June 21, 2018
Digest: Where a judge was properly presiding in multiple criminal cases involving a particular defendant and has no conflict relating to counsel in the matter, the judge may review and approve defense counsel’s 18-B vouchers for work done on these cases prior to the judge’s recusal.
Rules: Judiciary Law § 14; 22 NYCRR 100, Preamble; 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(a)-(f); Opinion 09-71; People v Moreno, 70 NY2d 403 (1987).
A town justice was presiding in multiple criminal cases involving a particular defendant. After the defendant was remanded for sentence, he/she escaped. The judge did not witness the escape but was aware of some commotion nearby. Eventually, the defendant was re-captured and brought to court, and the judge arraigned him/her on the new escape charge. The District Attorney then asked the judge to recuse on all cases involving the defendant, including the escape charge, and the judge did so. Defense counsel has now submitted an 18-B voucher for work done on these cases prior to the judge’s recusal. The judge asks if he/she may approve the voucher, as the judge to whom the cases were transferred is uncomfortable approving them.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and act in a way that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge must disqualify him/herself when required by rule or law (see 22 NYCRR 100.3[E][a]-[f]; Judiciary Law § 14) and in any other case where the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E]). However, where disqualification is not required under objective standards, the judge “is the sole arbiter of recusal” (People v Moreno, 70 NY2d 403, 405 ).
The Rules Governing Judicial Conduct are “rules of reason” (22 NYCRR 100, Preamble). This judge did not have a pre-existing conflict in these cases which might call his/her impartiality into question in reviewing defense counsel’s 18-B vouchers; to the contrary, he/she was legitimately presiding over the cases prior to his/her recusal. Nor does the judge have any conflict relating to counsel in the case. Indeed, we note that the judge’s apparent ground for recusal -- his/her presence in the courtroom during the defendant’s escape - does not in any way cast doubt on his/her ability to be fair and impartial in reviewing defense counsel’s 18-B voucher.
We conclude the judge may ethically review and approve defense counsel’s 18-B vouchers for work done on these cases prior to the judge’s recusal, assuming he/she is legally permitted to do so (cf. Opinion 09-71 [“whether or not a judge has the authority to change his/her mind” regarding the judge’s previous decision to disqualify him/herself in a specific case “is a legal question outside of the authority of this Committee to address”]).