Opinion 08-11

January 31, 2008

Digest:         A judge should not implement a procedure the District Attorney developed to facilitate defendants’ pleas to lesser charges in traffic matters that would eliminate the need for the District Attorney or a member of his/her staff to appear in the judge’s court.

Rules:           22 NYCRR 100.1; 100.2.; Opinion 99-82 (Vol. XVIII); 93-58 (Vol. XI).

Opinion:

         A judge asks if it is ethical to implement a procedure the District Attorney developed to facilitate defendants’ pleas to lesser charges in Vehicle and Traffic Law matters that would eliminate the need for the District Attorney or a member of his/her staff to appear in the judge’s court. The District Attorney wants court personnel to distribute printed materials describing his/her policy with respect to plea agreements. According to such policy, a defendant may plead to a lesser charge if warranted based on his/her driving record. The defendant’s driving record would be evidenced by a driver’s abstract produced by the court clerk.

         Pursuant to the Rules Governing Judicial Conduct, a judge must act to preserve the integrity and independence of the judiciary (see 22 NYCRR 100.1), and must avoid impropriety and the appearance of impropriety in all of his/her activities(see 22 NYCRR 100.2). In Opinion 93-58 (Vol. XI), the Committee advised that it is improper for a town justice to participate in a program devised by the District Attorney that directs the manner in which a judge may reduce charges in traffic infraction cases. Specifically, we concluded that “[a] district attorney is without authority to impose rules of procedure upon a court. To do so is an intrusion upon the independence of the judiciary and violates section 100.1 of the Rules of the Chief Administrator of the Courts” (id.). For the same reason, it would be improper for the inquiring judge to implement the District Attorney’s procedure for facilitating defendants’ pleas to lesser charges in Vehicle and Traffic Law matters.

         An Administrative Judge, however, may develop documents for informational purposes informing defendants charged with infractions and other minor offenses, including violations of the Vehicle and Traffic Law, “of the possibility of communicating directly with the district attorney, appropriate municipal attorney or other non-peace officer prosecutor for the purpose of negotiating a mutually acceptable disposition for submission to the court” (Opinion 99-82 [Vol. XVIII]).