Opinion: 98-18
January 29, 1998
Digest:    An acting village justice should exercise recusal in a criminal proceeding in which the complainant is the village justice.

Rule:    22 NYCRR 200.3(E)(I)
             Opinion 94-110 (Vol. XII)
             88-83 (Vol. II)


            An acting justice of a village court informs the Committee that the village justice "is the complainant in a criminal case ... charging violation of a provision of the village code by a corporation whose office is located in another county. Because the only charge is of less than misdemeanor grade, a bench trial is required." The judge states:

It is my current belief as an experienced judge and
litigator that I could be fair to all sides in the instant
case; but I remain unsure whether the possible appearance
of impropriety would nevertheless suggest that I recuse
myself and the matter then be reassigned by the County Court.
            In Opinion 88-83 (Vol. II), the question posed was whether a judge should disqualify himself from cases in which the presiding judge of the court was the petitioner landlord. The Committee concluded that, given the relationship between a presiding judge and associate judge, there would be an inevitable perception of preferential treatment, and therefore the case should be transferred to another court. In Opinion 94-110 (Vol. XII) the Committee stated that in a two-judge family court, it would not be improper for a judge of the Court to preside in an uncontested adoption proceeding being brought by the other judge. However, if the adoption was to be contested, it should not be heard in the family court.

            Here, it is a two-judge court that is also involved, the matter is criminal and adversarial, and although the relationship of acting village justice and village justice may not be exactly the same as that of presiding judge and associate judge, the public perception of possible preferential treatment and an appearance of impropriety are present. In the Committee's, view, the proceeding before the inquirer is one "in which the judge's impartiality might reasonably be questioned..." (22 NYCRR 100.3[E][1]), and therefore the judge should disqualify himself or herself.