Opinion 26-92(B)

 

May 7, 2026

 

Digest: Remittal of disqualification (1) is not permitted on ex parte applications but (2) is possible at arraignments, provided that both the defendant and a representative of the prosecution are present.

 

Rules:    Judiciary Law §14; 22 NYCRR 100.2; 100.2(A); 100.3(B)(6); 100.3(B)(6)(e); 100.3(E)(1); 100.3(E)(1)(a)-(f); 100.3(F); Opinions 21-22(A); 19-162; 19-59; 17-150; 15-197(B); 13-124/13-125/13-128/13-129; 09-97; 08-50; 98-27.

 

Opinion: 

 

          The inquiring judge is related to the county’s undersheriff within the first degree of relationship by blood or marriage.[1]  The judge is aware of our opinions requiring disqualification in all cases involving the sheriff’s department, as the undersheriff is the second-in-command.  Given the potential for the disqualification to be subject to remittal, at least in instances where the judge’s first-degree relative has absolutely no personal involvement (cf. 22 NYCRR 100.3[E][1][e][ii]), the judge asks whether remittal is permissible (1) in the case of ex parte applications and/or (2) for the limited purposes of arraignments.[2]

 

          A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]).  Therefore, a judge must disqualify in any proceeding where his/her impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]), including where required by specific rule or statute (see Judiciary Law § 14; 22 NYCRR 100.3[E][1][a]-[f]).  In many instances, the judge’s disqualification may be subject to remittal (see 22 NYCRR 100.3[F]).  Relevant here, Section 100.3(E)(1)(e) requires disqualification when:

 

(e) The judge knows that the judge or the judge’s spouse, or a person known by the judge to be within the fourth degree of relationship to either of them, or the spouse of such a person, is acting as a lawyer in the proceeding or is likely to be a material witness in the proceeding.  Where the judge knows the relationship to be within the second degree, (i) the judge must disqualify him/herself without the possibility of remittal if such person personally appears in the courtroom during the proceeding or is likely to do so, but (ii) may permit remittal of disqualification provided such person remains permanently absent from the courtroom.

 

          Here, the judge’s first-degree relative, as undersheriff, holds a highly visible position at the highest echelon of the sheriff’s department.  While the position may be primarily administrative, the undersheriff still provides direct or indirect supervision and oversight to other members of the department.  In such circumstances, as the inquiring judge recognizes, the disqualification requirement is very broad and ordinarily encompasses all cases involving the sheriff’s department (see e.g. Opinions 19-59; 08-50; 98-27).

 

          Where Section 100.3(E)(1)(e)(i) does not apply, the judge’s disqualification may be subject to remittal under Section 100.3(E)(1)(e)(ii) and Section 100.3(F).  As we explained in Opinion 21-22(A) (citation omitted)):

 

Remittal, where permitted, is a three-step process: First, the judge must fully disclose the basis for disqualification on the record.  Second, without the judge’s participation, the parties who have appeared and not defaulted and their lawyers must all agree that the judge should not be disqualified.  Third, the judge must independently conclude that he/she can be impartial and be willing to participate in the case.  If all three steps are satisfied, the judge may accept remittal of disqualification and must incorporate the parties’ and their attorneys’ agreement into the record of the proceeding.

 

          Given that the remittal process envisions affirmative consent from all sides, not just the “unconflicted” side(s), we have advised that remittal is unavailable in an ex parte application, such as an application for a search warrant which necessarily “is submitted and decided” ex parte (Opinion 09-97; see also Opinions 19-162; 17-150; 08-50; 98-27).

 

          We here reaffirm that in ex parte matters, such as applications for arrest warrants and search warrants, where the defendant is not present and cannot be fully informed of the basis for the judge’s disqualification or affirmatively consent to waive it, the judge must simply disqualify him/herself, since to preside in the matter may create an appearance of impropriety (see 22 NYCRR 100.2; Opinions 98-27; 19-162; 17-150; 08-50).

 

          In our view, the same principles apply to arraignments.  Remittal of the judge’s disqualification is permitted if both sides are present at the arraignment.  This means, at an absolute minimum, the criminal defendant and a representative of the prosecution must be present.[3]  Conversely, if there is no representative of the People present at arraignment, then it is an ex parte proceeding where remittal is not available.

 

          Prior opinions, including Opinions 08-50 and 98-27, will be amended as needed to clarify that remittal is available where both sides are present for arraignment.

 

[1] Relatives within the first degree of relationship include a spouse, parent, or child, a step-parent or step-child, and a son- or daughter-in-law.

[2] For completeness, we note that a judge may not “initiate, permit, or consider ex parte communications” concerning a pending or impending proceeding, unless an exception applies (22 NYCRR 100.3[B][6]), such as “when authorized by law to do so” (22 NYCRR 100.3[B][6][e]).

[3] Whether the defendant must be represented by counsel is a legal question; from an ethics perspective, remittal remains possible if a party is appearing without counsel (see Opinion 21-22[A]).  Similarly, whether the prosecutor may delegate authority to a law enforcement officer, or has lawfully done so, is likewise a legal question (cf. Opinions 15-197[B] [observing that “in some local courts, the complainant police officer or trooper may also serve as the prosecution’s sole representative”]; 13-124/13-125/13-128/13-129 [recognizing that a district attorney “might authorize the accompanying law enforcement officer to serve as the prosecutor’s representative”]).