Opinion 91-25

March 14, 1991

Digest:         A judge need not recuse himself or herself from participation in an action, when the judge was a witness in a separate perjury proceeding, against the defendant.

Rules:          22 NYCRR §100.3(c)(1).

Opinion:

         A judge is presiding over a criminal matter, in which the defendant is a lawyer. During the course of the proceedings, the judge refused to accept the plea bargain agreement. Thereafter, the lawyer-defendant filed a motion seeking the judge's recusal, claiming that the judge had acted improperly, approximately ten years ago, in an action in which the lawyer-defendant had served as counsel. The judge denied the motion, concluding that the judge harbored no prejudice and could be completely fair and impartial.

         As a result of the affidavit submitted by the lawyer-defendant seeking the judge's recusal, the district attorney's office initiated grand jury proceedings seeking a perjury indictment against the lawyer-defendant. The judge was Subpoenaed by the district attorney to give testimony with respect to the lawyer-defendant, and did so.

         The judge now asks whether, as a result of the judge's having given testimony in the grand jury proceedings, in which the judge was subpoenaed to testify, the judge must recuse himself or herself. The judge feels that the judge can be fair and impartial.

         Section 100.3(c)(1) of the Rules of the Chief Administrator of the Courts in pertinent part provides:

A judge shall disqualify himself or herself in a proceeding in which his or her impartiality might reasonably be questioned, including, but not limited to circumstances where:

(i) the judge has . . . personal knowledge of disputed evidentiary facts concerning the proceeding:

(ii) ... the judge ... has been a material witness concerning it (the matter).

         The judge is not ethically obligated to recuse himself or herself in these circumstances. The judge has not instituted the perjury proceeding, nor is the judge a witness in the matter in which the judge is presiding. Presumably, all the judge has done is to repeat under oath before the Grand Jury the same things that the judge stated in open court in the principal case, on denying the defendant's application €or recusal. The judge should not be subject to manipulation for the purpose of causing his or her disqualification, if the judge feels that he or she can be impartial.

         The Committee wishes to make it clear that it does not pass on any issues of law or judicial discretion.