May 4, 2017
Digest: A county court judge who filed a disciplinary complaint against a town or village justice is not necessarily disqualified in all indictments and superior court informations which originated as felony complaints before that justice. However, during the pendency of the disciplinary complaint and for two years after it is resolved, the county court judge must carefully review the nature and extent of the justice’s involvement in such matters to determine if recusal is warranted.
Rules: CPL 10.10(2)(a)(b); 10.20(1)(a); Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(a)-(f); Opinions 17-14; 14-10; 11-64; 08-163; 07-25; 92-75; People v Moreno, 70 NY2d 403 (1987); Laird v Tatum, 409 US 824 (1972).
A county court judge requests partial re-consideration of Opinion 17-14. Specifically, the judge asks if he/she may preside over cases that originated as felony complaints in a local justice court, even though he/she filed a disciplinary complaint against the sole justice of that court. The judge notes that the felony complaints stay very briefly in the justice court before they are transferred to county court. Critically, the judge emphasizes that felony proceedings in county court “are based upon a new and different accusatory instrument and all legal issues are visited anew.” As a result, the judge argues, the prior proceedings are generally “not relevant.”
It appears that county court is one of two superior criminal courts with exclusive trial jurisdiction over felonies (see CPL 10.10[a][b]; 10.20[a]). While felony complaints may originate in the local criminal courts, the superior criminal court can only act under a new accusatory instrument, either an indictment or a superior court information. The indictment or information is distinct from the original felony complaint: it may contain some, all, or none of the same charges. Moreover, once the superior criminal court acquires jurisdiction, the court re-arraigns the defendant and sets bail on the new accusatory instrument. The court typically considers motions and issues that were not addressed in the local court, such as review of the grand jury minutes, discovery and evidentiary suppression hearings.
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 integrity and impartiality of the judiciary (see 22 NYCRR 100.2[A]). Initially, there are two objective tests to determine if disqualification is mandatory. The first question is whether the circumstances meet an enumerated category for disqualification (see Judiciary Law § 14; 22 NYCRR 100.3[E][a]-[f]). If not, the second question is whether the judge’s impartiality might nonetheless “reasonably be questioned” (22 NYCRR 100.3[E]). If disqualification is not mandated under either test, the judge “is the sole arbiter of recusal” (People v Moreno, 70 NY2d 403 ). While the Committee has observed that a judge generally “has a duty to sit where not disqualified, which is as strong as the duty not to sit where disqualified” (Laird v Tatum, 409 US 824, 837 ; Opinions 92-75; 07-25), if the judge questions his/her own ability to be impartial in a particular matter, then he/she must not preside (see Opinion 11-64).
Where, as here, a county court judge seldom has occasion to consider the local justice’s actions when presiding over a matter that originated in the justice court, the Committee concludes that blanket disqualification required by Opinion 17-14 is overbroad. On further consideration, the county court judge need not necessarily be disqualified from all indictments and superior court informations during the pendency of the disciplinary complaint and for two years after it is resolved, merely because the original felony complaint in the matter was previously before a local justice he/she reported to a disciplinary authority.
However, while there is no blanket disqualification in such matters, the judge must carefully consider on a case-by-case basis whether or not his/her impartiality might “reasonably be questioned” under the particular circumstances (see generally 22 NYCRR 100.3[E]; Opinion 14-10; Moreno, 70 NY2d 403). This could occur, for example, where the local justice issued a search warrant, imposed arguably excessive bail, conducted felony examination hearings, granted adjournments that may arguably raise speedy trial questions, or considered contempt or bail jumping charges.
Therefore, the county court judge must, during the pendency of the disciplinary complaint and for two years after it is resolved, review carefully all indictments and superior court informations that originated as felony complaints before the justice he/she reported, and consider the nature and extent of the justice’s involvement in the matter and determine whether or not his/her impartiality “might reasonably be questioned” (see 22 NYCRR 100.3[E]; Opinion 08-16). If so, he/she must not preside.
Opinion 17-14 is hereby modified consistent with this opinion.