April 27, 2006
Digest: A judge who learned of a defendant’s prior activities through the judge’s past employment as a peace officer need not exercise recusal in an unrelated matter currently pending before the judge involving that defendant.
Rules: 22 NYCRR 100.3(E)(1); People v. Moreno, 70 NY2d 403 (1987); Opinions 99-168 (Vol. XVIII); 91-73 (Vol. VIII).
A judge inquires whether he/she should exercise recusal in a Driving While Intoxicated (DWI) case involving a defendant to whom the judge previously issued several unrelated, routine tickets for violations in his/her capacity as a Conservation Officer, before assuming the bench. The inquirer states he/she can remain fair and impartial towards this defendant.
This Committee previously determined that where a judge knows of a current defendant’s prior activities, by virtue of the judge's former employment as a police officer, peace officer, or prosecutor, the judge is not required to recuse. Opinions 99-168 (Vol. XVII); 91-73 (Vol. VII). In and of itself, this circumstance does not create an instance where the "judge's impartiality might reasonably be questioned." 22 NYCRR 100.3(E)(1); Opinions 99-168 (Vol. XVII); 91-73 (VIII). Thus, the judge may preside, provided the judge believes that he/she can remain fair and impartial. People v. Moreno, 70 NY2d 403 (1987).