Opinion 16-120

October 20, 2016


Digest:         Where a judge learns of a conflict with a witness which precludes him/her from presiding in a criminal defendant’s Outley hearing, the judge is disqualified from the remainder of the criminal case and may not sentence the defendant.


Rules:          22 NYCRR 100.2; 100.2(A); 100.3(E)(1); Opinions 14-150; 12-25; 09-223; 07-49.


         A full-time judge has presided in a criminal case that is almost ready for sentencing. Before the sentencing occurs, however, there must be an Outley hearing (see People v Outley, 80 NY2d 702 [1993]). Because the prosecution will call a witness whose participation requires the judge’s disqualification, the inquiring judge has arranged for another judge to preside over the Outley hearing.1 The other judge will decide all issues involving the witness and his/her testimony, and these findings will be binding on the inquirer during the sentencing phase if the case returns to him/her. Accordingly, the inquirer asks if he/she may resume presiding over the underlying case and sentence the defendant, once the Outley hearing is concluded.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Thus, a judge must disqualify him/herself in a proceeding where the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]).

Where a ground for disqualification exists, the Committee has advised that a judge ordinarily must not preside, even in “matters that appear to be routine, mundane, uncontested or ministerial in nature” (Opinion 14-150, quoting Opinion 12-25). For example, “a judge who must disqualify him/herself in certain cases, must do so even for arraignments” (Opinion 09-223).


The Committee does not believe the Outley hearing is sufficiently segregable from the underlying criminal case to warrant a different result.2 If there was a failure of the no-arrest condition, this judge will have discretion to consider any relevant factual findings from the Outley hearing when sentencing the defendant. In other words, this judge, though bound by the other judge’s fact findings, will still need to decide which (if any) fact findings from the hearing are relevant and material to sentencing, and what weight to give them. It would be difficult, if not impossible, to avoid an appearance of impropriety.

         Moreover, this judge has not argued that the sentencing phase of a criminal case is merely ministerial, and the Committee “is hesitant to so conclude without more information” (cf. Opinion 12-25).


Because this judge has become aware of a conflict with a witness which precludes him/her from presiding in the defendant’s Outley hearing, he/she must disqualify him/herself from the criminal case and may not first sentence the defendant before doing so.




         1 For purposes of this opinion, the Committee assumes the witness’s testimony is both material and necessary to the Outley hearing, but not otherwise relevant to the underlying criminal charges against the defendant.


         2 The Committee is aware of Opinion 07-49, where a judge who was disqualified from hearing one portion of a post-trial motion had discretion to preside over other portions of that motion. Here, by contrast, the conflict has not arisen in a post-trial motion, but shortly before the sentencing phase of the criminal case.