Opinion: 99-163

October 21, 1999

Digest: The fact that the judge had previously exercised recusal at a time when the judge was under contract to sell the prosecutor a parcel of real estate, and the contract was thereafter rescinded, does not require recusal in a subsequent case involving the same defendant.

Rule:  22 NYCRR 100.3(E)(1); 100.4(D)(1)(c).


            An acting City Court judge inquires about the propriety of presiding over a case involving a defendant who had been before the judge on a prior charge and the judge in that instance chose to recuse him/herself because the judge was under contract to sell a piece of real estate to the District Attorney. That deal never came to fruition and ultimately the real estate was sold to someone else. The same defendant is now before the judge on another charge and the judge anticipates a motion for recusal because of the prior aborted transaction with the District Attorney.

            Section 100.4(D)(1)(c) of the Rules Governing Judicial Conduct prohibits a judge from engaging "in financial and business dealings that involve the judge in frequent transactions or continuing business relationships with those lawyers or other persons likely to come before the court on which the judge serves." In our view, a single, isolated and incomplete transaction does not meet the standards set forth in section 100.4(D)(1)(c). As long as the judge and the District Attorney do not have an ongoing business relationship, the limited association that existed involving a failed realty purchase contract does not rise to the level of a present conflict of interest and does not require disqualification. In short, the situation, as presented, does not appear to be one "in which the judge's impartiality might reasonably be questioned." 22 NYCRR 100.3(E)(1).