Opinion 22-33

March 10, 2022

Digest:         On these facts, a judge presiding in a criminal case need not investigate the timing of another judge’s prior recusal in the matter nor take any further action.

Rules:          Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.3(D)(1); 100.3(E)(1)(a)-(f); Opinion 15-119.

Opinion:

         The inquiring judge is presiding in a criminal case, and now asks if it is necessary to report the judge who previously conducted a bail hearing in the matter. After presiding in the bail review, the other judge recused in order to avoid “any potential appearance of impropriety.”¹

         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, if a judge receives information indicating a “substantial likelihood” that another judge has committed a “substantial violation” of the Rules Governing Judicial Conduct, the judge must take “appropriate action” (22 NYCRR 100.3[D][1]).

         We have said that, where a county court judge is aware a town justice presided over an arraignment and then requested the matter be transferred due to a purported conflict, but lacks relevant details of the purported conflict, the judge need not take any further action (see Opinion 15-119). In this instance, the inquiring judge has not received any information indicating a substantial likelihood that the other judge was disqualified from presiding in the bail hearing (see generally Judiciary Law § 14; 22 NYCRR 100.3[E][1][a]-[f]). Indeed, the other judge appears to have been exercising a purely discretionary recusal to avoid “any potential appearance of impropriety.”

         There could be multiple scenarios that would lend themselves to this sequence of events without any violation of the Rules. Neither we nor the inquiring judge have any first-hand knowledge of any issues that may have arisen during or after the bail hearing, nor can the inquiring judge search the other judge’s conscience to determine whether and when recusal was warranted. The inquiring judge has no duty to conduct further inquiry and need not take any action here (see Opinion 15-119).

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¹The other judge’s written explanation, though cursory, appears to reflect a prior professional relationship between between that judge and the defendant, in their then official capacities as a prosecutor and a law enforcement officer.