Opinion 09-96

April 23, 2009

Digest:         A judge may consider a defendant’s criminal record and/or driver’s abstract during an arraignment for the purpose of setting bail if he/she is authorized to do so by law or if both the defense and prosecution have access to the same information. If a defendant’s criminal history and/or driving record is otherwise available, the judge should give copies to the defendant’s counsel or, if the defendant appears without counsel, to the defendant.

Rules:         Criminal Procedure Law §160.40(1),(2); §510.30(2)(a)(i)-(viii); Judiciary Law §212[2][l]; 22 NYCRR 101.1; 100.2; 100.2(A); 100.3(B)(6); 100.3(B)(6)(e); Opinion 09-137.

Opinion:

A town justice asks whether he/she would be engaging in an impermissible ex parte communication if he/she refers to a defendant’s criminal history and/or driving record during an arraignment for the purpose of setting bail. The judge also asks whether the fact that the prosecutor provides these documents or the judge him/herself acquires them independently is relevant to that issue.

A judge must avoid impropriety and the appearance of impropriety in all the judge’s activities (see 22 NYCRR 100.2). A judge must respect and comply with the law and 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]). A judge must accord to every person who has a legal interest in a proceeding, or that person’s lawyer, the right to be heard according to law, and shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties or their lawyers concerning a pending or impending proceeding (see 22 NYCRR 100.3[B][6]). However, a judge may initiate or consider any ex parte communication when authorized by law to do so (see 22 NYCRR 100.3[B][6][e]).

While a judge who reviews a defendant’s criminal record and/or driver’s abstract may be, in certain circumstances, engaging in an ex parte communication, it is permissible to do so if authorized by law (see Criminal Procedure Law §510.30[2][a][i]-[viii] [defendant’s criminal record is one factor court must consider when determining whether to set bail and amount of such bail]). However, whether a particular ex parte communication is authorized by law is a legal question that the Committee is not authorized to resolve (see Judiciary Law §212[2][l]; 22 NYCRR 101.1; Opinion 09-137). 

In any event, whether the judge obtains a defendant’s criminal or driving record directly from the issuing agency or from a law enforcement officer or a prosecutor, he/she can give a copy to a defendant’s counsel or to a defendant who appears without counsel (see e.g. Criminal Procedure Law §160.40[1], [2]). Thereafter, it is ethical for a judge to review such record(s) during an arraignment.