THE JUDGE’S LAW CLERK WAS THE DISTRICT ATTORNEY WHO PROSECUTED DEFENDANT; THE JUDGE SHOULD NOT HAVE DECIDED DEFENDANT’S MOTION TO VACATE HIS CONVICTION (THIRD DEPT).

The Third Department, reversing County Court, determined defendant’s motion to vacate his conviction should not have been considered by the judge whose law clerk was the District Attorney at the time of defendant’s conviction:

As one of the grounds raised in his CPL article 440 motion, defendant argued that he was deprived of his right to appear before the grand jury due to the actions of the District Attorney. The parties do not dispute that, at the time that defendant’s CPL article 440 motion was decided, the judge’s law clerk was the former District Attorney who had prosecuted defendant. That said, defendant contends that the judge should have recused himself from deciding defendant’s motion. We agree. “Not only must judges actually be neutral, they must appear so as well” … . In view of the law clerk’s direct involvement in defendant’s case during her tenure as the District Attorney and the allegations made in the CPL article 440 motion about her conduct while she was prosecuting him, as well as taking into account the need to maintain the appearance of impartiality, it was an improvident exercise of discretion for the judge to decide defendant’s motion … . People v Roshia, 2022 NY Slip Op 03546, Third Dept 6-2-22

Practice Point: The judge should not have decided defendant’s motion to vacate his conviction because the judge’s law clerk was the DA who prosecuted defendant.