Opinion 21-111

June 17, 2021

Digest:        A judge who was previously involved in the implementation of a new county-wide vehicle and traffic law camera enforcement program on behalf of the designated “charging agency” for these alleged violations, but left that employment and assumed judicial office before the agency commenced prosecuting these matters, need not disqualify when accusatory instruments from this program come before the judge.

Rules:         22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(a)(ii); Opinions 19-156; 18-131; 11-26; 10-190; People v Moreno, 70 NY2d 403 (1987).

Opinion:

         Prior to becoming a judge, the inquiring judge worked for a county law enforcement agency with employees who hold peace officer status under the Criminal Procedure Law. The inquirer’s function at that time was the implementation of a new county-wide camera enforcement program on behalf of the designated “charging agency” for certain alleged violations under the Vehicle and Traffic Law. No prosecutions of alleged violations took place prior to the judge’s retirement from the county agency and subsequent assumption of judicial office. The judge asks if it is ethically permissible to preside when accusatory instruments from the program come before the judge’s court.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge must disqualify in any proceeding in which the judge’s impartiality might “reasonably be questioned” (22 NYCRR 100.3[E][1]), including where “the judge has personal knowledge of disputed evidentiary facts concerning the proceeding” (22 NYCRR 100.3[E][1][a][ii]). Where objective standards do not mandate disqualification, however, a trial judge is the sole arbiter of recusal (see People v Moreno, 70 NY2d 403 [1987]).

         We note, initially, that there were no accusatory instruments issued pursuant to the program during the judge’s tenure at the county agency (cf. Opinion 18-131 [town justice who was previously the Assistant Police Chief must not preside in cases where the arrests or summonses were issued during his/her former employment but may adjudicate new matters involving the police department provided the judge had no involvement in the matter and the judge can be fair and impartial]).

         We have said a judge need not disqualify from matters involving alleged violations of a municipal code promulgated while the judge served as a municipal legislator who voted on the code legislation (see Opinions 19-156; 10-190). We also advised that a judge is not required to disqualify from a matter involving the constitutionality of a municipal ordinance solely because the same ordinance was in effect during the judge’s former employment as the municipality’s counsel (see Opinion 11-26).

         Although this judge was not serving as a legislator nor as counsel to the municipality when implementing the program, on these facts we consider the judge’s prior involvement in the initial design or implementation of this camera enforcement program under the Vehicle and Traffic Law as analogous.

         Therefore, absent any facts which would reasonably undermine public confidence in the judge’s ability to be fair and impartial in a particular case, and assuming the judge can be fair and impartial, the judge need not disqualify when accusatory instruments from this camera enforcement program come before the judge’s court (see 22 NYCRR 100.3[E][1]; People v Moreno, 70 NY2d 403 [1987]). We caution the judge to remain alert for circumstances where implementation of the program may become an issue in a proceeding before the judge, as well as any other circumstance where the judge may have “personal knowledge of disputed evidentiary facts” relevant to the proceeding (22 NYCRR 100.3[E][1][a][ii]).