Opinion 07-104

December 6, 2007

Digest:         On the request of the District Attorney, acting as agent for a parole board, a judge who was a victim of a crime may, solely in his/her capacity as crime victim, provide a written statement expressing his/her views on whether the defendant should be released on parole.

Rules:          22 NYCRR 100.2(C); Opinions 99-07 (Vol. XVII); 97-92 (Vol. XVI).

Opinion:

         A full-time judge, whose chambers were burglarized by a person who pled guilty and is now incarcerated for the crime, inquires whether he/she may write a letter to the parole board at the request of the Assistant District Attorney. The letter would state the judge’s position on whether or not parole should be granted. The Assistant District Attorney has also asked that the judge state his/her “feelings at having someone familiar with the [court] premises burglarize [his/her] chambers.” The letter would be held in the District Attorney’s file until the parole board requests such input, when the inmate first becomes eligible for parole.

         A judge may not, at the request of a person involved in a criminal proceeding, voluntarily submit a letter or affidavit recommending a particular course of action by the agency involved. Such action could readily be perceived as using the prestige of judicial office to advance the private interests of another. 22 NYCRR 100.2(C); Opinion 97-92 (Vol. XVI). A judge may, however, respond to an official request by an agency for such information. In particular, the Committee has advised that a judge may respond to an official request by the Division of Parole for a statement and/or recommendation concerning an incarcerated person in the judge’s former capacity as the attorney for the inmate, provided that the response is based on the judge’s knowledge of the inmate and is designated “personal and unofficial.” Opinion 97-92 (Vol. XVI).

         Here, the Assistant District Attorney is acting as the agent of the Division of Parole in requesting the statement of the crime victim for use when the inmate first becomes eligible for parole. Compare Opinion 99-07 (Vol. XVII). The judge, in his/her capacity as the victim of a crime, may respond to this official request.

         Although the judge may mention relevant facts, such as the location of the crime (i.e., judicial chambers) and the judge’s feelings at having someone familiar with the court premises burglarize his/her chambers, the judge should take care to avoid the appearance that he/she is lending the prestige of judicial office to advance private interests. 22 NYCRR 100.2(C). However, the judge may use official letterhead for this communication because the crime was committed in his/her chambers and therefore, in these particular circumstances, the use of judicial stationery creates no appearance of misusing the prestige of judicial office.