February 27, 2012
This responds to your inquiry (11-86) asking whether you must exercise recusal in a court proceeding in which one of the parties made threatening statements toward you and your family. As a result of this incident, you submitted an affirmation to the District Attorney in support of a criminal contempt charge against this litigant. You have indicated that you do not wish to recuse yourself as you believe you can be fair and impartial while presiding over the rest of the proceeding.
This Committee has previously determined that under such circumstances, the presiding judge “is the sole arbiter of recusal. This discretionary decision is within the personal conscience of the court” (People v Moreno, 70 NY2d 402, 405 ).
Enclosed, for your convenience, are Opinions 05-78 and 99-78 which address this issue.
Very truly yours,
George D. Marlow, Assoc.
Justice, Appellate Division,
First Dept. (Ret.)