Opinion 20-20
January 30, 2020
Digest: A judge who recently served as the District Attorney, and earlier as an assistant district attorney:
(1) is disqualified from presiding in criminal matters pending or prosecuted by the office during his/her tenure as the District Attorney;
(2) may preside in criminal matters handled by the DA’s office before he/she became the District Attorney, provided the judge had absolutely no involvement in the matter as an assistant district attorney; and
(3) may approve 18-B vouchers submitted by defense counsel and assign counsel for administrative parole revocation hearings relating to matters previously prosecuted by the judge or his/her subordinates.
Rules: County Law § 722-b; Correction Law § 168-d(3); CPL 160.59; 190.20(2)(a)-(b); 190.25(b); 190.32(3); 190.65(3); 190.85(1)-(2), (4)-(5); 410.70(5); Executive Law § 259-i(3)(f)(v); Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(a)-(f); 100.3(E)(1)(b)(i)-(ii); 100.3(F); Opinions 19-110; 18-111; 18-04(A); 17-162; 16-163/16-170; 14-10; 09-145; 03-87; 99-28; People v Moreno, 70 NY2d 403 (1987); Matter of Darvin M. v Jacobs, 69 NY2d 957 (1987).
Opinion:
The inquiring judge asks about his/her obligations in criminal matters, given his/her former employment as an assistant district attorney and more recently as the District Attorney. We address the judge’s detailed questions below.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Thus, a judge must disqualify him/herself in specifically enumerated circumstances as required by rule or law (see 22 NYCRR 100.3[E][1][a]-[f]; Judiciary Law § 14) and in any other proceeding where the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]). For example, a judge must disqualify him/herself when the judge knows he/she previously “served as a lawyer in the matter in controversy” (22 NYCRR 100.3[E][1][b][i]; Judiciary Law § 14), and disqualification on this basis is not subject to remittal (see 22 NYCRR 100.3[F]).
1. Matters Connected to the Judge’s Tenure as the District Attorney
A judge who served as the District Attorney is disqualified from all matters investigated or prosecuted while he/she headed the agency (see e.g. Opinions 17-162; 14-10; 03-87). As explained in Opinion 14-10 (citation, quotation marks, and original brackets omitted):
Because he/she [was] the official in charge and under whose authority proceedings were conducted, disqualification is required for all such cases charged or investigated during the judge’s prosecutorial tenure, regardless of whether the inquirer had actual knowledge of or involvement in a particular matter.
A. Grand Jury Matters
The judge asks if he/she may select and impanel a grand jury, act as its legal advisor, and receive its reports, where the cases presented may be a mixture of those pending while he/she was the District Attorney, and new cases commenced after his/her departure. Once the grand jury is impaneled, we understand the judge presiding over grand jury matters is ordinarily unaware of which cases are being presented to it, unless or until he/she is asked to take action on a particular case. For example, the judge may be asked to “so order” a grand jury subpoena, or to consider an application to permit videotaped testimony (see CPL 190.32[3]).
The initial issue here is whether these acts may be deemed “ministerial” from an ethics perspective, such that the judge need not disqualify him/herself. We’ve said a judge receiving a “hand up” (i.e. the filing of an indictment with the court under CPL 190.65[3]) from a grand jury is performing a mere ministerial act not adjudicative in nature (see Opinions 09-145; 99-28).
A review of the statutory provisions suggests impaneling a grand jury and acting as its legal advisor are not merely ministerial acts (see CPL 190.20[2][a]-[b]; 190.25[6]). If the judge learns a case pending or being investigated while he/she was District Attorney is before the grand jury, he/she is disqualified over any issues presented in that case. Thus, we conclude he/she may impanel the grand jury and may act as its legal advisor, unless he/she learns that cases pending or investigated during his/her term as District Attorney are being presented to it. For those cases, the judge is disqualified from serving as the grand jury’s legal advisor, acting on discovery requests, or the like.
Receiving grand jury reports under CPL 190.85 likewise involves adjudicative and/or discretionary responsibilities (see CPL 190.85[2], [4]-[5]). Thus, the judge is disqualified from handling such a report, if it concerns matters investigated or prosecuted while he/she was District Attorney.1
B. Probation Violation Hearings and Sex Offender Registration Act Hearings
The judge also asks if he/she may preside in violation of probation hearings, when the term of probation was a sentence imposed in a criminal matter prosecuted during his/her term as the District Attorney, and Sex Offender Registration Act (SORA) hearings where the underlying offense was prosecuted during his/her term as District Attorney.
Like a sealing application (see CPL 160.59), violations of probation and SORA hearings are essentially a continuation of the original case for ethics purposes (cf. Opinion 17-162). Nor are these hearings merely ministerial in nature. To the contrary, alleged violations of probation require the court to make adjudications, after hearing, which may include the revocation, continuation, or modification of the sentence of probation (see CPL 410.70[5]). The District Attorney may present evidence of alleged violations at such hearings (Matter of Darvin M. v Jacobs, 69 NY2d 957 [1987]). Likewise, with respect to SORA hearings, the District Attorney must demonstrate to the court the appropriate level and designation of the sex offender (see Correction Law § 168-d [3]).
Thus, we conclude the judge is disqualified from presiding in violation of probation and SORA hearings, where the underlying offense was prosecuted during the judge’s tenure as the District Attorney.
2. Matters Arising Solely During the Judge’s Tenure as an ADA: Post-Conviction Motions and SORA Hearings
The judge also asks if he/she may consider post-conviction motions and SORA hearings for offenses prosecuted by his/her colleagues at the DA’s office, while he/she was an assistant district attorney. That is, at all times relevant to the underlying case, the judge was not the attorney of record and had absolutely no personal involvement, either directly or as a supervisor.2 The judge thus has no personal knowledge of these matters.
With respect to matters investigated and prosecuted only before the judge became the District Attorney, the judge need only disqualify him/herself from those in which he/she participated in any way, however minimally, either personally or as a supervisor (see Opinion 18-04[A]). Where disqualification is not required under objective standards, the judge “is the sole arbiter of recusal” (People v Moreno, 70 NY2d 403, 405 [1987]) and therefore may preside provided he/she can be fair and impartial.3
3. Fee Applications and Assignment of Counsel
The judge’s final questions involve criminal cases adjudicated during the judge’s former tenure as the District Attorney, but which come back before the court for relatively limited judicial action.
A. Approving Fee Vouchers for Defense Counsel in Criminal Cases Adjudicated While the Judge Was the District Attorney
The judge asks if he/she may review and approve fee vouchers from 18-B attorneys who were assigned by his/her predecessor while the judge was the District Attorney. We assume the criminal cases were fully adjudicated by the judge’s predecessor, but he/she is no longer available to approve these vouchers.
Although a District Attorney has responsibility to investigate and/or prosecute criminal matters, he/she has no role in reviewing or approving 18-B vouchers for defense counsel (see County Law § 722-b). Rather, this is a judicial function to be exercised according to statutory criteria and applicable case law, if any (see id.).
On its face, the statute does not appear to require or permit consideration of the defendant’s guilt or innocence in approving payment for defense counsel; rather, counsel must submit “a sworn statement specifying the time expended, services rendered, expenses incurred and reimbursement or compensation applied for or received in the same case from any other source” (County Law § 722-b[4]). Accordingly, we believe the judge’s prior service as the District Attorney does not, without more, cause his/her impartiality to “reasonably be questioned” (22 NYCRR 100.3[E][1]) in considering defense counsel’s 18-B payment vouchers in matters prosecuted by the judge or his/her subordinates during the judge’s former tenure – even though the judge could not have presided in the underlying proceeding.4
Accordingly, if the judge can be fair and impartial in reviewing and approving the vouchers, he/she may ethically do so.5
B. Parole Revocation Hearings: Assigning Counsel and Approving Fee Vouchers
Finally, the judge asks if he/she may assign attorneys to represent alleged parole violators in administrative parole revocation hearings (see Executive Law § 259-i[3][f][v]), and review and approve their fee vouchers at the conclusion of the matter (id.). The underlying convictions were prosecuted by the judge or his/her subordinates during the judge’s tenure as District Attorney.
Unlike judicial hearings on alleged parole violations, these administrative proceedings take place before the parole board or a designated hearing officer. The statute does not appear to contemplate involvement by the prosecution in these hearings. Moreover, a District Attorney has no role in assigning counsel for these proceedings or in reviewing or approving 18-B vouchers for counsel (see Executive Law § 259-i[3][f][v]). Rather, this is a judicial function to be exercised according to statutory criteria and applicable case law, if any (see id.).
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1 Broadly speaking, these reports concern “misconduct, non-feasance or neglect in public office by a public servant” or “recommendations for legislative, executive or administrative action in the public interest” (CPL 190.85[1]).
2 We recently described our “practical, common-sense” approach to determining when an attorney has a “supervisory role” in an office (see Opinion 19-110).
3 As noted in Opinion 16-163/16-170, we have not applied Section 100.3(E)(1)(b)(ii) to a judge’s former public sector colleagues. However, we cannot comment on legal questions, including the applicability of any restrictions under the Judiciary Law.
4 The judge in Opinion 18-111, unlike this judge, “did not have a pre-existing conflict” but “was legitimately presiding over the cases” until a particular courtroom incident caused him/her to recuse.
5 As always, the judge should be alert for possible independent bases for disqualification, such as (for example) a conflict with a particular defense counsel in a particular case (cf. Opinion 18-111).