by Jill Paperno,
Special Assistant Monroe County Public Defender

As many of you know, the judge you start with in a case is not always the judge you end with. There are rules governing which judges may handle which cases, and the circumstances in which cases may be transferred. You may wish to object to assignment of a judge on your case on one of several grounds - either the judge is not authorized by law to sit on the case based on the court in which the judge is actually elected to serve, or the case was transferred without the proper order, or the transfer is for reasons not authorized by law.

1. Can the judge take the type of case?

The Judiciary Law permits the Chief Administrative Judge to temporarily assign judges to courts. That authority is limited by the New York State Constitution, Article 6, Section 26. That section includes limitations on which judges may handle which cases. The full section is below. Notably, as set forth in subsection (j)(2) a City Court judge can sit as a County Court judge, but not as a Supreme Court Judge. So if a City Court judge is authorized to sit as County Court, they may not be authorized to pick up a Supreme Court case. You can object based on the State Constitution provisions.

2. Can the judge take the case if it is transferred between courts?

In order for a case to be transferred from one court to another, there has to be an order in place. We don't usually see these orders, but perhaps we ought to start asking for them. The one I got yesterday doesn't seem to reflect that the case was transferred from Supreme to County, so maybe there's an issue here. According to the Fourth Department in People v. Adams, 74 AD 3d 1897, "defendant (was) correct that, in order to remove a criminal action from County Court to Supreme Court, the Uniform Rules for the New York State Trial Courts require that such removal be authorized by the Chief Administrator and that it occur prior to the entry of a plea or commencement of trial (see 22 NYCRR 200.14). Neither condition was met here, and thus ASCJ Griffith had no authority to preside over sentencing, rendering the sentence illegal."

Although a judge may have lots of experience, that doesn't address the issue raised by Adams. Here's the language of the order in a recent case, and the language I believe all these orders probably use: Pursuant to the authority vested in me, I hereby order that the Hon. Jane Doe, City Court Judge, City of Rochester be (sic) and hereby is assigned temporarily to County Court, County of Monroe to hear and determine the following matter: (name of case and docket number which is really the indictment number); this assignment is in addition to his other duties and assignments. The Hon. Jane Doe shall preside over this matter until it is concluded."

This language doesn't seem to transfer the case from Supreme to County. Additionally, this case won't be staying with Judge Doe, so I'm assuming there won't be a transfer order back. Interestingly, Adams notes that this issue doesn't have to be preserved for appeal.

3. Can the judge take the case - 22 NYCRR 200.14?

This section of NYCRR sets forth the rules for assignment of cases to judges. It states, "Except as provided in subdivision (b) of this section, upon commencement of a criminal action in the superior court, the action shall be assigned to a judge by the clerk of the court in which it is pending pursuant to a method of random selection authorized by the Chief Administrator. The judge thereby assigned shall be known as the 'assigned judge' with respect to such action and, except as otherwise provided in subdivision (d) of this section, shall conduct all further proceedings therein.

Subdivision (d) lists four exceptions Here they are:

(1) Where the requirements of matters already assigned to a judge are such as to limit the ability of that judge to handle additional cases, the Chief Administrator may authorize that new assignments to that judge be suspended until the judge is able to handle additional cases.

(2) The Chief Administrator may authorize the assignment of one or more special reserve trial judges. Such judges may be assigned matters for trial in exceptional circumstances where the needs of the courts require such assignment.

(3) Matters requiring immediate disposition may be assigned to a judge designated to hear such matters when the assigned judge is not available.

(4) The Chief Administrator may authorize the transfer of any action and any matter relating to an action from one judge to another in accordance with the needs of the court.

I don't know if the orders that are being used address which exception led to the transfer, and if the order doesn't specify, perhaps the orders are inadequate and the transfers are improper.

The temporary assignment of judges provision of the Constitution mentioned above:

a. A justice of the supreme court may perform the duties of office or hold court in any county and may be temporarily assigned to the supreme court in any judicial district or to the court of claims. A justice of the supreme court in the city of New York may be temporarily assigned to the family court in the city of New York or to the surrogate's court in any county within the city of New York when required to dispose of the business of such court.

b. A judge of the court of claims may perform the duties of office or hold court in any county and may be temporarily assigned to the supreme court in any judicial district.

c. A judge of the county court may perform the duties of office or hold court in any county and may be temporarily assigned to the supreme court in the judicial department of his or her residence or to the county court or the family court in any county or to the surrogate's court in any county outside the city of New York or to a court for the city of New York established pursuant to section fifteen of this article.

d. A judge of the surrogate's court in any county within the city of New York may perform the duties of office or hold court in any county and may be temporarily assigned to the supreme court in the judicial department of his or her residence.

e. A judge of the surrogate's court in any county outside the city of New York may perform the duties of office or hold court in any county and may be temporarily assigned to the supreme court in the judicial department of his or her residence or to the county court or the family court in any county or to a court for the city of New York established pursuant to section fifteen of this article.

f. A judge of the family court may perform the duties of office or hold court in any county and may be temporarily assigned to the supreme court in the judicial department of his or her residence or to the county court or the family court in any county or to the surrogate's court in any county outside of the city of New York or to a court for the city of New York established pursuant to section fifteen of this article.

g. A judge of a court for the city of New York established pursuant to section fifteen of this article may perform the duties of office or hold court in any county and may be temporarily assigned to the supreme court in the judicial department of his or her residence or to the county court or the family court in any county or to the other court for the city of New York established pursuant to section fifteen of this article.

h. A judge of the district court in any county may perform the duties of office or hold court in any county and may be temporarily assigned to the county court in the judicial department of his or her residence or to a court for the city of New York established pursuant to section fifteen of this article or to the district court in any county.

i. Temporary assignments of all the foregoing judges or justices listed in this section, and of judges of the city courts pursuant to paragraph two of subdivision j of this section, shall be made by the chief administrator of the courts in accordance with standards and administrative policies established pursuant to section twenty-eight of this article.

j. (1) The legislature may provide for temporary assignments within the county of residence or any adjoining county, of judges of town, village or city courts outside the city of New York.

(2) In addition to any temporary assignments to which a judge of a city court may be subject pursuant to paragraph one of this subdivision, such judge also may be temporarily assigned by the chief administrator of the courts to the county court, the family court or the district court within his or her county of residence or any adjoining county provided he or she is not permitted to practice law.

k. While temporarily assigned pursuant to the provisions of this section, any judge or justice shall have the powers, duties and jurisdiction of a judge or justice of the court to which assigned. After the expiration of any temporary assignment, as provided in this section, the judge or justice assigned shall have all the powers, duties and jurisdiction of a judge or justice of the court to which he or she was assigned with respect to matters pending before him or her during the term of such temporary assignment.

These are some of the provisions to keep in mind whenever there is a change of judge.