June 21, 2022
This responds to your inquiry (22-70) asking whether you may preside in a matter after the prosecution provided you with certain confidential records for in camera inspection to “determine what, if any, records should be disclosed” to the defense. You state that the prosecutor copied defense counsel on the transmittal letter.
In our view, a judge who receives documents in camera for review as permitted by law is not thereafter required to disqualify from the matter (see generally 22 NYCRR 100.3[B][e] [“A judge may initiate or consider any ex parte communications when authorized by law to do so.”]; Opinion 16-43; see also generally People v Moreno, 70 NY2d 403, 405-06 ; People v McCray, 23 NY3d 193, 198 ; People v Love, 307 AD2d 528, 531-32 [3rd Dept 2003]).
Enclosed for your reference is Opinion 16-43.
Very truly yours,
Margaret T. Walsh
Supreme Court Justice
Appellate Division, Second Department