You are here: / / THE JUDGE’S LAW CLERK, WHO REVIEWED DEFENDANT’S MOTION TO VACATE...
, ,

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.

 

You might also like
AN APPLICATION FOR A WRIT OF HABEAS CORPUS IS NOT A VEHICLE FOR ISSUES WHICH COULD HAVE BEEN RAISED IN A DIRECT APPEAL OR A MOTION TO VACATE THE JUDGMENT OF CONVICTION PURSUANT TO CPL 44O (THIRD DEPT).
THE DEATH OF A PARTY TO THIS FORECLOSURE ACTION AFFECTED THE MERITS OF THE CASE; SUPREME COURT DID NOT HAVE JURISDICTION TO DETERMINE DEFENDANT’S MOTION AND THE RELATED ORDER IS A NULLITY; THE APPEAL THEREFORE MUST BE DISMISSED (THIRD DEPT).
COUNTY COURT DID NOT MAKE THE REQUIRED FINDINGS OF FACT FOR DEFENDANT’S REQUEST FOR A DOWNWARD DEPARTURE IN THIS SORA RISK LEVEL PROCEEDING; ORDER REVERSED AND MATTER REMITTED (THIRD DEPT).
PAROLE BOARD PROPERLY CONSIDERED PETITIONER’S YOUTH AT THE TIME HE COMMITTED SERIOUS CRIMES, PAROLE PROPERLY DENIED (THIRD DEPT).
SHOULDER INJURY WHICH OCCURRED WHEN CLAIMANT SCANNED HER PARKING PASS TO ENTER A PARKING GARAGE USED BY EMPLOYEES WAS NOT COMPENSABLE, TWO JUSTICE DISSENT (THIRD DEPT). ​
COUNTY COURT’S FAILURE TO MAKE A SEARCHING INQUIRY WHEN DEFENDANT INDICATED HE WISHED TO REPRESENT HIMSELF REQUIRED REVERSAL, DESPITE PRESENCE OF STANDBY COUNSEL (THIRD DEPT).
HERE THE DEFENDANT, IN HIS MOTION TO VACATE HIS CONVICTION, RAISED ISSUES ABOUT THE EXTENT OF HIS COOPERATION AND WHETHER NEW DEFENSE COUNSEL ADEQUATELY INVESTIGATED THE PROSECUTOR’S WITHDRAWAL OF THE COOPERATION AGREEMENT; THE PEOPLE’S RESPONSE DID NOT ADDRESS THESE SUBSTANTIVE ISSUES; THEREFORE COUNTY COURT SHOULD HAVE HELD A HEARING (THIRD DEPT).
BY STATUTE FAMILY COURT MAY NOT SET A GOAL OF ADOPTION BY SOCIAL SERVICES WITHOUT ORDERING THE FILING OF A PETITION TO TERMINATE PARENTAL RIGHTS; HERE FAMILY COURT ATTEMPTED TO SET THE INCOMPATIBLE GOALS OF ADOPTION AND REUNIFICATION WITH THE PARENT; THE INTENT OF FAMILY COURT IS CLEAR (HOPED-FOR REUNIFICATION) BUT THERE IS NO STATUTORY AUTHORITY FOR THE METHOD CHOSEN BY THE COURT (THIRD DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

IN A REAR-END COLLISION CASE, IN ORDER TO RAISE A QUESTION OF FACT ABOUT WHETHER... DEFENDANT’S FUNDAMENTAL RIGHT TO BE PRESENT AT RESENTENCING WAS VIOLATED,...