October 29, 2014
PERSONAL AND CONFIDENTIAL
This responds to your inquiry (14-166) asking whether it is ethically permissible to preside over an arraignment in which your first-degree relative by blood or marriage was the arresting officer and whether you may issue a search warrant where your first-degree relative by blood or marriage signed the supporting affidavit (see 22 NYCRR 100.3[E][e]; Opinion 09-242).
The Committee previously has advised that a judge who must disqualify him/herself in certain cases must do so at the outset and, therefore, may not conduct arraignments. An arraignment is not merely administrative, but, rather, it is a significant stage in the criminal proceeding when the judge must advise the defendant of his/her rights, issue a securing order, and, in some cases, suspend the defendant’s license to drive (see Opinions 09-223; 98-27; and 97-59). Similarly, the judge may not sign a search warrant application where the judge will ultimately be disqualified from presiding over the action. And, because the judge’s relative’s involvement in the underlying matter may not necessarily be apparent from the search warrant application, the judge must inquire in each case as to whether and to what extent his/her first degree relative is involved (see Opinions 09-97 and 98-27).
Enclosed, for your convenience, are Opinions 09-242; 09-223; 09-97; 98-27; and 97-59 which address this issue.
Very truly yours,
George D. Marlow, Assoc. Justice
Appellate Division, First Dept. (Ret.)