Opinion 22-118

September 8, 2022

Digest:       A judge who previously served as the District Attorney may not preside over a parole recognizance hearing concerning a parolee or releasee who had originally been convicted and sentenced during the judge’s former tenure as the District Attorney.

Rules:        Executive Law §§ 259(5); 259-i(3)(a)(iv)-(viii); Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(b)(i); 100.3(F); Opinions 20-20; 17-162; 14-10.

Opinion:

         The inquiring county court judge previously served as the District Attorney in the same county where they now preside. State law has established a new type of adjudicative proceeding, known as a “parole recognizance” hearing, which provides that every person arrested and detained on a parole warrant must receive a hearing within 24 hours (see Executive Law § 259-i[3][a][iv]-[viii]). The judge asks if it is ethically permissible for the judge to preside over such a hearing if it involves a parolee/releasee who had originally been convicted and sentenced during the judge’s tenure as District Attorney.

         A judge must always avoid even the appearance of impropriety and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2; 100.2[A]). Therefore, a judge is disqualified in a proceeding in which the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]) or in other specific circumstances as required by rule or by law (see generally id.; Judiciary Law § 14). For example, a judge is disqualified when the judge knows he/she previously “served as a lawyer in the matter in controversy” (22 NYCRR 100.3[E][1][b][i]; Judiciary Law § 14), and disqualification on this basis is not subject to remittal (see 22 NYCRR 100.3[F]).

         We have said that a judge who previously served as the District Attorney is disqualified from all matters investigated or prosecuted by the office during their tenure as District Attorney (see e.g. Opinions 20-20; 17-162; 14-10), regardless of whether the inquiring judge “had actual knowledge of or involvement in a particular matter” (Opinion 20-20). The judge likewise may not preside in probation violation hearings, Sex Offender Registration Act hearings and judicial hearings on alleged parole violations, “where the underlying offense was prosecuted during his/her term as District Attorney” (id.).

         We understand the statute here requires a parolee to be identified as a “releasee” rather than a “defendant” and defines a “releasee” as “an individual released from an institution under the jurisdiction of the department [of corrections and community supervision] into the community on temporary release, presumptive release, parole, conditional release, post-release supervision or medical parole” (Executive Law § 259[5]). However, nomenclature is not determinative of disqualification, whether the individual who appears before a judge is called a “defendant,” “parolee” or “releasee.”

         Therefore, a judge who previously served as the District Attorney for the county where the judge now presides may not preside over a parole recognizance hearing concerning a parolee or releasee who had originally been convicted and sentenced during the judge’s former tenure as the District Attorney.