Opinion 09-216

December 3, 2009

Digest:         A judge may explain to the parties why the judge has rejected a proposed plea agreement, as long as the explanation is based upon legitimate concerns and does not involve the judge in improper ex parte communications.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3; 100.3(B)(6); Opinions 09-13; 99-148 (Vol. XVIII); 91-39 (Vol. VII).

Opinion:

         A judge who presides in Vehicle and Traffic Law matters asks whether he/she may inform the parties who have proposed a plea agreement why he/she will not accept it.

         A judge must avoid impropriety and the appearance of impropriety in all the judge’s activities (see 22 NYCRR 100.2), must respect and comply with the law, 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 must perform the duties of judicial office impartially (see 22 NYCRR 100.3).

         In general, the Criminal Procedure Law governs the disposition of criminal charges. Should the inquiring judge determine that the law requires or permits him/her to reject a proposed plea agreement, the Rules Governing Judicial Conduct do not prohibit a judge from explaining to the parties and their counsel the reason(s) for his/her decision. However, when doing so, the judge must not engage in any improper ex parte communications (see 22 NYCRR 100.3[B][6]; Opinion 91-39 [Vol. VII]). And, the judge’s explanation must be based on legitimate concerns about the proposed disposition and must not be calculated to further the judge’s convenience or personal interest or otherwise create an appearance of impropriety or coercion (see generally Opinions 09-13; 99-148 [Vol. XVIII]).