Opinion 22-34

March 10, 2022

Digest:         A judge who receives ex parte correspondence from an inmate claiming that the conviction was obtained through perjured police testimony: (1) may not forward the correspondence to the Conviction Integrity Unit, but may instead treat this correspondence as the judge treats other impermissible ex parte communications; and (2) need not disqualify if an application seeking to vacate the conviction is eventually filed and assigned to the judge.

Rules:          Judiciary Law § 14; 22 NYCRR 100.0(U)-(V); 100.2; 100.2(A); 100.3(B)(6); 100.3(E)(1); 100.3(E)(1)(a)-(f); Opinions 19-21; 18-43; 16-155; 15-178; People v Moreno, 70 NY2d 403 (1987).

Opinion:

         The inquiring judge recently received ex parte correspondence from an inmate. The letter claims the inmate was convicted due to “perjured testimony of two police officers” and other prosecutorial misconduct.¹ The judge asks if it is ethically permissible to forward the letter to the district attorney’s Conviction Integrity Unit with no comment other than to “say that this might be a matter of interest to them.” The judge further asks if they may thereafter preside if “either party makes formal application to vacate the conviction.”

         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]). In general, a judge must 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 (see 22 NYCRR 100.3[B][6]). A pending proceeding is one that has begun but not yet reached final disposition, and an impending proceeding is one that is reasonably foreseeable but has not yet been commenced (see 22 NYCRR 100.0[U]-[V]). A judge must disqualify in matters where the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]), including in circumstances required by rule or law (see Judiciary Law § 14; 22 NYCRR 100.3[E][1][a]-[f]). Where disqualification is not mandatory, however, a trial judge is the sole arbiter of recusal (see People v Moreno, 70 NY2d 403 [1987]).

         In Opinion 19-21, we said an appellate judge “may not suggest or recommend that an inmate make an application to the governor’s office of clemency nor may the judge take affirmative actions in furtherance of that suggestion or recommendation.” Likewise, we conclude this judge should not forward the inmate’s correspondence to the district attorney’s Conviction Integrity Unit, even if the judge would do so without comment.

         Instead, as the ex parte communication appears to relate to a reasonably foreseeable proceeding to vacate the inmate’s conviction, we conclude the judge may treat this correspondence as the judge treats other impermissible ex parte communications (see e.g. Opinions 18-43; 16-155; 15-178).

         As to whether the judge may preside if either party makes a formal application to vacate the conviction, we note the unusual position here. Any such application, if made, is virtually certain to include the grounds raised in the inmate’s ex parte letter. Indeed, one would expect the applicant to marshal whatever admissible evidence there may be to support the bare assertions made in the inmate’s letter. That is, the claims made in the inmate’s ex parte communication will be superseded and made essentially irrelevant by the submissions made on notice in the context of the formal application. On these facts, we conclude this judge’s impartiality cannot “reasonably” be questioned in an application to vacate the conviction based on the judge’s prior review of the inmate’s misdirected ex parte communication (22 NYCRR 100.3[E][1]). As disqualification is not mandated here, if a request is made for the judge’s recusal, the decision is in the sole discretion of the inquiring judge.

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¹ The inquirer apparently sees the inquiring judge as a successor to the judge who presided in the underlying criminal case.