Opinion 12-78

April 26, 2012


Digest:         A judge who granted a criminal defendant’s post-trial motion to set aside a jury’s guilty verdict need not disqualify him/herself from presiding over the new trial, unless the judge questions his/her own ability to be impartial.


Rules:          Judiciary Law §14; 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); Opinions 11-64; Joint Opinion 07-78/07-121; Opinions 07-49; 98-134 (Vol. XVII); 89-104 (Vol. IV); People v Moreno, 70 NY2d 403 (1987); People v Brown, 26 NY2d 168 (1969).


         The inquiring judge states that he/she recently granted a criminal defendant’s motion to set aside a jury’s guilty verdict based on, among other things, ineffective assistance of counsel. Thereafter, the defendant’s newly retained counsel asked the judge “to consider recusal.” The judge asks whether he/she must disqualify him/herself from presiding over the new trial, because he/she has “basically heard all of the evidence at the first trial.”

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Therefore, a judge must disqualify him/herself in any proceeding in which the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]).

         During the course of a proceeding, a judge in his/her judicial capacity may be exposed to both admissible and inadmissible information. The Committee has recognized that a judge, due to specialized “‘learning, experience and judicial discipline, is uniquely capable of distinguishing the issues and of making an objective determination’ based upon appropriate legal criteria, despite his/her awareness of facts that cannot properly be relied upon in making the decision” (Joint Opinion 07-78/07-121, quoting People v Moreno, 70 NY2d 403, 406 [1987] and People v Brown, 24 NY2d 168, 172 [1969]).

         Accordingly, the Committee has previously advised that “[t]here is no per se requirement for disqualification of a judge based upon the judge’s having learned facts about a matter in a judicial capacity” (Opinion 89-104 [Vol. IV]; see also Joint Opinion 07-78/07-121 [Family Court judge who also presides in Problem Solving Court not ordinarily required to exercise recusal when party appearing in Family Court also appeared before judge in Problem Solving Court]; Opinion 98-134 [Vol. XVII] [judge does not have to exercise recusal solely on basis of past decisions]).

         In fact, even where a judge was disqualified from hearing one of two unrelated grounds raised in a post-trial motion to set aside a jury verdict, the Committee advised that disqualification with respect to the remaining portions of the motion “is best left to the judge’s discretion; if the judge believes, under the circumstances, [that] he/she can be impartial and is willing to preside, the judge may do so” (Opinion 07-49).

         Accordingly, under the circumstances presented, the Committee believes the inquiring judge’s impartially cannot reasonably be questioned if he/she presides over the new trial (see 22 NYCRR 100.3[E][1]). Thus, the judge may preside, as long as the judge concludes that he/she can be fair and impartial (see Opinion 07-49; see also Joint Opinion 07-78/07-121 [“[i]f judge cannot be impartial ... based on the knowledge he/she gained from the prior proceedings, ... then he/she must exercise recusal”]; Opinions 98-134 [Vol. XVII] [judge does not have to recuse him/herself solely on basis of prior evaluation of credibility in earlier unrelated action]; 89-104 [Vol. IV] [“If, on the other hand, the judge harbors doubts as to his or her ability to remain impartial in the second proceeding, the judge should recuse himself or herself”]).1


     1 The Committee has advised that “where disqualification is not mandated pursuant to the Rules Governing Judicial Conduct (see 22 NYCRR 100.3[E][1]) or Judiciary Law §14, the judge ‘is the sole arbiter of recusal. This discretionary decision is within the personal conscience of the court’ (People v Moreno, 70 NY2d 403, 405 [1987]). Of course, if the judge questions his/her own ability to be impartial in a particular matter, then he/she must not preside” (see Opinion 11-64).