The State of New York filed a Petition pursuant to Mental Hygiene Law Article 10 with the Supreme Court, County of Dutchess. The Petition seeks, among other things, a judgment determining that Respondent Michael Pierce is a sex offender requiring civil management.

A probable cause hearing was held May 2, 2008 and the Dutchess County Supreme Court found that there is probable cause to believe that Respondent is a sex offender requiring civil management within the contemplation of Mental Hygiene Law § 10.06(k). Thereafter, Petitioner applied for an Order changing venue from Supreme Court, Dutchess County to Supreme Court , Lewis County. Respondent opposed that motion. A Decision and Order was made by the Supreme Court Dutchess County on [*2]June 2, 2008, transferring venue of the matter to this Court.

Thereafter, a telephone conference was conducted with James Williams, Esq., Assistant Attorney General on behalf of the Petitioner, and Robert P. McGraw, Esq., Senior Attorney, Mental Hygiene Legal Services on behalf of Respondent. Request was made on behalf of Respondent that I recuse myself since Attorney Williams was my Law Clerk within the disqualifying time period. (See Advisory Committee on Judicial Ethics, Opinion 07-04). Pending a ruling on that request, the matter was transferred within the Office of the Attorney General to another attorney and thus that reason for the requested recusal no longer exists.

Respondent Piece has now made another application to the Court for recusal by letter of his counsel dated July 22, 2008. The undersigned served as the presiding judge in the criminal conviction and sentencing of Michael Piece that resulted in his present incarceration. By reason thereof, Michael Pierce argues that it is his belief he would not be able to obtain a fair trial in the present matter. He has asserted that the undersigned exhibits a general bias and/or prejudice' against him. The only apparent basis for the claim is the fact of the Court's prior involvement with the conviction and sentencing of Respondent. The Attorney General takes no position on the request other than stating it was not raised in the original recusal request from Respondent.

Recusal is statutorily required if a judge is a party, has been an attorney or counsel in the proceeding, is interested in the matter, or is related by consanguinity or affinity within the sixth degree to any party (Judiciary Law § 14). It is mandated as well where the impartiality of the judge might reasonably be questioned (22 NYCRR §100.3(E)(1)). In other words, as a matter of due process and fundamental fairness, there should be recusal when there is a matter of direct, personal, substantial, or pecuniary interest on the part of the court in reaching a particular conclusion (People v Alomar, 93 NY2d 239; see Tumey v State of Ohio, 273 U.S. 510).

Where the recusal request is based on a question of impartiality, the judge hearing the case is the sole arbiter of the issue, and judges are cautioned to search their personal conscience to determine whether there is any bias or prejudice that would result from the judge continuing to preside over the matter (see People v Moreno 70 NY2d 403, 1987; Kern v City of Rochester 217 AD2d 918, , citing Matter of Card v Siragusa, 214 AD2d 1022 [Fourth Dept., 1995]).

A claim of bias or prejudice that stems from an extrajudicial source may be the basis for recusal, but purportedly prejudicial information acquired from the Court's performance of its judicial function is not a basis for recusal ( Moreno, 70 NY2d 403). In that regard no disqualification has been found necessary where a judge represented a Defendant on a previous [*3]case that was the predicate for enhanced sentencing (see People v. Marrero 30 AD2d 637; People v. Jones 143 AD2d 465). Additionally, for example, conduct of prior proceedings such as a suppression hearing (People v Latella 112 AD2d 324; People v Brown, 24 NY2d 168), or review of issuance of a search warrant ( People v McCann 85 NY2d 951, 1995), or imposition of a probation sentence and later conduct of a probation violation hearing (People v Oehler, 52 AD2d 955; see also United States v Carlton,NY Law Journal, July 22, 2008, p.30) are not disqualifying events. Thus, presiding in a prior criminal prosecution of a party is not an automatic basis for recusal (see People v Bennett 238 AD2d 898 [Fourth Dept., 1997]).

The Court has reviewed the minutes of the plea proceeding and Respondent's sentencing. While the Court failed to rule in Respondent's favor on some issues raised in those proceedings, such is not a basis for recusal (see Petkovsek v Snyder, 251 AD2d 1086 [Fourth Dept., 1998]).

The Court can discern no basis for recusal here. "The radical test [Respondent] advances, equating knowledge acquired as part of pretrial adjudication with an appearance of impropriety thus requiring recusal . . . finds no support in law, ethics, or sound policy" (Moreno, 70 NY2d 403, 407).

The rule has even greater weight in a jury trial.

The Courthas searched its conscience in this matter, and has concluded there is no evidence of bias or prejudice that would result in any unfairness to Respondent were the undersigned to preside over the trial of this case.

The Court holds that in a Mental Hygiene Law Article 10 proceeding, the fact that the Justice presiding previously conducted the plea and sentencing of the Respondent is not in and of itself a disqualifying event mandating recusal.

Accordingly, the motion for recusal is Denied, and it is So Ordered.ENTER

Dated: July 29, 2008

Lowville, NYJoseph D. McGuire, J.S.C.