Opinion 21-07

January 28, 2021

Digest:         The judge, a former assistant district attorney, may not preside in:
(1) a criminal case in which the judge had some minimal prior involvement as an attorney; or

(2) a criminal case in which a prior conviction, which the judge prosecuted approximately a decade ago, is an element of the felony offense.

Rules:          Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.3(E)(1)(a)-(f); 100.3(F); Opinions 18-172; 17-150; 15-211; 14-10; People v Moreno, 70 NY2d 403 (1987).

Opinion:

         The inquiring judge, a former assistant district attorney with extremely limited supervisory responsibilities,¹ asks if it is ethically permissible to preside in two criminal cases that have come before the judge’s court. In the first, the defendant was arrested and indicted on a felony charge during the judge’s tenure as a prosecutor. The judge initially thought the matter was completely unfamiliar, but subsequently learned or realized that they did, in fact, appear in a lower court proceeding involving that defendant. In the second, the defendant was arrested and indicted only after the judge assumed the bench, so the judge had no involvement whatsoever in that specific matter. However, the indictment includes a special information, referencing a prior conviction from approximately a decade ago. The judge had some involvement in the decade-old case, which resulted in a plea-bargained resolution. We understand that, if a trial occurs, the prosecutor would need to prove the prior conviction. While this is usually is a pro forma process requiring the introduction of certificate of conviction, the defendant may also insist on proof of the conviction.

         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 where 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, disqualification is required when “the judge knows that ... 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]). Conversely, where objective standards do not mandate disqualification, a trial judge is the sole arbiter of recusal (see People v Moreno, 70 NY2d 403 [1987]).

         The scope of a judge’s disqualification obligations due to their prior employment in a government law office is determined by the degree of authority they exercised there (see Opinion 15-211). Thus, an attorney with supervisory authority is generally deemed to be involved in all matters involving attorneys subject to their supervision. Here, too, we conclude the judge is disqualified from matters in which the judge knows they had some personal involvement as an attorney - however minimal - either directly or as a supervisor (see Opinions 18-172; 15-211; 22 NYCRR 100.3[E][1][b][i]). Again, this disqualification does not expire, and is not subject to remittal (see 22 NYCRR 100.3[F]; Opinion 14-10).

         If, as the judge initially believed, the judge did not handle or supervise any aspect of the arrest or prosecution in the first instance, we would say it is permissible to preside, provided the judge can be fair and impartial. Now that the judge has learned or realized that the judge had some involvement in a lower court proceeding concerning the case, however, the judge must disqualify from the matter (cf. Opinion 17-150 [judge must disqualify “at the outset, as soon as he/she becomes aware of the conflict”]).

         In the second instance, it appears the government must prove that the defendant previously pleaded guilty to a particular crime, and the judge here knows they “personally participated” in that prior conviction. Moreover, the judge states that the defendant has the right to challenge the evidence of the prior conviction. Because the judge, as a prosecutor, was involved in the predicate offense that led to the current felony charge, the prior involvement, no matter how seemingly minimal and distant in time, dictates that the judge is disqualified from presiding in the case. As the judge is disqualified at the outset based on their involvement in the prior conviction, it is irrelevant that the defendant might have been willing to admit the prior conviction without objection.

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¹ Although the judge’s formal title would imply a high-level supervisory position, we note that the District Attorney’s office was structured as was that in Opinion 18-172, and the judge’s actual supervisory responsibilities were extremely limited.