October 11, 2017
This responds to your inquiry (17-130) asking whether you may preside in a criminal case where the complainant is an assistant district attorney who has occasionally appeared as a prosecutor in your court.
Pursuant to the Rules Governing Judicial Conduct, a judge must disqualify him/herself in any proceeding in which the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E]). The Committee has previously advised that the fact that an attorney is the complaining witness in one case and an advocate in another does not, in and of itself, present a reasonable basis for questioning a judge’s impartiality. Accordingly, you may preside over this criminal case provided you conclude that you can be fair and impartial.
Enclosed, for your convenience, are Opinions 14-120 and 07-122 which address this issue.
Very truly yours,
George D. Marlow, Assoc. Justice
Appellate Div., First Dep’t (Ret.)
Hon. Margaret T. Walsh
Family Court Judge
Acting Justice, Supreme Court