Opinion 02-44

July 6, 2004


Digest:        Under the circumstances presented, a town justice is not disqualified from presiding over a criminal matter involving a defendant who is a former town constable/court attendant for the inquirer’s co-judge.


Rules:          22 NYCRR 100.3(E)(1).


         A town justice inquires whether he/she should exercise recusal in a criminal case involving a defendant who had been a town constable and court attendant in the justice’s town and court. The defendant was so employed for the justice’s co-justice until December, 2001.

         The Rules Governing Judicial Conduct state that “a judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might be reasonably be questioned. . .” 22 NYCRR 100.3(E)(1). Particular instances where impartiality is at question are thereafter set forth in the section.

         Since the inquiry does not appear to fall within the specified instances which mandate a disqualification, recusal is not required. However, the justice should exercise recusal if the justice doubts his/her ability to be impartial, given all of the circumstances of the association between the justice and the defendant.