Opinion 09-105

April 23, 2009

Digest:         A judge may consider a plea agreement that is memorialized in a form prepared by the prosecutor as long as the form is legally permissible and complies with the Rules Governing Judicial Conduct and the Advisory Committee’s prior opinions concerning plea agreements.

Rules:          22 NYCRR 100.1; 100.2; 100.2(A); 101.1; Opinions 07-22; 00-95 (Vol. XIX); 99-82 (Vol. XVIII); 98-58 (Vol. XVI); 98-57 (Vol. XVI); 96-132 (Vol. XV).

Opinion: 

         A town justice asks whether it is ethically permissible to accept a plea agreement that is communicated to the court in a form document that the Town Prosecutor prepared, a copy of which he/she forwarded to the Committee for review.

         The Town Prosecutor uses the form to advise a defendant that/he she may resolve charges filed against him/her by completing the form to indicate either that he/she accepts or rejects the proposed plea agreement. According to the form, the defendant then must return the form to the court. If the defendant accepts the proposed plea agreement, the judge will either accept or reject it. If the former, the judge will impose a sentence that is authorized by law and so advise the defendant. If either the defendant or the judge rejects the proposed plea agreement, the judge will schedule a bench trial.

         A judge must uphold the integrity and independence of the judiciary (see 22 NYCRR 100.1). Therefore, a judge must avoid impropriety and the appearance of impropriety in all the judge’s activities (see 22 NYCRR 100.2) and must act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary (see 22 NYCRR 100.2[A]).

         In Opinion 96-132 (Vol. XV), the Committee advised that given the volume of cases pending in New York’s courts and the limited resources of the judiciary, the practice of offering a defendant the opportunity to plead guilty to a lesser charge in satisfaction of the offense with which he/she originally was charged is a common, even necessary, practice. However, the Committee further advised that the court should not initiate a plea agreement because doing so might indicate that the judge believes the defendant is guilty of some offense or is predisposed in favor of the prosecutor’s position (see id.). Nevertheless, it is not improper for a court to accept a form to memorialize a plea agreement, but should see the form only after the prosecutor and the defendant have reached an agreement and request the court’s approval of the agreement (see id.).

         The Committee cannot determine whether a particular form or procedure concerning plea agreements is legally sufficient, as doing so calls for a legal opinion that the Committee is not authorized to offer (see 22 NYCRR 101.1 [There shall be an Advisory Committee on Judicial Ethics to issue advisory opinions to judges and justices of the Unified Court System concerning issues related to ethical conduct, proper execution of judicial duties, and possible conflicts between private interests and official duties]). Further, the Committee declines to review individual forms or procedures to determine whether they comply with the Rules Governing Judicial Conduct. However, the Committee will respond to an inquiry about the ethical propriety of some aspect or provision of a particular form.

         Therefore, the judge in the present inquiry may accept the proposed plea agreement form if the judge determines that the provisions of the form are legally permissible and comply with the Rules Governing Judicial Conduct and the Committee’s prior opinions concerning plea agreements (see e.g. Opinions 07-22; 00-95 [Vol. XIX]; 99-82 [Vol. XVIII] 98-58 [Vol. XVI]; 98-57 [Vol. XVI]).