Opinion 09-137

June 3-4, 2009

Digest:         Whether a judge who receives a defendant's plea of "not guilty" by mail to a Vehicle and Traffic Law charge may schedule a pre-trial conference is a question of law, not ethics, and thus beyond the Committee's jurisdiction.

Rules:          Judiciary Law 212(2)(l); Vehicle and Traffic Law §1806; Chapter 56 of the Laws of 2009 (as amended); 22 NYCRR 100.2; 100.2(A); 100.3(B)(1); 101.1; Opinions 08-223; 08-158; 08-19; Matter of Bregman, 1997 Annual Report 12 (Comm. on Judicial Conduct); Matter of Cavotta, 1996 Annual Report 13 (Comm. on Judicial Conduct).

Opinion:

         In light of a recent amendment to Vehicle and Traffic Law §1806 - and prior decisions by the New York State Commission on Judicial Conduct holding that a court must set a trial date immediately on receipt of a defendant's "not guilty" plea by mail - an Administrative Judge asks whether a judge may schedule a pre-trial conference after a defendant charged with violating the Vehicle and Traffic Law enters a plea of "not guilty."

         A judge must avoid impropriety and the appearance of impropriety in all the judge's activities (see 22 NYCRR 100.2). In addition, a judge must respect and comply with the law, 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]). And, a judge must be faithful to the law and maintain professional competence in it (see 22 NYCRR 100.3[B][1]).

         Pursuant to Chapter 56 of the Laws of 2009, the New York State Legislature amended Vehicle and Traffic Law §1806 to now require a court, upon receipt of a defendant's plea of "not guilty" by mail, to notify the defendant of an appearance date. Previously, Vehicle and Traffic Law §1806 required a court, receiving a "not guilty" plea by mail, to notify a defendant of a trial date.

         Based on the law prior to the 2009 amendment, the New York State Commission on Judicial Conduct held it was improper for a court that received a defendant's plea of "not guilty" by mail to schedule a pre-trial conference, noting the law required the court to set a trial date immediately after receiving a "not guilty" plea (see Matter of Bregman, 1997 Annual Report 12 (Comm. on Judicial Conduct); Matter of Cavotta, 1996 Annual Report 13 (Comm. on Judicial Conduct). The Commission said that scheduling a pre-trial conference instead of a trial is "an unnecessary burden" on defendants in minor infractions and "per se coercive" (id.).

         As the Rules Governing Judicial Conduct require a judge to respect and comply with the law (see 22 NYCRR 100.2[A]) and be faithful to it (see 22 NYCRR 100.3[B][1]; see also Opinions 08-223; 08-158; 08-19), a judge who now receives a defendant's plea of "not guilty" by mail must similarly comply with Vehicle and Traffic Law §1806. Whether a judge may now schedule a pre-trial conference pursuant to this statute, as amended, is a question of law that is beyond this Committee’s authority to answer (see Judiciary Law §212[2][l]; 22 NYCRR 101.1).

         However, as this Committee is charged with issuing opinions to judges concerning questions regarding ethical conduct (id.), it is the Committee's opinion that a judge who directs a pre-trial conference based upon controlling statutory language, per se acts ethically, even if an appellate court later reverses on the ground that the judge's statutory interpretation was erroneous (see 22 NYCRR 100.2[A]; 100.3[B][1]). Moreover, it is also the Committee's opinion that the Judicial Conduct Commission decisions in Bregman and Cavotta do not control judicial procedures implemented pursuant to Vehicle and Traffic Law §1806 (as amended by L 2009 ch 56) to the extent that it now appears to require judges to schedule a pre-trial appearance.