see Judiciary Law § 14; 22 NYCRR 100.3[E][1][a]-[f]) and in other circumstances where his/her impartiality may reasonably be questioned. In addition, a judge “shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties or their lawyers concerning a pending or impending proceeding” except in limited circumstances (22 NYCRR 100.3[B][6]).

         The Committee has determined that whether a judge must disclose an ex parte communication depends on its contents. However, even if disclosure of an ex parte communication is mandatory and there is no basis for disqualification, recusal is nevertheless within the sole discretion of the court. Here, you indicate that you barely knew defendant’s friend and in fact did not initially recognize him/her; did not initiate any ex parte communication and immediately advised him/her that you were prohibited from talking about defendant’s situation; and promptly disclosed this information to counsel at arraignment. You also advised the parties that you could remain fair and impartial. Under these circumstances, we do not believe your impartiality can reasonably be questioned, nor do we believe there is any basis for mandatory recusal. Accordingly, the decision whether to recuse is solely within your sound discretion.

         Enclosed, for your convenience, are Opinions 17-53; 15-178; and 05-78 which address this issue.

                                                 Very truly yours,

                                                 George D. Marlow, Assoc. Justice

                                                 Appellate Div., First Dep’t

                                                 Committee Co-Chair

                                                 Hon. Margaret T. Walsh

                                                 Family Court Judge

                                                 Acting Justice, Supreme Court

                                                 Committee Co-Chair

Encls.

_______________________

¹ In the motion papers, both sides refer to defendant’s friend as his/her employer.