Opinion 25-20

March 27, 2025

Digest:  (1) A judge who previously headed the District Attorney’s office is permanently disqualified, without the possibility of remittal, in all cases investigated or prosecuted by that office during his/her tenure as the District Attorney.

            (2) Assuming the judge can be fair and impartial, he/she may preside in a criminal case that was not pending in that office during the judge’s tenure as the District Attorney, even though the defendant was previously investigated, charged, or prosecuted by that office during the judge’s tenure and (a) the prosecution now seeks to introduce evidence of prior convictions; or (b) a proposed plea of guilty requires the defendant to admit to prior convictions; or (c) the judge must decide whether to impose sentence consecutively or concurrently to sentences previously imposed.  However, if the judge concludes that the prior criminal case has substantial connections that are material and relevant to the case before the judge, he/she must fully disclose the connection between the two cases, as well as the nature and extent of the judge’s involvement in the prior criminal proceeding.  After making such disclosure, the judge may exercise discretion about whether to preside, even if a party objects.

Rules:   Penal Law § 70.25; 22 NYCRR pt 100, Preamble; 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(b); 100.3(F); Opinions 24-40; 22-118; 21-07; 20-20; 17-162; 14-10; 11-26; 03-87; People v Moreno, 70 NY2d 403 (1987); People v Sandoval, 34 NY2d 371 (1974); People v Molineux, 168 NY 264 (1901).

Opinion:

          The inquiring judge, who previously served as the District Attorney in a neighboring county, is presiding over a criminal trial in which the prosecutor wishes to introduce evidence of prior convictions that were prosecuted while the judge served as District Attorney.  The judge is also presiding over a felony complaint with a proposed disposition requiring the defendant to admit to a prior conviction that was prosecuted while the judge served as District Attorney.  The judge further anticipates that he/she will need to make determinations about whether sentences he/she imposes should run consecutively or concurrently with sentences imposed by other judges on convictions that were prosecuted during the judge’s tenure as District Attorney.  The judge therefore asks if disqualification is required in such instances when such prior convictions or sentences may be relevant in a case before the judge. 

          A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]).  A judge must therefore disqualify in any proceeding where the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]).  Where the basis for disqualification is that “the judge knows that the judge served as a lawyer in the matter in controversy” (22 NYCRR 100.3[E][1][b]), either directly or as a supervisor, the disqualification is absolute and cannot be remitted (see 22 NYCRR 100.3[F]).  Where disqualification is not mandated, however, the judge is the sole arbiter of recusal from an ethical perspective (cf. People v Moreno, 70 NY2d 403, 405 [1987]).

          We note at the outset that our analysis does not turn on the happenstance that the inquiring judge was previously the District Attorney in a different county than the one in which he/she now presides; in our view, the same standards apply.  It is well-established that “former prosecutors who become judges may preside over criminal matters” (Opinion 11-26), although the scope of disqualification depends on the judge’s role in the prosecutorial office.  A judge who previously served as the District Attorney of a county -– the head of the office and the attorney of record --- must disqualify him/herself in all criminal matters that were pending or under investigation in that county while the judge was District Attorney because the judge was “the official in charge and under whose authority proceedings were conducted” (Opinion 03-87).  Further, that disqualification is not subject to remittal (see id.).  We have extended that same permanent, unwaivable disqualification to any apparent continuation of the original matter and certain collateral proceedings (see Opinions 22-118 [related parole recognizance hearings]; 20-20 [violation of probation and SORA hearings]; 17-162 [application to seal conviction]).

          We have nonetheless advised that a judge who previously served as the District Attorney may preside over matters that were not pending or under investigation in the District Attorney’s office during the judge’s tenure there, even if a litigant before the judge “was previously a criminal defendant in a matter investigated or prosecuted” by that office (Opinion 14-10).  As we explained in Opinion 14-10, if a judge who was a former District Attorney:

knows or becomes aware the judge or his/her assistant district attorneys previously investigated, charged, or prosecuted a litigant currently appearing before the judge, and if the judge also concludes the facts and circumstances of the prior criminal matter are materially relevant to the [present] case before the judge, ... the judge should fully disclose the connection between the two cases, as well as the nature and extent of the judge’s involvement in the criminal proceeding.

We now apply these principles to the judge’s three questions.

1. Introduction of Evidence from Prior Convictions Prosecuted by the DA’s Office During the Judge’s Tenure

          The inquiring judge first asks if he/she must disqualify in cases where the prosecutor seeks to introduce evidence of convictions obtained by the District Attorney’s office during the judge’s tenure.  The judge states that prosecutors seek to introduce such evidence in one of two ways: as direct evidence during the prosecutor’s case (“Molineux” evidence) or as impeachment evidence should the defendant testify (“Sandoval” evidence). 

Molineux evidence, by definition, is “material and relevant to the issue” in the new case (People v Molineux, 168 NY 264, 345 [1901]).  The inquiring judge must therefore fully disclose the nature and extent of his/her involvement in the prior prosecution and thereafter is the sole arbiter of recusal after considering relevant factors (see Opinion 14-10).

Sandoval evidence does not require relevance or materiality, so long as its probative worth on the issue of credibility outweighs the risk of unfair prejudice to the defendant (see People v Sandoval, 34 NY2d 371, 375 [1974]).  If the judge determines that the prior criminal matter is materially relevant to the current case, he/she must fully disclose and decide whether to recuse.  Should the judge find “there is no substantial connection between the circumstances underlying the [previous] criminal charges and the facts and legal issues of the matter currently before the judge, [there is] no obligation to disqualify him/herself or to disclose the prior criminal case or his/her connection to it” (Opinion 14-10; see also Opinion 24-40).

2. Accepting a Second Felony Offender Plea Predicated on a Prior Conviction Prosecuted by the DA’s Office During the Judge’s Tenure

          The judge asks if it is ethically permissible to accept a plea requiring the defendant to admit a conviction obtained by the District Attorney’s office during the judge’s tenure.  In the specific example given, the defendant is represented by counsel and wishes to plead to a felony charge in Case Y before the inquiring judge. The prosecution is requiring the defendant to admit a Predicate Statement that he/she was previously convicted of a felony in Case X (which was handled by the DA’s office during the judge’s tenure) and be sentenced as a second felony offender, albeit to less than the maximum permitted by law. 

          The Rules Governing Judicial Conduct are intended to be “rules of reason” (22 NYCRR pt 100, Preamble).  In our view, the judge should have the discretion to preside in proposed pleas predicated on prior convictions prosecuted by the DA’s office during the judge’s tenure, subject to the same principles outlined above.  In reaching this conclusion, we note that a plea agreement necessarily requires the consent of the parties as well as the approval of the court under strict legal standards, and the defendant’s criminal history is a matter of public record.

          Accordingly, If the judge determines that the prior felony prosecution is materially relevant to the current felony charges, the judge must fully disclose and decide whether to recuse.  Conversely, should the judge find “there is no substantial connection between the circumstances underlying the [previous] criminal charges and the facts and legal issues of the matter currently before the judge, [there is] no obligation to disqualify him/herself or to disclose the prior criminal case or his/her connection to it” (Opinion 14-10).

3. Imposition of Sentences Running Consecutively or Concurrently with Convictions Prosecuted by the DA’s Office During the Judge’s Tenure

          The judge asks if there are ethical considerations in determining to impose a sentence consecutively or concurrently with a sentence imposed on a conviction prosecuted by the District Attorney’s office during the judge’s tenure. 

          Once again, we conclude the inquiring judge must determine whether, under the circumstances, the conviction prosecuted by the District Attorney’s office during the judge’s tenure has substantial connections that are material and relevant to the matter before the judge for sentencing.  If so, he/she must fully disclose and decide whether to recuse.  Should the judge find “there is no substantial connection between the circumstances underlying the [previous] criminal charges and the facts and legal issues of the matter currently before the judge, [there is] no obligation to disqualify him/herself or to disclose the prior criminal case or his/her connection to it” (Opinion 14-10; see also Opinion 24-40).

Factors to Consider for Recusal

          We advised in Opinion 14-10 that in deciding whether to preside where there are substantial connections that the judge considers material and relevant, a judge who previously prosecuted a litigant should consider, among other things:

the nature and extent of the judge’s involvement in the criminal proceeding; whether the judge is aware of relevant and material non-public information about the litigant due to his/her prior employment; and whether the judge will be able to decide the [present] case based solely on the admissible evidence and the permissible arguments and considerations presented in the proceeding before the judge.

In considering these and/or other relevant factors, the judge is the sole arbiter of recusal.