December 9, 1999
A town judge who is a retired police officer in the same town, may preside
over cases involving defendants about whose activities the judge has prior
knowledge, but should not preside in cases involving persons whom the judge
had used as informants while a police officer.
22 NYCRR 100.3(E)(1); 100.3(E)(1)(a)(i);
Opinion 91-73 (Vol. VII).
The inquirer is about to take office as town judge and will therefore be retiring as a lieutenant in the town police department where he/she served for 21 years. The inquirer asks two questions: (1) Is it inappropriate to preside in cases in which the defendant is a person with whom the inquirer "had dealings" as a police officer? (2) What if this person had been used by the inquirer as an informant?
The fact that a current defendant may be a person about whose activities the judge acquired knowledge (e.g., of a prior criminal record) by virtue of the judge's former employment as a police officer does not, in our view, require recusal. In and of itself, it is not a circumstance from which it could be concluded that the "judge's impartiality might reasonably be questioned." 22 NYCRR 100.3(E)(1). In Opinion 91-73 (Vol. VII) the Committee advised that a judge could preside over a zoning law violation case involving a defendant whom the judge had previously prosecuted, also for a zoning law violation, when the judge had been a prosecutor. The Committee is of the view that the two situations are ethically indistinguishable. Thus, the judge may preside, provided, of course, that the judge believes that he or she can be fair and impartial.
But we are of a different opinion with respect to an informant. Such a relationship is often on-going, and carries with it a degree of mutual trust and confidence leading to conclusions concerning the reliability and veracity of the informant. A personal bias or prejudice concerning such a person, or the perception of such bias or prejudice is not unlikely. 22 NYCRR 100.3(E)(1)(a)(i). We therefore conclude that the inquirer should not preside over cases involving former informants. Whether there should be disclosure of the reason for the recusal is left to the discretion of the judge.