Opinion 98-04

February 9, 1998

Dear

         This is in response to your inquiry (98-04), which raises the question of whether you are still a peace officer in light of the circumstances described in the letter and other materials submitted by your attorney. As you know, section 100.4(C)(2)(b) of the Rules Governing Judicial Conduct (22 NYCRR 100.4[C][2][b]), does not allow a judge to be a peace officer.

         Upon examining the materials provided it appears that what is presented to the Committee is a legal question, not a matter of judicial ethics. That is, if it is determined that you are a peace officer, that status is ethically incompatible with holding judicial office. But whether you presently are a peace officer, under the circumstances presented is a legal question, the answer to which is outside the purview of this Committee. Indeed, it appears that the question is presently before the courts in the litigation in which you are involved. Accordingly, the Committee declines to answer the question raised.

                                                                     Very truly yours,

George D. Marlow

Dutchess County Court Judge

Co-Chair

Thomas P. Flaherty

Justice of the Supreme Court

Co-Chair