The Advisory Committee on Judicial Ethics responds to written inquiries from New York state's approximately 3,600 judges and justices, as well as hundreds of judicial hearing officers, support magistrates, court attorney-referees, and judicial candidates (both judges and non-judges seeking election to judicial office). The committee interprets the Rules Governing Judicial Conduct (22 NYCRR Part 100) and, to the extent applicable, the Code of Judicial Conduct. The committee consists of 28 current and retired judges, and is co-chaired by the Honorable Debra L. Givens, an acting justice of the supreme court in Erie County, and the Honorable Lillian Wan, an associate justice of the appellate division, second department.

Facts/Issue: A town justice asks if it is ethically permissible to preside in a criminal case in which the arresting officer is his/her co-judge’s third-degree relative. The co-judge has already disqualified him/herself from the case.

Discussion: In our view, a judge’s impartiality cannot “reasonably be questioned” in a matter (22 NYCRR 100.3[E][1]), merely because a witness is a close relative of their co-judge. As the present inquiry reveals no other basis for disqualification, we conclude the judge may preside.

Conclusion: A judge may preside in a criminal case where their co-judge’s relative was the arresting officer, provided the judge can be fair and impartial.

Authorities: Opinions 19-43; 92-111.