Opinion: 98-71
June 19, 1998
Digest:        Under the particular circumstances presented, the judge may preside over matters prosecuted by the District Attorneys office even though the District Attorney had been the complainant in a matter before the State Commission on Judicial Conduct which resulted in the judge being admonished by the Commission.

Rule:    22 NYCRR 100.3(E)(1);
            Opinion 97-102


            In 1996, the inquiring part-time village justice was admonished by the State Commission on Judicial Conduct for, among other things, making an ex parte telephone call to a party in a domestic dispute involving an assault charge. The making of that telephone call was brought to the Commission's attention by the District Attorney. Since the District Attorney was the complainant, the inquiring judge asks whether recusal is required "on all matters prosecuted by the District Attorney in my court?"

            Particular reference is made by the inquirer to the Committee's Opinion 97-102. In that opinion, the Committee concluded that the filing of a complaint by a District Attorney with the Commission does not mandate recusal, although if formal charges are brought, there should be recusal. The opinion goes on to say:

Should there be a formal proceeding, the recusal
must last at least as long as the proceeding remains
unresolved. Whether and for how long there must
be a continuation of recusal following an ultimate
disposition of the matter may depend upon a number
of factors which are not presently before the Committee
and which at this point remain entirely speculative.
See e.g., Opinion 89-154(Vol. V).
            Here, there has been an "ultimate disposition" and the Committee must therefore resolve the question with respect to this particular judge under the circumstances presented. In that regard, the Committee notes the following: (1) more than two years have elapsed since the admonition; (2) admonition is the least severe form of public discipline that may be issued by the Commission; (3) the particular matter involved a single incident; (4) there is no indication of any hostility between the District Attorney and the inquirer; and (5) the judge believes that he or she can be impartial, and there is nothing to indicate that the District Attorney believes otherwise.

            In our opinion, these factors militate against a mandatory recusal. That is, under the circumstances presented to us, it cannot be said that in all criminal proceedings prosecuted by the District Attorney's office "the judge's impartiality might reasonably be questioned" (22 NYCRR 100.3[E][1]) by reason of the prior disciplinary proceeding. Therefore, it is the Committee's opinion that the judge may continue to preside in matters prosecuted by the District Attorney's office.