June 9, 2005
Digest: It would be unethical for a judge who was the victim of a crime to contact the judge presiding over the defendant’s case, for the purpose of conveying information concerning other criminal acts allegedly committed by the defendant.
Rule: 22 NYCRR 100.2 (A); 100.2(C); 100.3(B)(6); Opinions 88-159 (Vol. III); 98-77 (Vol. XVII)
The garage at the inquiring judge’s house was broken into and tools belonging to the judge’s brother were taken. Some months later an individual was arrested for two other garage break-ins in the judge’s neighborhood, and the judge “learned that this individual had been linked to a pattern of 16 garage break-ins in my neighborhood.” The judge asks “whether or not I may provide the judge assigned to hear the defendant’s case with a statement regarding these facts as a citizen, on my personal letterhead.” Additionally, the judge inquires as to whether he or she may advise the presiding judge of his or her judicial status.
Although it is unclear whether the judge is referring to the arrest involving the two later break-ins or the burglary at the judge’s own house, it is, in either event, clear that, under the Rules Governing Judicial Conduct, the inquiring judge is prohibited from contacting the judge presiding over the defendant’s case. Section 100.2(A) of the Rules provides that a judge “shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” Subsection (C) adds that a judge “shall not lend the prestige of judicial office to advance the private interests of the judge or others.” Section 100.3(B)(6) further provides that a judge “shall not initiate, permit or consider ex-parte communications * * *.”
Relying on these express provisions of the Rules, it is the opinion of this Committee that it would be unethical for the inquiring judge to contact the judge who is handling the criminal case even if it is on the judge’s private stationery. This Committee has previously concluded that such ex-parte communications from one judge to another is prohibited specifically by the
above-stated rules (see, Opinion 98-77 [Vol. XVIII]). Such communication would clearly be an impropriety. In short, personally conveying information about other crimes allegedly committed by the defendant, to the judge hearing the case is unethical.(See, Opinion 88-159 (Vol. III); see also, Dixon v. State Commission on Judicial Conduct, 47 NY2d 523 ).
Finally, since it is this Committee’s opinion that the inquiring judge should not contact the criminal court judge, whether he or she may advise that judge of his or her judicial status is a moot question.