April 13, 2011
This responds to your inquiry (11-02) asking whether you may preside over a criminal case involving the relative of a town official or whether you must exercise recusal “to avoid even the appearance of impropriety.” You have indicated your intention to disclose the relationship at the next court appearance.
A judge must avoid impropriety and the appearance of impropriety (see 22 NYCRR 100.2) and act at all times a manner that promotes public confidence in the integrity and impartiality of the judiciary (see 22 NYCRR 100.2[A]). Here, there is no indication that the town official participates in determining your salary or the court’s budget. Nor is there any indication of any other conflict or bias (see 22 NYCRR 100.3[E][a][i]). Accordingly, it is ethically permissible to preside over this criminal case.
Enclosed, for your convenience, are Opinions 09-106 and 91-63 which relate to this issue.
Very truly yours,
George D. Marlow, Assoc. Justice
Appellate Division, First Dept. (Ret.)