Opinion: 98-68
June 19, 1998
Digest:    A part-time Acting City Court judge whose spouse is a deputy sheriff may preside in matters where the spouse is one of the two deputy sheriffs transporting the incarcerated defendant to the court.

Rule:    22 NYCRR 100.2; 100.4(D)(1)


            The spouse of a part-time Acting City Court judge recently obtained employment as a deputy sheriff of the county where the judge's court is located. Among the spouse's duties is the transporting of incarcerated individuals for City and Town Court appearances. The practice has been to assign two deputies to transport the individuals. The deputies appear with the defendant before the judge presiding.

            The inquirer asks whether it is improper for the spouse to be involved in transporting the incarcerated person to the judge's court and appearing before the court. But since the performance by the spouse of his or her official duties is not improper as a matter of judicial ethics, the Committee reads the inquiry as asking whether the judge may preside where the judge's spouse has transported the defendant and is appearing in court before the inquirer.

            The Committee does not believe that the fact of having transported the defendant is of sufficient significance to create an appearance of impropriety under section 100.2 of the Rules Governing Judicial Conduct, or that the "judge's impartiality might reasonably be questioned" (22 NYCRR 100.4[D][1]), in such circumstances. Clearly, the spouse is not involved in the matter before the Court and has no connection with the case. However, we do feel it would be preferable if efforts could be made to avoid having the spouse actually appear in the court before the inquiring judge.