Opinion 93-62

June 10, 1993

Digest:         A judge who was formerly a prosecutor, may preside over violation of probation matters, where the violation of probation occurred after the judge’s appointment to the bench, but the underlying sentence was imposed while the judge was still employed as a prosecutor, provided the judge was not involved in the matter before going on the bench.

Rules:          22 NYCRR 100.2; 100.3(c).

Opinion:

         A full-time judge who was employed formerly as a prosecutor asks whether it is proper to preside over violation of probation matters, where the violation of probation occurred after the judge’s appointment to the bench, but the original sentencing occurred while the judge was still a prosecutor.

         Section 100.3(c)(1) of the Rules of the Chief Administrator of the Courts states as follows:

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 a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;

(ii) the judge served as a lawyer in the matter in controversy or a lawyer with whom he or she previously practiced law served during such association as a lawyer concerning the matter . . .

         The Rules do not prohibit the judge from presiding over such matters if the judge was not involved personally in the matter as a prosecutor before going on the bench, provided the judge feels that he or she can be impartial.