Opinion: 99-28

March 11, 1999

Digest:  A judge, whose spouse is an assistant district attorney, is not disqualified from presiding over the proceeding whereby indictments are handed up to the court by the grand jury foreperson even if the spouse had been involved in one or more of such cases in the lower courts or in the grand jury.

Rule:  22 NYCRR 100.2(B); 100.3(E)(1);
           Opinions 97-39 (Vol. XV); 96-42
           (Vol. XIV); 93-116 (Vol. XI).


            A County Court judge who presides over criminal cases is aware that there must be a recusal in criminal matters in which the judge's spouse, an assistant district attorney, has had any involvement. The inquiry is whether this precludes the judge from receiving "hand-ups" of indictments from the grand jury's foreperson which may include cases where the judge's spouse had some involvement, either in the lower court or in the grand jury. The procedure is purely formal, and the judge's role is perfunctory and ministerial. The judge performs no adjudicative function whatsoever and no appearance is being made by the spouse. See e.g., Opinions 97-39 (Vol. XV); 96-42 (Vol. XIV); 93-116 (Vol. XI).

            Under the circumstances, the Committee is of the opinion that there is no requirement of recusal. That is, the mere fact that the judge is the judge-of-record at the time of the filing of the indictments does not transform the proceeding into one in "which the judge's impartiality might reasonably be questioned . . . ." 22 NYCRR 100.3(E)(1). Nor is the proceeding one in which the judge's family relationship might be perceived as influencing the judge's conduct or judgment, in contravention of section 100.2(B) of the Rules Governing Judicial Conduct. Accordingly, the judge may continue to preside at the handing up of indictments by the grand jury foreperson even in cases where the judge's spouse may have been involved.