Opinion: 99-81

April 29, 1999

Digest: Where recusal is not mandatory, a decision whether to recuse is within the personal conscience of the judge and rests upon the exercise of discretion. In a capital murder case, where the judge previously had prosecuted the defendant in several cases and, while in private practice, had represented the defendant in two criminal cases, the judge should give due consideration to the possibility of being regarded as a material witness concerning the defendant's character, background, record or mental status.

Rule:  CPL §§400.27(9)(f); 400.27(12)(e);
           Jud. Law §14; 22 NYCRR 100.3(E); 100.3(E)(1)(d)(iv);
           People v. Moreno, 70 N.Y.2d 403 (1987);
           Corradino v. Corradino, 48 N.Y.2d 894 (1979).


            A judge who has been assigned a capital murder case involving two defendants asks the Committee for advice as to whether the judge should recuse him/herself from presiding over the trial with respect to one or both of the defendants. Both defendants have moved for the recusal of the judge and related relief. The motions are presently pending.

            The basis for the motions, as recounted by the judge, arises out of the fact that (1) as an assistant district attorney the judge or the office of the district attorney had prosecuted one of the defendants in three or four cases and (2) thereafter, as a defense attorney, the judge represented that defendant in two cases. The legal retainer in one of those cases may have been paid out of bail posted by the mother of the co-defendant in the murder case, who is also a movant.

            Based upon an examination by the judge of various documents, the judge concludes that all of the cases in which the defendant had been prosecuted by the judge or the prosecutor's office "are more than ten years old, involved a disposition without trial, dismissal, ACD or reduction to a violation." With respect to the representation of the defendant by the judge, those cases, as indicated in documents, "involved a disposition, at the violation or traffic infraction level, without hearings or a trial." Moreover, the judge has "no remembrance or knowledge past, present or refreshed" of the defendant. The judge further notes that "there has clearly been no showing of personal bias or prejudice toward any party in this matter nor that I have personal knowledge of disputed evidentiary facts concerning this proceeding . . . ."

            In seeking to advise the judge, the Committee must emphasize that it is not an adjudicatory body. While it has before it the judge's recitation of what the motions for recusal entail, it does not have the motion papers submitted for or in opposition to the motion. Nor does it seek such materials, since, as explained below, the decision whether to recuse in this instance rests with the judge and cannot be decided for the judge by an advisory body. But, we do take this opportunity to point out what are some of the fundamental considerations that should guide the judge in arriving at a decision.

            As presented by the judge, there has been no showing of grounds for mandatory disqualification under section 14 of the Judiciary Law; nor on the face of the judge's letter does there appear to be a showing of circumstances covered under section 100.3(E) of the Rules Governing Judicial Conduct. 22 NYCRR 100.3(E). As a result, as stated by the Court of Appeals in People v. Moreno, 70 N.Y.2d 402 (1987), the trial judge "is the sole aribter of recusal. This discretionary decision is within the personal conscience of the court when the alleged appearance of impropriety arises from inappropriate awareness of 'non-juridical data.'" 70 N.Y.2d at 405. But this does not mean that the exercise of discretion may not be subject to review and guidance. Thus, in Corradino v. Corradino, 48 N.Y.2d 894, 895 (1979), a case where the attorney for the petitioner was associated with the same law firm as was the trial judge prior to her designation to the bench, the Court of Appeals noted that "Though there is no canon of judicial ethics which specifically requires disqualification under these circumstances, we believe it the better practice for the court to have disqualified itself and thus to maintain the appearance of impartiality." 48 N.Y.2d at 895.

            In this regard, the fact that this is a capital murder case may give rise to considerations that might not otherwise obtain. For example, at the sentencing stage, a defendant in a capital case is entitled to attempt to establish "Any other circumstance concerning . . . the defendant's character, background or record that would be relevant to mitigation or punishment for the crime." CPL §400.27(9)(f). Or, a claim might be made prior to trial that a defendant is mentally retarded and a hearing is to be conducted. CPL §400.27(12)(e). These and perhaps other provisions governing a capital murder proceeding, may give rise to a situation where, in light of the judge's prior contacts with the defendant over an extended period of time, the judge is claimed to be a material witness with regard to the "character, record or background" of the defendant or of his mental state. If that were so, disqualification would be required under section 100.3(E)(1)(d)(iv) of the Rules Governing Judicial Conduct. For, if the judge "is likely to be a material witness in the proceeding" a judge must disqualify himself or herself. 22 NYCRR 100.3(E)(1)(d)(iv).

            We do not know or even suggest that this is likely. Rather, we alert the judge to a consideration of this possibility and its ramifications and advise that the judge give due weight to such a factor in deciding whether to recuse.