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THE JUDGE’S LAW CLERK, WHO REVIEWED DEFENDANT’S MOTION TO VACATE HIS CONVICTION, MAY HAVE PARTICIPATED IN DEFENDANT’S PROSECUTION; TO AVOID THE APPEARANCE OF IMPROPRIETY, THE DENIAL OF THE MOTION WAS REVERSED (THIRD DEPT).

The Third Department, reversing the denial of defendant’s motion to vacate his conviction (CPL 440.10), determined the judge’s law clerk who reviewed the motion may have been involved in the defendant’s prosecution:

“A judge must always avoid even the appearance of impropriety and must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality” … . As an extension of the judge that they serve, “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” … . Indeed, law clerks serve as “[n]on-judges who perform judicial functions within the judicial system” … , and therefore a law clerk’s conflict may require the judge they serve to “disqualify in a proceeding in which the judge’s impartiality ‘might reasonably be questioned’ ” … . Although such disqualification is not automatic, a judge must insulate their law clerk from all matters in which the law clerk had any personal involvement as an attorney during the law clerk’s prior employment and disclose the law clerk’s involvement and insulation to the parties — “even where the law clerk’s involvement in the matter consisted of only a single court appearance” … . In doing so, a judge must prohibit their law clerk from participating in any way with the proceeding, including conferencing, performing legal research or drafting decisions … . The failure to do so constitutes reversible error … . People v Dickinson, 2026 NY Slip Op 02694, Third Dept 4-30-26

Practice Point: Here the “appearance of impropriety” created by the possibility the judge’s law clerk participated in defendant’s prosecution, required reversal of the denial of defendant’s post-trial motion.

 

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