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THE JUDGE’S LAW CLERK, A FORMER ASS’T DA, DISCUSSED DEFENDANT’S SENTENCING WITH THE JUDGE; THE JUDGE SHOULD HAVE RECUSED HIMSELF FROM THE SENTENCING, SENTENCE VACATED (SECOND DEPT).

The Second Department, vacating defendant’s sentence, determined the sentencing judge should have recused himself because his law clerk, a former assistant DA, was not screened from the case:

… [A]fter the verdict was rendered, but prior to sentencing, the trial justice hired as his law clerk a former Queens County Assistant District Attorney who had been involved in the investigation and the early stages of the defendant’s prosecution. “‘[A] law clerk is probably the one participant in the judicial process whose duties and responsibilities are most intimately connected with the judge’s own exercise of the judicial function'” … .

Under the circumstances of this case, due process principles did not require recusal, as there was no indication that the trial justice had a direct, personal, substantial, or pecuniary interest in the case … . However, since the law clerk was not screened from working on this case and, according to the trial justice, actually discussed the sentencing of the defendant with the justice, the justice should have recused himself “‘in a special effort to maintain the appearance of impartiality'” … . People v Hymes, 2021 NY Slip Op 02412, Second Dept 4-21-21

 

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