September 4, 2014
Digest: A judge who is currently a defendant in a criminal case involving domestic violence charges should not preside over other domestic violence cases during the pendency of his/her own case and, if convicted, during the term of any sentence that may be imposed. If the judge is acquitted or if the judge completes his/her sentence and/or probation, the judge may preside over other domestic violence cases provided the judge concludes he/she can be fair and impartial.
Rules: Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.2(B); 100.3(E)(1); 100.3(E)(1)(c); 100.3(E)(1)(d)(iii); Opinions 12-75; 02-54; 88-16 (Vol. I); People v Moreno, 70 NY2d 403 (1987).
The inquiring judge states that he/she has been charged with a violation, a class A misdemeanor, and/or a non-violent class E felony based on a complaint made by a member of the judge’s family.1 The prosecution has now offered the judge the opportunity to resolve the charges through a plea agreement, and the judge is considering whether to attempt to negotiate a more favorable resolution or go to trial. Accordingly, the judge asks whether he/she may continue to preside over domestic violence cases if he/she pleads guilty to a violation as part of a plea agreement or accepts a conditional discharge, in order to dispose of the criminal charges. The judge believes he/she can remain impartial in other cases involving allegations of domestic violence.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). In particular, a judge shall not allow family, social, political or other relationships to influence the judge’s judicial conduct or judgment (see 22 NYCRR 100.2[B]) and must disqualify him/herself in a proceeding in which his/her impartiality might reasonably be questioned (see 22 NYCRR 100.3[E]) or in other specific circumstances as required by rule or by law (see generally id.; Judiciary Law §14). For example, a judge is disqualified if he/she knows that he/she has an economic or other interest that could be substantially affected by the proceeding (see 22 NYCRR 100.3[E][c]; 100.3[E][d][iii]). Conversely, where disqualification is not mandatory, the judge is the sole arbiter of recusal (see People v Moreno, 70 NY2d 403 ).
The Committee has previously advised “there is no per se prohibition barring a judge from presiding over cases involving persons charged with the same statutory offenses previously faced by the judge” (Opinion 02-54). Thus, a judge, previously charged with speeding and driving while intoxicated and acquitted after trial, is not precluded from presiding over cases involving individuals charged with violating the same statutes, assuming the judge concludes he/she can be fair and impartial (see id.).
Here, however, the inquiring judge has not been acquitted; to the contrary, the criminal charges are still pending against the judge. The Committee does not question the sincerity of the judge’s belief that he/she could, in fact, be impartial in other cases involving allegations of domestic violence. Nonetheless, while those charges remain pending against the judge, the public is likely to perceive the judge as similarly situated to other defendants in domestic violence cases and may reasonably question the judge’s ability to be impartial in such matters.2 The Committee therefore concludes that, during the pendency of the criminal case, the inquiring judge should not preside over any domestic violence cases (see 22 NYCRR 100.3[E]).
If the criminal charges are dismissed or withdrawn without conditions, or if the judge is acquitted, the judge may thereafter preside over other domestic violence cases unless he/she questions his/her ability to be impartial in such matters, a matter left to the judge’s sole discretion (see Opinion 02-54; People v Moreno, 70 NY2d 403 ).
If the judge is convicted, or pleads guilty, he/she should not preside over any domestic violence cases until after the judge has completed any sentence, including a conditional discharge or probation, that may be imposed. Thereafter, the judge may preside over domestic violence cases unless he/she questions his/her ability to be impartial in such cases, a matter left to the judge’s sole discretion (see People v Moreno, 70 NY2d 403 ).
1It appears from the inquiry that an inanimate object was broken in anger during an argument witnessed by one or more minor children.
2For example, if an individual appears before the judge to request an order of protection against a defendant, the judge will be equally vulnerable to criticism that the judge is either unduly sympathetic to the defendant or over-compensating to avoid that appearance. Similarly, the judge may be called upon to refer other domestic violence defendants to the same treatment programs or community service programs to which the judge could be sentenced in his/her own pending case.